Torts Outline The Nature of Tort Law
Compensation: The overall purpose of tort law is to compensate plaintiffs for unreasonable harm that they have
Competing Policy Reasons:
i) ii) iii) iv) Compensation for victims Deterrence: Deter accidents and defendants from taking risks Judicial administration: stare decisis, bright line rules for future cases Economic efficiency: it’s fair to make the defendant pay for the accident if it would have been cheaper for the defendant to have prevented the accident v) Justice, fairness: underpins everything. Courts will ask “What is the fair result?”
Tort Law – The Basics
Elements of a Plaintiffs Case 1. Act or omission of the Defendant 2. Duty owed by the defendant to exercise due care 3. Breach of duty by the Defendant 4. Casual relationship between defendants conduct and harm to the plaintiff (both actual and proximate cause) 5. Damages
Duty, Negligence, Cause in Fact, proximate cause, and damages Negligence and Strict liability
When should unintended injury result in liability?
Shifting losses: The fundamental issue addressed by a system of tort liability for untended injury is when losses should be shifted from an injury victim to an injurer or some other source of compensation. The courts could apply a theory of strict liability by requiring people to pay for all harms they cause. In the alternative, the courts could require that people only pay for injuries they cause through their own negligence or fault. Hammontree v. Jenner Issue: Is strict liability appropriate theory for recovery when sudden illness renders automobile driver unconscious? No (a) When products cause injury, strict liability is an appropriate theory. The manufacturers make a profit from sales and should pay for any injuries. Those costs are costs of doing business. (b) The theory of negligence is adequate for automobile accidents. Drivers share the roads and should allocate damages based on fault. Since D used reasonable care to control his seizures, negligence has not been shown.
The litigation Process
1. 2. Attempt to reach a settlement. If other party refuses, lawyer may file a complaint. Defendant responds. Could file a motion to dismiss because “no legal grounds for complaint” even if the facts are true (demurrer). The motion to dismiss would say that the complaint does not state a cause of action. If the judge agrees with the defendant, the judge will dismiss the suit and judgment is granted for the defendant. If judge does not dismiss, the defendant will file an answer, in which he denies some or all of plaintiff’s allegations of fact. The defendant could file a motion for summary judgment. That is, there is no need for a trial because there is no genuine dispute as to the facts. If motion for summary judgment is granted, judgment is granted and the case ends. If motion for summary judgment is not granted, case goes to trial. Before jury reaches verdict, defendant could make motion for directed verdict. This asks the judge to rule in defendant’s favor because the plaintiff’s evidence is so lacking on at least one essential fact that no jury could reasonably find in the plaintiff’s favor and thus it is pointless to continue the trial. If motion for directed verdict is granted, judgment is entered and the case ends. If directed verdict is denied, jury instructions are presented by both sides to the judge, and he selects which instructions to give the jury. The jury will be charged and will go deliberate After verdict is reached, the loser may enter a motion for judgment n.o.v. If the motion is granted, case ends. If motion isn’t granted, a judgment is entered and the loser may appeal on the ground that an error of law was committed by the trial court.
6. 7. 8. 9.
II. Chapter 2. The Negligence Principle
A. Historical Development of Fault Liability
1. Origins: Historians have disagreed as to the origins of the law of torts. a. Early English law: In the common law courts of the 13th century, there was the writ of trespass and the writ of trespass on the case. Trespass: The writ of trespass provided relief for all direct and immediate forcible injuries to person or property. It covered unintentional as well as intentional injuries, require no proof of actual damages, and did not require fault on defendant. Trespass on the case: The writ of trespass on the case provided relief for injuries that were intended but were either not forcible or not direct 2. Present law: Today, tort liability generally falls into three classes: a. Liability based on the intent of the defendant; b. Liability based on the negligence of the defendant; and c. Liability attaching irrespective of the state of mind of the defendant; i.e., strict liability.
The Fault Principle:
Brown v. Kendall In 1850, in Brown v. Kendall, the Massachusetts Court abolished the rule that a direct physical injury entailed strict liability. The court held that when defendant who attempted to beat a dog but unintentionally struck plaintiff instead would not be liable for battery in spite of direct force applied. Instead, the defendant would be liable only if he intended to strike plaintiff or if he was at fault (negligent) in striking him. Rule: When a defendant is engaged in a lawful act and injures a plaintiff, the plaintiff may not recover damages if: 1.) The plaintiff and defendant exercised ordinary care; 2.) The plaintiff and defendant failed to exercise ordinary care; or 3.) The plaintiff alone failed to exercise ordinary care. Brown v. Kendall set the general standard for negligence law: the defendant should use ordinary care, or rather, the care of a reasonable and prudent person. The actual conduct that would count as ordinary care vary with circumstances; since a reasonable person would exercise more care when danger is greater. Elements of a Plaintiff’s Prima Facie Case: The rules for the negligence case require that the plaintiff has the burden of proving all of the following elements in order to establish an actionable claim for negligence: The defendant owed the plaintiff a duty of care, (i.e. not to engage in unreasonably risky conduct); The defendant breached that duty by his unreasonably risky conduct; The defendant’s conduct in fact caused harm to the plaintiff; The defendant’s conduct was not only a cause in fact of the plaintiff’s harm but also a proximate cause, meaning that the defendant’s conduct is perceived to have a significant relationship to the harm suffered by the plaintiff. The existence and amount of damages, based on actual harm of a legally recognized kind, such as physical injury to person or property. The Elements: Meaning and Terminology Duty or Standard of Care: The duty or standard of care imposed in most cases is the duty of reasonable care under the circumstances, no more, no less. Judges, not juries, ordinarily determine whether a duty exists and the standard it imposes. Breach of Duty: Negligence: The defendant must have breached his duty of care to the plaintiff. When the defendant owes a duty of reasonable care, the defendant breaches that duty by conduct that falls short of such care, that is, by conduct that is unreasonably risky. Juries, not judges, decide whether the defendant was negligent unless the question is too clear to permit different evaluations by reasonable people. Cause in Fact: Actual harm requirement: The plaintiff cannot recover without showing actual harm resulting from the defendant’s conduct. Put differently, the defendant’s acts must cause the harm of which the plaintiff complaints. Tests of cause in fact: The traditional view is that the plaintiff’s injury is caused by the defendant’s conduct if, but for the defendant’s conduct, the plaintiff would not have suffered the injury.
The Standard of Care: The defendant is bound only to use that care that is commensurate with the hazard involved.
The risk, reasonably perceived, defines the duty owed.
Reasonable Care –
Adams v. Bullock Did D breach a duty of reasonable care by putting 12yr old boy in danger when crossing trolley and swinging a wire? No D must only exercise ordinary care in light of ordinary risk. In this case, it would take extraordinary foresight to have foreseen this risk. Even if the harm was remote, if the risk was avoidable, liability would attach. Here, however, the trolley line could not have been made safer. The opinion seems to suggest a balancing of factors to determine whether a duty is owed. The foreseeability of the harm is balanced against the ability to prevent the injury.
