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Duty, Scope of Liability, and Proximate Cause a.Intro to Proximate Cause i. ALWAYS CONSIDER POLICIES ON EVERY PC ISSUE:
1. Courts want to make sure that all wrongdoers are deterred and especially those that are in the best position to avoid the harm. Sometimes this notion can explain why courts permit (or not) recovery for economic harm
2. Courts seek a way to cut off liability that can be applied in a principled way. Sometimes leads to bright-line rules (as in Ryan and Dillon)
3. Courts seeking to avoid "limitless liability" and provide a way for Ds to predict their exposure to liability. Leads to strong focus on forseeability of Ps and notion of "particular forseeability" as in People's Airline. ii. No single test to determine if D's actions were the proximate cause of P's harm as it is usually a policy factor, allowing P's to recover when it seems right and not when it doesn't etc. i. Background Rule, Harm Within the Risk: D's negligent is the proximate cause of P's injury if it increases the risk of harm that happens to P.
1. If negligence increases the risk? May be PC, go to Forseeability questions below a. In general, the closer in time and space, the more forseeable it is
2. If negligence does NOT increase the risk, DV for D (Berry; Price)
1. iii. Prox Cause (no intermediate actor):
1. Is some harm to the particular P forseeable? If no, DV for D (Palgraf) a. If yes, go to #2 (Palsgraf) b. If harm was emotional, use Zone of Danger or Dillon to identify forseeable P i. Dillon: ii. Plaintiff must be located near scene of the accident iii. Shock must have resulted from diret emotional impact upon the P from the sensory and contemptuous observance of the accident iv. Plaintiff and victim must have been closely related v. Zone of Danger: Close proximity to the accident, in immediate apprehension of contact c. If harm is purely economic, P has to be Note policy behind these forseeable in a particularistic kind of rules: provide a means way (People's Airline)- not endorsed for D to be able to by all jurisdictions- Must discuss the predict, to some degree, policy concerns behind pure economic the scope of liability it harm of; i. No Fraud ii. Connecting Ps and Ds through forseeablity iii. No unlimited liability
2. Is the extent of harm to the forseeable P forseeable? Does not matter? P is liable for full extent of the injuries (Polemis)
3. Is the type of harm that happened to the forseeable P very different from what made D negligent? Case-by-case exception- if so, not liable (Wagon-Mound) a. P will always try and characterize the harm suffered as different extent of harm b. D will always try and characterize the harm suffered as different type of harm (not of the same general sort and not from the same forces) i. Consider things like directness of harm and whether D is otherwise deterred.
1. Many of these cases will go to the jury
iv. Prox Cause (intermediate actor) [Assuming Above Forseeability Rules are Met]
1. Restatement: Does not matter whether D2 is intentional, negligent, criminal etc. as long as it is a harm within the risk a. If D2 is harm within the risk of D1's negligence?intervening actor i. If not, ? superseding actor
2. D1 can get off the hook by "capping their risk" (making it relatively safe) (Price). Therefore, any harm that is done to her after the risk is capped is not a result of D's negligence increasing the probability of risk to her
3. Or, D1 can get off the hook if somehow it gets into reasonably safe hands (Horton)
4. If D violated a statutory duty that was atleast partially aimed at the harmed caused by a potential superseding actor- probably going to be PC (Ross) v. What if there is a struggle to find a line between personal injury and property damages on one hand and pure economic and emotional harm on the other?
1. Courts may take the opportunity to cut off liability when the kind of harm that is being claimed shifts from physical to pure economic or emotional losses as in In re Kinsman
2. In context of economic or emotional harm, look for situations where no other deterrence (Oppen-nobody to collect on behalf of fish) or where court can be satisfied of "particular forseeability" (People's Airline and Amaya (Zone of D)/Dillon (Rules)) in which case court may be persuaded to send to jury on proximate cause question vi. Berry v. Sugar Notch Borough (p.450)
1. Plaintiff was traveling on the Borough of Sugar Notch. The ordinance of the borough had a speed limit of eight mph and plaintiff was going faster than that. Plaintiff was driving on the burrough in a violent windstorm, and his car was crushed by a tree that blew down while he was under it. P sued the borough, D asserted P's speed was the cause of the injury. a. P's speeding was definitely a but for cause of the accident: if he was not going the exact speed he was the tree would have never fallen on him i. However, there are risks associated with certain kinds of negligence (risks associated with speeding) and being hit by fallen trees is not one of them
ii. P's breach of the safety statute was not casually connected with his injuries because the breach did not increase the risk or the hazard of him being struck
1. If you can prove your negligence is no way associated with the harm, and D is definitely negligent, you get a directed verdict. (P's want to make a case a Berry case).
