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Author:  	Mr. Steven Byle (s.byle@mail.utexas.edu)
School:		University of Texas School of Law
Course:		Torts
Year:		Spring 1996
Professor:	Thomas McGarity
Book:		Cases and Materials on Torts, 9th Edition, by Prosser, Wade & Schwartz

Proof of Negligence
1.	Circumstantial Evidence:
A.	Duty: Circumstance can be sufficient evidence to demonstrate a negligent breach of duty.  The exact circumstances necessary to prove negligence vary by the defendant and the duty.  
	A common carrier, such as a railway, has a duty both to its customers and the general public to maintain a clean and safe platform.  A banana lying on a busy platform is not in and of itself sufficient evidence to overcome a directed verdict, Goddard v. Boston & Maine RR; however, if the banana is black and sticky on a non-crowded platform, it would be, Anjou v. Boston Elevated Railway.
b.	Notice:  The circumstances must be sufficient to demonstrate the reasonable notice criteria of negligence. Therefore a dirty and sticky banana on a dirty and sticky floor is insufficient evidence of duration of notice, Joy v. A&P Supermarket.  However, notice is not necessary where the negligence is built into the system by the defendant,  such as selling greasy pizza on waxed paper, Jasko v. Woolworths.
C.	Standards of Proof:  There are several ways to get at liability - purpose, knowing, reckless, and negligent. 
1.	Purpose:  Circumstances alone can be such as to indicate the purposeful acts of the defendant.  The effect of this is to give immediate notice and change the effect of the other necessary circumstances.  If the defendant is witnessed putting the banana down, the condition of the banana (how long it has been there) doesn’t matter.
2.	Knowing:  Circumstances alone can indicate the knowledge of the defendant.  The effect would be about the same as purpose.  If the defendant was standing there and looking at the banana as customers walked around it, how long it had been there would not matter.
3.	Reckless:  Circumstances can be negligent per se.  The effect would be to dispense with the notice warning.  If the defendant sold bananas without any waste bins to throw the peels into, that mere circumstance itself could be reckless by itself and therefore subsumedly negligent.
The Court has several methods to determine the negligence of a business practice
A.	Expert Testimony:  Establish the applicable standard of business practice through the testimony of others in the field.
B.	Learned Hand Formula:  Weigh the burdens of avoidance and liability.
C.	Kalabresian Privatization:  Privatize the process by applying strict liability and let the practice internalize the cost.  Liability can then be optimized technologically, and if it cannot do so profitably then cease the practice in favor of something less hazardous.
4.	Negligent:  Circumstances can be sufficient to indicate that reasonable notice had been served.  If the banana looks three days old and moldy on the market floor, it would be strong evidence that it hadn’t been swept and that somebody probably should have seen it by then.
2.	Res Ipsa Loquitur (The Thing Speaks for Itself):  A presumption of negligence can arise from the fact of an occurrence alone.  The circumstances may be so strong as to speak for themselves and effectively shift the burden over to the defendant to then disprove or rebut the presumption of negligence.
A	Applicable Circumstances:  Originally invented to help out plaintiffs with a knowledge disadvantage, by putting on the defendant the burden of disproving the negligence.  This reason has lost a lot of its force under the modern, open discovery rules.  Some courts still make knowledge disadvantage an element of the cause of action, but for most the elements don’t require this disadvantage explicitly.  Other situations may be where there is simply no knowledge available, and the court then makes a policy decision as to whom should bear the burden.
B.	Historical Merger of Doctrines:  There has been a historical confusion in this doctrine coming out of its merger after 1870 with the rule for common carriers that the burden was upon them to disprove negligence under contract to its passengers.  The two doctrines have merged into one less clear doctrine.
c.	Elements: The burden is upon the plaintiff to prove the elements of Res Ipsa Loquitur (but to what level to pass summary judgment, to win). In all courts there are two elements in common.
1.	Normal Course of Events:  The harm does not occur in the normal course of events in the absence of negligence.
A.	Unusual Events:  When an event is rare in and of itself, its occurrence does not necessarily occur without negligence, in fact its rare occurrence might be the result of the lack of negligence. However, rarity of occurrence gives the perception of negligence. When a plane crashes without explanation, the court holds that res ipsa applies, Cox v. Northwest Airlines.  Also applies to situation, pretty evenly throughout the jurisdictions, that where a car goes off the road for know reason and strikes a stationary object, res ipsa applies, and is quite damning if the driver and passengers are dead.
B.	Calculated Risk:  When the defendant is aware of a serious risk but determines in the exercise of her medical judgment that the patient’s condition warrants the taking of the risk in order to cure him.  
C.	Policy:  Where there is no evidence the court may decide based upon policy, such as the availability of insurance to the defendant, and what the alternatives.  Such as in a plane crash without evidence, either let plaintiffs always or never recover.  However, the question should not be whether the event would not normally occur, but whether its occurrence gives rise to a reasonable inference of negligence.
2.	Exclusive Control:  The instrumentality that brought about the plaintiff's harm was under the exclusive control of the defendant, or that all other causes are effectively eliminated.  The exclusive control element was originally applied strictly, therefore, when a plaintiff sits down in the defendant’s chair and is injured by its collapse, the plaintiff is barred recovery as the chair was in her control.  This concept of exclusive control has eroded.
A.	Eliminating Other Causes:  Need not eliminate every other cause, but do need to sufficiently eliminate others.  Where a patient wakes up from surgery after an accident with numbness in his fingers, without any testimony about his pre-surgery condition between the accident and reaching the hospital, there are too many possible inferences that could be drawn as to the cause, Holmes v. Gamble.