a. Unreasonable Risk: (1) Imposition of risk: To show that the defendant’s conduct failed to meet the duty of care imposed on
him the plaintiff must show that the defendant’s conduct imposed an unreasonable risk of harm on the plaintiff. (a) Not judged by results: To make this showing, plaintiff cannot simply show that the defendant’s conduct resulted in a terrible injury. Rather, she must show that the defendant’s conduct, viewed as of the time it occurred, without the benefit of hindsight, imposed an unreasonable risk of harm/ (2) Balancing Test: In determining whether the risk of harm from a defendant’s conduct was so great as to be “unreasonable,” the test is whether a “reasonable person” would have recognized the risk, and have striven to avoid it. However, because it is often exceptionally difficult to know what a reasonable person would have done in a particular situation, the courts have developed a “balancing test” as a rough guide was to whether the defendant’s conduct is so risky as to involve an unreasonable risk of harm to others. The most famous formulation is that stated by Judge Learned Hand in US v. Carroll Towing: (3) Liability exists if: B < L x P Where B equals the burden which the defendant would have to bear to avoid the risk, L equals the cost of injury, and P equals the probability that the harm will occur from the defendant’s conduct. So the cost of injury times the probability that it will occur must be less then the burden on the defendant for the defendant to not be liable. U.S. v. Carroll Towing Co. It is burdensome, to a degree, to have an employee on board at all times. However, there was wartime activity going on in the harbor, and ships coming in and out all the time. Therefore, the risk that the lines would come undone, and the danger to the barge and to other ships if they did, was sufficiently great that P should have borne the burden of supplying a watchman; a. Threat of serious injury: As the Hand formula implies, the more serious the potential injury, the less probable its occurrence need be before the defendant will be held to be negligent for not guarding against it. b. Calculation of burden: “B” in the above equation is itself a function of not only the cost to him, but also the broader social utility of the conduct which he would have to forego. Hence the courts attempt, in effect, to answer the question: “Would society be better off if all defendants in a the position of D were permitted to act as D did, or were instead require to change their conduct so as to avoid the kind of risk which resulted in injury to P?” Only if the answer to this question Is that defendant in D’s position should be require to change their conduct will the cause of action for negligence lie (assuming that the other requirements are met). (1) Ex: D Railroad maintains a railway turntable (a rotating platform with a track for tuning a locomotive) near a publicly traveled path. P, a child, discovers that the turntable is unlocked, climbs on it, and while playing on it with a group of children gets his foot caught between the rails and severed at the ankle joint. (2) Held: It was negligent of D not to keep the turntable locked and guarded. The business of railroading is facilitated by the use of turntables, so the public good demands that their use not be entirely outlawed, since their utility is out of proportion to the occasional injuries that result. But the burden of keeping the turntable locked is so small that the danger of not doing so outweighs this burden. Compare with strict liability: Observe that something quite different happens when the liability scheme is strict liability rather than negligence. Under strict liability, an actor who engages in, say, an ultra hazardous activity is responsible for all injuries that he proximately causes, even if these occur without negligence.
The Reasonable Person
Objective Standard: The balancing test, for weighing burden against risk, is a very abstract one, and neither a jury nor a potential defendant can be expected to use it to evaluate conduct in most instances. Therefore, the negligence issue is usually put to the jury as “Would a reasonable person of ordinary prudence, in the position of the defendant, have conducted himself as the defendant did?” This hypothetical “reasonable person” does, bear some of the characteristics of the actual defendant. a. Methods for determining risks acceptable to a reasonable person. The reasonable person standard is important, but it does not by itself direct juries or judges to clear conclusions in close cases. i. Characteristics of the Reasonable Person 1. Considers foreseeable risks of injury that conduct will impose on community. 2. Considers extent of risks posed by conduct. 3. Considers likelihood of risk actually causing harm. 4. Considers whether alternatives to proposed conduct would achieve the same purpose with lesser (or greater) risk. ii. Reasonable Person limitations 1. Physical Handicap – When a D suffers from a physical handicap, the Reasonable Person will be deemed to have the same handicap (Sudden disability: A key factor will often be whether the disability has struck for the first time immediately preceding the accident. A defendant who reasonably believes himself to be in good health, and who suddenly suffers, for the first time ever, a heart attack or epileptic seizure while driving, would almost certainly not be held to have negligently caused the ensuing accident. But one who knows he is subject to such attacks or seizures might well be negligent in driving at all. 2. Mental Incapacity – A person with a mental handicap is held to the same standard of care as a person with ordinary intelligence 3. Children – Majority bases standard on when may be expected of children of like age, intelligence, and experience 4. Child engaging in Adult Activity – Majority holds children to adult standards when they engage in “adult” activity 5. Emergency Doctrine – Person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which to race, should be held to the same standard of care as someone confronted with a foreseeable occurrence iii. Duty of Highest Care – Established hundreds of years ago when safety precautions were primitive. Reasonable person standard has replaced it. [Bethel v NYC Transit]
a. Types of arguments i. Hand Formula – If Burden of precaution is less then the probability that the action will happen multiplied by the Magnitude of loss then the actor is negligent. Rooted in economics. B<PL [ 1. Probability – Likelihood of Harm. Where probability is miniscule it is doubtful that duty has been breached. 2. Magnitude of the Loss – looks at the likely harm flowing from the injury-causing event when it occurs. What a reasonable person would foresee as the likely harm. 3. Burden of Precaution – Costs associated with avoiding the harm, alternatives, and their feasibility, the inconvenience to those involved, and the extent to which society values the relevant activity 4. Big P and Big L = Big Risk
ii. Negligence Argument (RPS) -All foreseeable injuries to all foreseeable victims in all foreseeable
occurrences1. Plaintiffs Argument a. Find the did/should have done - Ex. Construction site did not place barrier in front of gate or have an alternative entrance. They should have placed a barrier or moved the gate to a different area. b. Talk about how the Risks of the did are HIGH and the cost of the should have done is low (L) - Ex. Cars/Bicycles can go through the fence and fall into the pit and endanger the drivers, workers, pedestrians and valuable construction equipment c. Show facts that increase probability (P) - Ex. High amount of cars in the area d. Show cost of avoidance is low (B) - Ex. Cost of barriers is actually cheap Defendants Rebuttal a. Take as a given b. Take as a given c. Look for Contrary facts. Spin the facts differently. Show the plaintiff misled you d. Show that the cost of avoidance would have been high. Plaintiff misled you Plaintiffs Rebuttal -Know these rebuttals in advance. Show that Defendant is over/under exaggerating.
Substitutes for Reasonable Person Standard i. Overview
1. Substitutes for the RPS are necessary because a. It is not an effective deterrent because it is a fact sensitive standard and not a clear rule b. It is unfair because it punishes someone for an offense without giving them fair notice of what is expected from them. Violation of fair notice. (Due process) Judge made rules and Customs cannot be used to replace the RPS argument. Violation of a statute is acceptable.
Roles of Judge and Jury
a. Judge decides law: The judge decides all questions of law. In a negligence case, this means that the judge will decide, typically, the following issues:
(1) State of facts: She will decide, after all the evidence is in, whether that evidence admits more than one conclusion. If she decides that reasonable people could not differ as to what the facts of the case are, she will instruct the jury as to the findings of fact they must make. (2) Existence of duty: The judge will also determine the defendant’s duty to the plaintiff. This is done as a matter of law. Thus in a suit by a plaintiff trespasser against a defendant landowner, the court will probably instruct the jury that provided the defendant did not know of the plaintiff’s presence, he owed him no duty of care at all. (3) Directed verdict: By deciding aspects of both these matters, the judge may remove the case from the jury by directing a verdict. b. Jury’s role: The jury, it is commonly said, is the finder of facts; jury will be permitted to find the facts only where these facts are in such dispute that reasonable persons could differ on them. If the case is sufficiently unclear that it is permitted to go to the jury, the jury will decide two principle factual issues:
(1) What happened; and (2) Particular standard of care: Whether facts found show defendant breached duty of care causing plaintiff injury ii. Judge Made Rules 1. Policy Problems with Judge made rules a. Separation of power - Congress is supposed to make laws not the judicial branch. Judges are appointed for life and typically not by the people b. Competency – Legislature is better at making public safety rules. They have more experience and resources when compared to judges. 2. Cases
a. B&O Railroad v Goodman – Guy hit by train. Judge Holmes argued that if you got out and checked for train you can’t be negligent. Holmes wanted to create a catalogue of Do’s and Don’ts that could be referenced to determine negligence Pokora v Wabash – Guy gets out to stop and look still gets hit by train. Under Goodman he would not have been negligent but in this case getting out of car was more dangerous. Cardozo overruled Holmes, shows that you can’t create situational rules because facts are different in each case. Negligence must be a question for the jury.
