TORTS.outline.fall 2005

8/9/2019 TORTS.outline.fall 2005

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Outline for Torts

I. Intro to Tort LiabilityA. Historical Development of Fault Liability

1. Writ system of England forerunner of current American tort system2. Brown v. Kendall-judge Shaw decided- Landmark decision bc shiftfrom regime of absolute liability to a fault based system (negligence takeninto account)

B. When should unintended Injury result in liability?1. Basic Issue of torts: Do we shift that loss? Where do we shift that loss?How do we shift that loss? What are the goals of the tort system?2.Hammontree v. Jenner no strict liability to drivers; if suddenly takenill with a physical condition that gave no warning theres no liability

C. Goal of Tort Law from an economic point of view1. [cost of accidents + cost of accident prevention]= total societal costs ofaccidents *cost/benefit analysis2. Richard A. Posner: We shouldnt hold people to negligence in the casethat B is higher than PL; if we do, we will not achieve economicefficiency; they will be encouraged to economic waste3. Under this system, negligence is when it was cheaper to have avoidedthe accident than to pay for it; if it was more expensive to avoid theaccident than to pay for it, you let it happen4. What economists want to do is ask: who is the cheapest cost avoider?Who had the ability to do the cost benefit analysis?

D. The parties and vicarious liability1.Baptist Memorial Hospital System v. Sampson-Using Restatement

(Second) ofAgency section 267 agency by estoppel must prove all 3elements before principal can be held vicariously liable for another who isnot their agent

1. The principal, by its conduct2. Caused him or her to reasonably believe that the putative agent

was an employee or agent of the principal, and3. That he or she justifiably relied on the appearance of agency

2.Christensen v. Swenson et al.-articulated 3 criteria to help determineacts falling within the scope of employment (not have to prove all 3):

1) employees conduct must be of a general kind they were hiredto do

2) employees conduct must occur substantially within the hoursand ordinary spatial boundaries of employment

3) employees conduct must be motivated by, at least in part, bythe purpose of serving the employers interest

For a common law tort in negligence a plaintiff must show:1) Duty being owed2) Breach of that duty (negligence)


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3) Causation (the breach caused the injury)4) Injury /Damage

II.The Negligence Principle

A. The Central Concept1. The Standard of Care

a.Adams v. Bulloch-judge Cardoza decided-introduced concept ofunreasonable risk; Ordinary caution did not involve forethought ofthis extraordinary perilb.United States v. Carroll Towing, Co.-Judge Learned Hand

i. B (burden of precaution) < P (probability of accident) x L(loss if accident occurs) then party was negligent in not takingprecautionsii. P will always be between 0 and 1 so multiplying itdiscounts the Loss

iii. Hand formula assumes risk neutralityiv. Hand formula also need to be applied in terms of marginalcosts, not total costv. difficult to use bc how do you put $ amt. on some things?

2.Coaste Theorum: Cattle vs. cropsa. Rules of legal liability do not effect allocation of resourcesprovided that there are no impediments to market transactions, butit does have distributional costsb. If lawn mower manuf. Will pay always: do c/bene analysis;either redesign or bribe consumers to behave differently (wear st.toe boots)

c. If consumers will always pay: bribe (pay increase cost ofmower) manuf. to chg their behavior (retrofit) or buy st. toe bootsd. Real world puts cost on manuf.e. If rock musicians will always pay for cut toes, they will bribe insome combo both the manuf.And consumersf. Legal rule (distributional effect) only effects who pays, greatestcost justified

3. The Reasonable Persona. Rather than c/b approach; rational economic actor might decideby RPP (always qualified by under the circumstances)b. In general, we do look at mental/physical capacity to conform to

RPP-just the conduct Physical impairment: sick, unconscious Mental impairment never Unreasonable beliefs? Religious or moral? Do we mitigate

damages bc of these beliefs? Children-parents not vicariously liable, take into account their

age: mental capacity, intelligence, experiences of others


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comparable; if engaged in adult act ivities, may be held to adultstandard & parent may also be liable in separate act of neg.

c.Bethel v. New YorkCity Transit- Constructive notice: someindication that the condition persisted long enough that the injurershould have known

i.

neglect of duty by repetition does not cease to be neglectof dutyC. The Roles of Judge and Jury

1. In Generala.Baltimore & Ohio RR CO. v. Goodman- Holmes says areasonable person would stop, look and listen, ct took upon itselfto determine verdictb.Pokora v. Wabash Railway Co.- Cardoza says Standards ofprudent conduct are sometimes declared by courts, but they aretaken over from the facts of life; if the guide of prudent conductfails, what is suitable for the traveler caught in a mesh where the

ordinary safeguards fail him is for the jury.