1.	Single Defendants:  The doctrine originally had no application where there was divided responsibility for the instrumentality that caused the accident, where some of which was not under the exclusive control of the defendant, but of others.  Where there are many window in a hotel from which a piece of furniture could have been thrown, and many guests that may have exercised control, the fact that a piece of furniture does fall from out of the window does not have a strong enough inference of negligence on the part of the hotel to use res ipsa, Larson v. St. Francis.  This is distinguished from Byrne v. Boadle by the fact of many windows, and that the rooms are not under the exclusive control of the hotel as the upstairs storage room should have been in Byrne.
2.	Multiple Defendants:  The exception to this singular or exclusive control requirement is where there is a group of people acting together.  There is the policy of breaking up solidarity (smoking out function), and the requirement of some sort of team aspect.
A.	Team Aspect / Common Endeavor:  The defendants must have some special relationship to each other either relating to their positions or their involvement in the incident.  Where are group of doctors and nurses care for a patient, they may be held jointly presumed negligent under res ipsa, Ybarra v. Spangard.  What this does is impose a second duty, first to act reasonably and second to watch out for the negligence of co-defendants, therefore generally does not apply to unrelated parties.
B.	Joint Responsibility / Special Knowledge:  However, common endeavor is not enough, it must be the type of relationship that lends them to grouping either because the endeavor gave them some special knowledge not had by the defendant, or that there is some joint responsibility that exist between them.  When several women contribute turkey to a turkey salad poisoned someone, each having bought and prepared their portion of the common pot separately, res ipsa does not apply, Wautwatosa High School.  Where two cars collide there can be no res ipsa case of one against the other, or by a third person struck against either one.
C.	Special Situations:  One case explained Ybarra as based on the special doctor - patient relationship.  And courts have generally applied the theory for multiple defendants to select situations:  bottler and retailer of exploding beverage, store owner and operator of an injuring escalator, cap and stick manufacturers for prematurely exploding dynamite.  Where common carriers are involved, they may have res ipsa applied even though a joint defendant sued on same evidence and grounds does not, due to higher standard required of the carrier.
D.	Res Ipsa in the Alternative:  Several states have enacted statutes which basically allow a plaintiff to get to a jury without evidence against multiple defendants.  The statutes hold them res ipsa in the alternative, but where there is insufficient evidence against either or where it cannot be decided which one did it, then the plaintiff still loses.
	The rule regarding multiple defendants can be, in summary, read widely to require demonstration of control by each of them individually at one point during the time in question, and narrowly that it only applies where there is some special relationship with the plaintiff, where there is a group functions amongst the defendants with mutual responsibility, or also that they can be held liable in the alternative.
B.	Knowledge Disadvantage:  The essence, originally of res ipsa was that the defendant has superior knowledge, or ability to get evidence, as the instrumentality was under her exclusive control.
1.	Smoking Out Function:  This serves the smoking out function to spur the production of evidence, and is often cited as a reason for or against application of the doctrine.  
2.	Equal or No Knowledge Situations:  The smoking out requirement is not strict, as the doctrine usually applies in cases where there is no advantage to either side.  Typically where both plaintiff and defendant are both dead, or where there just isn’t anybody that knows.
3.	Modern Discovery:  The modern rules of discovery and evidence should equalize this knowledge disadvantage, but I think that there is a realization that it is only in theory and res ipsa still performs a valid smoking out function.  Under modern rules of evidence the defendant may be cross examined as an adverse witness, but this is not considered a viable way to determine the cause of an accident.  Further, there are holdings that allow the use of res ipsa even though the plaintiff has not made any attempt to obtain evidence by discovery, though I would imagine that the inference must have been strong, for this could lead to inequitable cost shifting to the defendant to perform discovery.
3.	Others:  These vary between jurisdictions, as examples..
A.	Duty of Defendant:  Negligence within the duty of the defendant to the plaintiff.  This is subsumed normally within the doctrine of negligence, and the normal course of events without negligence test therefore contains it, but without this element explicitly the case could fall differently, where there was negligence but not with regard to the plaintiff.
B.	Accident without Fault of Plaintiff:  Some jurisdiction make no more other requirement beyond the first two than to demonstrate that an accident occurred and that harm resulted that the plaintiff was not the cause of.
C.	Knowledge Disadvantage for Plaintiff:  That the plaintiff is at a disadvantage and the evidence needs to be smoked out of the defendant.
c.	Applicability:
1.	Directed Verdict:  The standard to withstand a directed verdict is that the evidence, taken in the light most favorable to the plaintiff, makes each element of the doctrine more likely than not to be true.  Where the chances are even, the verdict is taken from the jury and directed for the defendant.
2.	Codification:  In medical malpractice, many states have codified its applicability limiting it to certain types of cases:  foreign objects in the body after surgery, explosion or fire from a substance used in treatment, a procedure done on the wrong patient or the wrong part of the body.
3.	Inference and facts:  Res Ipsa is a doctrine of inference.  Judge has most power to use discretion when the issue is one of inference, as opposed to issues of fact where she has none.  In these cases the judge can decide what inferences may reasonably be drawn:  the judge may do so by directing a verdict, deciding how to charge the jury as to the procedural effect or strength of the inference, and by making a judgment not withstanding the verdict.
d.	Procedural Effect:
1.	Level of Inference:  The level of inference to be draw can be of three levels.  The level applied in any given case is dependent upon the strength of the inference that the judge determines, but jurisdictions have rules as to which apply and under what circumstances.
A.	Discretionary Inference:  The facts raise the inference of negligence that the jury may or may not draw at its discretion.  This allows a plaintiff without evidence to pass a motion for summary judgment and get to a jury, but not more.  No directed verdicts under this rule (at least not for the plaintiff).
B.	Rebuttable presumption:  The facts raise the presumption of negligence which require the jury to find negligence if insufficient evidence is presented by the defendant to rebut the presumption.  The has the burden of production, and then it is up to the jury to decide, and if they cannot then the plaintiff loses.  Rarely get a directed verdict under this rule.
