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Author:  	Mr. Neal A. Davis (ndavis@mail.utexas.edu)
School:		University of Texas School of Law
Course:		Torts
Year:		Fall 1995 and Spring 1996
Professor:	Thomas McGarity
Book:		Cases and Materials on Torts, 9th Edition, by Prosser, Wade & Schwartz

Message from the Author:

Thank you for downloading this outline.  I hope it is as helpful to you as it was to me.  If you use this outline, please send $1 cash to help cover my time and effort in making this and future outlines available.  My address is:

Neal A. Davis
1071 Clayton Lane #1403
Austin, TX  78723

If you have any questions, feel free to e-mail me at:  ndavis@mail.utexas.edu

Your support will be greatly appreciated.  Good luck!

Sincerely,
Neal A. Davis

Torts Outline
Spring, 1996
Prof Thomas McGarity

Book used in McGarity’s class:  Prosser’s Casebook on TORTS (9th Ed.)
Recommended study aids:  The Emmanuel’s commercial outline keyed to Prosser is superb, and I would highly recommend buying it.  Prosser and Keeton’s Hornbook is very good and thorough, but since the Emmanuel’s summarizes the most important parts of the hornbook, I would recommend just using the hornbook at the library instead of buying it.

Brief synopsis of Negligence

I. 	Negligence and its components

A. 	After intentional torts, we began covering negligent torts.  The elements necessary to establish
a prima facie case are:

1. 	Duty:  D has a legal duty to conduct himself according to a certain standard of care, so as to avoid unreasonable risks to others.

2. 	Failure to conform to this duty:  D failed to conform to his standard of care.

3. 	Causation:  There is causation (“but for” cause—or substantial factor—and prox. causation).

4.  Actual damage:  P must show that he suffered actual harm.

Proof of Negligence

I.  When there is only Circumstantial Evidence:

A. 	Duty: Circumstantial evidence is sufficient enough to demonstrate a negligent breach of duty.  
The exact circumstances necessary to prove negligence vary by the defendant and by the duty.  

	EX:  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 overcome a directed verdict, since it would be sufficient evidence from which the juries could infer that Ds were negligent—Ds should have seen and removed it had they been reasonably careful  Anjou v. Boston Elevated Railway.

B. 	Notice:  The circumstantial evidence must be sufficient to establish notice, unless negligence is 
“built into the system.”  Thus a fresh, slightly brown banana on a floor is not sufficient for railway to have notice, Joy v. A&P Supermarket.  Notice is not necessary where the negligence is built into the system by the defendant,  such as selling greasy pizza on waxed paper in a restaurant with a slick floor (when the pizza hits the floor and someone trips over it, D need not be shown to have constructive or actual notice to be held liabel).  Jasko v. Woolworths.

C.  Standards of Proof:  There are several ways to get at liability - purpose, knowing, reckless, and 
negligent.
 
1. 	Purpose:  Evidence alone can show purposeful acts of D creating harm.  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) does not matter, since D does not need notice if he purposefully created a harmful situation.

2. 	Knowing:  Evidence can show D had knowledge of risk.  The effect would be about the same as purpose and would get rid of notice requirement.  If  D witnessed X drop the banana, and D just stood there looking at the banana as customers walked around it, the amount of time banana had been there would not matter.

3. 	Reckless:  Evidence can show D to be negligent per se. This would also dispense with the notice warning.  If D sold bananas without any waste bins to throw the peels into, that mere circumstance itself could be reckless by itself and therefore subsumedly negligent.
	
4. 	Negligent:  Evidence can show D had reasonable notice of harmful situation.  If the banana looks three days old and moldy on the market floor, it would be strong evidence that D should have noticed it and he will be held liable for his negligence if harm results.

The Court has several methods to determine the negligence of a business practice:

(1) 	Expert Testimony:  Establish the applicable standard of business practice through the testimony of others in the field.

(2).	Learned Hand Formula:  Weigh the burdens of avoidance and liability (P=BxL)—cost of building non-slick floors in pizzaria vs. chances of an accident and magnitude of accident
(3).	Calabresian Privatization:  Privatize the process by applying strict liability and let the businesses absorb the cost.  Thus, one could argue the pizarria is least accident 
	avoider and should put in a non-slick floor, or be held strictly liable for any accidents.

II. 	Res Ipsa Loquitur (The Thing Speaks for Itself):  Res ipsa is used when P does not have any 
knowledge or access to the facts about D’s conduct.  The doctrine of res ipsa allows P to point to the fact of the accident, and to create an inference that, even without a precise showing of how D behaved, D was probably negligent.  Under res ipsa, P effectively shifts the burden over to D to then disprove or rebut the presumption of negligence.  

      NOTE:  Res ipsa is similar to circumstantial evidence doctrine in that it allows for an inference that 	
      D was negligent, even though there has been no direct, eye-witness evidence that D indeed was 
      negligent.

Elements: The burden is on the plaintiff to prove the elements of Res Ipsa Loquitur. In all courts P has the burden of showing the two elements below.  Depending on jurisdiction, other elements might also need to be shown.

1. 	First Element--Normal Course of Events:   P must show that event is of a kind that ordinarily does not occur except through the negligence (or fault) of someone.
      The question here is whether the occurrence of the event gives rise to a reasonable
      inference negligence.  All P has to show is that most of the time (not all of the time)
      negligence is the cause of such situations.  Expert testimony can be introduced to help show
      this.  

a. 	Unusual Events:  When an event is rare in and of itself, its occurrence does not necessarily occur without negligence (indeed, its rare occurrence might be the result of the lack of negligence).  But the fact is that rarity of occurrence gives the perception of negligence. When a plane crashes without explanation, courts generally hold that res ipsa applies, Cox v. Northwest Airlines.  Also applies to other situations, such as where the car goes off the road for no reason and strikes a stationary object, or a barrel that just rolls out of a flour factory window and hits a pedestrian below.

b. 	Calculated Risk:  D is aware of a serious risk but determines in the exercise of his 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 are, whether res     ipsa will apply (such as in a plane crash without evidence, where court decides whether or not P will recover).  

2.  Second Element—Instrumentality under D’s Control:  P must show, again by the 
preponderance of the evidence, that:

(1) 	The instrumentality (i.e., the barrel that rolled out of the window) that brought about P’s harm was under D’s exclusive control, OR
	
(2) 	Eliminate all other reasonable causes for P’s harm

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.

b.   Exclusive control (of single D):   Today, P must show instrumentality was within D’s exclusive control (Larson, where furniture was thrown out of hotel and hit P, but court held that hotel did not have “exclusive control” over furniture—guests could have thrown it—and thus rejected res ipsa).  

(1)  Multiple Defendants (exception to exclusive control):  If P can show the probability that the injury was caused by the negligence of at least one of a multiple number of Ds, but cannot show which of them, res ipsa can still apply to all of them, as long as the following criteria are met:

(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.  They are working in a common endeavor. Where a group of doctors and nurses care for a patient, they may be held jointly presumed negligent under res ipsa, since Ds have interrelated responsibilities and each of them had a duty to see that no harm befell P. Ds in this situation have two duties: first, not to harm P and, second, to make sure other doctors’ actions (negligence) do not harm P.  

(b) 	Joint Responsibility / Special Knowledge:  However, team aspect/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 that 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, since there is no team aspect/common endeavor and special knowledge or
      some joint responsibility.

(c)	Special Situations:  Courts have applied Ybarra to a few non-medical situations:  P sues bottler and manufacturer of a bottle that explodes, and is given res ipsa even though he has made know showing as to which of the two was negligent.  But res ipsa is generally not applied when the evidence is only that some unidentified one of multiple Ds must have been negligent.

(d)	Res Ipsa in the Alternative (state statutes):  Several states have enacted statutes which basically allow a plaintiff to get to a jury without evidence against multiple defendants.  The statutes hold 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.
	
In summary, the rule regarding multiple defendants can be read widely to require demonstration of control of instrumentality by each of them individually at one point during the time in question. Or it can be read narrowly—applying where there is some special relationship with the plaintiff, where there is a group functions amongst the defendants with mutual responsibility. Finally, Ds can
always be held liable by res ipsa in the alternative if the state has such a
statute.

3. 	Additional elements:   Usually, a jurisdiction will require at least one more of the 
following elements to be shown:

a.  Breach of Duty:  P must show D breached his duty of care.

 b. Accident without fault of P:  P must show that harm was not due to
his own negligence.

 c. Knowledge Disadvantage for Plaintiff:  P must show that evidence of 
what happened is more available to D than to P (that D is not in the dark as much
as P is).  

B. 	Applicability of res ipsa:

1. 	Directed Verdict:  The standard to withstand a directed verdict is that P, taken in the light most favorable to him, has come forward with enough evidence that a reasonable
      jury could find that P has established each of the elements required for res ipsa.

2. 	Codification (medical malpractice):  In medical malpractice, state legislation has limited res ipsa 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 Judicial lattitude:  Res Ipsa is a doctrine of inference, which means that the judge has a lot of discretion when it comes to deciding what inferences may reasonably be drawn.  The judge may direct a verdict, decide how to charge the jury as to the procedural effect or strength of the inference, or make a judgment not withstanding the verdict (JNOV).

D. 	Procedural Effects of Res Ipsa:

1. 	Level of Inference:  The level of inference can be drawn on 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 (MAJORITY):  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 get past 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 (Minority):  Once res ipsa applies, the burden of production automatically shifts to D.  Thus, there is a presumption of D’s negligence, which he must come forward with evidence to rebut (i.e., evidence showing his own care, or showing P’s interference).  The jury is to find negligence if D provides insufficient evidence to rebut presumption (if jury cannotdecide, then P loses).  P rarely gets a directed verdict under this rule, unless the inference is so strong.

c.    Switches Burden of Proof (minority):  Once res ipsa applies, the burden of pursuasion is shiften to D.  D must then prove by a preponderance of the evidence that he did not negligently cause D’s harm.  D is called upon to explain his own behavior.  There is a high likelihood that the judge will grant a directed verdict to P.  

