Anglo-American
Contract and Torts
Prof. Mark P. Gergen
Class Seven
Proximate cause—scope of liability
Contributory negligence
Comparative responsibility
1)
2)
3)
4)
Duty/Injury
Breach
Factual cause
Legal cause/scope of
liability
5) Damages
Duty of reasonable care.
Proximate cause
Breach: was the defendant’s conduct unreasonable?
Cause in fact: was the plaintiff harmed by the defendant’s
failure to act reasonably?
Scope of liability/legal cause: is the harm among the risks
that made the defendant’s conduct unreasonable?
Injury: was the plaintiff physically harmed or is this in the
limited categories (“pockets”) of cases in which recovery is
available for pure economic or emotional harm?
Palsgraf v. Long Island RR Co. (1928)
Two men run to catch a departing train. The second, who is
carrying a package, jumps aboard but seems about to fall.
Two guards, who are employees of LIRR, one on the train,
one off, pull and push the man, dislodging the package,
which falls. The package contained fireworks. These
explode, causing a heavy scale to topple on Palsgraf,
grievously injuring her.
Jury verdict for Palsgraf. Affirmed by the intermediate
court of appeals.
Reasonable people may disagree about whether the guard’s
conduct was reasonable with respect to the man and the
package. So that is a question for the jury. But Ms. Palsgraf
is the plaintiff. May she recover?
Cardozo argues no and that it is a question of duty properly
resolved by the court. Andrews disagree. What they
disagree about is the generality of the duty of care owed.
Cardozo:
“The conduct of the defendant's guard, if a wrong in its relation to the
holder of the package, was not a wrong in its relation to the plaintiff,
standing far away. Relatively to her it was not negligence at all.” p. 80 (top
2nd para)
“If no hazard was apparent to the eye of ordinary vigilance, an act
innocent and harmless, at least to outward seeming, with reference to her,
did not take to itself the quality of a tort because it happened to be a wrong
. . .with reference to some one else.” p. 80 a bit further down
“What the plaintiff must show is ‘a wrong’ to herself; i. e., a violation of her
own right, and not merely a wrong to some one else, nor conduct
‘wrongful’ because unsocial, but not ‘a wrong’ to any one.” p. 81 top.
“The risk reasonably to be perceived defines the duty to be obeyed, and
risk imports relation; it is risk to another or to others within the range of
apprehension.” p. 81 further down.
Andrews responds:
“Every one owes to the world at large the duty of refraining from those
acts that may unreasonably threaten the safety of others. Such an act
occurs. Not only is he wronged to whom harm, might reasonably be
expected to result, but he also who is in fact injured, even if he be
outside what would generally be thought the danger zone.” p. 83 top
So who has the better argument, Cardozo or Andrews?
As a matter of fairness . . .
LIRR—our conduct was not negligent with respect to your
injury.
Palsgraf—my injury was a consequence of your negligent
conduct.
As an administrative matter . . . .
Is it possible to resolve that LIRR’s conduct was not negligent
with respect to Palsgraf’s injury by a rule or standard?
At what procedural stage can the claim be fairly resolved?
Should the plaintiff be given an opportunity to develop
evidence and theories of liability?
Andrews position prevailed in most states and
the 3rd Restatement.
Duty determinations should not be overly particularized. A
common carrier owes a general duty of care to a passenger.
As for the other elements—breach, causation, and scope
of liability—let the parties develop the facts and their legal
theories to see if Palsgraf can make out a claim.
As for scope of liability (legal cause), this will turn on the
facts in most cases. It will depend on the breach is
“framed.” What if the scales were dangerously top heavy?
Or P claims LIRR’s negligence was in allowing crowds to
congregate on the platform?
This question should be taken from the jury only if no
reasonable person could disagree about the answer.
Proximate cause/legal
cause/scope of liability
Under the Restatement Third actual cause is a largely
factual or scientific inquiry
“Scope of liability” is the preferred to “proximate cause” or
“legal cause” because the traditional labels suggest we are
still talking about causation.
Two famous British cases discussed at p. 74 . . . .
In re Polemis (1921).
D drops a board in the hold of P’s ship, unforeseeably
causing a fire.
Wagon Mound I (1961).