Role of CustomThe majority of courts allow evidence as to custom for the purposes of showing the presence or absence of reasonable care, but do not treat this evidence as conclusive. Thus, the fact that everyone else in the defendant’s industry does a certain thing the same way the defendant did it does not mean that the way was not unduly dangerous, if there are other factors so indicating. 1. Overview a. Custom is merely evidence of reasonable care and is not conclusive b. Evidence of custom can be integrated into the RPS argument c. The existence of custom can help prove that a reasonable person would know about the risks and safety of the act. 2. Constraints on use of customs (a) Widespread and notorious: Courts often say that to be a custom the practice must be widespread, notorious or even that it must be universal. If such demands are too stringent, it is at least true that the practice must be common and not merely a sporadic or occasional practice. (b) Safety concern: When the plaintiff attempts to prove negligence by proving violation of custom, the custom must be one generated by safety concerns, not one arising for reasons unrelated to safety. (c) Violation of statutes: A custom to violate statutory or regulatory requirements is not ordinarily to be admitted to show reasonable care, but such a custom may occasionally bear on the possibility that violation was excused. 3. Case a. Trimarco v Klein – Guy falls through glass bathtub door. Wanted to replace RPS argument and say negligence came from not following industry standard.
Role of StatutesNon-prescriptive statutes: Statutes which provide only a criminal penalty or some form of administrative enforcement. These statutes provide nothing at all about tort law, so they can be identified as nonprescriptive statutes. b. Significance of statutory violation: Sometimes, however, the legislature passes a statute t hatappears to define reasonable conduct in a certain kind of situation. This is most often true of legislation establishing safety standards for industry, transportation, etc. A substantial body of case law has arisen discussing the extent to which the court is required to treat a violation of such legislation as negligence per se. (1) Majority Rule - Negligence per se doctrine: When courts apply the standard or rule of conduct from a non-prescriptive statute, the majority do so under the rule of negligence per se. That rule holds that an adult’s violation of statute is negligence in itself if it causes harm of the kind the statute was intended to avoid and to a person within the class of persons the statute was intended to protect. In the absence of a valid excuse, violation conclusively shows negligence. Violation of statute equally proves the plaintiff’s contributory negligence in appropriate cases. (2) Minority Rule - Evidence of Negligence: A few courts reject the per se rule and treat violation as merely some evidence of negligence or as “guidelines for civil liability.” c. Statute must apply to facts: Even in states following majority rule that statutory violations can sometimes be “negligence per se,” the courts have set up a series of requirements to ensure that, before the violation will be negligence per se, the statute was intended to guard against the very kind of injury in question. 1.) Class of persons protected: First, plaintiff must be of the class of persons for whom the statute was designed to protect. 2.) Protection against particular harm: The second requirement the statute must meet before it is a violation per se is that it must have been intended to protect against the particular kind of harm that the plaintiff seeks to recover for. Ex: Animals on a shop not properly secured in cages are tossed overboard during a storm. The statute was intended to keep disease from spreading among the animals, not to keep them from washing overboard. Therefore, because the statute was not meant to prevent the kind of harm that occurred, it cannot be used as evidence of negligence per se. 3.) Excuse of violation: Once the plaintiff has shown that the statute was addressed to a class of person including herself, and that it was designed to guard against the kind of harm that she sustained (and assuming that she carries the more general burden of showing that the act that violated the statute was the actual cause of the harm), the defendant’s negligence per se has been established. However, in some circumstances, the defendant may then have the right to show that his violation of the statute was excusable. If he can do this, the violation will be stripped of its “negligence per se” nature, and will be at most, evidence of negligence which the jury will weigh, and may disregard. (Absolute duties: There are some statutes that the court may hold, by their nature and history, leave no room for excuses.) a.
Violation of a statutory command is negligent per se only if statute meets 4 conditions (does not apply to every case/statute ALL ARE REQUIRED 1. Statute conditions a. Statute actually regulates defendants conduct (not statute sort of regulates)
Statute purpose is for safety/prevent accidents Statute is targeted to prevent exactly the kind of accident that happen in case d. Statute is targeted to prevent the type of person that is in case (in the protective class) e. No excuse for violating statute (4 1/2) Arguing Legislative intent a. Argue purpose from statutory language i. Construction elevator used walls instead of bars. Showed they were concerned about material not just people b. Look at legislative history c. Look at public record ii. Newspapers, sponsoring groups d. Actual effect and impact iii. Even if legislature was not originally concerned with safety it might promote it anyway Defendant’s argument a. Knock one of the requirements out and the statute cannot be used to argue negligence b. Plaintiff can still argue negligence using RPS c. Even if the defendant complied with the statue it does not mean he is off the hook. A reasonable person might decide to be safer. d. Laws are a compromise. Statutes represent the minimum a person must do. Violation is negligence per se but compliance does not mean no negligence at all.
Proof of Negligence: Constructive notice and Res Ipsa Loquitur
a. Overview i. Proving the Did of the Did/Should have Done argument ii. Plaintiff has the burden of proof iii. Jury ultimately decides negligence iv. Constructive notice and Res Ipsa are similar because they are both ways of dealing with the problem of a lack of direct evidence Types of Evidence i. Documentary – Act was cause on tape or recorded. ex. Security camera with time stamp ii. Testimonial/Eyewitness – A third party witnesses the act. ex. Fellow shopper iii. Circumstantial – Proof of one fact, or groups of facts, that gives rise to an inference by reasoning that another fact must be true. Ex. Baby food was dirty 1. Circumstantial evidence: tends to establish and permit an inference of another fact. 2. Judge’s role in monitoring circumstantial evidence: The trial judge must decide in the first place whether the circumstantial evidence offered rationally tends to support the inference of any relevant fact and must exclude the evidence if it does not. 3. Circumstantial evidence going to the jury: If circumstantial evidence is sufficient to permit reasonable jurors to draw the inference sought, the issue goes to the jury, which assesses its weight. 4. Effect of circumstantial evidence: Drawing inferences of fact from circumstantial evidence is largely a matter of assessing probability. An inference is ordinarily permissible, but is not mandatory. Also, circumstantial evidence does not create a presumption or shift the burden of persuasion. It is evidence for the jury to consider and weigh, nothing more. 5. Expert testimony and circumstantial evidence: In many instances, circumstantial evidence must be explained by someone with special knowledge.
iv. Constructive Notice 1. Constructive notice: This is a notice arising out of presumption of law from the existence of facts and circumstances that a party had a duty to take notice of. To have
v. Cases 1. 2.
constructive notice the defect must: a. Be visible and apparent; and b. Exist for a sufficient period of time prior to the accident to permit the defendant’s employees to discovery and remedy it. If something is there for a long enough period of time, we will assume you knew about it. Need enough circumstantial evidence to prove Constructive Notice cannot rely on speculation alone. Negri v Stop & Shop – Enough sufficient evidence for the jury to decide if the broken baby food was on the floor long enough for constructive notice Gordon v Museum – Not enough evidence to allow jury to decide if paper was on the ground long enough to prove constructive notice.