E.  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 (i.e., a directed verdict).  If P has met the required elements of res ipsa, then the case falls under (a), (b) or (c), depending on the jurisdiction. 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.

F.  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.

  G.  D’s defenses to res ipsa:   How can D step forward with rebuttal evidence of his own,
after P establishes the elements of res ipsa?

1. 	General evidence of due care:  D can show that he was in fact careful, but this would
probably just prevent a directed verdict against him (case would still go to the jury).

2. 	Rebuttal of res ipsa requirements:  D’s evidence may, rather than tending to prove his
due care, disprove one of the required elements for res ipsa (i.e., conclusively show accident
would not normally occur as the result of negligence, etc.).  If D could successfully disprove
any of these elements, then he has shown that there is not a res ipsa case, and would most
likely get a directed verdict in his favor.

3. 	Contributory negligence (in jurisdictions which both require P show his harm was probably not due to his own conduct and still retain cont. neg.):  P’s contributory negligence will sometimes, but not always, constitute a failure to meet the requirement that his harm was not due to his own conduct.  But if P’s negligence does not lessen the probability that D was also negligent, then P may meet this requirement and res ipsa may apply (but cont. neg. may bar P from a recover anyway, but not if jurisdiction
      was a comp. neg. one).  

     EX:  P is an engineer operating a train of D (a railroad).  Part of his job is to keep the right
     amount of water in the boiler.  The boiler explodes and kills P.  If there was no evidence
     showing that P was not himself responsible for the explosion (by putting in too much water),
     res ipsa will not apply.  Or if D can show that P did was contributorily negligent since he
     did not keep the right water level, res ipsa will not apply.  But res ipsa will apply if there is 
     testimony that P acted properly.

Defenses in Negligence Actions

I.  Defenses in Negligence Actions and Plaintiff’s Conduct:  Standard of Care Required of Plaintiff
	
A. 	Plaintiff’s Negligence:  There are several ways to deal with a plaintiff’s negligence.  There is a 
triad of defenses available to P, the first two depending on what state he is in: contributory negligence, comparative negligence, and assumption of risk.  Other defenses in negligence actions include Statue of Limitations (SOL) and immunities.

B. 	Contributory Negligence (only a few states use this scheme):  The essence of the defense is that a P who is negligent (in the sense of not taking reasonable care to protect his own safety), and whose negligence contributes proximately to his injuries, is totally barred to recovery.  The defense is thus a complete defense—an all or nothing approach to recovery, tending toward the nothing side.  Even if P is found 1% liable for his harm, he cannot recover anything.  The rationale is:

(1) 	Penal Basis:  Penalizes the plaintiff for misconduct.

(2) 	Clean Hands Requirement:  Court will not aid those whose own fault took part in the injury.  Discourage lawsuits from undeserving plaintiffs.

(3) 	Encourage Care:  Encourages optimal care from both parties.  Primary liability encourages those would be defendants, and this bar to recovery encourages would be plaintiffs.

(4)	Intervening Cause: P’s negligent act is an intervening and superseding cause, making the defendant’s actions no longer the proximate cause.  The courts liked to look for a single cause under the old pleading system, so it had to be one or the other.
	e.g. - Two cars negligently crash into each other and also harm an innocent pedestrian, the pedestrian can recover from both drivers, but neither driver could recover from the other.

	1.   Elements of Cont. Neg.:
	
a. 	Burden of Proof:  D has the burden of proof in cont. neg. cases.  D must show
	     that P did not use the care of  “a reasonable person under like circumstances.”
	
b. 	Causation (proximate and “but for”):  Plaintiff’s negligence must be shown to be
the proximate cause to his injuries (his negligence cannot be too remote) for there to cont. neg.  Also, there must either be a “but for” cause of that harm, or a “substantial factor” for it.  For example, if D starts a fire that burns down P’s house, the fact that P has thrown a match into the flame will not constitute contrib.  neg. since the match is not a “substantial factor.”  

c. 	Defense can bar only claim based on negligence: The defense of cont. neg. can 
only be used as a bar to a claim that is itself based on neg.  Thus, the defense may not be used where P’s claim is for an intentional tort (one cannot argue P was negligent in
not ducking when you hit him with a chair).
	
(1)    Violation of Statute: Cont. neg. can also be a defense to D’s “negligence per se,” i.e., D’s negligence based on a statutory violation. Unless it is a statute that explicitly disallows the defense, such as federal safety standards statutes, and those statutes designed to protect a class of people who cannot protect themselves, such as child labor, sale of firearms to minors, sale of liquor to the intoxicated, safety devices to protect workers, etc..

2.  Doctrine of Last Clear Chance:  The most significant limitation on the cont. neg.
defense is a rule called the last clear chance doctrine.  Two elements are required:

(1) 	D had an opportunity to prevent the harm AND

(2) D negligently failed to avoid the accident.

The last clear chance doctrine wipes out the effect of P’s cont. neg., leaving D liable if he does not take advantage of that last opportunity.
 
Where a man negligently fettered a mule on a highway, but had wandered away, and another came along in a wagon at a negligently high speed and hit the mule, it was the wagon driver who had the last clear chance and the plaintiff could therefore recover despite his contributory negligence, Davies v. Mann.

Rationale:  The “last clear chance” doctrine arises out of dislike for cont. neg. doctrine.  Last clear chance is based on the idea that D’s failure to exercise her last opportunity to avoid the harm acts as a superseding cause, preventing P’s negligence from being the proximate cause
of the accident.

a. 	Application:   The last clear chance doctrine is often applied in situations of
cont. neg.  The following are four distinct cases where it could apply:

(1)  P helpless, D discovers danger:  If P is helpless to avoid his predicament, and D discovers his predicament but negligently fails to use his opportunity to avoid the danger, all courts hold last clear chance doctrine applies and P’s cont. neg. will not bar his  recovery.
      EX:  P negligently attempts to jay-walk across a busy street. He falls, and is
      unable to move.  D, seeing P lying on the street, attempts to hit the brakes,
      but instead negligently hits the gas and runs P over.  P’s cont. neg. in jay
      walking will not bar his recovery, because he was a helpless P, and D 
      discovered his predicament, but negligently failed to avoid it.

(2)  Helpless P, inattentive D:  P is helpless, but D does not discover
P’s plight, although she could have discovered it and avoided it, had she
not negligently failed to pay attention.  Most, but not all, courts allow the last
clear chance doctrine in this situation.  Thus if the driver in the above
example had never seen P in the road because she had negligently
turned to look at her passenger, most courts would still allow P to recover.

(3)  Inattentive P, aware D:  P, rather than being helpless to extricate himself 
from the danger, can do so, but negligently fails to do so, because he is inattentive or otherwise careless. If, in such a situation, D discovers P’s plight, and then negligently fails to respond to it, most court similarly hold that the last clear chance doctrine applies.
				
(4)  Inattentive P, inattentive D: What if P or D could avoid peril, except that 
neither discovered it due to inattentiveness.  In this situation, the “chance’ is so “unclear” that virtually no courts apply the last clear chance doctrine.
		
b. 	Antecedent negligence:  Suppose D discover P’s plight, tries to avoid it,
but is unable to do so due to his earlier negligence (i.e., brakes on train were
negligently maintained and ran into P’s car, which P negligently was 
driving across the train tracks without looking).  Can P argue that D had an ability to avoid the harm at the last minute except for his earlier negligence, and the last clear chance doctrine should apply?  Most courts hold that for the last
clear chance doctrine to apply, D must have had actual opportunity to avoid the
harm at the last moment, not merely an opportunity which “would have existed”
had there been no antecedent negligence.  

Many of these cases of last clear chance involve cars getting hit at railroad crossings.
Examples:  

--  Car is negligently sitting on the railroad tracks and is hit by a train that
negligently fails to stop.  Neither the driver nor the train engineer had the last clear chance:  Driver cannot recover.

--  Car is negligently sitting on the railroad tracks and is hit by a train that
negligently fails to stop, but the driver of the car is not in the car when it happens.  The train engineer had the last clear chance:  Driver can recover.

--  Car is negligently sitting on the railroad tracks and is hit by a train that fails to
stop due to negligent break maintenance on the train.  The driver had the last 
 clear chance:  Driver cannot recover.

c. 	Criticism of last clear chance doctrine:  The greater D’s negligence, the
more likely he is to avoid having the last clear chance doctrine applied against
him.  If he negligently fails to discover P’s danger at all (assuming either that P
is inattentive or that he is helpless and the jurisdiction is one in which actual discovery of his plight by D is a requisite), last clear chance will not apply.  Yet
if D carefully looks out, spots P, then nervously hits the accelerator instead, the
doctrine does apply.

3. 	Seat belt defense (courts have refused to allow these defenses at all):  What if D 
argues that P’s injuries would be reduced or entirely avoided had P worn a seat belt.  In theory, a court could hold that failure to wear a seat belt amount to garden-variety cont. neg., thereby barring P from recovering. However, courts have not taken this approach in cont. neg. states. Since the accident would have occurred anyway, it seems very unfair to give D a complete windfall.

C.  Comparative negligence (vast majority of states adopt some form of this regime):  Comparative negligence rejects the all-or-nothing approach, and instead attempts to divide liability between P and D in proportion to their relative degrees of fault.  As the idea is often expressed in statutes, P is not barred from recovery by his contributory negligence, but his recovery is reduced by a proportion equal to the ratio between  his own negligence and the total negligence contributed by the other (i.e., if there is just one P and one D, their combined negligence).

