A New Way of Looking at Duty and Causation

The Iowa Supreme Court has released an opinion in Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009) and adopted the Restatement (Third) of Torts approach to both duty and causation. The case arose after  "a motorist lost control of his car on a rural gravel road and crashed upon encountering a trampoline that had been displaced by the wind from an adjoining yard to the surface of the road. He and his spouse sued the owners of the trampoline."  The lower court dismissed the case, holding that the defendants did not owe a duty to the plaintiffs and that causation did not exist as a matter of law.

“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liab. for Physical Harm § 7(a), at 90 (Proposed Final Draft No. 1, 2005).  As the Court explained, "

[I]n most cases involving physical harm, courts “need not concern themselves with the existence or content of this ordinary duty,” but instead may proceed directly to the elements of liability set forth in section 6. Id. § 6 cmt. f, at 81. The general duty of reasonable care will apply in most cases, and thus courts “can rely directly on § 6 and need not refer to duty on a case-by-case basis.” Id. § 7 cmt. a, at 90.

The Court went on to explain that 

The drafters [of the Restatement] acknowledge that courts have frequently used foreseeability in no-duty determinations, but have now explicitly disapproved the practice in the Restatement (Third) and limited no-duty rulings to “articulated policy or principle in order to facilitate more transparent explanations of the reasons for a no-duty ruling and to protect the traditional function of the jury as factfinder.” Id. at 98–99. We find the drafters’ clarification of the duty analysis in the Restatement (Third) compelling, and we now, therefore, adopt it.

The Iowa Court then had to confront the issue of causation and once again turned to the Restatement (Third) to clarify its law on the issue.   In the Restatement, 

the drafters have opted to address factual cause and scope of liability (proximate cause) separately. Restatement (Third) ch. 6 Special Note on Proximate Cause, at 575. The assessment of scope of liability under the Restatement (Third) no longer includes a determination of whether the actor’s conduct was a substantial factor in causing the harm at issue, a question properly addressed under the factual cause rubric. See id. § 27 cmt. j, at 427–29. 

Most importantly, the drafters of the Restatement (Third) have clarified the essential role of policy considerations in the determination of the scope of liability. “An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Id. § 29, at 575. This principle, referred to as the “risk standard,” is intended to prevent the unjustified imposition of liability by “confining liability’s scope to the reasons for holding the actor liable in the first place.” Id. § 29 cmt. d, at 579–80.

So the facts, did the landowners have a duty to the motorist?  Yes, under the Restatement test they had a duty to protect others from a risk of foreseeable harm.  Should the case have dismissed on the causation issue?

We conclude the question of whether a serious injury to a motorist was within the range of harms risked by disassembling the trampoline and leaving it untethered for a few weeks on the yard less than forty feet from the road is not so clear in this case as to justify the district court’s resolution of the issue as a matter of law at the summary judgment stage. A reasonable fact finder could determine [defendants] should have known high winds occasionally occur in Iowa in September and a strong gust of wind could displace the unsecured trampoline parts the short distance from the yard to the roadway and endanger motorists. Although they were in their home for several hours after the storm passed and approximately two-and-a-half hours after daybreak, Kaczinski and Lockwood did not discover their property on the nearby roadway, remove it, or warn approaching motorists of it. On this record, viewed in the light most favorable to the Thompsons, we conclude a reasonable fact finder could find the harm suffered by the Thompsons resulted from the risks that made the defendants’ conduct negligent.

I would urge my fellow tort law lovers to read this opinion.  Many of you who are also Tennesseans would note that the approach to duty adopted by the Iowa Supreme Court is one that Chief Justice Janice Holder has (unsuccessfully) urged on her colleagues at the Tennessee Supreme Court for many, many years. For but one example, read then-Justice Holder’s dissent  in Hale v. Ostrow, 166 S.W. 3rd 713 (Tenn. 2005).

Thanks to Torts Prof for bringing this opinion to my attention.


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