D negligently spills oil in harbor. The oil catches fire as a
result of P’s doing welding work on a vessel. The fire
harms P’s property. Everyone assumes it is unforeseeable
that an oil slick might catch fire.
D is held liable for the fire damage in Polemis but not in
Wagon Mound.
Prof. Lundmark suggests Polemis applies a “directness”
test while Wagon Mound applies a foreseeability test.
Polemis actually applies a foreseeability test. The court holds
D is liable for the fire damage to the vessel and cargo
because it was a foreseeable that dropping the board might
harm the property.
If D’s negligent act foreseeably harms P’s person or property,
then D is liable for any and all harm to P’s person or such
property resulting from D’s negligence.
Wagon Mound asks if the fire—the hazard that occurred—
was among the foreseeable risks.
Following the logic of Polemis in Wagon Mound P could
recover for the fire damage to a dock if the presence of the
oil harmed the dock in any way.
--Two general principles on offer-P’s interest within the risk (Polemis/Second Restatement)
Harm within the risk (Wagon Mound/Third Restatement)
Neither is clearly superior to the other normatively,
descriptively, or analytically . . . though harm within the risk is
more in tune with modern more expansive theories of duty.
At the core of negligence is a simple duty that people
act reasonably if there conduct creates a risk of harm to
others.
If someone acts unreasonably, then they are liable for the
resulting harm if the harm is among the risks that made
their action unreasonable.
There are some fairly well-settled rules . . .
The eggshell skull rule. If bodily harm to the plaintiff* is
foreseeable, then an actor is liable for the full extent of
the harm though the harm is aggravated by the plaintiff’s
unusual pre-existing mental or physical condition.
*The plaintiff means someone in the class of
persons including the plaintiff exposed to the risk.
The extent rule “An actor is liable if he could foresee
harm of the type that occurred even if the extent of the
harm was unforeseeable.”
If an auto accident can be expected to harm pedestrians,
then the driver is liable for an unexpected death because
a wound is not treated promptly or correctly.
The mechanism rule An actor is liable if he could
foresee harm of the type that occurred, even if he could not
foresee the specific way the harm occurred.
These rules—egg shell skull, extent, and mechanism—are
consistent with the “interest within the risk” principle.
Procedurally, if physical harm to someone like the plaintiff
is a foreseeable consequence of the defendant’s
carelessness, then the defendant is not allowed to quibble
that unforeseeable factors magnified the harm or that the
specific mechanism was unforeseeable.
Some rules are best explained on special
grounds . . .
Rescuers Rescuers recover without regard to whether
rescue was foreseeable, p. 76 top.
The “harm within the risk” rule or “risk rule” best explains
some cases.
Is this risk among the risks we have in mind when we
determine the actor’s conduct to be unreasonable?
A speeding car is hit by a falling tree, injuring the
passenger. Cause yes. Scope no.
You saw a similar principle at work in the law of negligence
per se . . .
P parks next to a fire hydrant, violating a local law. D loses
control of his car, crashing into P. Parking rule does not apply
to treat P’s conduct as negligent per se.
D hands a small but loaded pistol to a 9 year old child.
The child drops the pistol. The pistol does not discharge.
The impact of the pistol breaks the child’s toe.
Is the injury within the scope of liability under the risk rule?
What if the gun discharged as a result of being dropped
and someone was hit by the bullet?
Does a zoo owe a duty to securely cage a tiger?
So if a zoo keeper negligently leaves the cage
unlocked and the tiger escapes and bites someone the
zoo is liable, right?
What if the tiger is able to escape because it can jump
over the fence?
What if a visitor takes advantage of the arguably
unreasonably low fence to push another visitor into the
cage with the tiger?
Criminal conduct as a special problem of
superseding cause.
Sometimes criminal conduct clearly is within the scope
of liability . . .
Tarasoff v. Regents, p. 41 (psychologist has duty to
warn intended victim of patient)
Kline v. 1500 Mass Ave, p. 41 (building owner has duty
to maintain security in common areas to protect
tenants and their guests).
Hines v. Garrett, p. 71 (after missing stop conductor
drops offf young passenger one mile from station in
dangerous area telling her to walk back to station,
passenger is raped).
Weirum v. RKO General, p. 76.
