I. Proximate or Legal Causation
a.
b.
c.
d.
e.
No solid definition
i. All approaches suggest that liability should be limited even when conduct is
negligent
1. Actual cause: what happened?
2. Proximate cause: what should we do about it?
a. Was (x) a direct cause rather than a remote cause?
“In contrast, proximate cause, or legal cause, concerns a determination of whether
legal liability should be imposed where cause in fact has been established.”
i. “Should” implies permissive action
1. What’s fair in this particular situation
2. Should we impose liability?
In order to prove negligence, you need to prove both cause-in-fact and proximate
cause
i. Π fail to establish actual cause, π loses
ii. Π establishes cause-in-fact, but fails to establish proximate cause, the
π loses
Proximate cause is a way of terminating what the “but for” test makes infinite
i. Most cases pose no proximate cause issue
Atlantic Coast Line R. Co. v. Daniels
i. Facts: Guy parks on the railroad tracks and car won’t move.
f. Unforeseeable Consequences
i. Foreseeability creates a possibility of infinite liability
ii. Ryan v. New York Central R.R. Co.
1. Facts: Woodshed catches fire from railroad. Ashes catch another
house on fire too. Last house on fire sues the railroad.
2. Issue: Where does liability end? Can the last house sue the source
of the fire that created such a long chain reaction events?
3. Holding: No. The end result was not foreseeable
g. Hypos
i. ∆ leaves car unlocked. Terrorist steals. Uses it as a bomb. Detonates it. Hurts
pedestrian.
1. Actual cause?
a. Yes
2. Proximate cause?
a. Can you foresee that a terrorist is going to break in and use
it in such a fashion?
i. Probably not. Theft and vandalism are
foreseeable, but a terrorist attack probably isn’t
ii. Gun store owner sells a gun to a man who takes it and uses it to shoot a
federal judge and a US congresswoman.
1. Proximate Cause?
2. What if the store owner suspects something’s fishy about this guy?
h. In re Arbitration btwn Polemis and Furness
i. Facts: ∆s dropped a board onto the hull which ignited vapors and caused
the ship to burn down
ii. Issue: Was this foreseeable enough to justify proximate cause?
iii. Holding: Yes. ∆ is liable if he is “direct” cause, not a “remote” cause
1. WARNING
a.
2.
This sounds suspiciously like cause-in-fact. Polemis might
not be a good case to use to prove proximate cause. Might
not be right
“consequences which follow in unbroken sequence, without an
intervening efficient cause, from the original negligent act are
natural and proximate.”
a. This might seem like they’re conflating proximate cause
and cause-in-fact. Maybe they are. This might be right, or
wrong. There’s no good answer
i. Foreseeability
i. Look at foreseeability of the risk that injured the π
ii. What were the risks that made the ∆’s actions negligent
iii. Reasonable Foreseeability
1. ∆ is liable for π’s injury where π’s injury was a reasonably
foreseeable consequence of ∆’s negligent conduct
a. Idea is to limit ∆’s liability to liability for the kinds of
harms risked by his negligent conduct
i. Not looking at the likelihood or probability—just
foreseeability
2. “Flexibility is…preserved by the further need of defining the risk, or
risks, either narrowly, or more broadly, as seems appropriate and
just in the special type of case.”
a. What’s fair?
b. We’re deciding what’s foreseeable based on what’s fair
j. Palsgraf v. Long Island R.R. Co.
i. Facts: Guy brings fireworks to train station. Train guard knew it and
allowed the guy to board. Runs to catch train. Drops his package and the
fireworks explode. The explosion caused a scale to fall on top of π, injuring
her.
ii. Issue: Can the π prove a proximate cause between the fireworks and her
injury?
iii. Holding (Cardozo): No.
1. Cardozo said that the consequences were not foreseeable to the
train guard
a. Not π, or us. But to the train guard.
b. Cardozo is saying that the action must be foreseeable to
the person in question. Cardozo’s reasoning is that the
train guard had no way to foresee that the explosives
would cause the scales to fall
2. Dissent (Andrews): “What we do mean by the word ‘proximate’ is
that, because of convenience, of public policy, of a rough sense of
justice, the law arbitrarily declines to trace a series of events
beyond a certain point.”
k. Wagon Mound No. 1
i. Facts: Freighter leaked oil out of hull which caused slight damage to wharf.
