Consider first a duty standard that includes the foreseeability
component: when the underlying facts indicate that a harmful outcome was generally
foreseeable, the pull is in favor of the lawsuit’s surviving the initial judicial oversight. When,
on the other hand, harm was not foreseeable, the judge will tend to conclude there is no duty;
but even if the judge concludes otherwise, the case will be eliminated at a later stage, namely,
during the breach-of-duty or proximate-cause determination.