C.	Switches Burden of Proof:  The facts both raise the presumption of negligence and switch the burden of proof to the defendant to prove upon preponderance of the evidence that the harm was not a result of her negligence.  Here there is a high likelihood that a directed verdict will be given.
D.	Directed Verdict:  In some rare cases the judge will simply direct a verdict for the plaintiff when the inference is so strong.  This may also occur when the defendant has not met his burden of production (b) or proof (c) to overcome the presumption.
	Most jurisdictions use rule (a), but allow for exceptional cases of rebuttable presumption rule (b) where a verdict may be directed where the burden of production was not met.  A typical case is one of two trains colliding head on.  Some courts give a greater procedural effect where the defendant is a common carrier.
2.	Procedure of Proofs: res ipsa loquitur let plaintiffs get to a jury without having to put on expert testimony about causation and without having to prove negligence.  It is used much like violation of statute to avoid these burdens.
A.	Pleading Specific Acts:  Res ipsa loquitur may also be used to plead specific acts of negligence in larger suits.  The courts deal with it in different ways:
1. 	Not Applicable:  cannot rely on res ipsa loquitur once specific act pleaded.
2. 	As Support:  The inference may be drawn to the extent that res ipsa loquitur supports the specific acts occurrence.
3. 	Conjoined with General Allegation:  May be used when accompanied by a general allegation of negligence. 
4. 	Freely Available:  Applicable without regard to the form of pleading.
	Under such a scheme the specific facts are used to narrow the focus area in which the negligence is confined.
B.	Procedure of Pleading:  Plaintiff generally presents a case and then claims that res ipsa loquitur applies.  The defendant then makes a motion for a verdict as a matter of law.  If the doctrine applies it passes.  If the defendant then presents no evidence the case goes to a jury under rule (1a), and get a directed verdict under (1b) and (1c). Otherwise the defendant will have to meet his burden:  none under (1a), production under (1b) and convincing proof under (1c).  The plaintiff will then move for a verdict as a matter of law, and depending upon the defendant’s performance it will be granted, or else denied and the case submitted to the jury.
3.	Common Sense:  One of the beauties of res ipsa loquitur to a plaintiff is that the doctrine is not technical in nature, lending itself more amenable to common sense argument and relieving the plaintiff of the burden of expensive and difficult technical proofs of negligence and causation.
Causation in Fact:  Sine Qua Non (Not without which - “but for”)
1.	Sine Qua Non - but for Causation:  A person is not liable for harms that would have happened whether or not they had acted as they did, one must be a but for cause of the harm to be liable.
A.	Basis:  The basis of causation in fact is scientific and logical, unlike legal causation which is policy and intuition.  It functions as the screen through which a claim must pass to prove causation.  The logical and scientific basis is that:
1.	Logical Relationship to Harm:  A logical relationship must exist between the negligent act and the harm caused.  The harm from the negligence of the defendant must create the type of risk and contemporaneously with the accident.  Therefore negligently speeding to get to work on time is does not make one the cause in fact, when you actually arrive in time, slowed down to a proper speed, to be comparatively negligent to some defendant who runs a red light.  Though your prior negligence of driving fast is a but for cause in he wide sense, it is not for the purpose of tort liability.
2.	But For Relationship to Harm: Even though the defendant's actions were the cause in fact, the negligence of the defendant must be the but for cause of the accident.  Therefore, though the negligence bears the logical relationship of (1), of having been contemporaneous and causing the type of risks that could cause the it must also be the fact that the harm would not have occurred without the negligence.  Therefore, driving a train over the speed limit is not the but for cause of the accidental death if the collision with the car and the resulting death would have occurred even at the proper speed,  Perkins v. Texas & New Orleans RR Co.
3.	Reliance as Basis for Causation:  One can induce a plaintiff to rely upon some action, which when negligently failed to perform, may then support causation.  e.g. - marking thin ice on a lake and then forgetting to do it on the day someone falls through.
B.	Gray Areas / Trouble Spots: Some of them are partly answered in the following sections, but there are several gray areas in determining causation:
1.	Warning Labels:  When a plaintiff never read the label, is the manufacturer’s negligence in not putting a warning label the cause of the resulting accident.
2.	Prior Knowledge of Risk:  Where plaintiff knew of the danger through prior experience, and assumes the risk, such as crossing a train track negligently unmarked but having crossed it many times before, is the negligence of the defendant the cause in fact?
3.	Lack of Evidence:  Where there is lack of evidence and the defendant has violated a statute designed to protect against that exact result, can one say that the negligence was the cause in fact.  e.g. - where people are found in a swimming pool drowned and the hotel did not provide a lifeguard, or where a lifeboat was unwaivable but the person who fell overboard never surfaced after initially falling in.
4.	Intentional Torts:  Where a third person uses the negligent conditions created by the defendant to commit an intentional tort.  e.g. - someone push a person down defendant's stairway negligently without a handrail to catch herself, may be able to recover.
5.	Informed Consent:  There is mixed authority on whether testimony by a plaintiff alone that she would not have had the procedure performed or taken the harmful medicine had she been informed of the risks, would suffice for causation on the issue of informed consent being the cause of the harm, or whether to apply the reasonable person standard to denial of the procedure.
6.	Professional Negligence:  It is difficult to prove causation in many types of professional malpractice, such as attorney’s failure to cite relevant case law, failure to timely file a claim as they might have lost anyway.  Would it depend upon the merits of that case, to be retried in court?  What about a person committing suicide after being wrongfully convicted due to professional negligence?
2.	Proof of Causation
A.	Increased Chances Rule:  The first exception to the cause in fact rule.  Therefore, where negligence greatly multiplies the chances of an accident, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect, suit and liability.
