In its Del Sol decision, the New Mexico supreme court expressly endorsed the Restatement (Third) of Torts, holding that foreseeability—the same foreseeability used to determine whether a duty exists in countless premises liability cases—has no business being used that way.

Foreseeability, the court held, is a fact-based question relevant only to the question of whether a duty was breached.

Foreseeability is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations. What may not be foreseeable under one set of facts may be foreseeable under a slightly different set of facts. Therefore, foreseeability cannot be a policy argument because foreseeability is not susceptible to a categorical analysis.

While we all know (everyone, from babies to aliens) that foreseeability depends on the facts of a case, there has always existed a strange jurisprudential tension between this notion—and the practical reality that foreseeability is often decided by courts as a matter of law.

In Del Sol, New Mexico’s highest court said “that makes no sense.” (I’m paraphrasing). The court properly removed the question of foreseeability from judges’ hands, and placed it squarely with the jury.

Like all good cases bringing the duty issue to the fore, Del Sol involved a domino-style catastrophic set of facts that was so unbelievable it had to be real.  A driver suffered a seizure shortly after his vehicle started accelerating due to a mechanical issue.  In a series of tragic events, his truck traveled over a curb, missed a pillar, and crashed into the glass wall of a clinic located in the shopping center.  People were injured; some severely. And some died.

Victims sued the shopping center in which the tragedy occurred, alleging that the center should have done more to prevent what happened, including, for example, placing additional physical barriers that would have prevented the vehicle from making its way into the clinic’s glass wall.

In the lower courts, the primary question was viewed as one of whether a duty even existed—Was the course of events, they pondered, foreseeable to the shopping center? Was what happened so foreseeable that courts should impose a duty to have prevented it?

The meta-question raised (and which extends to all premises liability cases deciding foreseeability under the rubric of duty) is whether a judge should have that kind of power: the power to end a case at the outset based on the judge’s own view that a given outcome was unforeseeable to the defendant.

Naturally, this implicates all sorts of issues of justice, jurisprudential integrity, diversity of perspective, and, well . . . fairness.

The New Mexico supreme court decided to take the mic.

In a well-reasoned and intellectually honest opinion, the court acknowledged the tangles in the string of premises liability cases and it expressly declared that it would no longer be participatory.  Instead, the court made clear that it is time to decouple foreseeability from the question of duty.  See also Marshall v. Burger King Corp., 856 N.E.2d 1048 (Ill. 2006) (which the court cited as an example of another that “correctly resisted the effort to conflate a breach-of-duty analysis with the duty analysis.”).  It followed the Restatement (Third) of Torts and relegated the question of foreseeability to a different location—breach.

And it did so rightly.  Brenna Gaytan, The Palsgraf “Duty” Debate Resolved: Rodriguez v. Del Sol Moves to a Foreseeability Free Analysis, 45 New Mexico L. Rev. 753, 767 (2015).

Foreseeability cannot be other than a fact-based question. See Alani Golanski, A New Look at Duty in Tort Law: Rehabilitating Foreseeability and Related Themes, 9 Albany L. Rev. 227, 232 (2012). Inserting the question of foreseeability into the analysis of duty makes no sense because in premises liability cases, the existence of duty has already been determined.  Whether a duty exists on the part of owners and occupiers of land is a policy question—and the core answer, reflected in hundreds of years of case law, is yes.  These cases make clear that while there generally exists no duty to act in the aid of another, in owner and occupier of land cases the law is willing to impose just such a duty. The question is one of broad policy—not of individual example.

The duty is already there.

Yet, strangely, courts (presumably under Cardozo’s wise guidance) have engaged in a practice of weighing evidence, considering particular facts, and making individualized determinations as to the existence of duty in individual cases.  There can be no real denying that when a case comes down the galley in which a judge is reluctant to impose liability, these judges have declared it to be matter of law that the tragic outcome was unforeseeable.  The mechanism for disposing of these cases at the summary judgment stage—or even earlier—has been to pose the question of duty, tack on the precise facts that make this case more “special” than others, and then answer the question as though it were a new one.

By so doing, these courts have not been deciding laws. They have been dictating outcomes.

Powerfully, in Del Sol the court declared that no more would courts be permitted free reign to decide cases based on their own assessment of what was foreseeable. A judge’s own call on foreseeability goes against the rules.  As stated in Del Sol:

Courts should not engage in weighing evidence to determine whether a duty of care exists or should be expanded or contracted—weighing evidence is the providence of the jury.

When judges decide cases in this way, the law becomes a reflection of their own views instead of the community’s. As the court emphasized:

Foreseeability determinations are reserved for a jury because such determinations require the jury’s common sense, common experience, and its consideration of community behavioral norms.

The court tacitly acknowledged the importance to issues of diversity and inclusion of leaving jury questions to juries—and hinted at some of the societal implications of failing to do so in its discussion of breach and causation. The court elaborated on the proper mindset to be adopted in those rare instances in a verdict would be directed:

The determination requires judges to abandon their own personal thoughts regarding the merits of cases and to imagine the thoughts of twelve adult citizens from a variety of socioeconomic backgrounds—such as scientists, college faculty, laborers, uneducated, rich, poor, persons with different political persuasions—and what that diverse group might find regarding the merits of a case.

They then dropped the mic.

To the extent the Del Sol approach is adopted by other jurisdictions—which it should be—one implication is that the red herring that is the targeted-crime defense becomes weakened. Cf. Gaytan, supra at 777.  For violent crime victims in premises liability cases, under Del Sol it will no longer constitute a viable ‘out’ at the summary judgment stage for a proprietor to claim that an attack was a targeted one, and that it was, as such, ipso facto unforeseeable. Instead, Del Sol supports the view that without regard to whether a victim was targeted, the question of foreseeability, and the question of whether reasonable action was taken based thereon, remains squarely, always, a jury question.

In short, Del Sol supports the view that whether an attack was foreseeable remains a fact question for the jury—even in cases involving targeted crimes.

[W]e clarify and expressly hold that foreseeability is not a factor for courts to consider when determining the existence of a duty, or when deciding to limit or eliminate an existing duty in a particular class of cases.

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