Res Ipsa Loquitur – “the thing speaks for itself”
Aid in proving the case: To prove the defendant negligent, the plaintiff must normally provide evidence of the defendant’s specific conduct. Proof that an accident happened or even that the defendant caused an injury is not enough by itself; as courts say, negligence is not presumed. Cases that fit the res ipsa loquitur pattern constitute an exception. It means, the plaintiff’s injury and the immediate events surrounding it can by themselves show negligence, even though the plaintiff is unable to prove any specific act that was unreasonably dangerous. i. Overview 1. Not a question of lack of evidence. In this case you don’t know what the DID is or multiple possible DID’s exist. 2. The fact that the accident occurred is evidence of the D’s negligence. Omit process of proving the did and the should have done. 3. You can speculate on other ways the accident could have occurred without negligence. Don’t have to eliminate all possible causes. Just have to show that a reasonable person would say more likely then not there was negligence. 4. Flag in the facts – Can’t find the did, it’s a freak accident, or the object that did the damage no longer exists (ex. Snowman blowing up). Defendant has better access to the evidence concerning the cause of injury then the Plaintiff. 5. Does not guarantee a finding of negligence. Just allows you to present your case for negligence to the jury when no direct proof exists. It is sufficient evidence but not conclusive. 6. Argument for RIL can be used in conjunction with RPS and when you could probably figure out the bad conduct if you really tried. ii. Case 1. Byrne v Boadle – Barrel falls out of window 2. Mcdougald v Perry – Spare tire falls off truck 3. Ybarra v Spangard – Patient unconscious and untreated body part is injured [Medical malpractice exception] iii. Requirements for doctrine: The courts generally agree on at least four requirements before the doctrine may be applied: a. No direct evidence of D’s conduct: First, there must be no direct evidence of how D behaved in connection with the event. b. Seldom occurs without negligence: The plaintiff must demonstrate that the event is of a kind which ordinarily does not occur except through negligence (or other fault) of someone. c. In defendant’s control: Plaintiff must show that the instrument which caused her injury was, at the relevant time, in the exclusive control of the defendant. d. Rule out plaintiff’s contribution: Plaintiff must show that her injury was not due to her own action.
Proving the steps:
1.) No direct evidence of D’s conduct: As a threshold matter, most courts insist that there must be no direct evidence of how D behaved in connection with the event. Res ipsa is only used as an indirect
means of inferring that D was probably negligent, so there’s no need to use the doctrine if we know the details of D’s conduct. 2.) Inference of someone’s negligence: The plaintiff must prove that the incident is one which does not normally occur in the absence of negligence. This is true of, for instance, falling elevators, escaping gas or water from utility mains, the explosion of boilers, etc. The plaintiff is not required to show that such events never occur except through someone’s negligence; all she has to do is show that most of the time, negligence is the cause of such occurrences. Thus it is now generally accepted that where an airplane crashes without explanation, the jury may infer that negligence was more than likely the cause. 3.) Negating other causes: The plaintiff is not require to demonstrate that there were no other possible causes of the accident. She must merely prove the more than 50% probability that there was negligence. 4.) Showing that the negligence was the defendant’s: The plaintiff must also show, again by a preponderance of the evidence, that the negligence was probably that of the defendant. In the older cases, this requirement was usually expressed by stating that the plaintiff must demonstrate that the instrumentality which caused the harm was at all times within the exclusive control of the defendant. (a) Modern view: Most modern cases, however, do not express this requirement solely in terms of exclusive control by the defendant. Instead, they simply require the plaintiff to show that, more likely than not, the negligence was the defendant’s, not someone else’s. (b) Plaintiff’s particular evidence: To demonstrate that negligence is more probably that of the defendant, the plaintiff is required to produce evidence negating other possibilities. However, the evidence need not be conclusive, and only enough is required to permit a finding as to the greater probability. Thus a plaintiff injured by a soda bottle which explodes after she has bought it from a retailer must produce evidence showing that there was no intervening causes, i.e., that the retailer handled bottle carefully and she handled it carefully. 5.) Not due to plaintiff: The final requirement for the application of res ipsa is that the plaintiff establish that the accident is probably not due to her own conduct. Contributory negligence: Contributory negligence on the part of the plaintiff will sometimes constitute a failure to meet this requirement. But if the plaintiff’s contributory negligence does not lessen the probability that the defendant was also negligent, the requirement may be met. i. Summary of steps Type of accident normally involves negligence a. Two ways to prove i. Precedent – Earlier court decisions where it has been determined that this kind of accident was RIL ii. Intuition – Create scenarios where the accident can be explained by negligence. If they greatly outnumber the scenarios where it isn’t negligence you can go with your gut feelings. Don’t need to rely on hard statistics. Need 51% of the probabilities to point to the D’s liability.[Presumed Statistical Evidence] 2. Exclusive Control a. Objects that causes damage usually pass through multiple controllers and any one of them could have responsibility b. Have to find the One person who had control over the object that did the damage c. If people exist outside the umbrella, they need to be removed by i. Dominion – Find the person who has control over everyone else. Owner/Boss is responsible for activities of his employees. ii. Elimination – Use facts to get rid of extra controllers. Show that they couldn’t possibly be responsible. iii. Majority Control – Use statistics to show that it was more likely one persons fault. Pick the person who is involved with the instrument the most frequently and most intimately. Typically, they are the one most likely to have been negligent. 3. Innocent Victim a. Basically a check on exclusive control. ii. Defendants Response 1. Challenge one of the conditions – Never want case to go to jury because they are sympathetic and will rule against you 1.
Res Ipsa Rebuttal – Argue that you did live up to the reasonable person standard and that your actions showed due care. General evidence of due care: If the defendant merely offers evidence to show that he was in fact careful, this will almost never be enough to rebut the plaintiff’s claim. He will only be able to prevent a directed verdict, and the case will go to the jury to decide. Rebuttal of res ipsa requirements: But the defendant’s evidence may, rather than merely tending to establish the defendant’s due care, directly disprove one of the requirements for application of res ipsa. Thus if the defendant conclusively does this, he will be entitled to a directed verdict.
iii. Medical Malpractice Exception Multiple defendants: Sometimes the plaintiff sues two or more defendants at one, alleging that some or all of them have been negligent. If the plaintiff can demonstrate the probability that the injury was caused by the negligence of at least one of the defendants, but cannot show which of them, may the doctrine of res ipsa be applied against all? Ybarra case (a medical case) sometimes can be yes. 1. If patient is unconscious for surgery and untreated body part is injured, he is not expected to identify the negligent defendant. 2. Multiple D’s could have injured him 3. All D’s that had P in their custody had a duty of ordinary care 4. It would be unreasonable to require the plaintiff to identify the negligent defendant, insofar as he was unconscious throughout the operation. Furthermore, the defendants bore interrelated responsibilities; each of them had a duty to see that P wasn’t harmed. Therefore, each of the defendants who had any control over or responsibility for P must bear the burden of rebutting the inference of negligence by making an explanation of what really happened. 5. Court believes all D’s would protect each other, so they switch from normal Res Ipsa doctrine (P must harm is under exclusive control of D) and make Defendant have burden of proof Even if res ipsa applies to permit the inference that the defendant must have been negligent, the plaintiff still has the burden of showing that this negligence constituted a breach by the defendant of his duty of care. Effect of res ipsa: The usual effect of the application of res ipsa is to permit an inference that the defendant was negligent, even though there has been no direct, eyewitness evidence that he was. In this respect, res ipsa is merely a doctrine that sanctifies the use of a particular kind of circumstantial evidence. The consequences of the doctrine’s application is that the plaintiff has met her burden of production. What is the conclusion when applying Res Ipsa Loquitur? (a) Burden of production: Thus some states hold that once res ipsa applies, the burden of production is automatically shifted to the defendant. To put it another way, the mere application of the doctrine constitutes a presumption of the defendant’s negligence. Then, unless the defendant comes forward with rebuttal evidence, he will lose. (b) Burden of persuasion: An additional small minority of courts hold that once res ipsa applies, the burden of persuasion shifts to the defendant. That is, the defendant must then prove by a preponderance of the evidence that he did not negligently cause the plaintiff’s harm.