1.	Individual Recovery Based on Risk:  There is not recovery solely on the basis of risk, so exposure to a 1/10,000 chance of death is not actionable unless death results.  However, the quandary is that it would be difficult to prove when the death does occur, that the 1/10,000 chance was more probably not the cause of this specific individual’s death.  Worsened when the process which brought about the death is common having many other sources, such as cancer.
2.	Group Recovery Based on Risk:  In cases involving many plaintiffs, such as toxic torts, where an expert can safely say that the defendant's product PROBABLY caused some of the deaths, but can say no more than POSSIBLY caused in any individual case.  The court must then either hold the defendant responsible in every case or in none.
B.	Probable Cause Rule:  For those issues beyond the common experience of the jury, there must be expert testimony to the effect that the defendant's actions or products were more probably than not the cause of the harm to get to the jury.  It is not enough that it is a possible cause, Kramer Service, Inc. v. Wilkins.
	However, it is admissible evidence in defense of causation that it could possibly have been other causes. Defendant need not prove some other cause, but only put doubt on the cause purported by the plaintiff, Wilder v. Eberhart.  That doubt need not be that something else was more likely than not the cause, only that other causes were possible.
C.	Bypassing Causation:  There are several means of bypassing the causation issue, ones already discussed are violation of statute, and res ipsa loquitur, and there are others:
1.	Fear:  Suits have been successful for negligent infliction of emotional distress for negligent exposure to risk of possible future harm.  e.g. - where an improperly sealed canister of carcinogens that opens upon the plaintiff lab technician who was feeding them to rats in cancer experiments.
2.	Medical Monitoring:  Suits have been successful to cover the medical monitoring causes against defendants that expose someone to an increased risk of future harm.  These suits are not based upon causation, but where causation is difficult to prove it is based instead upon the possibility of causing future harm.
3.	Endangerment:  To this point not suit has been successful for intentional endangerment, with the courts holding to a requirement of harm being caused, however there are now criminal statutes that prohibit it, and tort will often thereafter follow.  The next step, negligent endangerment?
D.	Reduction of Chance to Avoid Harm Rule: The reduction of a chance to avoid harm are made recoverable, but only to the extent of the costs that the premature death brought about, such as lost earnings.  Dissent says that the method of recovery was crazy and should be framed in terms of the loss of chance of survival not the loss do to premature death, Herskovits v. Group Health Cooperative of Puget Sound.
	Damages:  Some jurisdiction allow proportional recovery for wrongful death by the percent reduction in chance to survive in similar malpractice cases, such as mentioned by the Herskovits dissent. Others still require the more prove the more probable than not standard that the action did not reduce the risks, but caused the death, effectively barring all but the 50%+ reduction cases.
E.	Evidentiary Issues:
1.	The Fry Test:  Expert opinion is inadmissible unless the theory or technique is one generally accepted as reliable to the relevant scientific community.  Any opinion significantly diverging from those accepted by recognized authorities in the field does not meet this requirement.  This test was originally derived in criminal law to deal with lie detectors, voice matching, DNA tests, etc..  The problem with it is that when you are the pushing technology envelope there will often be few experts to for a community to attest to the technology’s acceptance, as with voice matching there was only one.
2.	Federal Rule of Evidence 702: Expert testimony must be based on scientific knowledge that is reliable and relevant. Scientific indicates that the testimony is based upon generally accepted scientific methods and procedures.  Knowledge indicates that the testimony is inferred from generally accepted legal principles.  Further the testimony must be relevant to assist the trier of fact to understand the evidence or to determine a fact in issue, therefore requiring a valid scientific connection to the inquiry.
A.	Generally: In general, epidimiologic evidence must be the basis of expert opinion to establish causation.  Peer review is to be taken into consideration as to the validity, but is not a definitive requirement, as junk science magazines would soon pop up and taint the scientific community.  Widespread acceptance is also important, and lack of it allows skepticism, but also is not definitive. Animal tests, in vitro test have been universally deemed inadmissible by the bench.
B.	Judicial Involvement: FRE 702 allows the judge the discretion to screen evidence to determine that it is both reliable and relevant, and may lead to one of several possible treatment in this new rule adopted in 93:
1.	Expert Testimony on Expert Testimony:  Judges may require expert testimony on the reliability of scientific evidence, as the judge may feel herself incompetent to judge.
2.	Open Evidence:  The judiciary might give up on judging the competence of medical expert testimony and simply open up the stand and let the jury sort it out.  However, this is unlikely in light of the current wave of complaints regarding junk science. This is especially problematic with regard to immune disorders, where plaintiffs bypass causation by claiming that defendant's product compromised the immune system and opened up susceptibility to harm.
3.	Strict Reliability Test:   What is actually starting to occur is that the courts are going the other way and putting up strict standards that may leave out valid science.  (note current attack on DNA tests).
3.	Concurrent Causes
A.	Generally: Where the separate acts of two negligent defendants combine to directly produce a single injury each is responsible for the result.  Therefore where a passenger in a car that negligently collides with a negligently parked truck may sue both drivers, Hill v. Edmonds.
B.	Substantial Factor Test:  The second exception to the causation in fact rule (see 2A).  Where a number of instumentalities combine to effect a result, and either one would have caused it alone, then the instrumentality of interest must be deemed a substantial factor in bringing about the harm, Anderson v. Minneapolis RR.  This may mean, as in the case of merging fires, how developed or large the fire of interest was at the time of merging.
	This situation is different from the titanic passenger who dies from food poisoning first, because the two instrumentalities did not merge to bring about the result, but the poisoning killed alone.
1.	But For Causation:  Normally the substantial factor test would retain but for causation, except in such cases as actively merging forces each which would have caused the harm.