c.Andrews v. United-juries well equipped to determine RPPi. Juries are well equipped to decide if common carriers aremeeting their duty of care in cases requiring more than astrict framework of analysis-if the facts are so numerousthat that analysis would be inadequateii. The mode of operation notion: no specific act- just theway theyve been doing business is negligent

d. not every case of RPP for the jury-if def. fulfilled his duty as amatter of law, no question of neg. remains for jury- but most are

2. The Role of Customa.Trimarco v. Klein-Proof of common practice can be said to aidin formulation of the general expectation of society and thus guidethe common sense or expert tuition of the fact finder to judge aparticular conduct

i. Proof of common practice may establish due careii. Proof of custom may serve to establish liability

3. The Role of Statutesa.Martin v. Herzog- Cardoza says a jury does not have dispensingpower in which they may relax the duty that one owes understatute to another

i. statute that provides for criminal proceeding does notautomatically create civil liabilityii. Section 286 in Restatement (second) of torts: Thecourt may adopt as the standard of conduct of a reasonableman the requirements of a legislative enactment or anadministrative regulation whose purpose is found to beexclusively or in part (a) to protect a class of persons whichincludes the one whose interest is invaded, and (b) toprotect the particular interest which is being invaded, and


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(c) to protect that interest against the kind of harm whichhas resulted, and (d) to protect that interest against theparticular hazard from which arm results

b Tedla v. Ellman-a court may decide whether to apply a criminalstatute to a civil liability, but does not have to;

i.

The two wrongs, negligence and breach of criminalstatute, must be kept distinct in speech and thought.ii. The general duty is established by the statute anddeviation from it without good cause is a wrong and thewrongdoer is responsible for the damages resulting fromhis wrongdoing

D. Proof of Negligence1. Circumstantial evidence

a.Negri v Stop & Shop- When viewing conditions in a light mostfavorable for the plaintiff and according pl. benefit of everyreasonable inference, if circumstantial evidence would allow a jury

to draw the necessary inference of negligence, an appellate courtcannot dismiss the case.b.Gordon v. American Museum- To constitute constructive notice,defect must be visible and apparent and it must exist for asufficient length of time prior to the accident to permit employeesto discover and remedy it.c. constructive notice: even if you didnt actually know, it wasthere long enough that you should have knownd. actual notice: proof you knew of dangerous condition

2. Res Ipsa Loquitura.Byrne v. Boadle-If a person passing along is injured bysomething falling on him, the accident alone is prima facieevidence of negligence UNLESS the defendant can prove any factsto rebut the presumption of negligence

1. Thought to be an inaccessibility of evidence or2. A comparative disadvantage of the pl of gathering

evidence meaning3. The defendant has the advantage to gathering

evidence of negligence or noneb.McDougald v. Perry- Res ipsa loquitur provides a pl with acommon-sense inference of negligence where direct proof ofnegligence is wanting, provided certain elements consistent withnegligent behavior are present.

i. Essentially the injured pl must establish that theinstrumentality causing his or her injury was underexclusive control of the defendantii.and that the accident was one that would not, in theordinary course of events, have occurred withoutnegligence on the part of the one in control.


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c.Ybarra v. Spangard- test of instrumentality is one of right ofcontrol rather than actual control

i. res ipsa loquitur is about proving negligence; it is NOTabout proving identity

d. injury cannot be due to any voluntary action or contribution on

the part of the plaintiffE. The Special Case ofMedical Malpractice

Med. Malp. You need to show:a. what is relevant standard?b. the def fell below the standardc. falling below the standard is what caused the injury

2. Informed consent (or lack of consent) presumes the patient is in controlof his own body and dr follows what the patient wants-pt must have all thefacts to make a good decision and tell the dr what to do3. Usually need expert testimony to prove all 3 points needed for medical

malpractice unless layman can understand RPP through their ownexperiences4. Sheeley v Memorial Hosp.- A physician is under a duty to use thedegree of care and skill that is expected of a reasonably competentpractitioner in the same class to which he or she belongs acting in thesame or similar circumstances.

a. standard is professional standard, custom being determinative: itwill define RPP for professionalsb. The same or similar communities test of an expert witnessrepudiated in favor of a national standard

5.Connors v. University Associates-Circuit Judge Altimari-can use expert

testimony and res ipsa loquitur in the same casea. Real test should be whether that accident would normally occurin the ordinary course of events, not if it was common knowledgeb.Restatement section 328D: Such testimony may be essentialto the plaintiffs case where, as for example in some actions formedical malpractice, there is no fund of common knowledge whichmay permit laymen reasonably to draw the conclusion.