Workers on freighter let some molten metal fall into the water which
ignited some cotton and set the oil on fire causing severe damage.
ii. Holding: π not liable as there was not enough proximate cause
l. Hypo
i. Bacardi 151 has an alcohol content of 75.5%. It catches fire easily because
its content is above 50%.
ii. Someone goes into a bar and orders a Bacardi 151 shot. Patrons light the
drink themselves. It tips over and shoots fire down the bar. Woman at the
end of the bar catches on fire.
1. Is it foreseeable that she could sue the bartender?
a. Possibly. There’s the matter that the bartender knows that
people order this drink for the purpose of catching it on
fire.
iii. Suppose that a chandelier falls down and knocks the drink over instead.
1. Does this cut off liability?
m. Proximate cause considerations:
i. Is the injury beyond the type to be expected
ii. Natural and continuous sequence
iii. Substantial factor
1. Similar to cause in fact but other cases do this… so we can to!
iv. Direct connection
1. Similar to cause in fact also
v. Connection not too attenuated (direct connection)
vi. Cause likely to produce the result
vii. Foreseen by exercise of prudent foresight
viii. Remoteness in time and space
ix. Collective human judgment
1. Whether or not we are looking at the knowledge of the specific
actor
a. Palsgraf… these people have particular knowledge of boats
i. They should know about shit catching on fire
2. Collective judgment
x. Just: “We draw an uncertain and wavering line, but draw it we must as best
we can.”
n. Hypo
i. Fix this jury instruction:
1. “If you find that, when the conductor assisted the plaintiff onto the
train, he should have foreseen an unreasonable risk of injury to him
from that act, then you should find that the conductor’s negligence
was the proximate cause of his resulting injury.”
a. The “should have foreseen” is very general
b. The nature of the injury is also very general
i. Needs to be more specific
ii. Correction:
1. “If you find that, when the conductor assisted the π onto the train,
he should have foreseen an unreasonable risk of injury to him of
the general nature that actually took place, then you should find
that the conductor’ negligence was the proximate cause of his
resulting injury.”
a. Foreseeability focuses on what actually happened, not
what might have happened
b. So what this is saying is that, in a gun sale hypo, you’d be
looking at whether a gun sale could have resulted in the
murder of a congresswoman and a 9 year old, INSTEAD OF
SAYING whether a gun sale could have resulted in a violent
act.
i. One is much more specific than the other
o. Intervening Causes
i. One that combines with ∆’s already-committed negligent act to produce π’s
injury
1. Time sequence
2.
Example:
a. Car accident. Someone drives down the street. Hits a car.
p. Proximate Cause vs. Intervening Cause
i. Proximate Cause
1. FOCUSES ON THE HARM THE ∏ RECEIVED
2. Policy judgment: Innate sense of judgment
a. Shouldn’t make somebody liable because to do so would
violate that innate sense of justice
3. Problem:
a. There is no standard… it’s subjective
4. Tests:
a. Vary by jurisdiction
b. Forseeability:
i. Π harm was reasonably foreseeable
c. Direct Act:
i. Whether there was a direct, proximate act
between what the ∆ did and the π’s injuries
ii. (Fallen out of favor in a lot or jurisdictions for
forseeability test)
d. Substantial Factor:
i. ∆ conduct substantial enough compared to other
causes to justify liability
5. Intervening/Superseding Cause
a. FOCUSES ON THE ACTIONS LEADING UP TO THE HARM
b. Superseding Act:
i. Not reasonably foreseeable
ii. Breaks causation chain
1. Criminal acts of a third person breaks the
chain
2. Acts of God DO NOT BREAK THE CHAIN
iii. Protects ∆ from liability
c. Intervening Act:
i. Was reasonably foreseeable
ii. Normal course of events
iii. Reasonably expected
iv. Within scope of risk created by act
6. Look at proximate cause FIRST and then interevening and
superseding causation second
a. Need to look at cause-in-fact to prove causation
b.
ii. Superseding Cause
1. An intervening cause that frees the ∆ from liability
a. Cuts off time sequence
i. Something so significant in the chain of events
that it cuts off the ∆’s liability
ii. Somebody acted with such poor judgment that it
subsequently caused the bad event to take place
iii. Derdiarian v. Felix Contracting Corp.