EX:  P suffers damages of $100,000.  A jury finds that P was 30% negligent and that D was
70% negligent. P will recover, under a comp. neg. system, $70,000 (i.e. $100,000 - 30% x
$100,000)

Rationale:  The contributory negligence system is too harsh being all or nothing. A more egalitarian system would be that where each paid his own way, or own portion of damage done. But comp. neg. is criticized for being inefficient as it is more amenable to argument, with the difficulties in apportionment, and breeds litigation.  It does seem fair, however, but is this a sufficient justification?

1.  Types:  States adopt one of three types of comp. neg.:

a. 	Pure (13 states adopt this): Only look to plaintiff’s negligence and subtract that percentage off the damages imposed on the defendant.  Criticized for encouraging litigation, as in almost any case one can find some fault in the other party.  
	
b. 	Modified “not as great as” (49% or less of dams must be due to P’s negligence if he is to recover his portion):  Same as pure comp. neg., but if P’s neg. is as great as D’s, then he is barred from any recovery.  This system is sometimes criticized as merely shifting the arbitrary bar of the contributory negligence, but others feel that it ameliorates the old system while remaining compatible with the fault based tort system.

c.    Modified “not greater than” (50% or less plaintiff’s negligence): Same as pure but with a cut off where the plaintiff's negligence is greater than that of the defendant.  This allows recovery on the 50-50% cases, which are not few in number (plus, jurors often find neg. split down the middle).  A slightly more pro plaintiff system.

2. 	Difficulties in assessment:  It is difficult to quantify negligence and to compare it between the parties, which is a problem with comp. neg., and as a result it is a common occurrence that juries find equal negligence.  Generally, percentage of fault is based on the relative degree to which P’s conduct deviated from the standard of care, not the relative contribution his negligence made. The some reasons for this difficulty are:

a. 	Violation of Statute:  Does the fact that one party was in violation of statute boost the percentage of negligence, and how do justifications for the violation factor in.

b. 	Directness of Causation:  Does the directness of the conduct with relation to the outcome factor in, and if so how.

c. 	Res Ipsa Loquitur:  Would a plaintiff relying on this theory have to still put in evidence that her conduct did not contribute to the negligence pot?  And could you have apportionment that speaks for itself; how culpable is a person walking under an open window for not looking up before the barrel hits him?

d. 	Plaintiff/defendant’s condition:  How should the minority, mental or physical handicaps affect apportionment?

e.	Others:  Avoidable Consequences, punitive damages do they factor in?
	Some courts have gone to a system where the jury assigns relative fault and assesses damage, and the court then does the calculating, as an alternative to letting the jury return a general “black box” verdict.

3. 	Secondary Effects:  Adoption of this system affects other doctrines, and it must be decided how they will be dealt with in a comparative system.

a. 	Last Clear Chance:  Last clear chance was designed to ameliorate the harshness
of cont. neg.; thus, there is no need for it in comp. neg. situations.

 b.   Multiple Defendants:   In a pure comp. neg. scheme, it is easy to apportion damages— if P caused 20% of negligence, and four Ds caused 80%, then P is entitled to 80% recovery.  But what if jurisdiction uses a “not as great as” or greater than” comp. neg. scheme?  If P’s neg. is less than that of all four Ds, but greater than that of some
particular D, can P recover?  Most statutes do not address this problem, but it would 
seem unfair if P is 26% negligent, but cannot recover from Ds that are 74% negligent combined.

c. 	Joint and Several Liability:  The biggest question regarding cont. negligence deals with when multiple Ds are before the court when there is joint and several liability.  May those Ds before the court who are found to be only partly responsible for P’s loss be required to pay for the whole loss aside from that caused by P’s own fault? 
About half of the courts say yes.  The other half say no—it is inconsistent  to simultaneously retain the rule which may put a disproportionate level of fault upon defendants, rather than each having to pay only his/her share by percent fault.  This type of rule may affect legislation on joint and several liability apportionment of damages.  The ALI approach is to have P and D share the burden of an absent or
insolvent D, in proportion to their own fault.  

EX:  P, a pedestrian who is jaywalking, is injured when a car driven by D and a car
driven by X collide. P is able to locate D, and sues him in  a “pure” comparative
negligence jurisdiction. X, a hit-and-run-driver, is never found.  In the P-D action,
the jury finds that P was 20% responsible, D 30% and X 50% responsible.  P’s
dams total $1 million.  It is clear that P can collect at most $800,000 total. The
question is, may P collect the full $800,000 from D, or only $300,000? Under traditional joint-and-several liability rules applicable to joint tortfeasors, P would be allowed to collect $800,000 from D. But this would be, at least on the surface, quite
unfair to D, who is responsible for only 30% of total fault.

d. 	Non-Party/Phantom Party: It may be allowed as an affirmative defense that a 
non-party or unknown party contributed some portion of the fault, but P must make a timely amendment to the complaint in order recover against that person.

e. 	Non-Negligent Torts:  What if D’s tort is intentional?  Does cont. neg. apply?
No, probably not, but the court can allocate fault, even in an intentional tort case.

f. 	Assumption of Risk:  Can damages be reduced by the amount that the plaintiff has 
assumed some risk?  If P consciously decides to submit to a certain risk and it is reasonable, then P will be protected from D’s defense of comp. neg.  But if P voluntarily
but unreasonably assumes a risk, then apportionment will apply.

4. 	Seat belt defense:  The seat belt defense, unlike in the few cont. neg. states, is 
increasingly accepted in comp. neg. jurisdictions.  In this defense, D argues that P’s
injuries from a car accident could have been reduced or entirely avoided had P worn a seat
built.  Thus, D argues, P’s dams should be reduced.  Perhaps the easiest way to configure
dams would be to allow for casual apportionment—D is liable for injuries what would
have occurred had P worn a seat belt, but not at all for injuries that would have been avoided
had P worn a seat belt.

a.  Theory:  Defendant should not have to pay for the extra damaged caused by the plaintiff’s conduct.  This is sort of a comparative negligence analogy with regard to damages, where each should pay the portion for which she is responsible.  

b.  Approaches:  There are several ways to deal with this issue:

(1)  Negligence:  The action of the plaintiff in not wearing a seatbelt (helmet, etc.) is either negligence per se (if in violation of statute), or unreasonable and therefore should bar recovery partially under comparative negligence. 
	It is being treated like assumption of risk, and has the same result. It is not consent to damage but an appeal to others to drive extra reasonably by making oneself more vulnerable to it.  Under the assumption theory, it would seem only fair to assume that extra damage.  There is no mention of this standard being applied.

(2)  Causation / Avoidable Consequences:  The defendant was only the proximate cause of part of the harm and should not have to pay the full bill, but only her portion. 
	Is this the rationale?  Is it based upon the causation issue, the defendant will still be the but for cause of the total harm, are they treating the plaintiff’s conduct as an interceding superseding cause for proximate causation?
	The book analogizes to the plaintiff's duty to mitigate damages, and that this is the same theory, only for potential plaintiffs.  Historically the two were only applied post accident, for failure to obtain medical treatment, etc.  The court refused to hold the analogy to anything else for the pre-accident case citing it widespread use and availability, and the importance of highway safety, Spier v. Barker.  The court there alluded to Learned Hand formulation of the low burden to the driver.  This is the minority of jurisdictions.

(3) Application:  Many courts reject this doctrine due to it being at odds with   traditional tort doctrine, the difficulty in determining the causation issue, and that unwillingness to impose this burden upon the population.  However, when enacted it is applied as following.

(a)   Statutes:  Where states have statutes enforcing seatbelt usage, many also address the effect of not wearing.  None applying the negligence per se approach, allowing it as evidence, others limit the reduction, and some disallow its use.

(b)   Damage Apportionment:  Damages are apportioned in the normal way for this type of technical issue, by a war of the experts.  Where contributory negligence is used it may be used to reduce by percent fault also.

(c)    Other Situations:  It is unknown where the line will be drawn when this doctrine is applied to other “aggravation of injury” situations, such as driving over the speed limit, not wearing a helmet on a motorcycle, or not wearing a gas mask in a polluted area, or hard-hats in a construction site.

D. 	Assumption of Risk:  P is said to have assumed the risk of certain harm if he has 
voluntarily consented to take his chances that that harm will occur.  Where such an assumption was traditionally shown, P was barred from recovery.  However, as discussed below, most courts which have adopted comp. neg. now hold that ass. of risk is no longer an absolute defense, but merely a consideration to be taken into account in making an apportionment of harm.  Furthermore, some states now refuse to accept ass. of risk as a separate doctrine distinct from cont. neg., and have in effect abolished.  P can have expressly or impliedly assumed the risk.

1. 	Express Assumption of Risk: If P explicitly agrees with D, in advance
      of any harm, that P will not hold D liable for certain harm, P is said to have expressly
      assumed the risk of harm.  If there is no “public policy” against the ass. of risk 
      involved—unequal bargaining power or D was furnishing a service of great
      importance to the public—then agreement will be enforced, and P may not recover.
      Tom points out that ass. of risk is similar to doctrine of consent in that it is consent to
      undergo a risk.  Factors determining whether express assumption of risk is enforceable:

a. 	Risk Contemplated in Contract: Risk that injured the plaintiff must fall within the terms of the contract.

b.	Public Policy of Contract Type:  K must not violate public policy. 
	The public policy exceptions include:

(1) 	Open Bargaining:  Where the bargaining is not free and open, but one side comes from a position of superior bargaining power, then this will militate against the enforcement of the agreement.  This requirement comes up as the basis of many of the other exceptions below.  Unequal bargaining power need only be enough of an imbalance to tips the scales (thus, there is not as
	strict of standard as that applied to, say, commercial contracts).

(2) 	Public Interest:  Where the exculpatory agreements involve transactions affecting the public interest.  This is primarily limited to common carriers, public utilities, or other regulated enterprises (hotels, airports, telephone co, etc.).  It is usually held that D has undertaken to give careful service to the public at large, and may not escape that obligation by thrusting a piece of paper on P.