6.Matthies v. Mastromonaco-Justice Pollock-new ides to informed consenta.A doctor must explain all reasonable medical options, whetherthe doctor would recommend them or not, which the doctor wouldchoose and why, and must describe the material risks inherent for

each alternativeb. material risk is if it might affect the decision of the patient7. Patient approach: information disclosure standard is what would youthe patient (or a reasonable patient) have chosen to know; what areasonable patient would have wanted to know usually wins out if thepatient had unreasonable expectations


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a. We use a subjective test unless the patient can proveextraordinary circumstances why jury should consider theirsubjective reason (RPPatient)b.As long as they are adequately informed of the risks, if a patientmakes a bad choice, its their fault

8.

Exceptions:1. emergency- If and only if, the patient is unconscious and bc ofeither time or circumstances not able to get a hold of familymember may the doctor assumes the patient would consent tolife saving procedures.

2. incompetent or child-guardian makes decision3. therapeutic grounds- their physical or mental health would be

adversely effected if they knew To make a claim of malpractice for uninformed consent a patient would

have to say:1. I was uninformed2.

and if I had known, I would have decided differently3. patient must show the undisclosed risk happened or therewould be no causation

IV. The Duty Requirement: Physical InjuriesA. Introduction

1.A duty arises from:a. special relationshipsb. statutec. voluntary assumption

i. if you start helping, you cant stopii. cant leave victim in a worse situation than when youfound themiii. for compensation or gratuitously

d. general contexti. each of us has the right to expect at least the minimalamount of care from harm of others (car accidents)ii. General rule: Whenever one person is by circumstances,placed in such a position with regard to another that if hedid not use ordinary care and skill in his own conducthewould cause danger of injury to person or property of the

other, a duty arises to use ordinary care and skill to avoidsuch danger

2. affirmative duty to act: omission v. commissiona. looking for the right combo of carrots & sticks for omissions

B. Obligations to Others1.Harper v. Herman- The fact that an actor realizes, or should realize thataction on his part is necessary for anothers aid or protection does not in


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C. Obligations to protect a third party1.Tarasoff v. Regents ofUniversity ofCA- If the psychiatrist thoughtpatient probably would kill, not just a duty to warn: duty to exercise

reasonable care to protect another from dangera. In the context of controlling the actions of another, there was aduty owed only in a special relationship: parent-child, master-servant, possessor of land or chattels-use of same, someone whotakes charge of anotherb. There is no duty when the risk is self-inflicted harm or propertydamage or there is no identified potential victimc.All the court is saying is there is a duty-they havent talkedabout negligenced. therapists have a duty to exercise reasonable care to protect thirdpersons from probable physical harm

2.

Randi W. v. Murdoc JointU

nified School Dist.- one who intentionallyor negligently provides false information to another owes a duty of care to

a third person who did not receive the information and who has no specialrelationship with the provider: if the category of negligent conduct at issueis sufficiently likely to impose the type of harm experienced

a.Restatement of Torts (Second) 311: One who negligentlygives false information to another is subject to liability for physicalharm caused by action taken by the other in reasonable relianceupon such information, where such harm results

(a) to the other or(b) to such third persons as the actor should reasonably expectto be put in peril by the action taken.

b. could have written a full disclosure letter or no comment letter;they gave affirmative misrepresentations

3. No duty to warn when:a. no duty of passenger in car warn about danger to another outsideb. passenger in car cannot hurt-contibutorily negligent if silentc. no duty running to third parties if the doctor has no knowedge oftheir existenced. no duty if no identifiable potential victime. not foreseeable

4.Vince v. Wilson- Key factor is that the negligent entrustment theoryrequires showing that the entrustor knew or should have known somereason why entrusting the item to another was foolish or negligent

a.Restatement second 390: One who supplies directly orthrough a third person a chattel for the use of another whom thesupplier knows or has reason to know to be likely bc of his youth,inexperience or otherwise, to use it in a manner involvingunreasonable risk of physical harm to himself and others whom thesupplier should expect to share in or be endangered by its use, is


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subject to liability for physical harm resulting to themthe rulestated applied to anyone who supplies a chattel for the use ofanother. It applies to sellers, lessors, donors or lenders, and to allkinds of bailors, irrespective of whether the bailment is gratuitousor for consideration

b.

