1 I.

HANDOUT 8 - TORTS - SMITH Elements of the Prima Facie Case for Negligence LEGAL OR "PROXIMATE" CAUSE (CB, pages186-217) INTRODUCTION. The terms "proximate" and "remote" are thus respectively applied to recoverable and non-recoverable damages. . .. It is unfortunate that no definite principle can be laid down by which to determine this question. It is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent. . .. The best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other. 1

Unfortunately, professor Street's frustration that there is no all-encompassing rule that distinguishes between proximate and remote damages is still true after almost 90 years. As you will soon discover, concepts such as "proximate," "remote," and "foreseeable" are not particularly clear and often describe the conclusions of a court or jury regarding the consequences of an actor's breach of duty. For example, if the consequences are deemed to be too remote to be assigned to the actor's responsibility, they will be held to have been "unforeseeable" and the actor will not be held liable. II. SCOPE OF THE PROBLEM. Once a plaintiff (P) has established that the defendant's (D) conduct has in fact been one of the causes of the P's injury, there remains the question of whether the D should be held legally responsible (liable) for the injury. This is primarily a issue of law, not fact. It depends on whether the D's conduct has been so significant a cause of the injury that the D should be held liable. This is a matter of legal policy. Liability, then, depends on whether the law, as a matter of policy, will extend responsibility for the conduct to the consequences which, although unexpected (unforeseeable), have in fact occurred. This should be a question for the courts. Part of the difficulty associated with the concept of foreseeability is that the law reconstructs the everyday meaning of foreseeability, which is a subjective awareness of possible future occurrences, and reconstructs it as an objective standard with the effect of expanding liability. In other words, an actor's subjective awareness is irrelevant to liability if a jury is convinced that a reasonable person would or could have reasonably "foreseen" the danger and done something different to prevent the injury. It is this conflict between subjective and theoretical (objective) foreseeability which I believe to be at the root of much of the confusion associated with proximate cause. III. THE BASIC RULE CHOICES. (186-187) Proximate cause cases are sometimes analyzed in terms of "unforeseen plaintiffs" or "unforeseen consequences." However, some of these cases can also be analyzed in terms of "intervening superseding acts" or just plain bizarre and freakish sequence of events. If this area is confusing it is because there are many theories of proximate or legal cause and because courts often apply several different theories to decide similar cases. We will look at some of these theories, which the case book names "rules." A. The Direct Causation Rule Polemis v. Furness, Withy & Co. (Eng. 1921) LECTURE 1. What is the specific conduct for which D was found negligent? 2. Why was the D found liable in this case? 1 3. What would a P need to prove at trial to hold a D liable under the
1

Street, I Foundations of Legal Liability 110 (1906).

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holding here? Is this a case of strict liability? (Hint: see problem 1, page 204-05)

B. Some Problems with the Direct Cause Test The direct test seems to suggest that liability is limited if there is a subsequent cause that contributes to the P's harm. As we will later observe, however, this is not necessarily the case as courts using direct cause analysis often hold a D liable despite intervening acts. On the other hand, the direct cause test may be too inclusive, suggesting liability in cases where the consequence of the D's negligence is too unexpected. C. The Risk Rule (foreseeable consequences) The direct causation theory advanced by Polemis was the focus of much debate by English courts, lawyers and professors for over forty years. Then came the Wagon Mound cases. The Wagon Mound (Australia 1961) LECTURE 1. What is the specific conduct here? 2. What is the holding in this case? 3. What is the effect of Wagon Mound on the Polemis direct causation rule? D. A Variation of the Risk Rule - foreseeable plaintiffs Medcalf v Washington Heights Condominium 1. What was the risk created? 2. Why do we have such limits on liability? 3. Do we have the opposite results in the intentional tort area? 4. What does foreseeability mean? http://www.law.com/jsp/article.jsp?id=1102543076693 Read the above for interesting information on Palsgraf Palsgraf v. L.I. RR Co. (N.Y. 1928) 1. What is the holding of this case? 2. If you apply the Wagon Mound rule to this case would D be held liable? 3. Can you explain the result here in terms of another element of the cause of action? 4. Lets change the facts a little. What if Mrs. Palsgraf was waiting for a train, standing only about 10 ft. from the site of the explosion, which was violent enough to cause a stampede, as well as extensive damage to the train station and to at least 13 people. If the scales fell on Mrs. P as a result of the stampede, would the results be different Be sure to read note 195-198 E. PROBLEM Paul lived on the second floor of an apartment complex owned by Dogbert. For several days, the buildings intercom system had not worked and Dogbert knew of the defective intercom. One evening, the bell rang in Pauls apartment and Paul had to take the stairs to let his visitor in. Paul sustained injuries when he fell down the stairs on his way to the building entrance door to admit the visitor. Paul has admitted to you that the stairs were not defective but he believes that his injuries were the result of the defective intercom which Dogbert had not repaired despite repeated complains by Paul and other tenants. Can Paul recover damages against Dogbert in an action for negligence? Lets use the casesto review the elements of Negligence, up to and including proximate 2 cause. Prepare a typed answer to this hypothetical and be ready to discuss it in class. Use an outline format for your answer.

