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Actual v. proximate  defining scope of responsibility
Cause in fact?
Protected class?
Substantial factor test
Summers v. Tice: Two guys shot the same guy
Market share
No real causality – wrong corrected, but not necessarily by the right party
A. Summers v. Tice, Casebook, pp. 257-60
B. Notes and Questions, Casebook, pp. 260-62
Causation and Burden-shifting: P who face systematic challenges in proving breach sill
sometimes be allowed to proceed without evidence showing exactly what D did
Summers v. Tice 199 P.2d 1 (Cal. 1948) (257)
Two hunters shot the same guy at the same time with the same gun
because each acted negligently, each was responsible to plaintiff for damages from the
injuries he sustained.
Both defendants brought about situation that caused harm to P even though, both bullets did
not hit P.
Case shifts burden to defendant to prove didn’t harm P

2d 470 (Tex. Inc. v.W.W. not causal connection). 819 S. 1991). conditions Polemis – even though directly cause. wasn’t foreseeable (anticipation)  modified by Wagon Mound to turn on the foreseeability of harm Williams v. putting him in a “zone of danger” Holding: defect not a legal cause of the accident (not direct enough. 1968). struck a traffic control sign that decedent was transporting. HISTORICAL DEVELOPMENT 1. too remote. 434 S. Fore (who had been drinking) struck the trailer  Two of the men died from their injuries. 265-71 265-71 Proximate cause – alignment concepts of duty and breach Proximity v. [Exhibit 33] Perez was killed when a van driven by Lerma. both brought about situation) Market share liability: P couldn’t prove which manufacturer of generic drug was responsible for her harms II. A trailer attached to one of the vehicles became disengaged and overturned. . Casebook. pp. a sleeping driver. but sustained injuries. The third lived. [Exhibit 34] Facts: Campbell and Marshall collided on the highway. Perez. Bell v. even though only one actually caused harm. Allege that the manufacturer was responsible because of a defect in the sign.Concert of action (like conspiracy): all actors held liable (both drivers racing cars. Three men stopped to remove the trailer from the road.  she could have foreseen this circumstance  proximate cause of the accident Lear Siegler.W. PROXIMATE CAUSE A. Steves. 1985) [Exhibit 32] Williams ran out of gas on a familiar route.2d 117 (Tex. Campbell.2d 570 (Tex. 699 S. remoteness (probability) Causes v.

probability Connection bw negligence and harm = proximate cause Wagonmound I & II Ship burned down after taking on furnace fuel and being ignited with an acetalyne torch Union Pump – fire broke out (271) Issue: does substantial factor have a role to play? Or is it a policy inquiry contained in foreseeability? Scope of duty limited by foreseeability (294) Union Pump Co. but never really defines it – “I’ll know it when I see it”  look at factors like continuity. 99 (292) fireworks thing on the train R. Allbritton. Union Pump Co. 271-75 271-75 . substantial factor. Casebook.R. pp. 292-300 292-300 Palsgraf v. was not the proximate cause of the second accident (their accident was concluded before Fore hit them) 2. but in this case.E. Elements of “Proximate Cause. intervening causes.Holding: the conduct of Campbell and Marshall. v. v.2d 773 (271) Spector: the events have not come to rest  liable 2. had a duty to passengers (special relationship). even if negligent. pp. the explosion was not foreseeable (ie the RR could not have been negligent in not taking precautions for an accident that was not probable)  scope of duty/liability limited by foreseeability “the risk reasonably to be perceived defines the duty to be obeyed” No notice to RR that package was dangerous  scope of duty limited by what would ordinarily be aware of Risk + harm = liability Anderson (dissent): talks about proximate cause. Long Island Rail Road. 898 S. Casebook. Palsgraf v.. Long Island Railroad Co. Albritton. 162 N.W.” “Cause in Fact” and “Foreseeability” a.

Proximate cause = foreseeability. Sup. Claim: The patient alleged negligent treatment and negligent discharge. Scope of risk/liability – foreseeability General harm (doesn’t have to be exact series of injuries) Superceding/intervening cause  breaks the chain of legal causality 1st has “come to rest” TPJC 2. v. 898 S. car. struck when went to fix it  create condition = not enough Bell: cleaning up wreck on highway  intervening action cuts the chain Holding: Pump fire = create condition b. he was not an insurer of the patient's post-discharge well-being for any dangerous circumstance in which she placed herself. v. et al.2d 773 (271) Issue: remoteness Albritton went to put out a pump fire..Union Pump Co. Texas.W. hospital policies and procedures governing the patient's discharge had nothing to do with the accident. Soon after her discharge. her roommate.. Allbritton. then went to turn off nitrogen purge valve. Inc. Holding: merely creating the condition that makes the harm possible falls short to establish proximate cause. Mason 143 S. 143 S. the physician discharged her at her request. Inc.3d 794 (Tex.. Moreover. cause in fact = substantial factor Perez: sign went out on highway. 2004). IHS Cedars Treatment Center of DeSoto. [Exhibit 31] Facts: Mason voluntarily entered the mental health care facility seeking treatment for depression. Texas. Mason. she slipped on the pipe rack.3d 794 (Tex. Three weeks later. although the physician had a duty of reasonable care. 2004) [see Exhibit 2 to the Fall Syllabus] IHS Cedars Treatment Center of DeSoto. Ct. When coming back.W. she was severely injured in a single-car accident (due to a psychotic episode) while she was a passenger in Thomas’. et al v.W.4 natural and continuous sequence not included: substantial factor .