III. Chapter 5. Causation A. Cause in Fact-
1. Overview 1. A Defendant must be cause in fact and proximate cause of the injury or damage 2. A casual relationship must exist between the defendants conduct and the harm to the plaintiff (both actual and proximate cause). If the defendant did not cause the injury in fact, he is not liable, but even if the defendant did cause the injury in fact, he is not liable if he was not the proximate cause of injury or damage. 3. Actual causation is question of the jury while proximate cause is question of law: Plaintiff must prove both to win case. 4. Plaintiff has burden of proof. Promotes policy of Individual fairness: You made accusation, you prove it. 5. Cause in fact is an argument that the defendant was negligent and that the defendant’s negligent conduct caused my harm. A. Basic Doctrine: Actual causation is always a question for the jury. The court enters into the decision only in deciding if reasonable persons could find such a fact. “But for” test: In the vast majority of situations, the defendant’s conduct is the cause of the plaintiff’s injuries if it can be said that, but for the act or omission of the defendant, the injury to the plaintiff would not have happened. But For Rule (Sine Qua Non) 1. If the injury to the plaintiff would not have happened “but for” the act or omission of the defendant, such conduct is cause in fact of the injury a. D not signaling but P didn’t look anyway. D not supplying firefighting equipment but no water anyway: D was negligent but not a cause in fact. B. Proof of Causation – Preponderance rule 1. Plaintiff must prove causation by a preponderance of evidence (50%+ or “more likely then not”) 2. Have to have all types of evidence and some it must be individual to your case 3. 100% of the damages for 50%+ of the proof 4. Rational for not having a heavier burden: Hard to fully prove causation and P might not have enough resources A. Special rules of causation: don’t need to prove by preponderance: Use when facts allow you too: They are exceptions: (a) You can prove concert of action: multiple def (b) You can prove alternative liability (summers v. tice): multiple def (c) You can prove market share liability: multiple def (d) You can prove loss of chance
(2) Proof of actual cause: The plaintiff bears the burden of proving that the defendant actually caused his injury, just as he must bear the burden of proving the other parts of his prima facie case. However, he must demonstrate this actual causation merely by a preponderance of the evidence, that 51% of the time the accident would be caused by the action of the defendant. Proof of “but for” aspect: Thus the plaintiff does not have to prove with absolute certainty that had it not been for the defendant’s conduct, the injury would not have occurred. All he has to do is show that it is probable that the injury would not have occurred with the defendant’s actions. Case Law: Rinaldo v. Mcgovern: Golfer didn’t yell “four” but even if he did; the guy still would get hit by the ball. Judgment for the defendant. Tollison v. Washington: couple adopts child and agency did not give them info on child’s disabilities, but couple would have adopted regardless, judgment for defendants.
i. Sufficiency of evidence [Judge as gatekeeper] 1. While causation is question for the jury, the judge will not let the case get to the jury if evidence is not sufficient. (Directed Verdict)
Judge wants to ensure the jury’s verdict is a rational decision and not an emotional one. He has a duty to prevent jury unfairness. To get to a jury must find a middle ground (Reasonable possibility – reasonable certainty)
ii. Evidence Spectrum 1. Little Evidence/Poor quality a. Jury finding would be emotional b. Judge makes directed verdict for Defendant 2. Some Evidence/Decent quality a. Reasonable jurors can find for either side b. Case goes to trial 3. A lot of Evidence/Great quality a. Judge makes directed verdict for Plaintiff
Quality and quantity is weak-------------------------------------------Quality and quantity is strong *2 *1 *3 *1 – Reasonable jurors could find either way *2- Unreasonable jurors could find for plaintiff- direct verdict for defendant, in fear of jury doing the wrong thing *3- Unreasonable jurors could find for defendant- direct verdict for plaintiff, in fear of jury doing the wrong thing
iii. Types of Evidence 1. Eyewitness – This is the best kind of evidence that will push you towards middle ground 2. Documentary 3. Expert testimony: Sometimes expert testimony may be necessary to prove actual causation by the defendant. This is frequently true in medical malpractice cases, where the jury has no knowledge of its own which would permit it to conclude that the defendant’s treatment caused the plaintiff’s injury. 4. Scientific evidence: Similarly, scientific evidence often plays a big role in proving causation, especially in product liability cases. Thus plaintiffs will frequently attempt to provide that a product manufactured by the defendant is more likely than not to have been the but-for cause of the plaintiff’s injuries. 5. Circumstantial – Is a good quality of evidence as long as you have enough 6. Statistical – Can also be used to push towards the middle. More powerful when coupled with individuating evidence. a. Case: Reynolds v Texas – Rely on common experience. When people fall on unlit stairways common experience tells us that it is usually because the lack of light is the cause. b. Stubbs v Rochester – P got typhoid allegedly from contaminated water. Couldn’t find water with Typhoid in it so they used statistical evidence to show sufficient causation. iv. Evidence Guideline 1. Quality of evidence – If evidence is of high quality (Eyewitness or Documentary) the case will go to the jury 2. Effort/Ratio Rule – Even if no high quality evidence exists the case will go to jury if a counsel shows as much other evidence as it possible could 3. Common sense/Statistical evidence – Court can rely on an appealing generalization to get the case to the jury when quality of evidence is poor and little effort was/could be made. Have to show that most of the time, when something bad happens, it’s a result of that negligent act.
Increased Risk of Harm i. Overview
Causation can be found when both
A negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur b. A mishap of that very sort did happen When a strong enough casual link like this has been established, its up to the D to bring in evidence denying the “but for” cause and suggest that it wasn’t a substantial factor. Where there are two or more possible causes of the plaintiff’s injury, one of which is the defendants negligent conduct, a plaintiff is required to establish facts allowing for a reasonable certainty that the defendant’s conduct was more likely the cause of his injury, then you get to the jury.
Zuchowicz v US – P is diagnosed with PPH after being negligently prescribed twice the dosage of Danocrine. a. When a drug has been prescribed in greater then approved dosages, and negative side effects have been shown to be the result, a strong casual link exists between the two. b. No study on the effects of the drug existed. They used an unperformed statistical test to get the case to the jury (similar to Res Ipsa – Don’t need to prove the facts) Statistical Evidence and Increased Risk of Harm 1. Can conduct a hypothetical study to show cause and get a case to the jury 2. It is the courts responsibility to police the validity of scientific evidence. Jurors don’t know “good” science vs. bad science. 3. Statistical evidence makes courts uneasy but they still use it to show causation. 4. Problems with Statistical evidence in general a. They are very powerful because of their apparent accuracy. Numbers mystify people and can mislead them. Given more deference by ordinary jurors then they should be. b. Statistics put individual cases into groups then we make assumptions about Individuals based on the group that they are a member of (25 and under pay more for insurance) Statistics go against Individual Fairness. c. Statistics can show that there is a ¾ chance that you could die from an overdose but there is no way to tell if that particular victim was party of the ¾ or the minority 1/4th d. Taking a generalization and using it to come to a conclusion in an individual case e. Correlation is not causation 5. The biggest problem is statistics can be used to prove too much allowing everyone to recover. This cant be allowed because: a. Its an over-deterrent. Corporations will avoid fields with toxic agents because of the crushing liability b. Its unfair to the defendant to force him to pay for harm he didn’t do. Individuating evidence 1. Statistical evidence is easier to accept when there is also direct evidence of causation. Individual evidence helps make this type of evidence stick. a. Ex. Timing of the disease with overdose and progression 2. Individual evidence helps place a D in one group over another b. Evidence shows that D was not in minority group of accepted cancer victims. 3. Most courts that accept statistical evidence are looking for individuating evidence along with it. c. This can be a problem with Toxic torts where typically no individuating evidence exists.