2.	Joint and Several Liability:  Where the source of both causes is known there is joint and several liability.  Where one is not known, could the court apply joint and several to the unknown?  Probably not, so the substantial factor test comes in.
3.	Probability: There are some probabilistic problems with the test, one must decide at what probability that the one would have caused the damage does it become substantial if the other would have definitely caused the harm.  However, does help with the situations where a person throws a lit match into a forest fire.
4.	Problems In Determining Which Party Caused the Harm
A.	Equally Negligent Defendants:  Another exception to causation in fact.  Where two are negligent toward the plaintiff and the negligence is of the type that could have caused the harm, without any evidence as to which did in fact cause it, then they will both be held liable unless they can prove that it was not them. Differs from Wawotosa High School in that both defendants were negligent, and there only one woman made the bad turkey, which differs from Ybarra in the lack of team aspect.  Here defendants related by shared negligence toward the plaintiff. Similar to the smoking out function of res ipsa loquitur, Ybarra, but special knowledge of the defendant not an issue, but rather the inequity of letting two negligent defendants off, and making on innocent plaintiff pay, Summers v. Tice.
C.	Enterprise Liability:  Where an entire industry adheres to a negligent standard and the source of a particular harm causing product cannot be pinned down amongst, the courts shift the burden of proving causation to the defendants, Hall v. Du Pont. It is based upon the theory not of competition but of joint control of a risk, and is applicable to small industries only where they can all be joined in a single suit.
B.	Market Share Liability:  Measures and apportions damages based upon percent of market share, as approximative of each individuals responsibility for the harm, while allowing the affirmative defense of being able to prove that any one of them could not have been the cause, Sindell v. Abbot Laboratories.  All the defendants need not be joined in one suit, as in Summers and does not rely on complicity of industry standards as in Hall.  This precedent has been followed by only five states.
1.	Market Share Calculation:  Some courts hold the market share to be the national share, and remove the affirmative defense.  Some use local market share.  Also have problem of defendants that have gone out of business, one court allows recovery based on current market share.  Market share also affected by the affirmative defense.
2.	Parties to the Suit:  One court requires that the majority market share manufacturer, One court require any one with that defendant impleading the rest.  One court requires all or most be joined, and then each is held liable in the alternative, if none can prove it was not them, then held jointly and severally liable:  this method has a host of complexities (see book page 282-83).
3.	Extensions:  This theory has rarely been extended outside of the DES cases.  Those extensions include:  asbestos, vaccine, breast implants, lead paint.
Proximate or Legal Cause
1.	Generally:  Causation in fact spreads a wide cone of causation, or is a porous sieve, based upon logical and scientific basis and includes many people that we don’t want to hold liable.  This cone is focused by legal causation.  It is a mixed bag of lenses, more amenable to argument as to which one applies, and policy dominated.  
A.	Duty & Causation:  Proximate causation and duty are intimately intertwined, often being indistinguishable as to whether the defendant owed the duty to the plaintiff or was the proximate cause of the defendant’s harm.
B.	Proximateness:  Nearness Matters.  The negligence must be near to the harm caused.  This nearness was traditional thought of quite literally meaning it space and time near.  There have been attempts to define mechanical rules to apply to determine proximateness, and on the other extreme there have been movements to reject all rules, to determine each on the cases particular facts.  Many times arbitrary, bright lines are drawn:
 1.	Line Drawing:  There are many examples of the court drawing bright lines, which often end up moving toward or away from allowing more liability with time.
A.	Proximity in Time:  Sometimes it matters where you are in time.
1.	Preconception Negligence:  Some courts draw a line at conception, and any negligence affecting the mother, which later ends in a less than perfect birth is shielded with regards to the plaintiff child, Albala v. NY City (cited in Enright).
2.	Third Generation Liability:  Courts that have gone beyond the preconception line, have stopped after the second generation.  Where DES taken by grandmother, causing reproductive problems in the mother, that end in a birth defect in the plaintiff child, no cause of action is found, Enright v. Eli Lilly & Co.
B.	Proximity in Space:  Sometimes in matters where you are in space.
	First (then Second) Building Test:  New York originally drew a bright line at the first building to catch fire, beyond which no liability was found.  This Rule was later extended to the next house.  However, what is the first house, the first one with regards to which defendant was negligent, but which is that?
	Note, however, that most courts hold liability as far as it burns.  The reasoning is foreseeability.
	Note, that sometimes a bright line is drawn by the legislature.  A bill may shield liability for all manufacturers of FDA approved drugs, or impose strict liability upon manufacturers, etc.
2.	Rationale:  The reasoning has nothing to do with the science of causation as the science in all of these situations says that the defendant is the cause in fact of the harm, it is policy, logic, and sensibility, etc..
A.	Overdeterrence: Only want to deter enough to induce to practice care, not quit.  Fear that the court will overdeter defendants, and effectively remove societally valuable products, and discourage development.
B.	Maneagiblity Bounds: The concern is not to put out too wide a net, that beyond some good marking points, such as conception or generational lines, only artificial and arbitrary boundaries would then be able to limit liability.
C.	Manageable Liability:  At some point the liability of an enterprise must cut off in order to be fair to a defendant.  One who didn’t stack the dominos should only be responsible for the first so many that fall, beyond that it would be unfair, and unduly burdensome.
D.	Clarity & Efficiency:  More than any reason, the greatest virtue of Bright Lines is the clarity with which they can be applied, not just in court but in the life of prospective defendants.  Thus it deters litigation for the clarity of the rules, and makes tortious conduct easier to avoid.
C.	Categories of Cases Cutting Off Liability:  Legal causation is a device to cut off liability in instance where the defendant's negligence is considered to remote.  There are several general categories of cases where the court will cut-off liability:
1.	Policy:  Where it is counter to judicial policy to enforce liability.
2.	Unforeseeable consequences:  Where a negligent act has unforeseeable consequences.
3.	Intervening Causes:  Another event intercedes and supersedes in the causal link between the defendant's actions and the resulting harm.
