A very brief opinion about the duty of a federal permittee. This is what happens to legal “thinking” when everyone is fixated on the Restatement.

Defendant ran cattle on Forest Service land. Plaintiff drove his motorcycle into Defendant’s fence and sued for injuries. Defendant moved for summary judgment, arguing that it had no duty of care. The trial court granted the motion.

The Court of Appeals reverses. Defendant cited Restatement 386: liability for creating on another’s land a condition which the creator “should recognize as involving an unreasonable risk of physical harm.” Defendant argued that this rests on foreseeability, that it no longer applies since Arizona no longer uses foreseeability to establish duty, and therefore it had no duty. The court says that Rest. 386 speaks of liability, not duty; it presupposes duty and merely ”describes the factual predicates for liability.” “Foreseeability under §386 is . . . relevant to whether the defendant is liable on the facts of a specific case [i.e., to breach of duty, presumably, though the court doesn’t say that], not to whether a bare legal duty exists.” “A contrary holding would lead to absurd results by immunizing permittees, no matter how negligent, from all liability to visitors on the land.”

So we have here a defendant that allegedly put up a fence in the middle of public property where people can ride vehicles. It argued that unless some particular section of the Restatement applies, it can do so without consequence. And the Court of Appeals agrees! Forget about analyzing duty, breach, and damages. That’s just a DIY project; we take our law prefabbed by the ALI: if 386 doesn’t apply, people are “immunized . . . no matter how negligent.” The Restatement creates, not merely restates, the law of Arizona. But if that is true, how could Arizona’s decision to stop using foreseeability “uncreate” it? (And since when have Restatement provisions had nothing to do with duty? In analyzing what the Restatement covers did anybody bother to read the parts of the Restatement that talk about what the Restatement covers? If they support you, wouldn’t it have been a good idea to cite them?)

Somebody once said that the Restatement is now “regarded as Holy Writ” (before you click the link searching for enlightenment, it was just us). That’s certainly the way these folks approached it: it is the font of all law but means whatever we say it does.

(Opinion: Johnson v. Almida)