2. Statutes gives us an idea of what risks the particular type of negligence is trying to prevent, we can use it to say P's negligence did not increase or contribute to the chance of the harm. He is not comparatively negligent.
3. Holding: P gets to recover. "Berry Rule": Was P's injury a harm within the risk of D's negligence? If yes, proximate cause. If no, (or if D's actions did not increase risk to P), no proximate cause vii. Ryan v. New York Central RR (p.446)
1. Sparks flew from the defendant's railroad and lit the defendant's woodshed on fire, and then it spread to the plaintiff's hose and other houses. a. Ryan Court adopts a bright-ine rule that says that D is responsible to pay for the destruction of the first building
[proximate cause] (which just so happens to be his) and is not responsible for how it spreads after that. i. Ryan court sort of modifies Berry, by first asking if it was a harm within the risk of D's negligence; but even if it is, is it too remote?
1. Third Restatement endorses the Berry outcome
2. Fork: Ryan court adopted a bright-line rule. Other courts disagree and analyze it on a case-by-case basis. a. i.e. Milwaukee & St Paul RR v. Kellogg: The Supreme Court rejected Ryan's view b. Bottom Line: Proximate cause is about policy, there is nothing magic about it, use past cases to predict future cases.
b.Other People's Negligence as a Harm Within the Risk i. When you create a risk by being negligent, you can reasonably forsee other people being negligent (dropping a cig, lighting a spark), and contributing to your risk
All of these cases are about the defendants being jointly and severally liable, but D2 has no money to recover from D1?D2?P
1. Courts are sometimes reluctant to allow recovery from D1 when D2's act is intentional or criminal. Negligence, in a large measure, is reasonably anticipating other's actions (won't be thinking about arson, etc.) [Wagner]
Sometimes D is not off the hook if D2 commits a criminal act if it is reasonably forseeable that what D2 does will happen
Restatement: Doesn't matter whether D2 is intentional, negligent, criminal etc. as long as it is a harm within the risk
a. Make sure to explain to Babs why D2's harms was forseeable (intervening or superseding actor) i. Do this by first determining which risks are created, and then possible harms related to that risk iv. RST SS 449 Tortious or Criminal Acts the Probability of Which Makes the Actor's Conduct Negligent
1. If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. v. Intervening Actors Cases
1. Bigbee v. Pacific Telephone and Telegraph (p.459): Defendant was trapped inside a phone booth at a major intersection an was struck by a drunk driver. a. Court holds pursuant to RST SS 449 PTT the negligent phone booth was the proximate cause.
2. Hines v. Garrett (p.452):
Railroad conductor negligently carried the 19 year old female plaintiff a mile past her stop at night, forcing her to walk back this distance through an area "frequently infested by hobos, tramps, and questionable characters". On her walk back she was raped twice.
a. Court says that when the conductor took D past her stop, it was reasonable to foresee she was going to have to walk back home at night and possibly be victimized.
3. Central of Georgia Ry. v. Price:
Through the RR's negligence, they did not drop her off at her station. She spent the night at a hotel to which she had been escorted by the railroad's conductor. At the hotel, she was given a room that had a kerosene lamp, which exploded and set fire to the mosquito netting covering the bed and when she tried to put out the fire she burned her hands. She sued the railroad.
a. Court holds that the railroad capped their risk by putting P in a place (hotel) where she is relatively safe. Then, D2 (hotel) intervened and caused P's harm. D1 (the railroad) is off the hook.
4. Pittsburgh Reduction Co. v. Horton:
D discarded a dynamite cap on its unenclosed land next to a school. A ten-year old boy picked it up and played with it at his home, and his mom would pick it up when he was done. He traded it to another thirteen year old boy. That boy was picking dirty out of the cap with a match when the cap exploded and he, as a result, needed his hand amputated. Horton brought suit against the company.
a. Court holds that the blasting caps came within the control of D2 (the mother, an "expert" and D2 should have known to rid of the risk.
i. Decision seems to be based mostly on policy (to let D1 off the hook). We want people who should know how to handle risks to intervene and end the risk.
1. i.e. the dynamite case has come to a place of relative safety in the hands of an expert.
5. Dillon v. Twin State Gas & Electric: Boy lost his balance while trespassing on a bridge and grabbed D's high voltage wires as he fell. Current killed him and the shock apparently threw his body back onto the girder. a. D was not found responsible for the boy's fall given his trespass, but it was found responsible for the boy's exposure to the uncovered charged wires. i. Court was trying to determine if the wires would have been insulated, would the boy have been able to grab them and hang on and save his life?