4.	Third Party Relief from Liability:  where a third person’s action or inaction is held to relieve the defendant of responsibility.
2.	Lenses to Liability:   Either in placing bright lines, or in determining liability in the gray areas of a messy case, a line must always be draw.  To manage this the court resorts to viewing the caused in fact results of negligent conduct through various lenses.  The lenses are amenable to argument as to how to use them to see, and are used without much reason or rhyme, for no single one gets the big and small pictures in a satisfactory way.  Rather like modalities in Con. Law.
A.	Foreseeability:  Where a caused in fact result negligence is considered unforeseeable there is no liability for that outcome.  One is only liable for those consequences reasonably foreseeable at the time of committing the negligent act.
1.	Probability:  Probability has something to do with this lense, but only in how it combines with the magnitude or terribleness of outcome to affect foreseeability.  The chance of a nuclear missile going off accidentally has never even happened and thus highly improbable, but definitely foreseeable, and it would be negligent not to take cautions to ensure against its eventuality.
A.	High Probability / Low Cost Harms:  A defendant usually has to pay in this type of situation, as foreseeability is almost assured, and the price tag is low.
B.	Low Probability / High Cost Harms:  More contentious is when the harm is very unlikely and presumably less foreseeable, but with a high price tag.  Should the plaintiff have to pay then as well, if it is foreseeable?
2.	Learned Hand Foreseeability:  Could treat the foreseeability as a probabilistic functions.  Call up the Rand Corporation and have them assess the chances of one event A, B, C, D and there matching liabilities, along with the burden of avoiding each one.
A.	Overall Harm Foreseeability:  Overall liable foreseeability could be found by Learned Hand.  Sum the burden of avoiding all possible harms and equate that with the Sum of all the Probabilities of each individual harm times its associated Liability.  · Bi ² · Pi * Li  Converging to one number as the probabilities go down more remote harms.  
	This would give a big yes or know to the overall question of liability of the defendant.  However, this would not work unless all had joined in a class action.
B.	Individual Harm Foreseeability:  To find liable foreseeability could be found on a plaintiff by plaintiff basis by applying it to each individual harm. Bi ²  Pi * Li  Here too the number should go down the more remote, or less foreseeable the harm is.  
	This one also has problems though, that the burden for this one may be the same applied to the individual as opposed to the whole of society that it was designed to protect, and therefore any one plaintiff's liability, no matter how probably, is bound to be less that the burden necessary to avoid the harm to the whole class of plaintiffs to which this individual belongs.
3.	Black Letter Exceptions:
A.	Take Your Plaintiffs as You Get Them:  Though the extent of harm was unforeseeable or even unreasonable, defendant must take the plaintiff as he is, thin skulls, susceptibility to psychosis, and other eccentricities all, and if defendant will be liable for all of the damage if he would have been liable for any.
1.	Limit: The limit does not rely on the foreseeability of the eccentricity.  This rule is confined to physical injury, including brain chemistry problems, but has not been extended to property.  Social, cultural, emotional eccentricities?  I do not know whether this would apply in cases of negligent infliction of mental distress or not.
2.	Examples:  The examples given in the book:
	Pre-existing Mental Conditions:  A pre-existing psychotic condition is set off by a minor car accident caused by defendant's negligence.  Liability sustained. Bartolone v. Jeckovich.
	Pre-existing Physical conditions: Death by inflammation of the heart after twisting an ankle. Liable. Loss of hair from fright. Liable. Delay in recovery adding cost due to severe obesity.  Still liable.  Man dies from a pat on the head.  Yes. Liable there too.
B.	Doesn’t Matter The Method:  When the negligence was of the type to create the kind of risk and from the kind of forces that actually did cause the damage, it doesn’t matter that the method was unforeseeable.  So cleaning with gasoline around an open flame leave you liable when a rat jumps into you gas can and then makes a political statement by diving into the fire.
	Argumentation:  This black letter rule is open to argument as to what it means.  I negligently bump you and you drop your package, it drops and bounces on you foot causing no damage, but then explode on the ground as it was a UNAbomb, blowling your foot off.
1.	Liable:  The defendant's negligence caused the risk of damage to the plaintiff's foot and damage occurred.  It doesn’t matter the method.
2.	Not Liable:  The defendant was negligent caused the risk that the package would fall on the plaintiff's foot and damage it from the impact.
4.	Method, Extent and Foreseeability: The way in which the event occurs need not be foreseeable, nor the extent of the harm	, but the event itself must be foreseeable.  Fire on water is not,  Wagon Mound I.
	Liability and damages are intertwined, the court in Wagon Mound I, felt that a person could not be held liable without knowing what the damage was, as the duty required is always one which bears relation to a possible harm.  Therefore, the test for liability by some method or type is the reasonable foreseeability of for the defendant.  The if liable for some then all rule in directness lens does some violence to this, and that court declined to use the test even narrowly.
B.	Directness:  One may be liable where the damage is a direct result of negligence, even though the extent and perhaps even the method by which the damage occurred where unforeseen.  This doctrine is routinely recognized and has the affect of broadening imputed foreseeability, the wider it is read the wider is the foreseeable.
	This was the rule preferred by the dissent in Palsgraf, that the duty anyone owes is general, just to be reasonable.  Once unreasonable, then should be liable for all that directly results.
1.	Extent of Harm:  It is of little weight to argue that the extent of harm was unforeseeable, as we already know that we take our plaintiffs as we get them.  So long as it was of the same type of harm that the negligence created the risk of bringing about, this is unquestionable.  However, do we need take our ship as we get it?  No.