can be ‘force’ Concurrent cause Doesn’t relieve liability Making Sense of Proximate Cause Intervening Cause Concurrent Cause………………………………………….1 Negligence: failure to use ordinary care. Independent cause Doesn’t have to be person’s action. in a natural and continuous sequence. and without which cause such event would not have occurred. There may be more than one proximate cause of an event. “Negligence and Ordinary Care” Texas Pattern Jury Charges (2006 Ed. TEXAS EXPERIENCE 1.) [“TPJC”] 2.manner. Definitions a.1 [see Exhibit 1 to this Syllabus] Exhibit 1: Texas Pattern Jury Charges (TPJC) 2. to do what an OPP would do under the same or similar circumstances Ordinary care: degree of care that would be used by an OPP under the same or similar circumstances b. “Proximate Cause” TPJC 2. extent. or some similar event might reasonably result therefrom.New and Independent Cause Inferential Rebuttal Polemis (1921) Duty Breach . nature – 3 parts of analysis B.4 Proximate cause: cause which. In order to be a proximate cause. the act or omission complained of must be such that a person using ordinary care would have foreseen that the event. produces an event.4 (see Exhibit 2 to this Syllabus) Exhibit 2: TPJC 2.

Cause in fact Direct causation Foreseen or not Palsgraf (1928) Cardozo Duty/foreseeability Polemis still lives Andrews Proximate cause/foreseeability Polemis seems to live Wagon mound 1 and 2 (1961-1966) Polemis dead Foreseeability/proximate cause Union Pump (1995) Owen Substantial factor test/ cause in fact? Substantial factor test/ foreseeability? Coryn Substantial factor test/cause in fact only Foreseeability case What is “foreseeable” Contributory negligence? Mason (2006) Substantial factor test/cause in fact .

III. it doesn’t break the chain. concurring cause Lack of foreseeability: only concurrent if cooperates with original negligent act (doesn’t break chain) Wigglesworth Has the car come to rest? Did D create a condition? What is the role of foreseeability? Can be more than one proximate cause  concurrent cause because cooperated with original negligent act Doesn’t have to be immediate. but just within chain If a new and independent cause is foreseeable.Is this a foreseeability case? Inferential rebuttal Question for the jury – superceding/proximate cause  Attacks element of prima facie case Doesn’t relieve of liability  proportional liability (%) Concurrent causes: Foreseeability: if intervening force foreseeable. INFERENTIAL REBUTTALS “Inferential Rebuttals” see “Affirmative Defenses” . When does negligence stop? After stops = condition. Burke: he was the intervening cause in his own Dew What is a new and independent cause? What is the role of foreseeability>? Any intervening acts which exploited this inadequacy did not fundamentally alter the foreseeable consequences of Crown Derrick’s original negligence.

between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence.W. Ct.See excerpts from Buls v. 55 S. then no act or omission of any other person could have been a proximate cause. – Texarkana 2001. Various Inferential Rebuttals a.2d 659 (Tex. App. v. c. 211-12 (Tex. but if an act or omission of any person not a party to the suit was the “sole proximate cause” of an occurrence. 208 S. if any. 985 S. not reasonably foreseeable. no pet. J.” TPJC 3.W. denied) [see Exhibit 4 to this Syllabus] trucker missed exit  huge car wreck  negligence suit Kirby 20% liable = proportionate liability 3. not liable) 1952: TSC including inferential rebuttals as special issues in favor of simply including them as definitional instructions 2. Wigglesworth Co. Fuselier consulted multiple doctors  foot surgeries – advised not to do both feet at once and disregarded  more foot problems inferential rebuttal: challenging causation analysis (even if all of P’s evidence is true. Sup. pet.3d 448 (Tex. that destroys the causal connection.2 [see Exhibit 7 to this Syllabus] “Sole Proximate Cause”: There may be more than one proximate cause of an event. to a reasonable person. Dew v. “Sole Proximate Cause” TPJC 3.) [see Exhibit 3 to this Syllabus] Buls v. requires immediate action without time for deliberation. Fuselier. which was not proximately caused by any negligence on his part and which. App.3d 204.1 [see Exhibit 6 to this Syllabus] the act or omission of a separate and independent agency. his conduct in such an emergency is . Peeples.3 [see Exhibit 8 to this Syllabus] If a person is confronted by an “emergency” arising suddenly and unexpectedly. b. “New and Independent Cause.” TPJC 3. 2006) [see Exhibit 5 to this Syllabus] Fell through a hole and died  no proper safety precautions – only a couple of ropes blocking it Risk foreseeable and within scope of original negligent act 4. – Fort Worth 1999.W. Crown Derrick Erectors. “Emergency.

