From: Volokh, Eugene <VOLOKH@law.ucla.edu>
To: obligations@uwo.ca
Date: 08/07/2022 15:58:28 UTC
Subject: RE: Kinsey identifying dissident for Saudi government isn't negligent

I agree that courts should indeed consider that, but wouldn’t no-duty rules be the normal home for that, rather than foreseeability?  Yes, the harm is foreseeable in all these cases, including telling the Saudis who the dissident is, and telling a man that his wife or girlfriend is cheating on him – the question is whether, in part because of the possible social value in such actions or communications, we should as a matter of law preclude liability even for foreseeable harms that stem from such behavior.

 

Eugene

 

 

From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: Friday, July 8, 2022 8:51 AM
To: Volokh, Eugene <VOLOKH@law.ucla.edu>; obligations@uwo.ca
Subject: Re: Kinsey identifying dissident for Saudi government isn't negligent

 

Doesn't foreseeability / causation have added to it an element of wrongdoing or unjustifiedness (what the French call "faute")? In most cases this isn't a serious issue. Risking other people's lives by driving too fast, or forgetting that you left a scalpel in, rather than on, a patient's leg, is obviously unjustified, so we can go straight to issues of foreseeability. But sometimes justification rears its head. You can play baseball even if you know there's a smallish chance that a ball will leave the park and indent an innocent party's head : the fact of that foreseeability won't make you liable (see the English golden oldie of Bolton v Stone [1951] AC 850). Handling hand grenades or ninja throwing stars with exactly the same degree of foreseeability of injury, by contrast, will make you liable. I suspect this is the best way to deal with justification and similar issues: is there some appreciable value in leaving the defendant free to do what he did?

Andrew

 

On 08/07/2022 16:36, Volokh, Eugene wrote:

I appreciate the point, and the James Caan connection.  But I’m still puzzled about the “normally happens” point.  What normally happens when I violate a traffic law?  Nothing (thankfully!).  But one time in ten thousand there might be an accident that causes damage (usually to property, not to a person).  This is what satisfies the proximate cause element should an accident happen and I be sued for it, right?  If so, wouldn’t telling someone that his wife or his girlfriend is cheating on him (even absent knowledge that the person is especially prone to anger) likewise be a foreseeable cause of any attack (likely not murder, but maybe a punch or a slap or perhaps even just damage to her property) that might happen.

 

Eugene

 

From: Gregory C. Keating <gkeating@law.usc.edu>
Sent: Friday, July 8, 2022 8:28 AM
To: Volokh, Eugene <volokh@law.ucla.edu>; obligations@uwo.ca
Subject: RE: Kinsey identifying dissident for Saudi government isn't negligent

 

With apologies for returning to this earlier comment, I agree that you could treat this as a matter of duty, but I think you can also treat it as a matter of foreseeability. American tort law has two basic ways of conceiving of foreseeability. One way is the Hand Formula way. Foreseeability is just the probability of some event happening – for some reference class that, intuitively, we think we know. But there is another, older, but still vibrant, way of thinking about foreseeability. That other way is embodied in average reasonable person doctrine, and it asks, basically, what we expect to happen. In this case it asks how we expect the informed spouse to react. This tends to anchor the inquiry into foreseeability around what “normally happens”. I can imagine a court saying that “normally, a spouse informed of their spouse’s infidelity doesn’t physically attack the spouse or their lover.” That might lead them to say “not foreseeable as a matter of law”. Of course, I can also imagine a court leaving it to the jury. Either way, the point is the same: what’s foreseeable looks different when you view it through the prism of ARP doctrine, rather than through the prism of the Hand Formula.

 

  At the risk of going down a rabbit hole, I think you can close the gap between the two framing devices if you do ask the “reference class” question in the course of applying the Hand Formula. When you do, I think you suspect that it matters what the circumstances are and who the spouse is. Some spouses are far more violent than others, and some circumstances ignite violence more than others. As I tread this path, I find myself thinking that the person disclosing the information should ask themselves “who am I dealing with here?” That’s an ARP-like question.

 

  James Caan’s death was reported yesterday. I doubt that I’m the only person wo found himself thinking about his great portrayal of Sonny Corleone in the first Godfather movie. Of course, Sonny’s temper ran so hot that his sister wanted to conceal the fact that Carlo, her spouse, had beaten her. If you’re telling Sonny it’s not just foreseeable that violence will ensue, it’s almost certain. As his enemies knew when they set up the trap at the tollbooth.

