Chapter Five: Proximate Cause 2' Unexpected Manner

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Chapter Five Proximate Cause 2. Unexpected
Manner
McLaughlin v. Mine Safety Appliance Restatement
(Second) of Torts 442B Intervening Force
Causing Same Harm as That Risked by Actor's
Conduct Where the negligent conduct of the
actor creates or increases the risk of a
particular harm and is a substantial factor in
causing that harm, the fact that the harm is
brought about through the intervention of another
force does not relieve the actor of liability,
except where the harm is intentionally caused by
a third person and is not within the scope of the
risk created by the actor's conduct.
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Chapter Five Proximate Cause 2. Unexpected
Manner
442 Considerations Important in Determining
Whether an Intervening Force Is a Superseding
Cause The following considerations are of
importance in determining whether an intervening
force is a superseding cause of harm to another
(a) the fact that its intervention brings
about harm different in kind from that which
would otherwise have resulted from the actor's
negligence (b) the fact that its operation
or the consequences thereof appear after the
event to be extraordinary rather than normal in
view of the circumstances existing at the time of
its operation (c) the fact that the
intervening force is operating independently of
any situation created by the actor's negligence,
or, on the other hand, is or is not a normal
result of such a situation (d) the fact that
the operation of the intervening force is due to
a third person's act or to his failure to act
(e) the fact that the intervening force is due
to an act of a third person which is wrongful
toward the other and as such subjects the third
person to liability to him (f) the degree of
culpability of a wrongful act of a third person
which sets the intervening force in motion.
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Chapter Five Proximate Cause
Thin skull plaintiffs Liable for all harm,
limited by cause in fact Secondary harm Liable
for natural or normal consequences defined
in hindsight, but must be a substantial
factor Set stage cases Wagon Mound only
liable for foreseeable (Polemis) type of
harm (Wagon Mound) Polemis liable for all harm
that directly (Kinsman) results Kinsman same
sort of harm, same physical forces, same class
of persons Intervening cause Restatement liable
if the type of harm threatened by cases Ds
negligence occurs, even if the manner is
unexpected Not liable if intentionally
caused, unless those acts were foreseeable
(and there was a duty!)
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Chapter Five Proximate Cause 3. Unexpected
Plaintiff
According to Justice Cardozo, in Palsgraf, 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 Plaintiff must be foreseeable,
or there is no duty. Does not reach question of
whether the harm must also be foreseeable.
Manner in which harm occurs (p. 421) need not be
foreseeable. Defendants are liable for normal
responses to their negligence (p. 428, note 11).
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 3. Unexpected
Plaintiff

• According to Justice Andrews, in Palsgraf, 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?
• 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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Chapter Five Proximate Cause 1. Unexpected
harm