Radio station has promotion in which DJ drives around
Los Angeles and then announces over radio that first
listener to get to him receives a prize. Wanting to win
the prize, two young men (17 and 19) followed the DJ
in their cars, often driving at high speeds and
recklessly. One of them forces P off the road. She
dies in the accident.
Jury verdict for P’s family (wrongful death) against
radio station and one of the boys (the other settled for
policy limits).
California Supreme Court affirms (1975)
The reasoning at the top of p. 78 is confusing. It states:
1) The issue is duty, which is for the court to
decide case by case.
2) There is a general duty of care with
foreseeability as the primary criterion of duty.
3) Foreseeability is a question of fact for the jury.
Can you do better using the analytics of the “risk rule”?
Is what happened among the risks that made the radio
station’s promotional stunt an unreasonable thing to
do?
The paragraph at the bottom of p. 78 and top of p. 79
addresses what usually is described as an issue of
“superseding cause.”
“An actor is entitled to assume that others will not act
negligently” [or we might add recklessly or criminally].
The court applies a limitation . . . “This concept is valid,
however, only to the extent the intervening conduct was
not to be anticipated. If the likelihood that a third person
may react in a particular manner is a hazard which
makes the actor negligent, such reaction . . . does not
prevent the actor from being liable.”
An actor generally is entitled to assume that others will
not act negligently, recklessly or criminally.
But only to the extent the intervening conduct was not to be
anticipated and not if the likelihood that a third person may
react in a particular manner is a hazard which makes the
actor negligent.
A visitor to a zoo takes advantage of an arguably
unreasonably low fence to push another visitor into the
cage with the tiger.
What if a visitor leans over the fence and falls in?
Contributory negligence/comparative fault
P’s own careless is a cause of the harm for which P
seeks damages from D.
At one time contributory negligence was a complete bar to
recovery. Under comparative fault it reduces the damages P
may recover by P’s “percentage of responsibility” (“POR”).
In “modified comparative fault” states P will be denied any
recovery if P’s POR equals or exceeds 50% (some states
make the cut-off 51%).
Gonzalez v. Garcia, p. 85
P accepts a ride home in D’s car though he is aware D is
quite drunk. D loses control of car and P is severely injured.
D argues P “voluntarily assumed the risk” of his driving while
drunk, which is a complete bar to recovery. The court holds
that an unreasonable choice to engage in an unreasonable
activity should be treated as contributory negligence.
The jury found P was 20% at fault and D was 80% at fault.
So damages awarded to P were reduced by 20%.
D—the driver—also was injured in the accident. Assume he
brings a counter-claim against P arguing that P bears partial
responsibility for D’s losses. Which of the following is the
best explanation of why this counter-claim fails:
a) Absence of duty.
b) No breach.
c) No cause in fact.
d) D’s loss was not within scope of liability.
e) D assumed the risk of his own drunk driving.
The move to abolish joint and several liability
Some states have abolished joint and several liability for
non-intentional torts. An example is Texas.
Some states have abolished joint and several liability for
non-economic damages. Examples include California
and New York.
In California and Texas, a non-party wrongdoer may be
assigned a percentage of responsibility, this includes
•An immune wrongdoer (e.g., employers protected from
employee claims by workmen’s compensation).
•A settling wrongdoer.
•A “phantom” wrongdoer who cannot be identified or for
other reasons cannot be served.
•An insolvent wrongdoer.
Weirum v. RKO General, p. 76.
Radio station has promotion in which DJ drives around
Los Angeles and then announces over radio that first
listener to get to his current receives a prize. Wanting to
win the prize, two young men (17 and 19) followed the DJ
in their cars, often driving at high speeds and recklessly.
One of them forces P off the road. She dies in the
accident.
In California today the radio station and each of the young
men would be assigned a percentage of responsibility
(“POR”) by the jury. A POR is assigned to the settling
defendant. The radio station would be liable only for its
percentage of non-economic damages.
An unknown person (the Phantom John Doe) leaves a
hazard in the road. Driver negligently runs into hazard,
injuring P.
1) In California and Texas, responsibility for the injury is
apportioned between Driver and Phantom.
2) In Texas, Driver is liable only for his proportionate
share of all of P’s damages. In California, Driver is
liable only for his proportionate share of Ps’ noneconomic damages.