 

Gregory Keating | USC Gould School of Law
Pronouns: he/him/his
William T. Dalessi Professor of Law and Philosophy
University of Southern California | 699 Exposition Blvd, Los Angeles, CA 90089-0071
Tel: 213-740-2565 | Fax: 213-740-5502 | gkeating@law.usc.edu | https://gould.usc.edu/

USC Gould School of Law

 

From: Volokh, Eugene <VOLOKH@law.ucla.edu>
Sent: Thursday, July 7, 2022 8:15 PM
To: obligations@uwo.ca
Subject: RE: Kinsey identifying dissident for Saudi government isn't negligent

 

I agree that speech might make this special – but wouldn’t the rubric for this have to be a limitation on duty, rather than foreseeability?

 

After all, if I’m violating a traffic law and get into an accident, the accident would be seen as foreseeable even though, thankfully, I likely get into an accident only a tiny fraction of the times I violate a traffic law.  (I expect I violate some other traffic law several times every day, but I only get into [minor] accidents once every several years, so we’re talking of a probability of likely 0.01% per violation.)  Wouldn’t the probability that a man told of his wife’s infidelity would attack her or her lover be higher?  (Note that I just said “attack,” not, say, kill – for foreseeability, there would just have to be a sufficiently foreseeable likelihood of some physical attack.)

 

Eugene

 

From: Gregory C. Keating <gkeating@law.usc.edu>
Sent: Thursday, July 7, 2022 6:16 PM
To: Volokh, Eugene <volokh@law.ucla.edu>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca
Subject: RE: Kinsey identifying dissident for Saudi government isn't negligent

 

Speech always presents a special issue of responsibility. Speech never causes harm purely as a matter of physics (though noise can). The person spoken to has to act on what they are told. In principle, you might think that someone who just tells someone else something is never responsible for subsequent harm by or to the person spoken to. You might view the decision of the person spoken to as a superseding cause of harm in all cases. If you pushed this position far enough, though, even fraud might not exist as a tort. The reasons why we don’t take such an absolute view are, no doubt, diverse, but here your original question with its analogy to negligent entrustment picks out one relevant circumstance. Sometimes information seems more like a tool or instrument enabling someone to do something wrong than like a tool that enables them to decide for themselves what they wish to do. The agency of the person spoken to does not arise as a significant issue when information is just a tool that enables that person to commit a wrong that are intent on committing but otherwise could not. In between “information-to-be-processed-by-the-person-spoken-to” and “instrument” lie cases of intentionally or negligently inducing someone to do something harmful to themselves or others.

 

I haven’t studied the opinion so I haven’t made up my mind how close to the line this case is. Your examples below, though, strike me as cases where it’s possible, but not normal, for the disclosure of the information to lead to the wrongful harm.  The wrongful harm is foreseeable, but is it reasonably foreseeable? Negligently entrusting someone with a gun involves a higher probability of harm, I think.

 

Greg Keating | USC Gould School of Law
William T. Dalessi Professor of Law and Philosophy
University of Southern California | 699 Exposition Blvd, Los Angeles, CA 90089-0071
Tel: 213-740-2565 | Fax: 213-740-5502 | gkeating@law.usc.edu | https://gould.usc.edu/

 

From: Volokh, Eugene <VOLOKH@law.ucla.edu>
Sent: Thursday, July 7, 2022 5:20 PM
To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Neil Foster <neil.foster@newcastle.edu.au>; obligations@uwo.ca
Subject: RE: Kinsey identifying dissident for Saudi government isn't negligent

 

I agree, but I think the concern may go beyond that.  Say I tell a man that his wife is cheating on him, and he foreseeably attacks her (or her lover).  Would I be liable for negligence?

 

Or say that a woman tells her boyfriend that someone had raped her (or otherwise mistreated her), and he foreseeably attacks the attacker.  Would she be liable for negligence?

 

Eugene

 

 

From: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>
Sent: Thursday, July 7, 2022 2:29 AM
To: Neil Foster <neil.foster@newcastle.edu.au>; Volokh, Eugene <VOLOKH@law.ucla.edu>; obligations@uwo.ca
Subject: Re: Kinsey identifying dissident for Saudi government isn't negligent

 

I remain a bit worried. I'm not sure about a duty to steer clear of dealing with, or providing services to, dodgy governments. Would / should a purveyor of arms to the Saudis face possible liability to a hapless Yemeni citizen in Sana'a?