• 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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Chapter Five Proximate Cause Review
The problem (focusing on the employer, and the
initial injury) Duty Employers have a duty to
provide a safe workplace (special
relationship) Breach What is the untaken
precaution? Why was it negligence to fail to
take it? Causation Actual cause but-for the
defendants negligence, would the accident have
occurred? Proximate cause Did something
unexpected occur? Damage, or injury Physical
injury
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Chapter Five Proximate Cause Review
Proximate cause What fact pattern does this
case most closely resemble? What would be the
outcome based on that analogy? What arguments
would the party who disagreed with your
assessment make?
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Chapter Five Proximate Cause
Thin skull plaintiffs Liable for all harm,
limited by cause in fact Secondary harm Liable
for natural or normal consequences defined
in hindsight, but must be a substantial
factor Set stage cases Wagon Mound only
liable for foreseeable (Polemis) type of
harm (Wagon Mound) Polemis liable for all harm
that directly (Kinsman) results Kinsman same
sort of harm, same physical forces, same class
of persons Intervening cause Restatement liable
if the type of harm threatened by cases Ds
negligence occurs, even if the manner is
unexpected Not liable if intentionally
caused, unless those acts were foreseeable
(and there was a duty!)
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Chapter Five Proximate Cause 2. Unexpected
Manner
442 Considerations Important in Determining
Whether an Intervening Force Is a Superseding
Cause The following considerations are of
importance in determining whether an intervening
force is a superseding cause of harm to another
(a) the fact that its intervention brings
about harm different in kind from that which
would otherwise have resulted from the actor's
negligence (b) the fact that its operation
or the consequences thereof appear after the
event to be extraordinary rather than normal in
view of the circumstances existing at the time of
its operation (c) the fact that the
intervening force is operating independently of
any situation created by the actor's negligence,
or, on the other hand, is or is not a normal
result of such a situation (d) the fact that
the operation of the intervening force is due to
a third person's act or to his failure to act
(e) the fact that the intervening force is due
to an act of a third person which is wrongful
toward the other and as such subjects the third
person to liability to him (f) the degree of
culpability of a wrongful act of a third person
which sets the intervening force in motion.
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Chapter Five Proximate Cause 2. Unexpected
Manner
Kinsman I p. 433 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,
from the same forces, 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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Chapter Five Proximate Cause 3. Unexpected
Plaintiff
Andrews, J. dissenting in Palsgraf, p.
425 What we do mean by the word proximate
is, that because of convenience, of public
policy, of a rough sense of justice, the law
arbitrarily declines to trace a series of events
beyond a certain point. This is not logic. It
is practical politics. It is all a question of
expediency. There are no fixed rules to govern
our judgment. There are simply matters of which
we may take account. This is rather rhetoric
than law. There is in truth little to guide us
other than common sense.
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Chapter Six Defenses A. The Plaintiffs
Fault 1. Contributory Negligence

• Duty
• Breach
• Causation
• Cause in fact
• Proximate cause
• Defenses
• Immunity
• Contributory negligence/comparative fault
• Assumption of the risk
• Damage or injury

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Chapter Six Defenses A. The Plaintiffs
Fault 1. Contributory Negligence

• Duty to use due care to protect oneself from
  physical injury
• Breach
• reasonable person standard
• perhaps more willing to take mental capacity into
  account
• Learned Hand formula, role of custom, violation
  of statute,etc. all can be used to establish the
  std of care
• Causation
• actual cause
• proximate cause

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Chapter Six Defenses A. The Plaintiffs
Fault 1. Contributory Negligence

• Why should the plaintiffs failure to use due
  care completely bar recovery?
• Defendants negligence is not the proximate
  cause of the plaintiffs injuries if the
  plaintiff was also negligent.
• Need for plaintiffs to have an incentive to use
  due care.
• Refusal to allow guilty parties to recover
  damages.
• Instrument for limiting liability of railroads
  and employers during the industrial revolution.

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Chapter Six Defenses A. The Plaintiffs
Fault 1. Contributory Negligence

• What were the problems with all or nothing
  recovery?
• Plaintiffs whose negligence was very minor
  relative to the defendants went completely
  uncompensated
• Clearly negligent defendants escaped liability
  entirely

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Chapter Six Defenses A. The Plaintiffs
Fault 1. Contributory Negligence

• Ameliorating doctrines
• Burden on the defendant
• Not a defense to recklessness
• Not a defense where defendant had the last clear
  chance to avoid the harm
• Refusal to impute contributory negligence
• Willingness to allow consideration of mental
  state, childhood
• Contributory negligence was almost always a
  question for the jury

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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault

• The arguments for comparative fault
• Conformed to what was really happening in the
  trial courts, anyway
• Soundness of basic principle that recovery and
  liability should be proportionate to fault
• Created incentives to due care on both sides
• The arguments against
• Defendants whose negligence plays a minor role
  can be liable for significant damages if the
  injuries are great
• Difficulty of attaching percentages to fault

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Assignments
Thurs. Nov. 7 pp. 460-476. Fri. Nov. 8
pp. 476-489 Friday, Nov. 8 Take home
practice exam, due before Friday, Nov. 15.