Issues of negligence to be determined by the jury under properinstructionc. neg. entrustment does not stretch to cover stolen goods, norimpose requirement of checking driving records

5. Reynolds v. Hicks- No tort liability for social hosts to a third party hurtby a minor served alcohol

a. Technical reason denied: reason behind statute? To protectminors-not protect the class of third partiesb. Policy reason denied: social host wide-sweeping; judiciary ill-equipped to impose social liability-courts are reluctant to imposeresponsibility on social hosts and occasions

D.

Landowners and Occupiers1.Carter v. Kinney-3 broad classes of plaintiffs in premises liability cases;Because Mr. Carter did not plan on socializing with the Kinneysafterward and he was using their property for a mutual benefit, he was bylaw a licensee2.Heins v. Webster- NEW TEST:

y Impose on all owners and occupiers only the duty to exercisereasonable care and maintenance of their premises for the protection oflawful visitors

y Factors to be considered when determining reasonable care: Forseeability or possibility of harm

the purpose for which the entrant entered the premises time, manner and circumstances under which the entrant enteredthe premises

the use to which the premises are put or expected to be put the reasonableness of inspection, repair, or warning the opportunity and ease of repair or correction or warning the burden on the land occupier/owner and or community in terms

of inconvenience or cost in providing adequate protection3. Landlords duty of care:

a. hidden dangerb. leased for public use

c.

premises retained under landlord control (common areas)d. negligent repairse. only liable for criminal activity if he could have prevented it

4.Posecai v. Walmart- Although business owners are not insurers of theirpatrons health and safety, they do have a duty to implement reasonablemeasures to protect their patrons from criminal acts of third parties whenthose acts are foreseeable.Balancing test: balance the forseeability of harm


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against the burden of imposing a duty to protect against criminal acts ofanother

E. Intrafamily Duties1.Broadbent v. Broadbent- A parent is not liable for an act or omissionthat injured his child if the parent acted as a reasonable and prudent parent

in the situation would.F. Governmental Entities

Municipal and State Liability1.Riss v. NYCity-(she is a blg that could catch fire)-

a.A governmental entity does not have a duty of protection to citizensabsent a special relationship or an assumption of an affirmative dutyto act on the part of the victimb. Special relationship exception:

y An assumption by the municipality through promises oraction, of an affirmative duty to act on behalf of the party whowas injured;

y Knowledge on the part of the municipalitys agents thatinaction could lead to harm;

y Some form ofdirect contact between the municipalitysagents and the injured party

y That partysjustifiable reliance on the municipalitysundertaking

2.Lauer v. City of NY- Because plaintiff cannot point to a duty owed tohim by the Office of the ChiefMedical Examiner (cannot be a duty to allof society), negligence claim must fail

a. Distinction between ministerial (no immunity for; adherence toan admistrative rule was not done) and discretionary (immunity for

these; reasoned judgment calls of officials)3.Friedman v. State of NY- Under qualified immunity, a governmentalbody may be held liable when its study of traffic condition is plainlyinadequate or there is no reasonable basis of its traffic plan (pl must proveNO reasonable person would ahave adopted their plan, not just argumentagainst it)

Test of qualified immunity:1. Once state notified of a dangerous situation, it must take study w/

eye toward alleviating danger2. After implementing traffic plan, or decision to keep status quo,

state under continuing duty to review its plan in light of actual

operation3. Once decision to go forward has been made, can be held liable ifthere was an unjustifiable delay in implementing plan-itconstitutes a municipalitys breach of duty to public

The Federal Tort Claims Act


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y District courts have exclusive jurisdiction; negligent and wrongful acts (notwaived for strict liability); while acting in scope of duties

y Tried w/o a juryy US not liable for punitive damagesy Cap on attorney feesy Cannot go after the US employee in a separate civil actiony MOST important: does not apply to any claim based on the act or omission of

any employee exercising due care in the execution of a statute or regulation,whether its valid or not OR based on the exercise or performance or failure toexercise or perform a discretionary function or duty

y No postal mattersy There are exceptions for intentional tortsy Fiscal operations not includedy No claim arising out of military or combatant activitiesy No claim arising in a foreign country

1.Cope v. Scott- If a decision is of greater significance-those grounded ineconomic, social, and political goals-the decision falls within theprotection of the FTCA exception; Fleshes out what is a discretionaryfunction (FTCA does not apply, so still immunity) and what is not (FTCAdoes apply, so immunity s waived)