2.	Type of Harm:  However, how wide do we view the “risk” posed.  When a worker drops a plank into a ship hold, and rather than just denting the hold, it ignites a Benzyne tank and blows up the ship.  Held liable.  Polemis.
	The duty was to take car not to damage the structure of the ship, and structural damage occurred through negligence.  Doesn’t matter the method.  But the method doesn’t matter when the result was foreseeable, just not the method, here both the method and the resulting harm were unforeseeable.
3.	Sequence of Harm:  Consequence with follow in an unbroken sequence, without an intervening efficient cause, from the original act are natural and proximate, thus direct. 
	However, was the Benzyne an intervening and superseding cause?
4.	Intentional Harm:  The length of the direct causal chain, or at least how far down the chain the court is willing to go, depends upon the intent, imputable knowledge, or justifiable ignorance.  For those just negligent, the chain ends with the direct and immediate result, but those intentional tortfeasor are expected to see farther down the road, and directness goes farther.
	This is usually subconscious in application, but there are precedents making it explicit.  There is rationale behind it under foreseeability, the intentional act allows for deliberation of the results, and the negligent act is by definition without deliberation.
C.	Cost Benefit:  The learned hand test can be applied with regards to finding liability for remote harms without recourse to foreseeability.  This is the usual method of application.  One is only liable fore remote harms where the burden of avoiding them is low or the liability extremely high.  
	Thus where the only burden is just a negative (not really true, but...) of not discharging oil, there is liability even if the damage was not reasonably foreseeable, Wagon Mound II.
D.	Duty and Relation to Harm:  The foreseeable plaintiff test.  Defendants only hold a duty to those who might reasonably be foreseeable to harm through one’s actions.
1.	Orbit of Duty:  A person owes a duty to be reasonable only to those persons about which the reasonable eye would turn and recognize as being imperil of that actor’s lack of due care.
2.	Transfer of Duty:  A plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of a duty to another.
3.	Unforeseeable Plaintiffs:  A recurring theme in the unforeseeable plaintiff drama is the person at a safe distance hit by a flying body that has just been hit by a negligent driver.  Many courts allow recovery, but some say that this is an unforeseeable plaintiff.
4.	Bizarre Secondary Effects:  These cases seem to be confined to barring liability involving bizarre secondary effects, such a crane hitting an electric wire, and igniting an underground gas main.
E.	Increased Risk:  Liability is held when the consequences of negligent conduct are direct and of the same general character that the conduct risked, not limited to those foreseeable, and may be other or greater than expected just so long as they are of the type risked. This is the compromise rule between foreseeability and directness.
	Thus one who negligently moors a boat is liable for the other ships it hits, the bridge that it knocks over, and the flood that the wrecks cause by damming the river, Kinsman Transit Co.
3.	Intervening Causes:
A.	Intervening Negligence: There are several types of situations whereby a defendant negligently exposes a plaintiff to an unreasonable risk, and the negligence of a third party intervenes into the mix.  The outcome of these cases is couched in terms of the foreseeability of the negligent conduct occurring.
1.	Risk of Specific Harm, that Harm Results:  A defendant may be liable when creates a risk of a specific harm, and the harm comes about through the unforeseen negligence of a third party.  This follows the doesn’t matter the method rule, and would be a fact for a jury to find.
	Where the negligence is with regard to a specific type of interest from certain types of forces, and that interest is in fact invaded by that type of force, then it does not matter the method by which it came.
	Where a prime contractor fails to adequately protect workers from the traffic and a negligent epileptic has a seizure and drives his car onto the sight injuring a working, a jury may find liability or find the other’s negligence to supersede.
2.	Negligence by Exposure to the Negligence of Others :  A defendant may be negligent for creating the unreasonable risk of exposure to the negligence of others.
	Thus where a car repairman negligently fails to tighten a lug nut and the tire falls off, during the replacement of which a negligent driver hits the plaintiff, this exposure was created by the negligence of the defendant and liability may be found.
3.	Risk of Specific Harm, Different Harm Results:  The issue becomes more clouded when the defendant creates a risk of a specific harm, and the negligence of a third person brings about an entirely different harm.  Probably no liability.
B.	Intervention by Plaintiff:  The plaintiff himself can act to intervene, and at times supersede the negligence of the defendant. These types of things can include everything from failure to read warning labels, to riding one’s horse too fast.
1.	Contributory Negligence:  Under this scheme any negligence on the part of the plaintiff has the effect of superseding, and thus barring recovery.
1.	Comparative Negligence:  Under this scheme, the negligence of the plaintiff only plays a role in apportioning damages, and does not supersede unless it rises to such a level as to replace the defendant's negligence as the cause.  However, in most jurisdictions it only need to pass 50% to have that very effect.
B.	Intervening Intentional Misconduct of Third Parties:  A modest exception to it doesn’t matter the method rule, that when it comes by intentional tortious conduct of third parties, then it does matter.  
	Malicious method can cut off liability, even though the outcome was foreseeable, unless the malicious conduct itself was foreseeable.  When negligence creates a risk of a certain type of harm, if that risk of harm includes the risk of malicious conduct then such conduct cannot cut off liability, but if that risk of harm was not to expose another to the risk of malicious conduct then it does cut off liability.
1.	Third Person uses Opportunity Created by Defendant's Negligence:  This largely depends on foreseeability of the conduct, and on policy of holding the negligent responsible for the intentional feasor.
	Negligently derailing a train and causing a gas spill creates the reasonably foreseeable risk of someone accidentally starting it on fire, but not necessarily the risk of someone going out an lighting it up, this is an issue for a jury,  Watson v. Kentucky-Indiana RR.
2.	Negligence of Defendant Enables Negligence or Intentional Tort of Other:  The typical scenario is leaving key in your car and having a thief negligently run someone down after stealing your car.