Andrew

On 07/07/2022 01:36, Neil Foster wrote:

Dear Eugene;

This is a fascinating question- I may use it in teaching duty of care this semester! Under the current Australian approach to duty of care, there is a principle that still seems to be relevant which was referred to by McHugh J in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1:

 

Ordinarily, people owe a duty of care to other persons when they know or ought reasonably to foresee that their conduct may cause physical damage to those persons or their property. Reasonable foreseeability of physical harm is generally enough to impose a duty of care on a person who knows or ought reasonably foresee that physical harm is a likely result of his or her conduct. (at 36-37)

 

A rough simplification of the law would seem to be: if you cause personal bodily injury to someone which you could have foreseen as a real possibility beforehand, then you will probably be liable for negligence unless

•          You were authorized to do so by some statute ;

•          The harm you caused resulted from a failure to do something (an omission [non-feasance] rather than a commission [misfeasance]);

•          The harm was caused by the actions of some other responsible actor whom you failed to control;

•          Holding you liable would cut across principles of liability in some other well-established area of liability.

 

These “policy” reasons for denying a duty do not seem to be present here, in that as you say it is not alleged that McKinsey failed to control the Saudis, simply that they revealed information which foreseeably led to a Saudi reaction. At least this would possibly apply to any direct physical harm caused to Mr Abdulaziz. However, there may be some other over-riding principles at stake- perhaps free speech? But that is not strongly protected in Australia. We do have a decision in Australia that even the common law doctrine of “act of state” (courts will not usually pass judgment on the actions of foreign governments) does not provide an immunity from suit where acts of torture are alleged: Habib v Commonwealth of Australia [2010] FCAFC 12 (25 February 2010) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2010/12.html . So an argument could be made.

Regards

Neil

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

College of Human and Social Futures

 

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From: Eugene Volokh <VOLOKH@law.ucla.edu>
Date: Thursday, 7 July 2022 at 3:57 am
To: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Kinsey identifying dissident for Saudi government isn't negligent

 

So the Second Circuit held yesterday in Abdulaziz v. McKinsey & Co., Inc., https://www.courthousenews.com/wp-content/uploads/2022/07/abdulaziz-mckinsey-ca2.pdf, concluding that McKinsey as a matter of law lacked a duty of care under New York law, largely on the grounds that “[g]enerally, there is no ‘duty to control the conduct of third persons to prevent them from causing injury to others.’”  (“Abdulaziz pled that, after receiving the report, the Saudi government responded by targeting him with assassination attempts and arrested, tortured, and harassed his family members and friends currently living in Saudi Arabia.”)

 

But I wonder whether this is quite right:  Plaintiff was suing McKinsey not for its failure to control the Saudi government, but for its own actions in providing information to the Saudi government that allegedly helped cause the injury to him.  The court deals with this by saying,

 

Other than the foreseeability of risk, Abdulaziz provides no reason why sharing the report was itself a breach of a cognizable duty of care running from McKinsey to Abdulaziz, and he fails to distinguish such a putative duty from similar ones rejected by New York courts. See Valeriano v. Rome Sentinel Co., 842 N.Y.S.2d 805, 806 (4th Dep’t 2007) (no duty not to publish another’s personal information absent a “statutory, contractual or fiduciary duty to protect the confidentiality of plaintiff’s personal information”). Thus, even if McKinsey knew or should have known that the Saudi government would target Abdulaziz after learning of his dissident activity from the report, Abdulaziz has not plausibly alleged a breach of a duty of care cognizable under New York law.

 

But Valeriano dealt only with the alleged harm of publishing personal information as such (New York doesn’t generally recognize privacy torts); here, the claim is of harm stemming from the alleged assassination attempts and physical injury to family members and friends – perhaps not recoverable under another theory, but not quite the same as Valeriano, I think.

 

My question:  If I give someone a gun, when I should have known that he was likely to use it for criminal purposes, I’d be guilty of negligence, under a negligent entrustment, theory.  If I give someone information, when I should have known that he was likely to use it for criminal purposes, wouldn’t this likewise be a presumptively valid negligence claim, though with a possible First Amendment defense, or a possible no-duty rule stemming from the special status of information, and not from a “no duty to control third parties” theory?  Or am I analyzing the case incorrectly?  Thanks,

 

Eugene Volokh

UCLA School of Law

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Andrew Tettenborn
Professor of Commercial Law, Swansea University

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School of Law, University of Swansea
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Phone 01792-602724 / (int) +44-1792-602724
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Ysgol y Gyfraith, Prifysgol Abertawe
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Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
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See us on Twitter: @swansea_dst
Read the IISTL Blog: iistl.wordpress.com
My publications can be found here and here and here
Member of the Heterodox Academy and member and adviser of the Free Speech Union

 

 

Disclaimer: This email (including any attachments) is for the use of the intended recipient only and may contain confidential information and/or copyright material. If you are not the intended recipient, please notify the sender immediately and delete this email and all copies from your system. Any unauthorized use, disclosure, reproduction, copying, distribution, or other form of unauthorized dissemination of the contents is expressly prohibited.