Recovery Proportional to Proof [Market share liability (toxic torts)]: Statistical Evidence
“Indeterminate plaintiff” problem: Just as it may sometimes be certain that someone caused a particular harm, but not clear which of several defendants did it, so it may be certain that a defendant caused a particular harm but not clear which of numerous possible plaintiffs has been harmed. This is especially likely to happen in mass toxic exposure cases. Why have this Recovery proportional to proof rule? Either no one can recover if there is no individual evidence and the defendant receives no deterrence or everyone recovers and the defendant is treated unjustly from over deterrence. This rule allows plaintiffs to recover, something, and defendant to pay out, something. (Stubbs is a prototype for many cases categorized as toxic tort. Someone claiming to be injured by a toxic chemical.) i. Overview 1. Courts recognize that when accepting Statistical evidence they run a big risk of over/under compensating the Plaintiff and over\under deterring the Defendant. 2. Also realize that in many cases it is impossible to find Individuating evidence 3. In response, Courts adopt the Recovery Proportional to Proof [Partial recovery] theory as an alternative to the Preponderance rule [100% recovery] ii. Recovery Proportional to Proof rule [The Segal Rule] 1. Allows a P to prove causation using evidence that is solely statistical and has no individuating factors. a. Plaintiff must still carry 50%+ of the evidence 2. Damages recovered based on proportion of statistical likelihood of causation you show. 3. A solution to the problem of only having purely statistical evidence – Allows the court to accept it but bars full recovery. Recovery becomes proportional to proof. a. For 20 years prior to leak there were 20 cases of cancer per 1000 people living in that area. After the leak 50 per 1000 people living in area and stayed at that rate for few years thereafter. 30 of the new cases are due to leak; as long as nothing else happened that year that would increase cancer. (60% chance that any victims’ case came from the leak). Some people who would have already gotten cancer are being compensated even though they did not get sick directly because of actions of plaintiff. So now we must find individuating evidence to go with statistical information in order to prove that defendant is owed by the plaintiff in order to prevent over deterrence. 4. Benefits of RPP Rule a. This allows people to recover when they would have been barred under the Preponderance Rule because their evidence was only statistical. b. This helps solve the problem of under/over deterrence because the D pays out the perfect amount. 5. Problems with RPP rule a. All victims will either be over compensated or under compensated because they must share the damages. b. Juries may be inclined to push a plaintiff over the 50%+ line due to sympathy Recovery by class: Some courts have allowed all persons exposed to a particular toxic substance to bring a class action. These courts have awarded an aggregate recovery based on the estimated damage to the entire class. This recovery is distributed among the class members without any member’s being required to show by a preponderance of the evidence that his injuries were in fact caused by the substance (though each member must typically show exposure and injury).
Lost Chance Rule [Medical Malpractice]
Increased risk, followed by actual damage: In some cases, the defendant risks a harm to a person, but it is not likely, much less certain, that the defendant actually caused the harm. Is the defendant a cause in fact in this event? The issue arises most frequently in connection with medical misdiagnosis - if
the doctor misdiagnoses the patient’s condition, thus delaying treatment, and it can be shown that statistically this delay caused the patient’s chance of survival to be reduced, is the doctor liable when the patient dies from the originally-undiagnosed condition? Some courts have found the doctor liable in this situation, even if the patient would probably have died of the condition with proper diagnosis. (1) Denial of all liability: Some courts have insisted that on facts like the delayed treatment example no on can recover for the patient’s death, since the plaintiff failed to establish causation by a preponderance of the evidence. (2) Liability for all harm: When the plaintiff shows a loss of chance, but a chance of only 50% or less, one group of courts permits the jury to find causation and make an award for the whole of the loss, disregarding the fact that the patient was likely to die regardless of the doctor’s negligence. (3) Liability for value of the lost chance: Some courts recognize that the defendant may not have caused the death, but he caused the loss of the plaintiff’s chance to live. Recovery is allowed for reduction in likelihood of more favorable outcome. Under the value of chance rule, plaintiff recovers an amount representing the value of the chance destroyed by defendant’s negligence. Thus, when the plaintiff’s chances for survival are quantified by testimony, the east calculation is one that discounts total damages by the plaintiff’s chance. If the patient had only a 40% chance of living even when given proper medical treatment, and the defendant’s negligence destroyed all of that chance, the defendant should be liable for 40% of the total damages: This is discussed in more debt below. i. Overview of Lost Chance Rule 1. P is not suing for the injury (ex. The loss of his leg) but his lost chance of a better outcome (ex. 40% chance of saving the leg) 2. Court requires the injury to have actually occurred a. In reality, the court only cares about the injury and not the lost chance. This is just a way to recover under RPP rule when you cant prove 50%+ 3. The rule was created to ensure that victims could recover in medical malpractice cases ii. Conditions for Lost Chance Rule [Albert’s Rule] 1. It’s a medical malpractice case 2. Evidence of causation is purely statistical 3. The chance of causation is less then 50% iii. Albert v Schultz Case 1. P sues for medical malpractice after losing leg because D did not order proper tests. 2. Had good reliable statistics [Hospital records of 1000’s of cases] showing that a person typically has a 40% chance of keeping their leg if the tests were done on time. 3. If we rely on statistics this guy receives no compensation. Even if they did their job right he was more likely then not to lose it anyway. [60% chance of losing leg: 40% of survival = 40% of damages]
Alternative Liability (2 guns; one bullet)
Multiple defendants: If the plaintiff can show that each of two (or more) defendants was at fault, but only one could have caused the injury, the burden shifts to each defendant to show that the other caused the harm. c. Alternative liability: Generally, as noted, plaintiff must bear the burden of proving actual causation. In one
situation, however, the court may thrust this burden on the defendant(s). This situation has been termed as that of “clearly established double fault or alternative liability.” That is, the burden shifts where the plaintiff can show that each of two persons was negligent, but that only one could have caused the injury. In this situation it is up to each defendant to show that he other caused the harm. i. Overview 1. Relaxes the causation rule in situations where there are multiple actors and one is undoubtedly at fault. 2. Arose from the difficulty of proving cause through preponderance in cases like these (ex. two actors each has 50% of the cause) 3. Court knows the guilty party is in front of him and does not want them to mock justice 4. Effect of the rule is to shift the burden of proving causation to the Defendants. Now they must show that they didn’t do it otherwise they are 100% liable. 5. Maximum group size of Defendants this can be used for is six. The reason being that the higher the number of D’s the lower the guilt probability. ii. Conditions for Alternative Liability 1. Two or more possible causes where the actual cause must have been one or the other. [Impossible to identify which] 2. All possible causes are negligent 3. All possible causes are joined as defendants [Need all D’s in court] 4. Plaintiff did nothing wrong iii. Joint and Several Liability 1. Joint and several liability generally: If more than one person is a proximate cause of P’s harm, and the harm is indivisible, each defendant is liable for the entire harm. This means that each is liable to the plaintiff as if he were the sole wrongdoer, responsible for the entirety of the plaintiff’s damages. The plaintiff is therefore entitled to recover the full amount of her damages from either defendant. 2. This rule of joint and several liability applies only where P’s harm is “indivisible,” i.e., not capable of being apportioned between or among the defendants. If there is a rational basis for apportionment - that is, for saying that some of the harm is the result of D1's act and the remainder is the result of D2's act - then each will be responsible only for that directly attributable harm. 3. If two Ds are jointly and severally liable, and one D pays more than his pro rata share, he may usually obtain partial reimbursement from the other D. This is called “contribution.” As a general rule, each joint-and-severally-liable defendant is required to pay an equal share. It is the opposite of Comparative negligence, which states, the duty of contribution is usually proportional to fault. 4. In cases where multiple defendants are found to be cause in fact and negligent, every person by themselves is liable for 100% of the harm and 100% of damages. 5. A Plaintiff can pick one D and sue for 100% of the damages. That D can then turn around and sue the other involved D’s for a portion of his money back. iv. Summers v Tice case 1. P injured by shotgun blast from one of the two D’s 2. Court originally wanted to find cause through Concerted Action but the D’s were not encouraging each other 3. The court concluded that the burden should shift to each defendant to show he was not the cause and if he could not make such a showing, to stand jointly and severally liable to the plaintiff. 4. Used Alternative Liability to make D’s jointly and severally liable for P’s Injury
i. Overview 1. A joint activity where each party is jointly encouraging each others negligent activity 2. Action in concert: If the two defendants can be said to have acted in concert, each will
be liable for injuries directly caused by the other. a. Example: D1 and D2 in drag race, only D1 hits P, D2 is liable even though he didn’t hit P because D1 and D2 acted in concert. b. Ex. Tacit Encouragement – “I wont tell anyone if you wont” 3. In these types of cases you are suing the joint activity and not the Defendants themselves. 4. Not switching the burden of proof like Alternative Liability. Just allows additional D’s in the group to be held jointly liable. 5. Aspect of communication is important. Need more than just parallel activity ii. Conditions for Concerted Action 1. Multiple Defendants 2. All Defendants are negligent 3. Joint activity that encouraged each other. [Parallel conduct with encouragement] iii. Enterprise/Industry wide liability 1. This a special application of the concerted action rule only applied in Hall case 2. Six Blasting cap companies were held jointly and severally liable case for inadequate warnings on their product. They could be sued because they delegated safety rights to a trade association and all companies were in court.
