Chapter Five: Proximate Cause

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Chapter Five Proximate Cause
Duty Breach Causation Defendants act must be
both An actual cause, or cause in fact of the
plaintiffs injury And a proximate cause of the
injury. Damages
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Proximate Cause An Approach

• What category of cases does your case fall into?
• Unforeseen Plaintiff
• Unforeseen Harm
• Unforeseen Manner
• And more!
• What rule -- doctrine -- applies to this
  particular category?
• Apply the rule you settle on to the facts you
  have.

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Chapter Five Proximate Cause

• What are the doctrinal options?
• Defendant has failed to use ordinary care, and
  his negligence has in fact caused harm. Should
  his liability extend
• to the foreseeable results of his actions, and no
  further?
• 2) to all the results of his actions,
  foreseeable or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?

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Chapter Five Proximate Cause Fact Pattern 1
Unexpected Plaintiff
According to Justice Cardozo which view is
correct Defendant has been negligent, and his
negligence has in fact caused harm. Should his
liability extend 1) to the foreseeable results
of his actions, and no further? 2) to all the
results of his actions, foreseeable or not? 3)
to some, but not all of the unforeseeable
consequences of his actions?
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Chapter Five Proximate Cause Fact Pattern 1
Unexpected Plaintiff
According to Justice Cardozo which view is
correct Defendant has been negligent, and his
negligence has in fact caused harm. Should his
liability extend 1) to the foreseeable results
of his actions, and no further? Cardozo Harm to
the plaintiff must be foreseeable, or there is
no duty. 2) to all the results of his actions,
foreseeable or not? 3) to some, but not all of
the unforeseeable consequences of his actions?
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Chapter Five Proximate Cause Fact Pattern 1
Unexpected Plaintiff

• According to Justice Andrews, in which view is
  correct
• Defendant has been negligent, and his negligence
  has in fact caused harm. Should his liability
  extend
• to the foreseeable results of his actions, and no
  further?
• 2) to all the results of his actions, foreseeable
  or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?

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Chapter Five Proximate Cause Fact Pattern 1
Unexpected Plaintiff
According to Justice Andrews, in which view is
correct Defendant has been negligent, and his
negligence has in fact caused harm. Should his
liability extend 3) to some, but not all of the
unforeseeable consequences of his actions? In
hindsight, were the results too attenuated from
the original negligence to hold the defendant
liable, considering various factors but for
cause, natural and continuous sequence,
substantial factor, direct, without too many
intervening causes, likely, in the usual judgment
of mankind, to produce the result, too remote, in
time and space, foreseeable. (p. 426)
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• Andrews, J. dissenting in Palsgraf, p. 426
• There are some hints that may help us
• but for cause
• natural and continuous sequence
• substantial factor
• direct, without too many intervening causes
• likely, in the usual judgment of mankind, to
  produce the result
• too remote, in time and space
• foreseeable
• I think the direct connection, the foresight of
  which the courts speak, assumes prevision of the
  explosion, for the immediate results of which, at
  least, the plaintiff is responsible.

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1. Fact Pattern 1 the unforeseeable
plaintiff 2. Rule A split
Andrews ask, in hindsight, should the D be
responsible?
Cardozo no duty to unforeseeable plaintiffs
3. Application
Cardozo Would a reasonable person in
defendants position have foreseen that his
conduct would create a risk of harm to the
plaintiff?
Andrews Knowing what happened, how foreseeable
was the extent of harm how directly did the
injury flow how remote was it in time and space
from the original wrong . . .
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Fact Pattern 2 Unexpected Harm to a
Foreseeable Plaintiff

• In Polemis, which characterizes the courts
  approach
• Defendant has been negligent, and his negligence
  has in fact caused harm. Should his liability
  extend
• to the foreseeable results of his actions?
• 2) to all the results of his actions, foreseeable
  or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?

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Fact Pattern 2 Unexpected Harm to a
Foreseeable Plaintiff

• In Polemis, which characterizes the courts
  approach
• Defendant has been negligent, and his negligence
  has in fact caused harm. Should his liability
  extend
• to the foreseeable results of his actions, and no
  further?
• 2) to all the results of his actions, foreseeable
  or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?
• Polemis (all harm directly caused)

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Fact Pattern 2 Unexpected Harm to a
Foreseeable Plaintiff

• In Wagon Mound, which characterizes the courts
  approach
• Defendant has been negligent, and his negligence
  has in fact caused harm. Should his liability
  extend
• to the foreseeable results of his actions, and no
  further?
• 2) to all the results of his actions, foreseeable
  or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?