III.

ASSESSING THE SCOPE OF THE RISK

In the previous cases we analyzed the theoretical differences between the Direct Causation Rule (Polemis) and the Risk (or Foreseeable Consequences) Rule (Wagon Mound, Palsgraf and Metcalf. We will spend some time now analyzing some of the various "foreseeability" variations to the Risk Rule. F. General versus Specific Risk Hughes v. Lord Advocate, (Eng. 1963) 1. What is the specific conduct in this case? 2. What are the foreseeable risks from this conduct? 3. Is the holding here consistent or contrary to Wagon Mound? G. "Kind" of Harm 1. Doughty v. Turner (Eng. 1963) a. What is the specific conduct and foreseeable risks in this case? b. Can you reconcile this case with Hughes? c. Would the result here be different if the court was applying the Rest. 2d Torts, 435(1) which states as follows: "If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent [her] from being liable."

H. HYPO: Defendant owns a gas station/garage and Plaintiff is a mechanic who works for the defendant. One morning, D tells P to clean a car engine with gasoline. The engine is suspended with chains from the ceiling of a small room heated by a space heater with an open flame. A rat, ran from the from the wall and passed under the engine, getting drenched with gasoline. It then ran to the other wall. As it passed by the heater, the rat caught fire. The rat freaked-out and ran back toward the engine. As it passed under the engine again, the gasoline ignited, causing an explosion that severely burned the plaintiff. Can the plaintiff recover damages from defendant? Kind of Harm Versus Extent of Harm 1. Thin skull cases There are some cases where even the most ardent supporters of limiting liability to "foreseeable risk" will find a D liable. When the P is a person who has been injured by the D's negligence, the D is liable for all the resulting harm, no matter how unforeseeable. The thin skull rule is fairly plain and generally accepted. The generalization that one takes the plaintiff as one finds her, however, is not its most illuminating expression. It is better to recognize that the thin skull rule is a rule that when a person is injured, the extent of harm does not need to be foreseeable for liability to be imposed on the D. I. 2. Fire Cases A D is negligent because it did not take precautions to prevent a foreseeable fire. A fire does in fact start because of the D's negligence but it spreads to an unforeseeable distance. Should the D be liable? a. Under Wagon Mound? b. Under Palsgraf? 3 c. Under Metcalf?

J.

Evaluating (Critiquing) the Risk Rule. 1. Can you articulate a workable "risk rule"? 2. If you are lawyers, how can you manipulate the "risk rule" to extend and to cut-off liability?

IV.