Market Share Liability [DES Case]
1. The “market share” theory: The “double fault and alternative liability” theory has occasionally been extended to situations involving three or more parties. Thus if the plaintiff cannot prove which of three or more persons caused her injury, but can show that all were negligent (or produced a defective product), the court may cast upon each defendant the burden of proving that he did not cause the injury. This is especially likely to occur in cases of products liability, where the plaintiff was injured by her long-ago usage of a product which she can identify by type, not brand name. If a given number of the class of defendants is unable to prove that he did not cause the injury, the court may well require him to pay that percentage of the plaintiff’s injuries which the defendant’s sales of the product bore to the total market sales of that type of product. This is known as the “market-share” theory of liability.
Overview Rule was created to strike a balance between deterrence (force companies to test drugs carefully) and over deterence (companies stop making drugs) 2. If Alternative Liability rule was used, these companies would be forced to pay too much and be put out of business or not develop new drugs. 3. Basically, accepting statistical evidence for causation or probability of causation 4. Market Share Liability results in Joint and Proportional liability for the Defendants 5. Proportional rules like this promote the collective good rather then the individual good (Preponderance) i. Conditions for Market Share Liability 1. Several possible D’s but must have been one of them 2. Impossible to identify which D caused the harm specifically (condition of fungibility – nothing distinguishes it, cant trace to source) 3. Plaintiff is innocent 4. Have to sue a substantial share of the market producers. Don’t have to join all possible defendants in court. [Basically sue more than 50% of the market] 5. All defendants are negligent ii. Joint and Proportional liability 1. Liability becomes several and proportional. Each D only plays a proportion or share of plaintiffs damage proportional to their Market presence based on statistics. 1.
Ex. 10 companies make DES and P sues 6 of them (60% of the market) The most P can get is 10% from each of the 6 companies. 2. This helps ensure a fair level of deterrence across the whole market. 3. What market should control for purposes of divvying-up damages among defendants according to their market shares. The emerging consensus seems to be that a national market concept should be used, since this is the easiest to administer. Defendant Exculpation 1. Courts are split over letting defendants exculpate themselves from Market Share Liability cases like you can in Alternative Liability. a. Pro: If a Defendant can prove his innocence he should not have to pay. b. Con: Plaintiff is already not receiving 100% compensation because she is only suing a portion of the market. If we let D’s exculpate themselves, the P will get even less. Shows the societal goal of compensation [NY law] c. Because liability in such a case is based on the overall risk produced, and not causation in a single case, there should be no exculpation of a defendant who, although a member of the market producing the product for the plaintiff’s particular use, appears not to have caused a particular plaintiff’s injury. Other possible Applications? 1. Asbestos – No, Asbestos is not a product but rather a generic name of many types of minerals. This means it can’t be considered fungible. 2. Lead Paint – No, some paint companies weren’t making lead paint during the period and other sources of lead poisoning existed 3. Vaccine – No, product is not fungible Cons of Market Share Liability 1. Accepts purely statistical evidence as likelihood of causation 2. People are always trying to expand exceptional rules like Market Share to fit their particular case. 3. Never results in full compensation. They would rather have a system that does perfect justice for the individual and occasionally screw the collective then have a system where compensation was never complete. Shows the importance the court places on the individual. Hymowtiz v Eli Lilly 1. D’s manufactured DES drug to prevent miscarriages but neglected to performt intergenerational testing. 2. DES defitnately caused this type of cancer the problem was who’s DES caused it? (causation) 3. Giving her the Danocrine wasn’t negligence, it was the overdose. 4. Couldn’t apply Alternative Liability because there was too many companies involved and one could be forced to pay 100% for damages they didn’t do.
No Proximate Cause Arguments: Superseding Intervening cause and Unforeseeable Harm
Overview i. No proximate cause argument: almost always question for jury, while no duty argument shuts door at beginning of court ii. Unforeseeable victim: is factual question under proximate cause
Argue both; argue in favor to one that will make you win a. Polemis i. Reckless and unforeseeable intervening party: only no proximate cause argument that works (drunk driver is reckless but always foreseeable) ii. Also get off if its an unforeseeable victim (called remoteness and time and space victim) 2. Wagonmound i. Intervening cause: reckless and unforeseeable ii. Unforeseeable type of occurrence iii. Unforeseeable victim of a foreseeable occurrence iv. If no intervener: Use wagonmound try to prove harm wasn’t foreseeable ii. Proximate Cause: is used to determine the extent of the defendant’s liability after actual causation is established. It is an attempt to deal with the problem of liability for unforeseeable consequences following the defendant’s acts. In proximate clause closeness in time and space have nothing to do with consideration here. iii. Used to determine the extent of the Defendant’s liability after cause in fact and negligence have been established. iv. While proximate cause is technically part of the Plaintiff’s case, a defendant will use a no proximate cause argument v. A defendants No Proximate Cause argument can be proven by showing that a third party had intervened or that the result was unforeseeable. vi. Plaintiff must prove: Duty Negligence Cause in Fact proximate cause and damages vii. Defendant argues “even though negligent and cause in fact I wasn’t a proximate cause” b. Proximate Cause i. Conflicting views: Among courts which have tried to resolve the problem of determining proximate cause, two conflicting views have emerged. One, which might be termed the “direction causation” view, would impose liability for any harm that may be said to have directly resulted from the defendant’s negligence, no matter how unforeseeable of unlikely it may have been at the time the defendant acted. The other, which could be called the “foreseeability” view, would limit the defendant’s liability to those results that are of the same general sort that made the defendant’s conduct negligent in the first place; i.e., results of a generally foreseeable nature, both as to kind of injury and as to person injured. I. Superseding intervening cause [Third Party Intervention] i. Overview 1. Defendant is saying “I accept that I was negligent and caused the injury but because a third party intervened between my screw up and your injury I should not be liable.” 2. If conduct is reckless but foreseeable the original actor is NOT off the hook 3. Conduct of third party MUST be greater then negligent and unforeseeable to a reasonable person no matter what rule applies wagonmound or Polemis. ii. Requirements 1. To get the original actor off the hook a. The intervening party must be reckless or worse i. Recklessness - conduct that you know is unreasonably dangerous [Actual Knowledge during time of incident] b. Their reckless behavior must be unforeseeable iii. Levels of Bad Conduct 1. Innocent 2. Negligent conduct 3. Reckless conduct – Actual Knowledge (ex. Driving Drunk) 4. Intentional Harm – (ex. Rape) 1.