6. Antherton v. Devine (p.457): Plaintiff was injured in a road accident attributable to the defendant's negligence. Ambulance that took P back to the hospital was involved in another collision, aggravating the original injuries. a. Oklahoma Supreme Court held that the use of an ambulance is necessitated by the tortfeasor's wrong so D is responsible for the aggravation. b. Held also that in cases like this, is D's negligence requires a physician's intervention, as long as the physician is acting in good faith, D is still responsible for the injuries that the physician exasperates. vi. When you create a risk by being negligent, you can reasonably forsee other people being criminal and contributing to your risk
1. The Third Restatement: Intentionally Tortious or Criminal Acts Done Under Opportunity Aforded by Actor's Negligence a. The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime .
2. Brower v. New York Central & HRR: As the result of a collision, aside from the death of the horse and the destruction of the wagon, the contents of the wagon, consisting of empty barrels and a keg of cider, were scattered and probably stolen by people at the scene of the accident. a. Controversy is the right of the plaintiff to recover the value of the barrels, cider, and blanket. D argues he was not a
proximate cause because of the intervening actors (the thieves). i. Court rules in favor of the plaintiff holding that the goods being stolen were the natural and probably cause of the driver's abandonment of the wagon.
1. Takeaway: Sometimes D1 is not off the hook if D2 commits a criminal act if it is reasonably forseeable that what D2 does will happen.
3. Britton v. Wooten: Grocery store was destroyed by possible third-party arson in which the defendant had negligently stacked excessive amounts of flammable trash. Plaintiff had leased the building to the defendant. a. Citing the restatement, held that the criminal act is not a superseding cause
4. Bell v. Board of Ed: The defendant school board left P behind at a sixth grade drug awareness fair near her school. On her way back she was accosted by three boys and taken to the house of one where she was raped a. Court ruled in favor of the plaintiff, saying they cannot see that the intervening act of rape was unforeseeable as a matter of law
c. Unforseen Plaintifs i. Palsgraf v. Long Island RR:
A man was running trying to catch a train, holding a package. A guard on the grain was holding the door open, and two train employees were running with him trying to boost him up onto the train. The package he was holding became dislodged and fell under the train and exploded because it contained fireworks, and injured plaintiff.
1. Key point here is the negligence of the railroad employee, if there was any at all, consisted of his failure to excersise reasonable care toward the passenger and his package. Injury to anyone standing down the platforum was no unlikely that it was unforseeable
2. D's argument is there was no duty to protect P from exploding fireworks because it is not a harm within the risk
3. Issue in the case is, what if the plaintiff is not forseeable?
a. Cardozo (the Rule): Asks the ex ante question of "could the railroad possibly have forseen that this individual could have been injured by the explosion?". Things that could be forseeable:
i. ii. iii. iv.
Plaintiff Type of Injury Extent of Injury How it Unfoled
1. Cardozo only cares about #1: the plaintiff b.Cardozo does not send this to the jury because he says there is no way the jury could find for P. Two things he cares about:
i. ii. iii.
No way to know what was in the package She wasfar away Essentially is worried about deterrence, we want to encourage people to take cost-justified precautions before the fact, but there is no way they could take precautions against this
Looks ex post at all the circumstances, case by case basis, does it seem sensible to charge D with what happened? All he cares about is if D created an unreasonable risk of harm in general. Seems to care more about corrective justice
If the harm to this P was not forseeable, P loses. However, once some injury to P is forseeable, a different rule applies. ii. Wagner v. International Railroad: Plaintiff and his cousin boarded a railcar that was crowded, so that the conductor did not close the doors. As they were turning, plaintiff's cousin fell out of the train and plaintiff went to look for him. Plaintiff fell while he was looking for his cousin.
1. Question before the court is can P only recover if D encouraged P to go onto the tracks and look for his cousin?
a. Can the rescuer recover for the original negligence of the D (the negligence that caused the P to go rescue?)
2. Is the P's action of rescuing a superseding or intermediate cause of his injury?
a. "There must be unbroken continuity between the commission of the wrong and the effort to avert its consequences. i. If so, intervening rescue does not break the chain of causation
3. Court holds that tort feasor is liable for reasonable rescue attempts. The question of reasonableness is for the jury. a. Note: negligence, in a large measure, is reasonably anticipating others actions (it is forseeable that if a train negligently knocks someone off of it, someone is going to try to go rescue him). b. The "rescue doctrine" is well established in American Law today. Its principles are codified in McCoy v. American Suzuki Motor Corp: i. To achieve rescuer status, one must demonstrate:
1. (1) the defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued; (2) the peril or appearance of peril was imminent; (3) a reasonably prudent person would have concluded such peril or appearance of peril existed; and (4) the rescuer acted with reasonable care in effectuating the rescue
d.Unforseen Extent or Type of Harm
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