	In the absence of statute courts almost never impose liability, unless the car was parked in an unusually likely spot to be stolen, or the vehicle is especially dangerous (such as heavy machinery).
C.	Intervening Intentional Misconduct of Third Parties:  In general one is not liable for the intervening criminal acts of third persons, and there is no strict rule.  There are general situations where it would be true:
1.	Defendant is under Duty to Protect to Protect Plaintiff:  Where the defendant either by contract, relation, or assumption is under duty to protect from the criminal acts of others, and negligently fails to do so.
	Lessor fails to fix lock, poor lighting in store parking lot, etc.
2.	Defendant's Affirmative Act Destroys Plaintiff's Personal Protection:  Cases such as turning someone’s alarm off, or leaving the keys in the car, etc..
3.	Defendant Introduces the Criminal to Plaintiff:  Where the defendant brings into association with the plaintiff a person whom he knows or should know to be peculiarly likely to commit crime, under circumstances creating a recognizable, unreasonable risk to that person doing so.  
	Putting the fox in the hen house, putting a child molester in a day care center, dropping off a person in a bad neighborhood over her objection, etc.
4.	Defendant Fails to Restrain Criminal in Custody:  Where police negligently fail to restrain or keep a prisoner incarcerated.
C.	Accomplice to Negligence:  One can be held responsible for the negligence of another.  This is primarily limited to commercial liquor establishments, but may go to corporations, or in at least one jurisdiction to private individuals.
1.	Private Hosts:  All courts but NJ have refused to hold private host responsible for their guests drinking, viewing the consumption of alcohol rather than the dispensing as the proximate cause.  Even in NJ there are statutes easing the defenses.  There are exceptions.
A.	Serving to Minors:  There are several states that uphold liability for adults who serve alcohol to minors, and then let them drive.
B.	Entrustment: There may be cases involving someone lending their car to the visibly drunk, or to a known alcoholic.
	What is the recourse of a social host to stop a drunk from driving, convert his car by taking the keys, batter and falsely imprison him??
2.	Commercial Liquor License Owners:  12 states have continued to insulate commercial bar owners, but almost all others have either adopted Dram Shop Acts or Alcoholic Beverage Control Regulations.  These give both criminal and civil action for the damage caused by drunks served under license.
	Commercial vendors are seen as having the ability to procure insurance, experience with perceiving intoxication and have complete control over the liquor supply, and thus are different from private hosts.  Don’t want home owners insurance to have to cover this as well.
D.	Intervening Cause of Reason:
1.	Rescuers:  Danger invites rescue, says Cordozo, and the recognizes the impulse to go to the aid of another as natural and probable.  Thus a wrong that imperils one life is a wrong also to the rescuer.
A.	Intervention of Reason:  The law does not distinguish between one whose impulse to rescue has given way a reason consideration of the risks involved before making the rescue attempt.  The original wrong is still a cause in fact, and for what is probably the policy reason to encourage rescue, the original wrong is still the legal cause also.
B.	Comparative negligence:  If in making the rescue, however, the rescuer is negligent, then the law of comparative negligence will reduce the damages due her.
C.	Standard of Care:  The standard of care for the rescuer is just as for anyone.  If the situation is an emergency, the standard is lowered to that considering the circumstances of the emergency.
D	Types of Rescuer Issues:  The rescuer type situation has many facets:
1.	Second Accident:  If negligence of defendant puts the plaintiff in a dangerous situation wherein another accident occurs, the defendant is still liable, or jointly so for any subsequent negligent participants.
2.	Attempts to Escape Defendant Created Harm:  A person has the right to take reasonable steps to avoid personal harm, and may end up harming self or others, and defendant still probably liable, though again perhaps jointly, or comparatively.
3.	Attempts to Avert Danger from Defendant's Negligence:  A person may inure self, the rescued, or others in the process of trying to stop the harm from occurring.  Issue is similar, but made odd when it is the rescued’s own negligence that has placed her in a position of needing to be rescued.
4.	Professional Rescuers:  Generally policeman, fireman, etc., are barred from recovery, except for intentional acts which expose them to risks of harm.
5.	Rescue of Property:  Recovery is bound to be less likely if not trying to rescue person but property.  However, this was dealt with in comparative negligence, about running into the fire for the favorite fedora.
6.	Attempts to alleviate or right the Harm:  Doctor ends up negligently aggravating a wound caused by defendant.  Usually liable for the extra damage.
7.	Second Injury:  Where the harm due to defendant's negligence put plaintiff in a weakened condition, the plaintiff may recovery for the second injury if:
A.	Disease of the Weakened:  If the disease that strikes is one typically only striking those in weakened conditions.
B.	Broken Bones:  Where a bone rebrakes, but may be nullified by plaintiff's conduct while convalescing.
2.	Suicides:  A wrongful death claim is allowed where the mental state of the decedent was either so impaired as make her unaware of what she was doing, or place her under an irresistible impulse to kill herself.
A.	Historically:  Under ecclesiastical belief that it was sin to kill oneself recovery in wrongful death was barred if the decedent had even the slightest idea of what she was doing.
B.	Uncontrollable Impulse:  The extension for uncontrollable impulse was only extended in the 1960’s and is read strictly in most jurisdictions. 
1.	Deliberation:  The act must be done in a sudden frenzy, and any evidence of deliberation will ruin the claim in most jurisdictions; a suicide note, purchasing the medicine.  One even denied relief where the person slit his throat to efficiently.
2.	Capacity for Judgment:  Psychologist think that the better rule would be that the negligence of defendant deprive decedent of capacity for normal judgment.
C. 	Duty to Prevent:  Court is unlikely to sustain any suits against pharmacies, etc., for selling even illegal drugs that were used in suicide unless there was some knowledge of the intended use.