QUALIFYING AND APPLYING THE DIRECT CAUSE RULE Do you notice that behind cases that are supposed to be resolved by the "direct cause" rule, you see lurking in the background (often qualifying it) "risk" principles (like "foreseeability")? This is so because these two "principles" or "theories" or "rules" are intrinsically linked. They are articulations of different aspects of the same principle of liability. 2 Many cases analyzed under the direct cause rule frequently speak of intervening causes or intervening forces. On its face the problem is one of whether the D is liable for an injury to which D's conduct was in fact a substantial contributing factor when the injury was brought about directly by a later cause of independent origin, for which the D is not responsible. The question of the extent of D's original obligation is not one of actual causal connection because the issue doesn't arise until after cause in fact is established. Whether D is held liable is a policy question: why should D be relieved of liability for an injury as to which D's conduct was a cause, along with other causes? "Intervening cause" is a term easier to see applied than to exactly define mainly because it is applied to a problem of legal responsibility not of physics. A. Intervening Intentional or Reckless Harm Watson v. Ky. & Ind. Bridge & RR, 126 S.W. 146 (Ky. 1910) 1. What are the specific conduct and foreseeable risks in this case? Delany v. Kentucky 1. Is Suicide Reasonably Forseeable? HYPO: Brenda Morgenstern operates a gas station on 21st and Nova Streets. A few months ago, Brenda was draining gasoline from a tanker-truck owned and operated by Chip Douglas because the gas had become mixed with water. Although the gasoline-water mixture was draining into an underground hazardous waste drainage tank, Brenda had not tightened the hose and some of the mixture was leaking, forming a pool of the mixture on the ground near the tanker-truck. Zelda Gilroy, the driver of another truck, was smoking a cigar while chatting with Brenda. Chip told Zelda to be careful because of the gasoline but Zelda told him that everybody knows that gasoline does not burn when mixed with water. When she was done with her cigar, Zelda threw it to the ground where it rolled onto the mixture. Predictably, the mixture burst into flames and damaged Chips truck. Chip Douglas sued both Brenda and Zelda. What will be the arguments for and against Brendas liability? How would you characterize Zeldas conduct? Negligent? Reckless? Intentional? Does it matter? If you analyze this case under the risk rule, would Ms. Yom be liable? 2. A Note on Liability for Serving Alcohol. For many years common law has consistently held that a person who serves alcohol to someone who then drives her or his car and negligently injures a P is not liable to that P. The rationale for that rule is that the act of a drunk driver is an intentional intervening cause which relieves the server of liability.
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2

To prove this you can see that many (though not all) cases that articulate their results in "direct cause" language could likely be similarly resolved using "risk rule" language.

Many states have changed this common law rule by statutes, known as "dram shop acts," which impose statutory liability to servers of alcohol under certain specified circumstances. Additionally, some jurisdictions now impose liability on a server if the P can show that, on the facts of the case, the server should have foreseen that the person was drunk and was going to drive drunk. If server saw the person was already under the influence and gave her another drink or drinks, the server can be held liable. B. Negligent Intervening Acts Derdiarian v. Felix Cntrting Co, 414 N.E.2d 666 (N.Y. App. 1980) 1. What is the holding in this case? 2. Would the result here be different if a pedestrian walks up to the kettle and pushes it over so it splatters the P causing the same injuries? Ventricelli v. Kinney Rent A Car, 386 N.E.2d 263 (N.Y. App. 1980) 1. What is the holding in this case? 2. Would the court have ruled differently if P had to pull over to the shoulder of the highway because the trunk lid had spontaneously opened while the P was driving 50 mph on the way to Kansas City? C. NOTE: Second Injury When defendant negligently injures plaintiff, defendat is liable for further injuries which are foreseeable consequences created by the first injury. That is the case when the original injury is made worse by medical malpractice or when the plaintiff, weakened by the first injury, suffers another injury in an accident that is a "normal consequence" of the original injury. D. NOTE: Intervening Force of Nature or Act of God 1. Rest. 2d Torts, 451 2. HYPO Lets assume that a carrier negligently delays transportation of perishables (fruit). Due to the delay, the carrier is exposed to an ACT of GOD and the fruit is damaged. Is Carrier liable?

V.

THE LAWYER'S ROLE

A. HYPO One fine morning, Mr. Bug negligently sniffed a pollinating flower. As a result, Mr. Bug sneezed. Because of that sneeze, a little seed dropped. The seed, of course, dropped on Mrs. Worm, who got so mad, she kicked a tree. Because of that kick, a coconut dropped. Because that nut dropped, a turtle got bopped. Because he got bopped, that turtle named Jake fell on his back with a splash in the lake. Because of that splash, a hen got wet. Because she got wet, that hen got mad. Because she got mad, that hen kicked a bucket. Because of that kick, the bucket went up. Because it went up, the bucket came down, and hit farmer Brown. And that bucket got stuck on his head. Because it got stuck, farmer Brown phoned for help. Because of his phone call, policemen came speeding. Because they were speeding, they hit a big stone. And so one policeman flew up all alone. Because he flew up, he had to come down. And because he came down on the boat Mary Lou and because he hit hard, he went right on through. He made a big hole in the boat Mary Lou.3
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3

With certain liberties, this is taken from R. Stone & M. Frith, Because a Little Bug Went Ka-Choo! (a Cat in the Hat book, 1975) courtesy of alert student and dedicated father David Hansen, class of 1998.

1.

You represent the owners of the Mary Lou. damages from Mr. Bug? Explain.

Can you recover