V. The Duty Requirement: Non-physical HarmA. Emotional Harm

1.Falzone v. Busch-(early case-physical impact disappeared today)Thatwhere negligence causes fright from a reasonable fear of immediatepersonal injury, which fright is adequately demonstrated to have resultedin substantial bodily injury or sickness, the injured person may recover ifsuch bodily injury or sickness would be regarded as proper elements ofdamage had they occurred as a consequence of direct personal injuryrather than fright2.Metro-North v. Buckely- Court worried about drain on resources; ifallow guy to recover for NIED when he has no symptoms, just fear largetort claims will drain resources for legitimate cases where the pl. doescontract the disease The physical impact referred to in case law, doesnot include a simple physical contact with a substance that might cause adisease at a substantially later time where that substance, or relatedcircumstance, threatens no harm other then the disease-related risk.3.Gammon v. Osteopathic Hosp. Maine- Rather than requiring physicalmanifestation of Ps emotions, we now abandon this and rely on

a. the trial process for protection against fraudulent claims, sincejurors and trial judges can evaluate the impact of psychic traumajust as they evaluate other claims, ANDb. the traditional tort principle of foreseeability.A defendant isbound to foresee Ps psychic harm when such harm reasonablycould be expected to befall the ordinarily sensitive person.


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4. mis-handling corpses: we provide compensation when:a. the emotional distress is intentionally or recklessly inflicted, orb. when the emotional distress results from physical injurynegligently inflicted, orc. when negligently inflicted emotional distress results in physical

injury5.Porter v. Jaffee (Dillon v.Leggis the seminal case here)-

Rule: A bystander can recover from NIED, even if she was neither in theZOD nor suffered physical harm, if:

(1) the death or serious physical injury of another by defendant'snegligence (emotional injury was foreseeable);(2) familial relationship between plaintiff and the injured person;(3) observation of the death or injury at the scene of the accident;and(4) resulting severe emotional distress (it must be a severeexperience, a bodily, immediate shock experience)

6.

Johnson v. Jamaica Hosp.- There is no duty owing to the parents toprotect from emotional distress inflicted through negligent acts injuring

their children when they did not see it nor were in the zone of danger7. Death cases:

a. Survival actionsb. Wrongful deathc. Wrongful death of a child

8. Loss of Consortium AZ pretty liberal for parent/child consortium andw/ death statute recovery

B. Interference w/ Procreation and end of life decisions1. Parents Cause of action

a. loss of consortiumb. wrongful deathc. impaired child, non-wrongful birthd. wrongful birthe. wrongful conception or wrongful pregnancyf. pre-conception negligence

2.Emerson v. Magendantz-three ways for assessing damages for wrongfulbirth: limited recovery, limited recovery w/costs for child rearingbalanced; full recovery rule3. Childs Causes of action

a. loss of consortiumb. wrongful deathc. child injured in uterod. wrongful lifee. emotional distress

4. End of life claims: wrongful living or wrongful prolongation of life-ctswont recognize

VI. CausationA. Cause in Fact


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1. Basic Doctrine (when there are or could be multiple causes)a.Stubbs v. City of Rochester- If two or more possible causes exist,for only one of which the def may be liable, and a party injuredestablishes facts from which it can be said with reasonablecertainty that the direct cause of the injury was the one for which

the def was liable the party has complied with the spirit of the rule.b.Zuchowicz v. USCalabresi was judge-Justices Cardoza (NY)

and Traynor (CA): A) If a neg act was deemed wrongful bc that actincreased the chances that a particular type of accident wouldoccur, and B) a mishap of that very kind did happen, this wasenough to support a finding by the trier of fact that the negbehavior caused the harm. Had to be a substantial factor on a morelikely than not basis.

