Abstract
Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.
Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but to what extent remains a difficult question, despite numerous court clarifications over the years. Though seemingly simple on its face, contexts such as third-party and special-relationship liabilities complicate things. Exactly what level of foreseeability a plaintiff must allege remains largely an educated guess, and the law as it stands gives trial judges broad discretion to dismiss actions that seem outlandish, regardless of other considerations historically considered in negligence cases. If foreseeability were taken out of the duty inquiry and its existence and scope once more reunited, Washington could follow the growing number of jurisdictions adopting the Restatement (Third) of Torts approach. These steps would greatly clarify negligence in Washington and make the duty inquiry much more straightforward and predictable, allowing foreseeability to shine in considerations of breach and causation, where contemporary tort scholars suggest it belongs.
Recommended Citation
Leo Linder, Foreseeability and Duty in Washington Negligence Law: Leaving the Road Less Traveled By, 48 SEATTLE U. L. REV. 204 (2024).
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