(3).	Indispensable Public Service:  The doctrine of exceptions has expanded to include other professional bailees without a public duty but that deal with the public; the indispensable need for their services is seen as depriving the customer of equal bargaining power.  These include:  Garage men, owners of parking lots, parcels checkrooms, etc.
	Where these private bailees are for hire, though, the authority is divided, and I would imagine that the availability of alternates in the same location might make liability less likely.

(4) 	Non-Ordinary Negligence: Normally, a waiver of liability for D’s “negligence” will be construed so as not to include liability for wanton and
willful conduct, gross negligence, or intentional torts.     

(5)	Public Welfare Statutes:  One can assume the risks of the other parties’ negligence, even where that negligence involves a violation of statute, but this rule has been eroded where the statute violated was enacted to protect the public welfare.  These types of rights for public welfare are deemed to be unwaivable.

The usual type of business  transaction that falls under one of above five categories has some or all of these characteristics:

(1) Publicly Regulated Business:  The business is of a type generally thought suitable for public regulation.
(2) Public Necessity of Service:  The business is one of great importance to the public, a business of some practical necessity.
(3) Open to Public:  The business holds itself out as open to the general public, for any member who meets some established standards.
(4) Bargaining Advantage:  The business holds some decisive bargaining strength advantage due to the nature of the service.
(5)  Adhesion Contracts:  The contract is a standardized adhesion contract of exculpation, and does not allow for any bargaining of the conditions or fees to allow for the provision of protection against negligence.  In other words, where it is not a bargained for exchange.
(6) 	Control Surrendered to Business:  The person or property is placed under the control of the seller of the service, subject to its care and the risks of its negligence.

c.  Compliance with Applicable Contract Law:  The contract must also pass muster 
under the contract law applicable to the situation and the industry.  This includes statute of frauds for oral agreements, whether contract will be binding on third parties (spouses, children: whether the assumption actually shifted the risk over to the plaintiff), etc.

EX:  Signing a waiver of right to sue for negligence due to the defendant racetrack’s 
negligence bars a suit for negligent maintenance of the track, since there was equal 
bargaining power and D does not furnish a service of great importance to the public.
Winterstein v. Wilcom.

Other HYPOS:

	----Chemistry prof. Has student sign waiver before doing experiment in the
	lab.  The waiver stated the university would not be liable for any harm to
	student.  This waiver is not valid because of lack of bargaining power.
		 But the univ. could say the student did have a choice.

			 ----A buys a ticket at the Astrodome to see the Astros and sits behind 
			3rd base.  The ticket states that he cannot hold ballpark liable for injury.
			A foul hits A in the face.  Can D raise ass. of risk?  Sure.  The warning
disallows P to say he did not know of risk, which is a subj. test.  If D was grossly negligent, then there could be comp. or cont. neg., which would require an obj. test  (did it follow its duty).

2. 	Implied Assumption of Risk:  Even if P never makes an actual agreement with D 
whereby risk is assumed by the former, he may be held to have assumed certain risks
by her conduct.  In this situation, the assumption of risk is said to be implied.

a.  Requirements for implied assumption: For D to establish such implied
assumption of risk, he must show that P’s actions demonstrate that he knew
of the risk in question and voluntarily consented to bear that risk himself.
This consent may be shown by the fact that P has chosen to enter a certain place,
to remain in a certain place, to work with machinery, etc.

EX:  D is dangerously setting of fireworks near a public street. P watches at 
close range, even though she is aware of the danger of doing so, and is injured
by a stray rocket.  P has impliedly assumed the risk of being injured, and cannot
recover.

NOTE: P’s conduct in assuming risk may also, in many cases, constitute 
cont. neg. (discussed below)

 b.  Actual Knowledge:  P must be have actual (subjective knowledge) of both:

(1).	The Specific Risk: The knowledge cannot be of general character but specific both as to the nature and source of the risk.  Knowledge of the general risk of driving does not imply an assumption of the risk of an individual driver’s negligence, but if you are warned of drag racers on the road ahead, you assume the risk that they will not be careful.  AND

(2) 	The Magnitude of the Risk:  The knowledge must include the magnitude of the resulting harm.  Knowledge that another tractor might bump into yours while you are parked in a through fare does not amount to a knowledge that it will kill you went it bumps.

c. Voluntary Assumption:  P must have voluntarily assumed the risk.  The 
requirement that P have consented to the risk voluntarily is strictly construed.  

EX:  Lack of voluntariness—Jay-walker walks into illegally speeding traffic. Such a
person certainly does not manifest consent that the drivers shall use no care and run
him down.  On the contrary, he is insisting that they shall take immediate precautions
for his safety.  This is not implied assumption of risk, although it is cont. neg.

What if P protests against being asked to submit to danger, but nonetheless does
submit? Frequently, she will be held to have waived objection and have 
impliedly assumed the risk despite her protest.

HYPOS:  

        ----A buys a ticket to see a baseball game.  There is nothing on the back of the
        ticket telling A he expressly assumes risk.  But he impliedly assumes risk. Being at a
        game arguably implies that A assumes the risk if a ball hits him.  But A could argue
        that he was not aware of this particular risk, or that the stadium was grossly negligent,
        and try to attain dams that way (cont. or comp. neg. could come into play here if 
        stadium could show A was neg. in some manner).  But stadium could respond that
        it never even had a legal duty to A, and thus could not be negligent.

              In his arg. that stadium was negligent, A could use Learned Hand’s formula
        and argue that it would inexpensive to put up nets compared to amount of people
        harmed, and magnitude of harm, due to foul balls.
	
 ----A gets into his car and hits B.  A claims B assumed the risk.  Did B?  No,
because B was not aware of this particular risk.

      d.  Treatment by courts: Ass. of risk is a disfavored defense to the courts because it bars recovery many times in situations of genuine hardship, and the court may control its application by narrowing the definition of the elements.  In general it is treated as follows:

(1).	Protests:  As already pointed out, P’s protests are strong evidence of involuntary acceptance.  However, over time despite reluctance, protest without action may be read as waiving the protest and therefore becomes a question for the jury as to whether it was voluntary.  Turns upon the question of the existence of a reasonable alternative.
(2).	Proof:  Proving subjective knowledge may be difficult, and an admission is the best, but it may be inferred from circumstantial evidence.  Here having warning signs becomes important to give evidence of P’s knowledge of risk.
(3).	Strict Liability (where ass. of risk is a complete defense):  The doctrine is most alive here—it is a complete defense in cases of strict liability (i.e., products liability claims).  Even where the doctrine has been eliminated with the adoption of comp. neg, it may still be retained with regard to strict liability.
(4).   Duress:  There is no assumption of risk if D’s conduct has left P with no reasonable choice but encounter a known danger.  D must have a choice.

Where a woman went into a bathroom with a poorly maintained trap door that she knew about, the court viewed the voluntariness in the narrow sense in refusing to allow the defense.  She had to go to the bathroom and her landlord provided no reasonable alternatives, so he should be held liable and implied
ass. of risk is not a defense.   Rush

        e.  Doctrine comparisons:  There is some confusion in the overlap of assumption of risks 
and other doctrines, as in some states the defense is applied to any situation where the       plaintiff consciously and voluntarily exposes herself to a known risk.

 (1).	Contributory Negligence: The basis of contributory negligence is carelessness, where assumption of risk is based upon venturousness.  In a 
cont. neg. regime, when P unreasonably assumes a risk, then his conduct
in most cases will also constitute cont. neg., and D can hold be liable either
for assumption of risk or cont. neg.  But if P reasonably assumes the risk (i.e., 
P has an emergency and drives to the hospital in a defective car), then P is
not cont. neg. Yet D in this situation could raise the defense of ass. of risk (this
is ass. of risk’s major cont. to tort law).  
 
(2).	Comparative Negligence:  The doctrine of  implied assumption of risk overlaps and is analytically subsumed within the defense of contributory negligence.

(a).	Qualified Implied Assumption of the Risk (risk is reasonable—running into the house to save the baby):  If a state has a comp. neg. regime, then if tenant reasonably assumes the risk his recovery will not be reduced it all.  The landlord, which presumably has a duty of ordinary care for the safety of tenants and did not take remove flammable installation in this case, will be held completely liable for his own negligence.  

(b).	Strict Implied Assumption of the Risk (risk is unreasonable—running into burning house to save the hat):  If tenant unreasonably assumes the risk, then his recovery will be reduced (but, in a “pure” comp. neg. state, not completely eliminated) by the proportion of his culpability.

ASK TOM TO CONFIRM THESE TWO THINGS, AND CONFIRM WHAT “STRICT” and “QUALIFIED” ass. Of risk mean

II. 	Other defenses outside the triad: Statutes of Limitation & Repose AND immunities

A. 	General:  A statute of limitation is a complete bar to recovery that is independent of the merits of the case.  Every state has such statutes, that varying in length between states and within the states between causes of action.  This is an active area of legislation as it is one of the easiest ways in tort reform to limit liability, along with recovery caps.

1. 	Statutes of Limitation:  Vary in length depending upon the basis of liability, the subject matter of the claim, and the type of interest invaded.  Their classification depends for the purposes of the duration often depend upon whether the tort is intentional or negligent, ordinary negligence or professional malpractice, and some have classified them by type of case law (though distinguishing between a contract and property etc., case is often difficult).

a. 	Tolling: These statutes generally contain tolling provisions to stop the time period from running for various reasons.  The most common are:

(1).	Minors:  Toll the statute for minors until they reach the age of majority to sue.

(2).	Insanity:  Toll the statute for the legally insane or “incompetent” until fit for suing.

