On Feb 23, 7:20 am, "A Michigan Attorney" <miattor...@gmail.com> wrote:
> Ah, but *duty* is not the jury's decision -- it belongs to the judge
> (although if I were in charge, I would make it the jury's).
A very bad idea IMO, for the reasons elaborated below.
> Duty is a question of preventing a reasonably foreseeable injury.
Agreed; but, so is the question of "proximate causation", which is generally an issue for the jury. They are really just 2 sides of the same coin, separated more for procedural reasons than for any consistent semantic or philosophically logical purposes.
The judge's "duty" analysis is a preliminary or threhold one, undertaken upon an opponent's motion to dismiss or motion for summary judgment, to determine whether there is "enough" of a question of reasonable foreseeability that (bad event) X would happen, _and_ if so, whether it would be reasonably easy "enough" to have prevented X, if defendant did (or refrained from doing) Y. "Enough", that is, to allow the plaintiff's claim of negligence to be presented to and decided by the jury. In making that determination, the judge is obligated to find every disputed fact issue and every inference to be drawn from those facts, in FAVOR of the person who will ultimately have to bear the burden of proof at trial. All the judge's "duty" finding does is let the plaintiff's case move on past the dismissal hurdle, and eventually get to be presented to the jury for its decision.
Then, when the jury hears all the evidence at trial and gets to deliberate, they will do so pursuant to the judge's instructions that they should find the defendant liable in negligence IF they find it was reasonably foreseeable that X would happen if defendant did (or didn't) do Y, _and_ if doing (or refraining from doing) Y was something a reasonably prudent person (who was or should have been mindful of the possibility of X happening) would have done under all those circumstances. If the jury finds it was too farfatched that X would happen, or too costly or burdensome for defendant to do or refrain from Y, he is relieved of liability for X; but otherwise, he can be held financially responsible to the victim of X event for doing Y when he shouldn't have, or for not doing Y when he should have.
Do you see the difference? I don't, except that "duty" and "proximate cause" are filters applied at 2 different procedural levels, and with diffferent degrees of required deference to the ultimate factfinder. Sort of like the difference between a grand jury's preliminary finding of "probable cause" for bringing a criminal indictment (a concept COMPLETELY unrelated to that of "proximate cause" in tort, not to mix them up) and the petit jury's finding of "guilt beyond a reasonable doubt" after a full trial. Same body of facts, same principles, but different level of required proof based on different presumptions at each procedural level.
So, do you still think the jury alone should decide "duty"? If so, I submit that all you are asking for is the elimination of one of the pre-trial procedural "filters" that kick out most of the bum cases before they ever reach a jury. Do you really want every conceivable half-assed claim any creative claimant can think of, to have to be presented to a jury at a full blown, ridiculously expensive trial on the merits? I don't. Neither do "tort reformers" who want to cut down on individuals' civil right to a jury trial and with whom I otherwise abhor sharing my political bed. Who _does_ favor eliminating the present system's judicial filter that disposes of most frivolous cases (and probably prevents even more of them from being brought in the first place because potential litigants' lawyers _know_ they will be thrown out)? PS: you _are_ an attorney, right?
--
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Mike Jacobs
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