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Fact Pattern 2 Unexpected Harm to a
Foreseeable Plaintiff
Does the defendants liability extend 1) only
to the foreseeable results of his actions, and no
further? Wagon Mound I 2) to all the results of
his actions, foreseeable or not? 3) to some, but
not all of the unforeseeable consequences of his
actions?
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Fact Pattern 2 Unexpected Harm to a
Foreseeable Plaintiff

• Advantage of Wagon Mound approach
• Not arbitrary
• Liability is tied to culpability

• Problems with Wagon Mound approach
• What must be foreseeable and how foreseeable
  must it be? The Kinsman case. (p. 438)

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Fact Pattern 2 Unexpected Harm to a
Foreseeable Plaintiff
Does the defendants liability extend 1) only
to the foreseeable results of his actions, and no
further? Wagon Mound I 2) to all the results of
his actions, foreseeable or not? 3) to some, but
not all of the unforeseeable consequences of his
actions? Kinsman liability extends to the
foreseeable consequences and to arguably
unforeseeable consequences of the same general
sort, from the same forces and to the same class
of persons.
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Fact Pattern 2 Unexpected Harm to a
Foreseeable Plaintiff
1. Fact Pattern 2 the unexpected harm to a
foreseeable plaintiff 2. Rule A division in
authority Polemis all harm that is directly
caused Wagon Mound I liability limited to what
was foreseeable Kinsman same general forces,
etc. 3. Application Under the WM approach
Characterize the foreseeable risk broadly, if
you are the plaintiff narrowly, if you are the
defendant. Under Kinsman, for dont worry about
foreseeability.
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Fact Pattern 3 The Entirely Different Hazard
In re Kinsman (p. 438) Wagon Mound simply
applies the principle which excludes liability
where the injury sprang from a hazard different
from that which was improperly risked We see
no reason why an actor engaging in conduct which
entails a large risk of small damage and a small
risk of other and greater damage of the same
general sort and to the same class of persons
should be relieved of responsibility for the
latter simply because the chance of its
occurrence, if viewed alone, may not have been
large enough to require the exercise of care.
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Fact Pattern 3 The Entirely Different Hazard
Page 415, Note 11 Berry v Sugar Notch Borough,
footnote 9 p. 438.
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Fact Pattern 3 The Entirely Different Hazard
Page 415, Note 11 Berry v Sugar Notch Borough,
footnote 9 p. 438. Restatement (Third) 30.
Risk Of Physical Harm Not Generally Increased By
Tortious Conduct Proposed Final Draft No. 1 An
actor is not liable for physical harm when the
tortious aspect of the actor's conduct was of a
type that does not generally increase the risk of
that harm.
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Fact Pattern 3 The Entirely Different Hazard
and the scope of risk approach
1) Fact Pattern 3 The entirely different
hazard. Examples Berry v Sugar Notch Borough (p.
414, n.11) Footnote 9, p. 438. The baby and the
shotgun. The drunk driver and the tow truck. 2)
The rule a negligent actor is responsible only
for harm the risk of which was increased by the
negligent aspect of his conduct Restatement No
liability where harm arises from an entirely
different hazard than that created by the
defendants negligence. 3) Application Driving
at an unsafe speed does not increase the risk
that a tree branch will fall on you. Placing rat
poison where someone might drink it does not
increase the risk that it will catch fire. The
fact that the gun was loaded does not increase
the risk that it will be dropped.
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Fact Pattern 4 Thin skull plaintiffs
In Benn, which characterizes the courts
approach Defendant has been negligent, and his
negligence has in fact caused harm. Should his
liability extend 1) to the foreseeable results
of his actions, and no further? 2) to all the
results of his actions, foreseeable or not? 3)
to some, but not all of the unforeseeable
consequences of his actions?
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Fact Pattern 4 The Unexpected Harm Eggshell
Skull Plaintiffs
1. Fact Pattern 4 the eggshell skull
plaintiff. 2. Rule Liable for the full extent
of the harm, even if the extent is
unforeseeable. 3. Application Characterize
the defendants acts as creating a foreseeable
risk of physical injury to this plaintiff,
physical injury occurs, the extent of the harm is
then irrelevant.
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Fact Pattern 4 The Unexpected Harm Eggshell
Skull Plaintiffs
Does the defendants liability extend 1) only
to the foreseeable results of his actions? 2) to
all the results of his actions, foreseeable or
not? Eggshell skull rule liable for full extent
of harm when preexisting condition causes
physical injurys extent to be unexpected. 3) to
some, but not all of the unforeseeable
consequences of his actions?
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Fact Pattern 5 Secondary Harms and Rescuers
1. Fact Pattern 5 Secondary Harms 2. Rule the
normal efforts test the normal consequences
test 3. Application Medical negligence is a
normal consequence of negligence! Rescuers
are always foreseeable!
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Chapter Five Proximate Cause An Approach

• What category of cases does your case fall into?
• Unexpected Harm
• Entirely different hazard
• Sugar Notch Railway not a proximate cause
• Unexpected Harm / Eggshell skull
• Benn all results
• Unexpected Harm/ Other cases
• Wagon Mound only foreseeable results
• Polemis all direct results
• Kinsman same physical forces
• Secondary Harm
• Normal consequence test

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Assignments

Tuesday 416-425 Wednesday 440-449, 454
n.8 Thursday 466-475 Friday 475-490