(3).	Equitable Tolling:  Where it would be inequitable not to toll the statute, in such cases as where the D fraudulently concealed the injury from the P until the statute had run.

b. 	Accrual:  Most statutes provide for the time period to run from when the cause of action “accrued.”  The court can then determine what rule to apply.  There are several approaches:

(1).	Time of Injury:  Most courts hold that the statute begins to run at the time of injury, and in most cases there is no dispute over this time.  However, in these jurisdictions there are usually exceptions where the time is difficult to ascertain, or where it would be impossible to discover the injury when it occurred.

(2)   Discovery Rule:  The statute does not start to run until P discovered, or should have discovered, the injury.  This rule originated in medical malpractice, and some courts have limited it application to specific cause of action, such as objects in the body, exposure to toxic substances or drugs, or have put a secondary/longer outside time limit on claims.  Other courts have expanded this rule to cover other professional practices, and in some jurisdictions to any action based upon a latent injury.

2. 	Statutes of Repose:  Similar to statutes of limitation, but contain no tolling provisions and start running from the time a specific transaction was completed. Primarily enacted in products liability. Function under the theory that at some point a person should not be held responsible for a past act, or that after some time the odds are that something other than a manufacturer’s defect is likely to be the cause.

a.  Exceptions:  Some states have made special exceptions for particular products such as DES or asbestos.

b.  Constitutionality:  Some states have held these statutes as unconstitutional under state constitutions’ “open court” provisions, or under the equal protection clause of the US Constitution.

3.  Rationale for SoL and SoRepose:  

a.  Pro:  An institution or person should have the right to repose at some point.  Facts grow stale and are harder to determine, memories grow dim, and Ds should not have to worry about potential Ps forever.  Also, it is unsettling and expensive to tie up assets in anticipation of litigation, and waste a lot of time worrying about possible litigation.  Insurance companies love SOL and SoRepose (just like they love cont. neg. and comp. neg. defenses).

b.  Con:  Quashes valid claims.  Many injuries are latent and difficult to discover for a long time.

4.  Res Judicata:  A problem arises when a person develops a second more serious illness or injury 
after the initial less serious illness or injury was reported.

(1).	First Claim:  The courts generally do not allow one to toll the statute waiting for more serious ill effects to develop, and it begins to run as soon as any actionable harm develops under the discovery rule.

a.  Second Action:  Arising from the same transaction, the second claim is barred by res judicata.  Many jurisdictions allow only one cause of action for a single transaction, such as Texas with asbestos, but there are exceptions for certain types of cases in other jurisdictions.  The majority of courts will allow a second cause of action for cancer where the first disease was non-malignant in asbestos cases, and consider it a separate suit assumedly applying the discovery rule to its timeliness in being brought.

II.  Immunities:  An immunity is a defense to tort liability that is given to an entire class of persons
based on their relationship with the prospective P, the nature of their occupation, their status as
governmental or charitable entity, etc.  The common law created a number of virtually complete 
immunities, but all of these are beginning to break down at least to some extent.   
	
A. 	Families (interspousal and parent/child immunity):  

1.	Interspousal:  This immunity has been wiped out completely almost everywhere, leaving all married folk to live up to the reasonable husband or wife standard, subject to the perils of assumption of risk for eating each other’s cooking or getting diseases from each other if they are swingers.

a. 	Rationale:  Most courts feel that this immunity does not make sense any longer, as the relationship between husband and wife has changed so significantly.

(1).  Spousal Unity:  Husband and wife had legally been seen as one, and prior to the     married women’s property act, the woman had no right to sue without the husband, and he was also responsible for her torts.  No longer applicable.

(2).	Tranquillity of the Home:  If anything, the home would be non-tranquil if
spouses are not allowed to litigate and resolve their problems.

(3).	Other Remedies Adequate:  Criminal and Divorce law should be adequate remedy.  However, provides no compensation for damages done, and leaves no remedy for negligence.

(4).	Flood of Litigation:  States that have abolished the immunity have not, as
supporters of the immunity predicted, seen a flood of litigation.

(5) 	Collusive Suits:  Collusive and fraudulant suits may develop where spouses have liability insurance. But jury system could ferret these suits out.

b. 	Complete Abrogation: Interspousal suits have been completely abrogated in the majority of courts, hastened some feel by the married women’s property act, which gave legal separation of the entities of husband and wife.

c. 	Partial Abrogation:  Many jurisdictions have simply limited the immunity. 
 
(1).	Limitations:  Immunity is available, but not in the following situations:

(a) 	Car accidents (very common)

(b) 	Intentional torts to the other party

(c) 	A tort committed before marriage.

	(d)  If the marriage has been terminated before the suit, whether to divorce or death, then immunity will usually not apply.
	
(2).	Assumption of Risk:  This defense would shield most claims for normal negligence in interspousal situations.  Also applies where the immunity has been completely abrogated.

2. 	Parent / Child:  This immunity’s abrogation lags behind the interspousal one.  It also raises a more difficult standard to define, that of the reasonable parent.  Intentional torts have, however, long been an exception to the immunity.

a. 	Exceptions to parent/child immunity:   

(1) 	Emancipation:  If the child has been legally emancipated (i.e., of legal age or
other circumstances indicate that the parent has renounced his right to the child’s
earnings.

(2) 	In loco parentis:  Where D is a step-parent or guardian.

(3) 	Relationship terminated by death:  Where the parent-child relationship has been terminated by the death of one or the other prior to the suit.

(4) 	Wrongful death of other spouse:  Where Plaintiff-child is suing his parent for
the wrongful death of the other parent

(5) 	Intentional or willful:  Where the tort is intentional, or in some cases “willful”

b. 	“Reasonable parent” standard (difficult to define):  Many courts require a 
reasonable parent standard, which applies to supervision, as well as other aspects of
the parental relationship.  The parent should take into consideration the following:

(1).  Child’s Status: The child’s age, mental and physical health, intelligence, 
        aptitudes and special needs.

(2).  Familial Status:  Presence of other children and the competition for time and 
        attention of the parents, as well as the economic, social, and physical 
environment in which the parental conduct occurs.  This standard is somewhat 
difficult in application, as the relationship is more intimate than others, and more 
specially catered to the individual child.

c. 	No claim based on failure to supervise (parent as third-party D):  Other courts
have been unwilling to allow a claim to be brought based on failure to supervise.  This is because where comparative negligence applies, a tortfeasor may implead the parents for their comparative negligence in the child’s injury for poor supervision to reduce the amount of the defendant liability and reduce compensation for the child.

B. 	Charities:  Most states have abolished charitable organizations.  

1. 	Historically and today:  The immunity has historically been maintained based upon two theories,  which are rejected nowadays:

a. 	Implied Waiver:  The beneficiary of the charity (i.e., one who uses a charitable
	    hospital) has “impliedly waived” his right to sue in tort, by virtue of having accepted
	    the hospital’s benevolence.  But courts reject this, saying some people could not have
	    possibly waived their right to sue, such as an unconscious accident victim carried to
	    a charitable hospital, or a baby.  The implied waiver, cts. Say, is a legal fiction.
	
b. 	Trust Fund:  The charity holds the donations it receives in trust, and the donor has
not given these funds with the intention that they be used to pay tort claims.  However,
nowadays courts say liability should not be determined based on whether the charity
can satisfy a judgment.

2.  Approaches to charitable immunity:

a.  Exceptions:  Those states which have completely abolished immunity completely
have carved out certain exceptions:

(1) 	Institution Type:  Abolish the immunity for charitable hospitals, which get most of their money from unaffiliated patrons (and in this since are like businesses), and retain the immunity for religious and educational institutions.

(2) 	  Immune from suits by beneficiaries:  Only allow immunity where P is a 
beneficiary of the charity (i.e., a hospital patient), but not where he is an employee, stranger or other non-beneficiary.

(3) 	Insurance:  Allow immunity where a judgment would have be satisfied by
the charity’s trust funds, but not where there is liability insurance.

3.  Damages: Some issues arise as to whether a charity should receive special treatment with regards to intentional torts and punitive damages.  Punitive damages have been allowed.

C. 	Governmental Immunity:

1. 	Historically:  The immunity was set out in Russel v Men of Devon that a government could not be sued for its torts.  There were several rationales for this:

a. 	Infinity of Actions:  Fear that there would be too many suits brought, as the government is so involved in the lives of people and in such endeavors as are not profitable to business in many instances.  Empirically there is little data one way or another on this, though §1983 actions have been limited for just such a reason.

b. 	Individual / Public Inconvenience:  The eighteenth century societal ideal that it is better that an individual should sustain an injury rather than the public suffer an inconvenience.  However, the 20that century ideal is more that the costs should be spread, with emphasis on the individual over the collective.
	
c. 	King Can Do No Wrong:  All law flowed from the king therefore how could he break the law.  The only way would be if he waived that right to immunity.

d.	Respondeat Superior:  The agent and the principal being legally identical, would also invoke the immunity for the agents of the king.

2.	Application:

a. 	Governmental/Proprietary Distinction:  The usual distinction is that there is immunity for governmental functions, but that it is waived for proprietary functions (i.e., the electric or gas co.).  The boundaries of this doctrine are difficult to determine, as government employees do proprietary things in the performing of various governmental tasks.  This distinction has been troublesome.

 b.  General / Specific Duty Distinction: The general governmental functions of the state are immune from liability. However, where a governmental agency assumes a specific duty to a particular individual, even though would otherwise have none, it exposes itself to liability for the negligence that occurs in carrying out that duty.

1.  Reasoning:  The court does not want to step in and make judgment about resource allocation, as the agency is in the best position to make the decision, and a jury should not decide issues where there is sentimentality and they lack knowledge about resource allocation.
			
2. Abrogation:  There was an initial rush to get rid of this immunity for general functions, but it had bad consequences, especially in the two areas of judicial and legislative functions, and when an officer or employee is acting within the limits of her scope of discretion in the performance of her duty.