iv. Cases 1. McLaughlin v Mine Safety [Firefighter w/ Heat Block] [Traxler] a. Mine Safety was negligent and a cause in fact – Supplied the block without warning instructions written on it b. To get off the hook, P blames the nurse and firefighter who applied the block to the Plaintiff c. P wins, but court sends the case back saying they should focus on firefighter who gave block to the nurse d. Firefighter may have had actual knowledge of the danger and unforeseeable that he would forget his training (Recklessness + Unforseeability) 2. Kaplan v Union Oil a. Kerosene and Gas cans mixed together and man sells them anyway b. Oil company was negligent in mixing up the shipment but the owner had actual knowledge and sold the cans anyway (Recklessness) 3. Doe v Manheimer a. Woman raped in overgrown bushes left by D b. Not foreseeable that overgrowth would lead to rape II. Unforeseeable Type of Harm [UFTO] i. Unexpected harm: The defendant’s act may be negligent; in addition, some harm may result. The harm, however, may be different than foreseen due to some preexisting condition or subsequent circumstances. Courts have taken different positions on this issue. ii. Overview 1. Defendant is saying “I accept that I was negligent and caused the injury but because the type of harm that occurred was unforeseeable I should not be liable.” 2. Not relying on a third party intervener. 3. The argument is that a reasonable person would not foresee the type of harm the ultimately occurred 4. Foreseeable harm= Actual Harm Defendant is not off hook 5. Foreseeable Harm is not the type of actual harm Defendant is off the hook 6. Not all courts have adopted this no proximate cause defense 7. The “eggshell plaintiff” rule provides that a tortious act, superimposed upon a prior latent condition, which result in an injury, may impose liability for the full disability. Under the “eggshell plaintiff” rule a defendant is liable for the unusual results of personal injuries that may be unforeseeable. Once it is established that the defendant injured the plaintiff, liability is imposed for the full extent of those injuries. What the rule does is reject the limit of foreseeability when the extraordinary consequence results from the plaintiff’s particular sensitivity. (Benn v. Thomas: Heart attack after being rear ended) Development A. The “direct causation” view: The direct causation view holds that the defendant is liable for all consequences of his negligent act, provided that these consequences were not due in part to what might be called “superseding intervening causes.” The most significant aspect of this view, contrasted with foreseeability, is that the former would hold the defendant liable for all consequences, no matter how far-fetched or unforeseeable, so long as they flowed “directly” from his act, and not from independent new causes
The Polemis case: The most famous case involving the direct causation view is In re Polemis. There, it was clear to the court both that the defendants had acted negligently in dropping the plank, and that no one could reasonably have foreseen that dropping the plank would strike a spark, let alone burn up the ship. Nonetheless, because the fire was the direct result of the negligent act, the defendants were held liable. B. The “foreseeability” view: Seeks to apply the same factors to limit the scope of liability as are used to determine whether the conduct is negligent in the first place. This view would make the defendant liable, as a general rule, only for those consequences of his negligence which are reasonably foreseeable at the time he acted. a) Wagon Mound case: This view is clearly articulated in Wagon Mound No. This case stands for the proposition that there can be no liability when a foreseeable plaintiff suffers an unforeseeable type of harm, even if that harm is a direct consequence of such negligence, but that there is still liability to a foreseeable plaintiff for an unforeseeable extent of harm. a. Wagon mound test: i. Where unforeseeable occurrence: as a factual matter ii. Risk is different of type: any type of constraint that prevents those foreseeable events that doesn’t automatically prevent unforeseeable event then defendant is off the hook. 1. Wagon-mound Ruling a. D’s ship negligently leaks oil in wharf which subsequently catches on fire and burns P’s dock b. D argues that oil was not flammable and the foreseeable damage was environmental (gunking up the area) c. Court agrees and overturns Polemis ruling; that foreseeability does matter when there is no intervening cause d. Not fair to hold someone liable for an unforeseeable type of harm 2. Kinsman Explanation a. Buffalo river damned up by loose ships b. “An actor engages in conduct which results in large risk of small damage and small risk of large damage of the same sort, from the same forces, to the same class of people, should be let off the hook for the large damage because it was less likely.” iii. Requirements 1. To get the original actor off the hook: a. The Occurrence must be unforeseeable per se as a factual matter i. Ex. No reasonable person knew that rat poison would explode b. It is a different type of occurrence from the other foreseeable occurrences ii. Ex. Rat poison is poisonous not an explosive iv. Type of Harm 1. Not looking at the resulting injury but the hazard from which the injury occurred 2. A different type of harm means that the occurrence is a result of a different type of risk, which comes from different threatening forces then the foreseeable risks. 3. Type of Harm Cases [Negligence\Foreseeable harm\Actual Harm] i. Wagon-mound – Oil spill \Clogging\Fire -- No Proximate Cause ii. Larrimore – Left Rat Poison out\Poisoning\Explosion and burn – No Proximate Cause
iii. Doughty – Lid fell in vat\burn from splash\burn from explosion – No proximate Case v. Determining foreseeability 1. Imagine a safety precaution that would constrain the foreseeable dangerous forces. If that precaution would still not have stopped the actual occurrence from happening it is different. Would the same constraints effective for the foreseeable occurrences automatically eliminate the unforeseeable? 2. This shows that they are two different types of risk 3. Example cases a. Ex. Wagon mound - Gooeyness of oil – can you imagine a constraint that will stop the gooeyness but not the fire. – Surround oil with a floating barrier to prevent it from spreading. The fact that the fire could still occur makes the fire a different type of hazard. b. Ex. Daughty – Heaviness of lid – I could put safety harness on lid to keep it in control. The fact that the lid is controlled doesn’t mean it couldn’t still slip in and cause an explosion. c. Ex. Hughes – Lamp fall in hole – I could put a barrier around the hole. I could cover up the hole. Doing this would not let anyone fall in the hole and cause the lamp to ignite the gas. (Foreseeable – its not really a different type of occurrence that could reasonably be foreseen) d. Kinsman – Ship bang into things – Anything that could prevent the collision would also prevent the boat from going up river and damming the river. (Foreseeable) vi. Unforeseeable plaintiff: Suppose the defendant’s conduct is negligent as to X, but not negligent as to P (i.e., not imposing an unreasonable risk of harm upon P). If P is nonetheless injured through some fluke of circumstances, may she in effect “tack on” to the negligence against X, and establish the defendant’s liability for her injuries? a. Palsgraf: Writing for the majority, Cardozo held that the case could not go to the jury. He put the point in terms of “duty,” holding that the defendant had not breached a duty to Mrs. Palsgraf, because harm to her was not a foreseeable risk of what the defendant had done. Since the defendant’s conduct did not involve an unreasonable risk of harm to the plaintiff, and the damage to her was not foreseeable, the fact that the conduct was unjustifiably Dissent: Andrews put forth the opposing view (roughly similar to direct causation view). The defendant, like every member of society, bears a burden of due care, a burden to protect society from unnecessary danger not to protect A, B, or C alone. When an act imposing an unreasonable risk of harm to the world at large occurs, not only is he wronged to whom harm might reasonably expect to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. vii. Cardozo’s rule generally followed: Cardozo’s position has generally been followed by American courts. However, there are a number of recurring situations in which the Cardozo view, that only foreseeable consequences may be recovered for, is not usually followed: 1. Eggshell plaintiff: Once the plaintiff suffers any foreseeable impact or injury, even if it is relatively minor, it is universally agreed, even by courts following the foreseeability rule, that the defendant is liable for any additional unforeseen physical consequences. 2. Rescuers: The foreseeability rules also seems frequently not to be strictly applied where the plaintiff is a rescuer of one who is endangered by the defendant’s conduct, and the rescuer herself is injured.
General class of harm but not same manner: The courts have also cut back on the apparent rationale of Palsgraf by holding that as long as the harm suffered by the plaintiff was of the same general sort that made the defendant’s conduct negligent, it is irrelevant that this harm occurred in an unusual manner. a. Example: Consequently the general rule is that, unless in retrospect the manner in which a foreseeable plaintiff suffered a foreseeable type of harm appears to be extraordinary, the fact that the harm occurred in an unforeseeable manner does not bar recovery. Plaintiff part of foreseeable class: Similarly, it has been held that the fact that injury to the particular plaintiff was not especially foreseeable is irrelevant, so long as the plaintiff is a member of the class to which there was a general foreseeability of harm. Both this rule and the unforeseen manner rule are illustrated by the Kinsman case. a. Held: All three defendants are liable to the property owners. First, the fact that it would have been impossible to identify in advance precisely which property owners would be harmed is irrelevant; a loose ship surely poses a danger to river-bank property owners in general, and the failure to raise a drawbridge similarly threatens at least some owners, if only those whose property might be harmed by having the bridge tower fall on them. Since all of the plaintiffs were members of this general class of river-bank property owners, they are within the scope of risk, and are not barred from recovery by Palsgraf.