don’t have to plead specifically (unlike affirmative defenses . burden of persuasion on P (unlike affirmative defenses). Fuselier exhibit 3 Inferential rebuttal: refutes element of case  jury instructions.5 Exhibit 10: not controlled by humans Other forces of nature and D’s negligence Can’t be used as defense if human negligence a part of (not maintaining life boats) Criminal and intentional conduct – RS 449 Criminal acts not foreseeable – per se rule – but if contributed (Britton).not negligence or failure to use ordinary care if. he acts as a person of ordinary prudence would have acted under the same or similar circumstances. not relieved of liability Aggravating Harm -. What is “foreseeable” 3rd Party negligence Forces of nature Acts of God – inferential rebuttal – PJC 3. after such emergency arises.457 Rescuers – RS 457 Not foreseeable Inferential Rebuttal Defenses New and Independent Causes – exhibit 6 Sole Proximate Cause – Exhbit 7 Emergency – Exhibit 8 Unavoidable Accident – Exhibit 9 Britton Landlord doesn’t keep up premises in high-crime area  liable for increasing risk Buls v.

817 S.” it is not caused by the negligence of any person. 281-87 Superseding/Intervening Cause Britton v. “Intervening Causes” and “Concurrent Causes” 1.2d 443 (282) Wooten’s Pic Pac Grocery burned down when trash stacked next to the building caught on fire when the dumpsters next to it were set aflame Lease insulates lessee from liability for negligently storing garbage – the arsonist’s actions were a superceding cause Stacking boxes = creating condition Arneil: If the criminal act can be reasonably foreseen.5 [see Exhibit 10 to this Syllabus] If an occurrence is caused solely by an “act of God.Kid (under 5) can’t be held accountable Roadkill: cow escapes . “Act of God. Wooten. An occurrence is caused by an act of God if it is caused directly and exclusively by the violence of nature. B.W. the causal chain is not broken. pp. D’Hedouville: apply the general principle of foreseeability to the intervening criminal acts Mozer: negligent maintenance of hotel = proximate cause of fire Hodge: injury bc no way out = proximate cause Probability that somebody will commit a crime or act negligently is high (even though most people do not) House.” TPJC 3. must be “highly extraordinary” Inferential Rebuttal Unavoidable Accident Environmental (not human) must be out of the ordinary No contributory Negligence -. without human intervention of cause. Peterson: to be a superceding cause. Casebook. and could not have been prevented by reasonable foresight or care.e.

and court will pick out one Affirmative defenses D has burden of Pleading production and persuasion Relieves D of liability Contributory Negligence: P’s conduct that creates an unreasonable risk of harm to D’s person or property Or? 3rd party creates risk Not treated as new and independent cause Has basis in new duty to general class of persons not to subject to harm (Palsgraf would say duty owed to society. which can’t be foreseeable Sole Proximate Cause ??? Jury Instructions Some courts use unavoidable accident as catchall Usually can plea all.Foreseeability not an element Different from act of god (usually weather). Cardoza owed to a particulary section of society/plaintiffs) Elements Duty Breach Cause in fact Harm reasonably foreseeable Actual harm .

” that is. an event not proximately caused by the negligence of any party to it.4 [see Exhibit 9 to this Syllabus] An occurrence may be an “unavoidable accident. Inferential rebuttals: Attacks proximate cause element of prima facie case New independent cause Sole proximate cause Acts of god Unavoidable accident Ex: Buls case – usually have to specifically plead it Affirmative Defenses: relieves D of liability even if P has a prima facie case of negligence (concedes) – burden on whoever pleads this Contributory negligence or comparative fault If P is responsible for over 50% of the accident.  D liable perilous situation brought about by P D has means to prevent harm to P D failed to use such means D believes P could not extricate himself from the perilous situation Assumption of Risk: consenting – DIDN’T GET ALL OF THIS Express Implied Immunities .” TPJC 3.Bars recover. then D discovers with sufficient time to avoid if using ordinary care. “Unavoidable Accident. they are barred from recovery Greater than: in excess of 50%  barred “last clear chance” or “discovered peril” incompatible with comparative fault  eliminated in TX P put himself in peril. no matter the degree of negligence  reformed to take into account degree (comparative fault) d.

CONTRIBUTORY NEGLIGENCE [INCLUDING THE “LAST CLEAR CHANCE” STANDARD] 377-81 affirmative defenses: mitigate liability contributory negligence: no recovery if actions contribute to injury  contributory responsibility (partial responsibility – does not apply to intentional torts): last clear chance: if D could have avoided the accident by taking reasonable action.Carroll Towing . and didn’t. liable. DEFENSES TO NEGLIGENCE A.charitable governmental family Statutes of Limitation/repose IV. Divided damages: based on % of blame -.