EX:  Where a woman complains of being stalked and threatened by a man who eventually attacks here after she had complained to the police on several decisions, the court found the duty to be general and thus immune, as one of resource allocation, Riss v. New York.  However, when someone calls 911 and the operator assures them of dispatch of an officer, but negligently fails to do so properly, a specific duty has been assumed and was relied upon by plaintiff and therefore immunity does not apply, DeLong v. Erie County.

c.	Collection of Judgment:  Another argument against governmental liability is that of the governmental inability to pay a judgment.  Like with charities, funds would be unavailable or be diverted from proper functions to pay claims.  

1.	Tort Liability Acts:  The federal government has waived liability to specific types of tort claims under this act.  Otherwise, it is generally shielded.  It might be analogized to state and local governments.

2.	State Governments:  Some state statutes and even a few constitutions require legislative consent for a state to be liable in tort.  Others courts have themselves simple applied that there must consent to liability.  This immunity applied to state agencies, such as prisons, hospitals, schools, state fairs, commissions, but up to 1960 there was a tendency to find a legislative intent in their formation that they be subject to liability.
	All states have waived this immunity to some degree, but have retained procedural limits on enforcement as well as retained various special privileges.  Most often waived in car accidents and similar examples.

3.	Municipal Corporations:  Cities, school districts, etc., have a dual character divided between state and local governments, and also are corporate entities with much the same special interests and relations as private corporations.  Thus the courts are much less likely to recognize this immunity.  Some of the same distinctions were used of governmental and proprietary functions (Austin’s electric company), and purchase of insurance is taken as a waiver.  Some courts have abrogated the immunity altogether, other legislatures have done so.

d.  Extent of Liability:  Should a governmental entity, once immunity has been removed be held to the same standards of the private individual:  treated as a landlord for lighting and maintenance purposes, as a service provider for police protection, can one sue for loss of business for increased crime due to lack of adequate protection, etc.
	In mid-1980’s liability insurance became difficult for the municipalities to obtain, and had the effect of bankrupting some towns, and causing the cancellation of services too often subjects of liability (fireworks).  It became a battle between the plaintiff’s bar and the insurance companies, one wanting more regulation on the insurance industry the other wanting caps on liability.
	
e. 	Governmental officers:  There is going to be a question of immunity when an incident involves an officer or agent of the US.  With the officer it will hinge upon whether the action was within the scope of his duty and whether it was done with the good faith and in belief of its constitutionality.  Otherwise, there is no immunity.

Causation (“But for” and Proximate cause)

I.  Sine Qua Non - “but for” Causation:   In order for there to be negligence, P must generally first show that D’s conduct was the “cause in fact” of the injury (with few exceptions).  This means that P must show that “but for” D’s negligent act the injury would not have occurred.  P must then show proximate cause (see below).  There are exceptions to “but for causation,” in particular concurrent causes and in cases where there are multiple Ds but it is unclear which ones are negligent. 

A.  Basis:  The basis of “but for” causation is scientific and logical, unlike proximate cause 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 have a
      logical relationship (i.e., be contemporaneous) to  the accident.   Thus, when you speed the 
      first five minutes to work, then you slow down, drive the normal speed limit, and X runs a 
      red lights and hits you, you are not the “but for” cause of the accident.
	
2. 	But For Relationship to Harm:   D’s act must be the “but for” cause of the accident (or
the harm).  He can still be negligent, and not be the “but for” cause.  It must be shown that “but for” D’s actions, the harm would not have occurred.  Therefore, driving a train over the speed limit is not the “but for” cause of the accidental death if the collision with the car
(which was negligently crossing the tracks) and the resulting death would have occurred even at the proper speed,  Perkins 

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. - 
consistently marking thin ice on a lake and then forgetting to do it one 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 “but for” cause?

3. 	Lack of Evidence:  Where there is lack of evidence and the defendant has violated a statute designed to protect against that exact harm, can one say that the negligence was the “but for” cause?  For example, where people are found in a swimming pool drowned and the hotel did not provide a lifeguard.

4. 	Intentional Torts:  Where a third person uses the negligent conditions created by the defendant to commit an intentional tort.  e.g. - A pushes B down C’s stairway, which  negligently does not have a handrail.   B dies as a result.  B may hold C, along with A, liable (there could be cont. or comp. neg here).

5. 	Informed Consent:  There is mixed authority on whether P’s testimony alone that he would not have had the procedure performed or taken the harmful medicine had he been informed of the risks, would constitute “but for” causation on the issue of informed consent (“but for knowledge of the risks, I would not take the medicine”). 

6.	Malpractice:  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?
	
C. 	Concurring causes:  The first exception to “but for” causation.  Two events concur to
cause the harm, and either one would have been sufficient to cause substantially the same 
harm without the other.  It is generally stated that each of these concurring events is a cause
of the injury, insofar as it would have been sufficient to bring that injury about.  Where each of the two events would have been sufficient by itself to bring about the harm, the test for each event
is often said to be whether it was a “substantial factor” in bringing about the harm (and each
would be considered a substantial factor).  If D is a substantial factor in bringing about the
harm, he still will be held liable, even though there is no “but for” causation.  

EX:  D negligently causes a forest fire.  The fire merges with another fire of unknown origin,
and the combined fires burn P’s property.  Held:  Even though P’s prop would have been
burden had D never caused the first fire, that fire must still be regarded as a “material and
substantial element” in P’s dams, and D therefore is liable for the entire damages.

1. 	Caveat:  The rule of double liability for concurrent causes applies only where each of
the concurrent causes would be sufficient, by itself, to bring about substantially the same
harm as occurred.  But in cases of multiple negligence, where each of two D’s harm is
not a “substantial factor,” then there is “but for” causation and the general rule is that
each of the several jointfeasors will be held liable for the entire harm (see joint tortfeasors
below).

EX:  P is a passenger in a car driven by D1.  On a stormy night, the car crashes into an
unlit truck which has been parked in the middle of road by D2.  There is evidence that
D1 was negligent in not seeing the truck, and that D2 was negligent in leaving it parked
where and how he did.  Held:  D2 should not be dismissed from the case merely because the
accident would not have happened without D1’s negligence.

2. 	Indivisible v. Apportionable harm:  Also, the rule only applies where the concurrent
causes produce a single, indivisible harm.  If the damage caused by one concurrent cause
may be separated, analytically, from that caused by the other, the person causing the former will only be held liable for his portion of the harm.

D.  Proof of Causation

1. 	Proof of actual cause:  P bears the burden of proving that D actually caused his 
	injury, just as he must bear the burden of proving the other parts of his prima facie
	case.  
	
	a.  Probable standard (over 50% chance):  However, all he has to do is show that 
	it is probable, not absolutely certain, that the injury would have occurred without D’s
	act, for it to be “but for” causation.  D may then rebut P’s evidence by showing some 
	event other than D’s negligence might have caused the event.

2. 	Increased risk, followed by actual damage:  Suppose D’s conduct cannot be shown
to have necessarily caused a later event to come about, but can be shown to have increased
the risk that the later event would happen, and the later event does in fact happen.  Is
D the “but for” cause of the later event?  The issue arises most frequently in connection
with medical misdiagnoses—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 that the issue of
causation should go to the jury, even if the patient would probably have died of the condition with proper diagnosis (of course, D’s argument is “but for the proper diagnosis,
P would have died anyway—thus no causation).

EX:  D, a doctor, fails to diagnose P as having lung cancer.  The correct diagnosis is made later, but P dies of the disease.  D’s misdiagnosis, which reduced P’s chances of survival from 39% to 25%, is sufficient evidence to allow the causation issue to go to the jury.  But P can
only recover dams directly related to the premature death, such as lost earnings and additional medical expenses, not for emotional suffering, loss of consortium etc.).

3. 	Increased risk, not yet followed by actual damage:  Now, consider the flip side of the
problem discussed above in 2.  Assume D’s conduct increased the risk that some later damage
would occur, but the actual damage has not yet occurred.  May P recover something on a
“probabilistic” basis?

EX:  Suppose a product manufactured by D has increased P’s risk of incurring fatal
pancreatic cancer from 1% to 15%. P does not yet have pancreatic cancer (though, perhaps
has some pre-cancerous condition).  May P recover now an amount equal to 14% of what
he could recover for an actual fatal case of pancreatic cancer?

a. 	Traditional and Modern view:  The traditional view would be “no,” unless P could 
show more probable than not that he would incur the harm in the future—but he must wait until he actually incurs the harm.  The modern, emerging view is that P
should recover something for the chance of future harm (he should get 14% of dams
that he would have gotten had he actually incurred the harm).

b.  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 spills onto D’s arm, causing him to fear for his life.  But cts.

c.  Medical Monitoring:  Suits have been successful to cover the medical monitoring against Ds that have exposed Ps to an increased risk of future harm.  These suits are not based upon causation; but instead, they are based upon the possibility of causing future harm.

E.  Problems determining which party caused the harm

1.  Multiple negligent Ds (another exception to “but for” causation):  In one situation,
the court may place the burden on the defendant (or defendants).  The burden shifts when
P shows that each of two persons was negligent, but that only one could have caused
the injury.  In this situation, it is up to each D to show that the other caused the harm
(this has a similar “smoking out” function as res ipsa).

EX:  P, D1 and D2 go hunting together. D1 and D2, at the same time, negligently fire at
a quail, and P is struck by one of the shots.  It is not known from which gun the bullet
was fired.  Held, the burden is one each D to show that it was the other’s shot which hit
P. 	Ds brought about a situation where the negligence of one of them injured P, hence it
should rest with them each to absolve himself if he can.  Otherwise, P is left without a
remedy.  Summers. This case differs from high school/chicken salad example in that both defendants were negligent here (while there only one woman made the bad turkey).   Both of these differ from the team aspect/shared knowledge of Ybarra.