1.
Facts: Driver had a seizure and car crashed thru construction site
hitting π and supplies which caused a hot kettle to fall on π and set
him on fire. Π sued ∆
2. Issue: Whether or not the seizure was an intervening cause
3. Holding: Although ∆ could not have known that this specific event
would occur, they should have foreseen that the inadequate safety
measures could have resulted in an accident.
a. Where the acts of a third person intervene between ∆’s
conduct and π’s injury, causation isn’t automatically
severed.
b. Turns on whether the intervening act is a “normal or
foreseeable consequence” of D’s negligence.
i. If it is extraordinary, not foreseeable, independent
of or far removed, it may be a superseding act
iv. Watson v. Kentucky & Indiana Bridge & R.R. Co.
1. Facts: Railroad tank car (∆) derailed and gas ran into street. Man lit
a cigar and dropped it in street where it caught fire and exploded,
injuring π. Man was heard saying “let’s set the damn thing on fire.”
2. Procedure: Trial court issued a directed verdict
3. Issue: Whether the man was a contributing cause of the accident
and should the judge have taken the case from the jury?
4. Holding: This should have been a case decided by a jury and not a
judge. There is evidence that the Man in question could have been
malicious in his actions, and therefore a superseding cause of the
injury.
a. OR, the Man may have just been accidental in his actions
and therefore a contributing cause (intervening cause) to
the injuries
b. Criminal acts are not foreseeable
v. Hypo
1. Fran was riding her bike one morning when a large, open bed truck,
owned and driven by Robbie passed her. The truck was filled
unreasonably high with recycling material. A small gust of wind
forced materials out of the bed and one struck Fran in the face. She
lost her balance, fell and was injured. She sues Robbie for negligence.
a. Because the accident was caused by an intervening force of
nature, Robbie is not liable?
i. FALSE. The wind should be a foreseeable
consequence that could result in the accident.
b. Because two forces combined to cause the papers to fly out
of the bed, neither was a cause in fact of the accident.
Robbie is not liable.
i. FALSE. This looks like a concurrent cause kind of
case (Tice v. Morris); you can’t hold the wind
liable so you hold Robbie liable.
c. Even though a force of nature caused the papers to
blow off the truck, Robbie is liable.
i. TRUE. When you stack shit like this, it’s
foreseeable that harm might come about
ii.
d. Because the event was not a culmination of a risk
reasonably to be perceived from Robbie’s conduct, Robbie
is not liable.
i. FALSE. Robbie could have foreseen that this might
happen. This is like Derdiarian in that the action is
foreseeable, not necessarily the injury
q. The Rescue Doctrine
i. Allows an injured rescuer to sue a party who caused the danger requiring
rescue
1. It is foreseeable that someone will come to the aid of someone
injured
2. Negates the presumption that the rescuer assumed the risk unless
the rescuer acted rashly or recklessly
ii. The victim must need urgent assistance or appear to
iii. Must still prove proximate cause of injuries (forseeability)
iv. McCoy v. American Suzuki Motor Corp.
1. Facts: π saw a man in a Suzuki spin out and get injured. Π stopped
to help. Trooper had π signal road flares. After accident cleaned up
and trooper left, π walking back to his car. Got hit by a car.
2. Issue: Was there a superseding cause?
3. Holding: This is for the jury to decide
r. Public Policy
i. There exist certain situations where public policy determines liability
ii. Kelly v. Gwinnell
1. Facts: Guy at ∆’s home drinking. Got drunk. Drove home and hit the
π, injuring her. Π sues the social party hosts.
2. Issue: Can the π hold the ∆ liable as a social host?
3. Holding: Yes, the π has a case
a. This has been modified. Social host policy is abolished
most places
iii. Bartenders are held liable because they are in control of the alcohol and
they are said to have a specialized knowledge of knowing when someone is
drunk or not
iv. Enright v. Eli Lilly & Co.
1. Facts: Grandmother of π took DES which was supposed to help
prevent miscarriages. DES was found to cause many abnormalities
in pregnant women and subsequent children. Π’s mother was born
with many reproductive abnormalities. Π was born premature and
with palsy. Π sued manufacturers for liability from DES.
2. Issue: Can the granddaughter of a liable act go back
multigenerations in establishing liability for herself?
