Torts 2- Epstein/Miles Outline:
C. PROXIMATE CAUSE:
*Proximate Cause is used to determine the extent of the Def’s liability after actual causation (cause in fact) is est. It is an attempt to deal w/the problem of liability for unforeseeable or unusual consequences following the Def’s acts. Proximate cause deals w/ how far public policy will extend liability to the Def for the consequences of his act.
· Foreseeability of harm: 2 Opposing Views= 1) the Def’s act will be considered the proximate cause of the P’s injury only if such consequences, judged at the time and place and under the circumstances when the Def acted, were reasonably foreseeable (is the injury reasonable foreseeable as something likely to happen?); 2) where the injury to P is the direct result of the Def’s act, foreseeability is important only in determining whether there is negligence; if the injury follows in an unbroken sequence of events, the Def will be liable for the consequences regardless of the remoteness of the injury.
· Intervening Actions- Modern theories of Prox. Cause allow P to recover form Def’s wrongful act even if T’s negligent act intervenes
o Deliberate Intervening Actions- one view asserts that only in cases where Def has explicit duty to prevent T’s mischief/criminal conduct will T’s act sever the causal connection btwn Def’s act and the harm
*Alternative Causation Tests = [???- Discuss w/ Prof Miles]
· But-For test- treats a given act or omission as the cause of harm as long as the harm would not have occurred had the actor not been negligent.
· Directness Test- Def is liable for any damages that are direct, even if they are not foreseeable.
· Last Wrongdoer Test- Under earlier common law tests for Prox. Cause, Def held liable only when he was the last wrongdoer who caused the loss; (BUT- innocent actions under the compulsion of Def never sever causal connections to Def’s prior act)
· Independent causes test- - Def not liable for unforeseeable damages; only liable when type of risk that one expects to materialize from the Def’s negligence results in harm = Foresight Test—were the damages foreseeable ex ante? [???]
· Foreseeability Test- Def liable only for those damages that are reasonably foreseeable (those which are natural, necessary, or probable) [same as previous?]
o Foresight test can be used to further limit Def’s responsibility and assert that Def doesn’t owe duty of car to particular person b/c that P was not w/in the ambit of danger when Def acted—not a foreseeable P (see Palsgraf).
o How to distinguish foreseeable events= low probability of harm; freakish events
· Substantial Factor Test- est. by J. Andrews in Palsgraf case- was Def’s act a substantial factor causing P’s harm.
NOTE- Each test is inadequate in some way and can even be misleading; thus it is better to view proximate cause as several distinct scope of liability problems, the principle ones being: 1) unforeseeable consequences [see Palsgraf, Polemis, Wagon Mound, Wagner]; 2) intervening causes [see City of Lincoln, Jones, Georgia RR, Bell, Brower]
*Debate between the Foresight v. Directness Test-
· Directness & Foresight- with sequential events, the critical inquiry is whether some act or event intervene btwn Def’s negligence and P’s harm such that the intervening act counts as a superseding cause that severs causal connection.
· While the Theory of direct causation is not explicitly tied to a theory of negligence liability, theory of foreseeability is.
· Polemis Case ruling v. Wagon Mound ruling- Polemis ct held that explosion from the dropped plank was not foreseeable but Def still held liable on directness test; In Wagon Mound I the ct rejected Polemis ruling and P was denied recovery b/c the fire was not a foreseeable result of Def’s negligent oil spill. NOTE- in Wagon Mound II, the original P from Wagon Mound I should have been liable as well since P’s negligence did not excuse Def’s negligence.
o The 2 cases are viewed as est. fault lines btwn the two theories; but differences exist, such as in Polemis its not a stranger case (harm arose btwn an owner and charterer/leasee where there was a murky contract)
*2nd Restatement § 281-[follows Cardozo’s duty requirement] = Risk to class of which P is member—if the actor’s conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured.”
*2nd Restatement § 431- [Incorporates J. Andrews’ Substantial Factor test] - What constitutes Legal Cause- the actor’s negligent conduct is a legal cause of harm to another if: a) his conduct is a substantial factor in bringing about the harm, and b) there is no rule of law relieving the actor from liability b/c of the manner in which his negligence has resulted in harm.”