NOTE:  Tom criticized Summers, saying that Ds did not know any better than P who shot
the bullet that hit P in the eye.  If Ds could not resolve who shot the bullet, then joint and
several liability would apply.

2.  “Market share” theory:  The multiple negligent Ds theory has occasionally been extended
to situations involving three or more Ds.  Thus, if P cannot prove which of the three Ds caused
his injury, but can show that all were negligent (or produced a defective product), the court
may cast upon each D the burden of proving that he did not cause the injury.  This is 
especially likely to occur in cases of products liability, where P was injured in his long-term
use of a product which she can identify only by type, but not brand name.  If a given
member of the class of Ds in unable to prove that he did not cause the injury, the ct may
well require him to pay that percentage of P’s injuries in which D’s sales of the product
bore to the total market sales of that type of product.  This is called the “market share” theory of liability. 

Extensions:  This theory has rarely been extended outside of the DES cases.  Those extensions include:  asbestos, vaccine, breast implants, lead paint.

EX:  At least 200 manufacturers use an identical formula to produce DES, a synthetic 
estrogen. P alleges that her mother took the drug during pregnancy, and that it has caused
P to develop cancer. P is unable to show which manufacturer of DES produced the drug that
P’s mother took.  However, she sues five drug companies, who she asserts manufactured
90 percent of the DES ever marketed.  Held:  P need not identify the single manufacturer
of the drug that her mother used, since this would be impossible to do.  It is true that it
cannot be said with certainty that one of the five D’s produced dosages taken by P’s mother.
However, the unavailability of proof is not at all P’s fault, and is partially due to the fact
that Ds produced a drug whose bad effects were not visible for many years.  Furthermore,
from a policy standpoint, Ds are in a better position to guard against defects, and warn of 
harmful effects, and thus the rule here will give them an incentive to make their products
safe.  The burden switches to Ds, and each can show that it could not have produced the
particular dosage consumed by P’s mother, otherwise each will pay for the proportion of
any judgment what D’s share is in the overall DES market.  Sindell

3. 	Enterprise Liability (applicable only to small industries):  Where an entire industry 
adheres to a negligent standard and the source of a particular harm-causing product cannot be pinned down, the courts shift the burden of proving causation to the defendants.  Hall.  This idea 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.

E. 	Evidentiary Issues in “But For” causation:  For those issues beyond  the common experience 
of the jury, there must be expert testimony to the effect that D’s actions or products were more probably than not the cause of the harm to get to the jury.  However, in defense of causation D can put on experts to say that there are other possible (not necessarily probable) causes of P’s harm. Thus, D need not prove some other cause, but only put in doubt the cause purported by P, which is a more lax standard than P has.

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  pushing the technological envelope, there will often be few experts for a community to attest to the technology’s acceptance.

2. 	Federal Rule of Evidence 702:  Expert testimony must be based on scientific knowledge that is reliable and relevant. Scientific knowledge 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, epidemiological evidence must be the basis of expert opinion to establish causation.  Peer review is to be taken into consideration as to the opinion’s 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, but also is not definitive. Animal tests (“in vitro tests”) have been universally deemed inadmissible by courts.

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 1993:

(1)  Expert Testimony on Expert Testimony:  Judges may require expert testimony on the reliability of scientific evidence, as the judge may feel himself too incompetent to evaluate evidence.

(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 Ps bypass causation by claiming that D'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  (current attack on DNA tests are a case in point).

II. 	Proximate or Legal Cause

	A.  Generally:  “But for” causation spreads a wide cone of causation, or is a porous sieve, based upon logical and scientific basis and includes many people that we do not want to hold liable.  This cone is focused by proximate cause.  Prox. cause is a mixed bag of lenses (i.e. “direct causation test” v. “foreseeability” test), and one lens may be more appropriate than another, depending on the situation and policy considerations.  Tom points out that proximate cause and duty are intimately intertwined, often being indistinguishable as to whether D owed the duty to P or was the prox. cause of D’s harm.  

B.  Proximate and nearness:  Nearness does matter, and often times 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.  Proximity in Time:  Sometimes it matters where you are in time:

a.  Preconception Negligence:  Courts seem to be split over whether a child has a cause of action for pre-conception torts against the mother (i.e., a car slamming into a pregnant mother, causing birth defect in child).

b.   Third generation liability:  Many courts have stopped after the second generation for liability.  Where DES is 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 for that plaintiff child (who would be the third generation).

2.  Proximity in space:  Sometimes in matters where you are in space:

a.  First (then second) building test (minority view):  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 court says it is the first one with regards to which defendant was negligent, but which is that?  Majority view hold D liable for as far as the fire burns.  They apply the “reasonable foreseeability” test.  

3.  Legislative lines:  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 manufacterers, etc.

C.  Categories of Cases Cutting Off Liability:  Proximate cause is a device to cut off liability in 
instance where the defendant's negligence is considered too remote.  There are several genreal 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 D's actions and the resulting harm.

4. 	Third Party can relieve D from liability:  A third person’s action or inaction can be held to relieve the defendant of responsibility.

D. 	Lenses to Liability:   Either in placing bright lines, or in determing 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:

1. 	The “direct causation” view (or “”hindsight theory” of proximate casue) :  The “direct 
causation” view holds D is liable for all consequences of his negligent act, provided that the consequences are not due in part to what might be called “superseding intervening causes.”  The most significant aspect of this view, contrasted with the “foreseeability” view, is that the direct causation view holds D liable for all consequences, no matter how far-fetched or unforeseeable, as long as they flowed “directly” from her act, and not from independent new causes.  The problem with this test is two-fold:  How far does one take direct causation, and should P be held limitlessly liable?  (Polemis, where a worker was held liable for dropping a plank into a ship hold, which rather than just denting the hold, ignited a Benzyne tank and blows up the ship).

Rationale:  It is better for Ds to bear the burden of compensation then to leave P completely
without a remedy because D’s acts were not “foreseeable.”

2. 	The foreseeability view (what P&K say is the emerging view):  The opposite view of
the “direct causation” view is one which makes D liable, as a general rule, only for those
consequences of his negligence which were reasonably foreseeable at the time he acted.

EX:  D’s ship spilled oil into a bay.  Some of the oil adhered to P’s wharf, slightly interfering 
with the wharf’s use (so slight that no damage claim was made).  Then, however, the oil
was set afire by some molten metal dropped by P’s workers, which ignited a cotton rag 
floating on the water.  Because of this, the whole dock burned.  Held: D were not liable
because the oil being set afire was not “reasonably foreseeable.” Wagon Mound No. 1

a.  Probability:  Probability has something to do with this lens, but only in how it combines with the magnitude or terribleness of the 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.
	
(1).	 High Probability/Low Cost of Harm:  A defendant usually has to pay in this type of situation, as foreseeability is almost assured, and the price tag is low.

(2).  Low Probability/High Cost of harm:  More contentious is when the harm is very unlikely and presumably less foreseeable, but the cost of the resulting harm is high.  Should P have to pay then as well, if it is foreseeable?

b. 	Learned Hand Foreseeability:  Foreseeability can be treated in terms of probability. D can call, say, 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.

(1)  Foreseeability using B=PxL:  The Learned Hand formula for negligence could
be used in a foreseeability situation.  The numbers in the formula should go down the more remote, or less foreseeable the harm is.  The problem with this approach is
that an individual P’s liability is bound to be less than the burden necessary to
avoid the harm to the whole class of Ps which includes that individual (in other
words, the Learned Hand formula takes into account a class of people, not an
individual).
	
3. 	Duty test (Cardozo):  Suppose D’s conduct is negligent as to X (in the sense of imposing an unreasonable risk of harm upon 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, and he in effect “tack on” to the negligence against X, and establish D’s liability for her injuries?  Cardozo in the majority opinion of Palsgraf says no.  Cardozo casts the foreseeability test in terms of duty.

a. 	“Negligence in the air”:  Since D’s conduct did not involve an unreasonable
risk of harm to P, and the damage to her was not foreseeable, the fact that the 
conduct was unjustifiably risky to someone else is irrelevant.

b.  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 imperiled due to the actor’s
negligence.  Thus, it is the case that D has violated no duty to a P as to whom there was
no foreseeable risk.  

Dissent in Palsgraf:  Judge Andrews famous dissent in Palsgraf hols that D, like every
member of society, bears a burden of due care 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, then D should be liable to anyone who is hurt, even if
they outside the “orbit of duty.”  Common sense and fairness should be taken into 
consideration when deciding issues of causation.

EX:  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.  Most of the cases that apply Cardozo’s approach are involve bizarre secondary effects, such a crane hitting an electric wire, and igniting an underground gas main.

4.  Exceptions to Duty and Foreseeability tests:  A major criticism of these
two popular tests is that, unlike the “direct cause” test, they require all kinds of exceptions:  

a. 	Take your Ps as you find them:  Once P suffers any foreseeable impact or
injury, D will be held liable for of that P’s unforeseen physical consequences
(provided these do not stem from “intervening causes”—such as a grossly
negligent hospital—so unlikely that they should supersede liability).  This rule is
generally confined to physical injuries, including brain chemistry problems.

Some examples:

(1)  Pre-existing Mental Conditions:  A pre-existing psychotic condition is set off by a minor car accident caused by defendant's negligence.  Liability sustained. 

(2)  Pre-existing Physical conditions:  D liable for death by inflammation of the heart after twisting an ankle.  D liable for loss of P’s hair from fright. Liable for a man dying from a pat on the head.  

b.  Remotely Foreseeable (where Learned Hand is most often applied): The 
foreseeability rule has also been weakened by cases holding that as long as the actual harm to P was remotely foreseeable, then there is liability even though these consequences were highly unlikely.

