IOWA SUPREME COURT ADOPTS THE DUTY ANALYSIS ADVOCATED BY THE RESTATEMENT (THIRD) OF TORTS

Swerving to avoid an unanchored trampoline that sailed onto a gravel road during a thunderstorm, Charles Thompson’s car ran into a ditch and rolled several times. But when Thompson sued the nearby homeowners, James Kaczinski and Michelle Lockwood, for negligence in not properly securing the recreational equipment, the trial judge – using traditional foreseeability analysis – ruled that the defendants owed no duty to Thompson.

Adopting § 7 of the Restatement (Third) of Torts, the Iowa Supreme Court reversed.

The new Restatement expressly rejects using foreseeability as a factor in reaching a no-duty determination negligence cases. Instead, § 7(a) of the new Restatement says:

“An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.”

With § 7(a), the Iowa Supreme Court explained, “in 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.”

According to § 6, “An actor whose negligence is a factual cause of physical harm is subject to liability for any such harm within the scope of liability, unless the court determines that the ordinary duty of reasonable care is inapplicable.”

This, the Iowa Supreme Court recounted, means that:

“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.

“However, in exceptional cases, the general duty to exercise reasonable care can be displaced or modified. An exceptional case is one in which an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases.

“In such an exceptional case, when the court rules as a matter of law that no duty is owed by actors in a category of cases, the ruling should be explained and justified based on articulated policies or principles that justify exempting such actors from liability or modifying the ordinary duty of reasonable care.”

Turning to the question of foreseeability, the Iowa Supreme Court continued:

“The drafters 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.’” Thompson v. Kaczinski, 2009 WL 3786631 (Iowa) (November 13, 2009).

Here are highlights of the Iowa Supreme Court’s opinion on the modern approach to no-duty analysis (with omissions not noted in the quoted text):

Our cases have suggested three factors should be considered in determining whether a duty to exercise reasonable care exists: (1) the relationship between the parties, (2) reasonable foreseeability of harm to the person who is injured, and (3) public policy considerations.

Our previous decisions have characterized the proposition that the relationship giving rise to a duty of care must be premised on the foreseeability of harm to the injured person as a fundamental rule of negligence law.

The factors have not been viewed as three distinct and necessary elements, but rather as considerations employed in a balancing process.

In the end, whether a duty exists is a policy decision based upon all relevant considerations that guide us to conclude a particular person is entitled to be protected from a particular type of harm.

The role of foreseeability of risk in the assessment of duty in negligence actions has recently been revisited by drafters of the Restatement (Third) of Torts.

“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) (2005).

Thus, in 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. § 6 cmt. f.

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.” § 7 cmt. a.

However, in exceptional cases, the general duty to exercise reasonable care can be displaced or modified. Id. § 6 cmt. f, at 81-82. An exceptional case is one in which “an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases.” Id. § 7(b), at 90.

In such an exceptional case, when the court rules as a matter of law that no duty is owed by actors in a category of cases, the ruling “should be explained and justified based on articulated policies or principles that justify exempting [such] actors from liability or modifying the ordinary duty of reasonable care.” § 7 cmt. j.

Reasons of policy and principle justifying a departure from the general duty to exercise reasonable care do not depend on the foreseeability of harm based on the specific facts of a case. Id.

“A lack of foreseeable risk in a specific case may be a basis for a no-breach determination, but such a ruling is not a no-duty determination.” Id.

The assessment of the foreseeability of a risk is allocated by the Restatement (Third) to the fact finder, to be considered when the jury decides if the defendant failed to exercise reasonable care.

“Foreseeable risk is an element in the determination of negligence. In order to determine whether appropriate care was exercised, the factfinder must assess the foreseeable risk at the time of the defendant’s alleged negligence.

“The extent of foreseeable risk depends on the specific facts of the case and cannot be usefully assessed for a category of cases; small changes in the facts may make a dramatic change in how much risk is foreseeable. Courts should leave such determinations to juries unless no reasonable person could differ on the matter.” Id. at 97-98.

The drafters 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 district court clearly considered foreseeability in concluding the defendants owed no duty in this case. When the consideration of foreseeability is removed from the determination of duty, as we now hold it should be, there remains the question of whether a principle or strong policy consideration justifies the exemption of Kaczinski and Lockwood – as part of a class of defendants – from the duty to exercise reasonable care.

We conclude no such principle or policy consideration exempts property owners from a duty to exercise reasonable care to avoid the placement of obstructions on a roadway. In fact, we have previously noted the public’s interest in ensuring roadways are safe and clear of dangerous obstructions for travelers:

“While an abutting landowner is not liable with respect to highway hazards over which he has no control, he is under an obligation to use reasonable care to keep his premises in such condition as not to create hazards in the adjoining highway. He must conduct operations on his land in such a manner as not to injure the highway traveler.” Weber v. Madison, 251 N.W.2d 523 (Iowa 1977).

Accordingly, we conclude the district court erred in determining Kaczinski and Lockwood owed no common law duty under the circumstances presented here.