1. Physical Injury (Cases)-
a. Ryan v. NY Central RR- Def’s engine caused fire whish spread to subsequent houses, including P’s house that was 130 ft way. Ct Affirmed non-suit on P; Def not liable b/c P’s damages too remote, Def not the proximate cause, not foreseeable that fire would spread to P’s home.
i. Rule= one house limit on fire cases; est. limit on foreseeability
ii. Miles- similar to Vaughn v. Menlove (hay rick case)—Def held liable; case re: reasonable care—
1. Def held to objectively reasonable std of care
iii. Miles- also like Vosburg v. Putney- BUT there P/Putney was found wholly liable for an unforeseeable damage
1. but that was an intentional tort
b. Smith v. London & SW RR- RR/Def found negligent for not removing heap of grass trimmings near the railway which caught fire.
i. Rule= If Def found to be negligent, Def responsible for all consequences of their conduct (remoteness doesn’t limit liability).
c. City of Lincoln- P’s ship destroyed after City of Lincoln ship crashed into it. B/c of loss of equipment/compass, P’s ship captain couldn’t save the ship. Def held liable for P’s loss b/c loses were “in the ordinary course of things.”
i. Ryan Ct placed a narrow meaning to the phrase but here the ct broadens scope of “ordinary & natural result”—
ii. Rule= the phrase “Ordinary and Natural results” must be construed not only with intervening natural events but also w/ intervening human conduct (should include at least the reasonable conduct of those who have sustained the damage and who are seeking to save further loss.”
d. Emergency Situations:
e. Jones v. Boyce- P was injured when he jumped from the coach after it had gotten out of control. Ct held Def liable b/c Def’s misconduct put P in a position to have to act in such a manner and injure himself.
i. Rule- the nature of human intervention can either break proximate cause (def not liable), or intervening human action can still leave the Def liable under Proximate cause
ii. See also, Tuttle v. Atlantic City, ct est. that “if a Def’s negligence puts the P under reasonable apprehension of physical injury, and P, in an effort to escape, sustains an injury, a right of action arises to recover for the physical injury
iii. Occasionally cts invoke a foresight limitation to bar recovery in emergency cases: Mauney v. Gulf Refining Co (Miss. 1942).- Def not liable when P tripped on chair in own restaurant; Def was outside and couldn’t have foreseen what P didn’t even see right at her feet!
f. Berry v. Sugar Notch Borough(Pa. 1889)- P/driver of railcar, was speeding in excess of 8 mph speed limit, when chestnut tree fell on car. Def/Borough claimed P’s violation of statute was cause of P’s injury. Ct held that proximate cause was fall of the tree, not P’s speeding (mere coincidence).
i. Rule= P’s violation of statute does not conclusively relieve Def of liability for their negligence; must still est. what negligent act was prox cause of harm
ii. The difficulty of the but-for test—here the answer to that test is not so clear; test has weakness b/c it doesn’t ID the relevant risks***
g. Georgia RR v. Price (1898) = RR/Def’s negligent act here was exposing the P to an increased risk of injury by missing P’s stop. But Ct found that the P’s harm was too remote from RR”s negligence.
i. Rule= the existence of an intervening action by a 3rd party is what breaks the causal connection and relieves Def of liability (here it is the negligence of the hotel).
h. Hines v. Garrett (VA 1921)- P was exposed to an increased risk when RR conductor took P nearly 1 mile away from her stop at night, forcing her to walk back. P was raped twice during her walk back. Ct held that the general proposition (re: no Def liability when intervening act severs) does not apply where the very negligence alleged consists of exposing the injured party to the act causing the injury. Def/RR liable.
