Foreseeable risk is an element in the determination of negligence, not legal duty. In order to determine whether appropriate care was exercised, the fact finder 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. Thus, courts should leave such determinations to the trier of fact unless no reasonable person could differ on the matter. And if the court takes the question of negligence away from the trier of fact because reasonable minds could not differ about whether an actor exercised reasonable care (for example, because the injury was not reasonably foreseeable), then the court's decision merely reflects the one-sidedness of the facts bearing on negligence and should not be misrepresented or misunderstood as involving exemption from the ordinary duty of reasonable care.
A kindergarten student was sexually assaulted in a school restroom during the school day and the student’s parents sued the school on his behalf, alleging that the school’s negligence permitted the assault to occur. The trial court entered summary judgment for the school, reasoning that the assault was not foreseeable.
In evaluating a negligence claim, is the question at trial whether the defendant’s conduct breached its duty to exercise the care that would be exercised by a reasonable person under the circumstances?
The question of whether a duty exists is a policy decision. Here, it is not disputed that the school owed the student a duty of reasonable care, but the question is whether the school breached that duty of care; that is, whether the assault was reasonable foreseeable, which involves a fact-specific inquiry into the circumstances that might have placed the school on notice of that possibility. The case is remanded for a determination of whether the school, under the facts and circumstances of the case, conducted itself reasonably.