3. Holding: No.
a. “An injury to a mother which results in injuries to a later
conceived child does not establish a cause of action in
favor of the child against the original tortfeasor.”
4. Discussion:
a. There is criminal liability for harm to fetuses
i. If you shoot someone and cause a miscarriage,
there are two separate crimes here
ii. This runs against holdings in reproductive health
cases
b.
c.
d.
This all centers around whether a pregnant woman is one
individual or two.
Conflict around fetal personhood
i. When does a fetus have rights?
A lot of us don’t think about a fetus as a π, but they can be
i. There can also be damage to a fetus which you are
held liable for
s. Shifting Responsibility
i. Hypo
1.
There exists a chipmunk research facility. They’re researching
rabies. Through a negligent act, the chipmunk gets out and bites
someone. This guy has rabies now. The guy’s sister hates guy B, so
she takes her infected brother to guy B and has him bite guy B.
a. The research lab is not liable to guy B for getting bit by the
guy.
ii. Hypo 2
1. Companies left dynamite caps lying around. Kid finds them and
takes them home. Parents see it, know what it is and hide it. Child
finds it and gets injured.
a. Company isn’t liable.
iii. Courts sometimes hold that a ∆ is not liable despite having been negligent
on the ground that the ∆’s negligence was superseded by subsequent
wrongdoing by another person. They rule against the π on proximate cause
grounds.
II. Duty of Care
a.
Elements of negligence
i. Duty to use reasonable care toward foreseeable others
ii. Unless duty limited
1. Nonfeasance
2. Emotional harm
3. Economic harm
4. Birth/conception
5. Owners and occupiers
iii. Breach – Failure to use reasonable care
iv. Causation
1. Cause in fact
2. Proximate
v. Damages
b. Privity of Contract
i. Two people who are in a direct K with one another
ii. H.R. Moch Co. v. Rensselaer Water Co.
1. Facts: ∆ owned a water company who entered into a K with a city
to supply water. A fire started which spread to π’s warehouse. Π
claims that the ∆ knew of the fire and had the ability to increase the
pressure in the hydrant but didn’t, therefore not enough water was
available to put out the fire and the ∆ therefore the ∆ owed him a
duty of care.
2. Issue: When ∆ violates K leading to damages, what remedy?
3. Holding: No liability.
a. Majority rule
4. Analysis: “Liability would be unduly and indefinitely extended by
this enlargement of this zone of duty.”
a. Can’t extend duty from K to everyone the K might impact.
i. Increasing the zone of duty that the water
company owes to people would do this
b. This is the same thing as trying to sue a child’s mother
when the kid is an adult and injures someone
iii. Clagett v. Dacy
1. Facts: π was high bidder at an auction. Π’s attorneys failed to file
the proper paperwork with the auction house and the πs lost their
bid. Π’s sued their attorneys for negligence.
a. IMPORTANT: The πs were not actually associated with the
attorneys. The attorneys were involved with the auction
house only
2. Issue: Can a third party beneficiary sue an attorney for defaulting
on a K made her benefit?
3. Holding: No
4. Reasoning: πs were not the intended beneficiary of the attorneys’
duty.
a. There would be a conflict of interest
5. This is allowed sometimes. Party must be “intended to be
benefitted by his performance.” Here, the beneficiary was to be the
seller, who hired the attorney. Bidder pays for property, not cost of
sale.
a. Because the bidder didn’t pay for those services (cost of
sale) they should be owed no duty whatsoever.
b. Restatement (Second) of Torts §324A:
i. “an attorney may be liable for damage caused by
his negligence to a person intended to be
benefited by his performance.”
ii. Why not use this?
6. What if part of the deal the bidder makes when they bid are funds
for the cost of sale
a. This creates a privity of K and therefore a cause of action
iv. BASICALLY!!!
1. Typically, you do not have a duty to 3rd parties
v. HYPO
1. During A’s long battle with cancer, A hired B to draft a will in A’s
behalf. In that will, A intended to leave A’s assets to C and D in
equal amounts wholly available upon A’s death. A died. In the will
presented for probate, A is presented as leaving all of his assets to C
as sole heir. D knows that A intended to divide the assets evenly, as
A reported that intent in a letter A drafted on his death bed.
2.