i. Bell v. Board of Edu. (NY 1998)- Def/school board left P/sixth grade girl while on a drug awareness fieldtrip and as she had to walk back she was accosted by three boys and raped. Jury verdict for P, as ct asserted that “We cannot say that the intervening act of rape was unforeseeable as a matter of law.” (Notion of an increased risk of harm for P)
j. Brower v. NY Central- After collision caused by Def/RR’s negligence, P/driver of horse cart was too stunned to protect his scattered goods. Def’s detectives, who were on train, failed to prevent theft of P’s goods. Ct held Def liable b/c Def made no effort to protect P’s goods, theft was foreseeable and (since due to Def’s negligence) not too remote.
i. Rule= A party is liable for the consequence of damages caused by 3rd parties if that damage is foreseeable.
ii. Thieves not an intervening cause b/c theft is a natural and ordinary consequence of a train accident
k. Modern cases follow the 2nd Rstmt 448/449 [re: deliberate 3rd party intervention & substantial factor test]= holds that the Def should be held liable precisely b/c the 3rd party did exploit the dangerous condition created by the Def (& its foreseeable that one could exploit the situation)
i.
l. Wagner v. Int’l Railway- [Acts of compulsion] P’s cousin was thrown from overcrowded train. Def/RR was negligent in leaving door open. P was injured, fell off trestle, while looking for the body. Trial Ct instructed jury that Def only liable if P was invited by conductor to go on the trestle. P appeals and Ct held that the limitation of trial ct not correct.
i. Rule= (J. Cardozo) Danger invites rescue; it is a natural human response to seek to rescue other who may be in distress.
ii. Danger invites rescue is well est. doctrine today—it informs a tortfeasor it is foreseeable a rescuer will come to the aid of a person imperiled by the tortfeasor’s actions and thus the tortfeasor owes the rescuer a duty
m. Direct Harm Test: The foreseeability is only important to est. negligence; once negligence is est, Def is liable for all damages regardless of foreseeability.
n. See, In re Polemis & Furness (1921) P/owner of vessel chartered it to Def. Def hired workers that were unloading cargo and negligently dropped a plank in to the hold of vessel causing spark from the petrol- this caused fire. Arbitrators held that while the spark could not have been anticipated other damages could be. Ct held that explosion not foreseeable but Def liable on the directness test).
i. Rule= Def is liable for unforeseeable consequences of his acts if some damage is foreseeable—once Def’s negligence is shown, Def liable for all damages!
iii. he foreseeability only is important to determine existence of negligence; BUT once negligence is est. the Def is liable for all damages regardless of foreseeability.
iv.
o. Majority View Today: Def not liable to 3rd party if the risk of harm to that P, due to Def’s negligent act, is not foreseeable.
p. Palsgraf v. Long Island RR (NY 1928) Def/RR employees were negligent in trying to assist passenger trying to jump the moving train w/ package in hand. Def not aware that package contained explosives. Package dropped on rail and caused explosion that rattled the platform and caused scale to fall on Palsgraf, who was standing at other end. Ct finds,
i. Def not liable b/c Def owed no duty to P as she was not a foreseeable P.
ii. Dissent= J. Andrews= est. the substantial factor test; asserts that due care is a duty imposed on each one of us to protect society form unnecessary danger, not to protect A, B, or C alone.
iii. NOTE-
1. Polemis re: unforeseeable risks;
2. Palsgraf re: unforeseeable Plaintiff!
iv. Miles= Negligence must be founded on a foreseeable risk to the injured person –if it is not foreseeable, then there is no duty to protect that person, and thus no proximate cause to; But if the risk is foreseeable than there may be a duty to take care to that person and if that person is harmed b/c of failure to take care then the harm is foreseeable.
q. Marshall v. Nugent- Def/driver for Oil Co. negligently caused P’s car to go off-road to avoid collision. Def offered to pull P’s car back onto highway and told P to go warn other cars. P was struck by oncoming car driven by Nugent. Def’s negligence subjected P to, had not yet dissipated at time of P’s injury (i.e. normal traffic flow had not yet resumed).
i. Rule= A negligent tortfeasor remains liable until the situation has returned to normal.
2. But-For test v. Proximate Cause test- proximate cause limits the liability that would be assigned under the but-for test by looking at the extra risks caused by Def’s negligence (are those risks over? If so, then Def no longer liable!)