EX:  Same facts as Wagon Mound No. 1.  Here, however, there is a finding of fact
that it should have been foreseeable to D that discharge of oil posed some risk of
fire.  Held:  D is not justified in ignoring a risk, even if it is small.  D should
weigh the risk against the burden of eliminating that risk (similar to the Learned
Hand test). Avoiding the spillage would have been so unburdensome that it should
have been done, and thus D is liable.  Wagon Mound 2

c.  General class of harm but not same manner (or “The method does not matter”):  
As long as the harm suffered by P was of the same general sort that made D’s conduct negligent, it is irrelevant that this harm occurred in an unforeseeable, unusual nature.

EX:  D gives a loaded pistol to X, an 8-year-old, to carry to P.  In handling the pistol
to P, X drops it, injuring the bare foot of Y, his playmate.  The fall sets off the gun, 
wounding P. D is liable to P, since the same general kind of risk that made D’s conduct
negligent (the risk of accidental discharge) has materialized to injure P; the fact that
the discharge occurred by means of an unforeseeable dropping of the gun is irrelevant.
D is not liable to Y, however, since his foot injury was not foreseeable, and the risk of
it was not one of the risks that made D’s conduct initially negligent.  Rest 2d, S281

EX:  A sets a gasoline can 5 ft. from a fire.  B is sitting next to a can, reading.  When
A leaves, a rat comes out of nowhere, dives into the gasoline, and then runs into the
flame, causing an explosion that injures B.  A is liable because the same general kind
of risk—the gas coming into contact with the fire—has materialized and harmed B,
and it is irrelevant that the rat was not foreseeable.  

NOTE:  It is difficult to distinguish this example from the epileptic driver example
(#4) below.  Here there is foreseeability—the gas can is dangerous—and 
unforeseeability—the rat.  Obviously, D would argue there is no foreseeability at all.

d.  P part of foreseeable class: Similarly, it has been held that the fact that injury
to the particular P was not especially foreseeable is irrelevant, so long as P is a 
member of a class as to which there was a general foreseeability of harm.  Both this
rule and the previous rule (under d) are illustrated by the following well-known case:

EX:  D1, a shipping co., negligently docks it ship at a dock run by D2. Ice and debris force the ship adrift, and it collides with another ship, which is properly docked.  Both ships
smash into a drawbridge run by D3, the City of Buffalo, which might have been able
to raise the bridge except for the fact that its employees were not on duty at that time.
The bridge is toppled, and a dam is created by the collapsed bridge, the two ships,
and floating ice. A flood results, and prop owners w/ flooded prop. bring suit.  
Held:  All three Ds are liable to prop. owners.  First, it does not matter which particular
prop. owners would be harmed; a loose ship and failure to draw a drawbridge surely poses danger to prop. owners in general.  Since all Ps were members of this general class of 
river-bank prop. owners, they are all within the scope of risk under Palsgraf, and are not barred from recovery.  Finally, there was a general foreseeable risk that a loose ship would
injure adjoining prop. and that not raising a drawbridge would similarly damage adjoining
owners.   Kinsman No. 1

5. 	Rescuers (“Danger invites rescue”): “Dnger invites rescue”; thus, rescue is a 
foreseeable response to an accident or injury, and D is liable for any harm to the rescuer
or to P has a result of the rescue. (D hurts P. P is then injured worse when the ambulance is speeding to the hospital and gets into an accident. D is responsible for the worsened injuries to P).  But if rescuer is grossly negligent or wildly reckless, then rescuer will be considered
a superseding cause and will be held liable for any harm that he caused, although D will
still be liable for his portion of the harm.  

E. 	Intervening Causes and Proximate Cause

1. 	Nature of intervening cause:  An intervening cause is a force which takes effect after
D’s negligence, and which contributes to that negligence in producing P’s injury.  An
intervening, superseding cause is sufficient to prevent D’s negligence from being held to
be the prox. cause of the injury and thus cancel D’s liability.

2. 	Foreseeability rule:  In general, the issue of whether a particular intervening cause is a
superseding one (i.e. one which prevents D’s act from being the prox. cause of P’s injury)
is determined by whether:

(1) 	D had foreseen the possibility that the intervening cause might occur OR

(2) 	The kind of harm suffered by P was foreseeable (even if the intervening cause was not foreseeable).

If neither the intervening cause nor the harm was foreseeable, the intervening cause will
be a superseding one, relieving D of liability.

3. 	Foreseeable intervening causes:  There are situations in which the risk of a particular kind 
of intervening cause is the very risk (or one of the risks) which makes D’s conduct negligent in the first place.  In these situations, courts are collapsing the concept of prox. cause. into that of negligence.

EX:  P is driving up a hill, and all of the sudden D’s truck, coming from the opposite direction,
swerves over into P’s lane and causes P to drive off the road.  The truck is blocking the road.
P, on top of the hill, gets out to flag down other drivers to warn them of the truck.  A car
hits P while doing so.  Held:  D’s negligence is the prox. cause of P’s injury.  D’s basic
act of negligence towards P was in endangering him during the initial near-collission.  But 
one of the extra risks of D’s conduct was that P would do exactly what he did, namely, to
try and warn other motorists (had D gotten back into the car, driven and got into a separate
wreck, this would break the chain of causation).

NOTE:  In some cases, P’s conduct can be so negligent that he will break causation (i.e.,
P pulled over, got out of car, and approached D with a gun, and was hit by a car in the 
process—D could not have foreseen P’s rash reaction).

4.  Foreseeable negligence (specific cause of a foreseeable general harm is irrelevant):  The negligence of third persons may also be an intervening force that is sufficiently foreseeable and that will not relieve D of liability.  In some situations, the negligence of others is sufficiently foreseeable that it is negligence on the part of D not to anticipate it and guard against it.  If he does not, and the third-party’s negligence occurs, D will be held a prox. cause of the damage.  The fact that D1 could not have foreseen the precise manner of the accident or the nature of the injury was immaterial, since the general way in which the injury occurred was foreseeable.

EX:  Where a car repairman negligently fails to tighten a lug nut and the tire falls off right after P leaves the gas station.  While P is replacing the tire, a negligent driver hits P.  D foresaw, 
or should have foreseen, that P’s tire would fall off, and thus the negligent driver is not
a superseding cause.

EX:  D1 is in the process of installing a gas main.  P is an employee of a sub-contractor.
D2, who know that he has epilepsy, suffers an epileptic seizure and crashes into the
worksite with his car. P is killed.  D1 negligently failed to make the worksite safe by
not erecting a barrier around the excavation. Such a barrier would have protected workers
from oncoming traffic.  D1 argues D2’s particular negligence (not taking his medicine
and having a seizure) was a freak accident that was unforeseeable, and thus superseding.
Held:  D2’s negligence did not interrupt the casual link between D1’s negligence and
P’s injuries.  It was foreseeable, normal and natural for a car to enter the excavation sight
and kill a worker, even if the driver had epilepsy and had forgotten to take his medication.
The fact that D1 could not have foreseen the precise manner of the accident or the nature of the injury was immaterial, since the general way in which the injury occurred—a car 
driving onto the excavation site--was foreseeable.  Derdiarian

NOTE:  It is hard to distinguish this rule from the exception above (“d”) dealing with the rat, except to say that a person is the third party here, not an animal.  Keep in mind that there is 
forseeable—the gas can by the fire can cause an explosion or no barrier around the excavation
site could lead to harm—and there is also unforeseeability—the rat or the epileptic driver.
Obviously, D would say none of these things are foreseeable at all.

a. 	Liquor sales:  The doctrine that the foreseeable negligence of others will not be
superseding also furnished a rationale for holding tavern owners liable for accidents
caused by patrons who have been served too much liquor, whether there was a 
Dram Shop Act or not.  But cts. have repealed this, and generally do not hold 
tavern owners or social hosts directly serving their guests liable for any harm done
by the drunk driver.

5.  Criminal or intentionally tortious conduct (an exception to the above rule and the “means don’t matter rule”):  If D could not have reasonably foreseen a third person’s criminal or intentionally tortious act, then that third person will break causation
and his act will be superseding.  But D could be liable if he did foresee third party’s 
act—dropping of a teenager in “Hobo land,” dropping off a child at a day care center
where it is well-known there are molesters, etc.

EX:  D, a railroad, negligently derails a tank car full of gasoline, and the gas spills into
the street, which X ignites.  The fire injures P, and P brings suit against D.  Held: If
X acted merely negligently (i.e., throwing down the match after lighting a cigarette), then
D is liable (since D should have foreseen spilled gas is a fire hazard).  But it X set the fire
intentionally, such an intervention was so unlikely that D could not have reasonably
foreseen it or been expected to guard against it, and thus that third person should
be held liable.  Waterson

6. 	Suicide:  What if P becomes so despondent or pained by the injuries he has received
from D’s negligence that he kills himself? Yes, if the mental state of the decedent was:

(1) 	So impaired that he did not realize what he was doing, OR
(2) 	He had an “irresistible impulse” to kill himself arising out of D’s negligence.

Courts usually require the suicide to be spontaneous (in a frenzy, and without deliberation
such as a suicide note, purchasing medicine for the suicide, etc.).

7. 	Unforeseeable intervention with unferoseeable results:  Generally, courts have 
held in certain situations that it is not fair to hold D liable for a harm that was not within the 
original risk of his negligence, but was to do unforeseeable intervention.

a. 	Acts of God:  Unforeseeable acts of nature will relieve D of liability (i.e., floods
in L.A. that cause a few houses, built for normal CA weather, to flood).

b. 	Other extraordinary acts:

(1) 	Key-in-ignition:  What if D leaves his car unlocked, with the key in the
ignition, and a thief steals it, later killing P?  Most courts hold thief is an
intervening cause.  But if area was high-crime, D could be held liable.