Law of causation in fact: a) that the defendants negligent act or omissionwas a but forcause of the injury b) that the negligent was causally linked tothe harm c) that def negligent act or omission was proximate to the resulting

injury c. anticipated future harm: if the disease develops, come back andrecover; might recover for cost of medical monitoringd. expert testimony:Daubert4 factor test to help gatekeeper judge:

1. whether the testimony can and has been tested according tothe scientific method

2. whether the theory or technique has been subjected to peerreview and publication

3. in the case of a particular scientific technique, the known orpotential rate of error

4. whether the theory is generally accepted5. test should be a flexible one and can also apply to

testimony based on technical or specializedknowledge; takes it beyond scientific orthodoxy

e.Albert v. Schultz-Loss of a Chance- A claim for lost chance ispredicated on the negligent denial by a health care provider of themost effective therapy for a patients presenting medical problem(problem could be incorrect diagnosis, inappropriate treatments, orfailure to timely provide the proper treatments); the essence of theclaim is that prior to treatment, there was a chance that he wouldbe better off w/ adequate care

Elements of lost chance are the same as in all medical malpractice situations:health care provider did not cause injury; their neg reduced the chance ofavoiding the injury actually sustained.-the causal link from neg to the lostchance still must be established

2. Joint and severable liability (where there are multiple tortfeasors)indivisible injury is where j&s liability might kick in3.Multiple defendants


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exceptions: if DES producer satisfies its burden of proof that itwas not a member of the market in which the pl bought thedrugs, they are exculpated, although there is no exculpation fora def who, although a member of the market producing DES forpregnancy use, appears not to have caused that particular pl

injuries4. Special case of toxic harmsd. Environmental Liability: 3 characteristics that are found, singlyor in combination , in every case of toxic harms or other pollutants:identification of the harm; boundaries; source (very often acollective harm)e.Medical monitoring: pl must prove

1. he or she has, relative to the general population, beensignificantly exposed

2. to a proven hazardous substance3. through the tortuous conduct of the def4.

as a proximate result of the exposure, pl has suffered anincreased risk of contracting a serious latent disease5. the increased risk of disease makes it reasonably necessary

for the pl to undergo periodic diagnostic medicalexaminations different from what would be prescribedabsent the exposure; and

6. monitoring procedures exist that make the early detectionof a disease possible

B. Proximate Cause- applicable when something strange or unexpected happensas result of negligence-an unexpected harm, manner, or victim

1. Unexpected Harma. Burns v. Thomas: have to be able to foresee some type of injury,but you dont have to know the extent or type of injury thatactually happensb. eggshell plaintiff rule: Consequences which follow in unbrokensequence, w/o an intervening efficient cause, from the originaltortuous act, are natural and proximate; and for such consequencesthe original wrongdoer is responsible, even though he could nothave foreseen the particular results which did followc.Polemis-unexpectedharm-

1. They are trying to draw a line limiting liability usingdirectness; not forseeability that matter in proximate causecases, but directness that is important2. If you do something negligent, any damages of any typeand any extent you are liable for as long as it was directlyattributable to your actions

d.Wagon Mound #1-dock owner; Foreseeability becomes theeffective test of liability; rejectPolemis outright; only responsiblefor the foreseeable consequences of your act


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e.Wagon Mound #2- ship owner-Can you ignore the slight risk?ONLY if under the Learned Hand formula, the expense ofavoiding it, extent of the damage that could occur, and the % ofrisk were balanced

2. Unexpected Manner

a.Mc

Laug

hlin v. Mine Safety- Jury was instructed that if theyfound it conceivable that these blocks would find themselves into

someones hands without the packaging for warning, then theycould find the def manufacturer liable; court should have chargedthat if the fireman did so conduct himself, without warning thenurse, his negligence was so gross as to supersede the negligenceof the defendant and to insulate it from liability. This is the rulethat prevails when knowledge of the latent danger or defect isactually possessed by the original vendee, who then deliberatelypasses on the product to a third person without warningb. Pay very close attention to the words used to describe a set of

events-that will influence juries more than anything; when youtake the bare bones approach (pl like this) it seems like a slamdunk case. When you introduce a lot of intervening unexpectedevents (def likes), it becomes too attenuated to support liabilityusing proximate causec. Dissent inMcLaughlin: The rule is not absolute that it is notnecessary to anticipate the negligence or even the crime of another.It has been said in the Restatement of Torts ( 449): "If therealizable likelihood that a third person may act in a particularmanner is the hazard or one of the hazards which makes the actornegligent, such an act whether innocent, negligent, intentionallytortious or criminal does not prevent the actor from being liable forharm caused thereby." It is further provided by section 447: "Thefact that an intervening act of a third person is negligent in itself oris done in a negligent manner does not make it a superseding causeof harm to another which the actor's negligent conduct is asubstantial factor in bringing about, if (a) the actor at the time ofhis negligent conduct should have realized that a third personmight so act".

3. Unexpected Victima.Palsgraff v. Long Island RR- No duty owed Cardoza says; hetalks the language of duty in the majority (as opposed toproximate cause); if you are negligent toward one person, you hada duty towards them, not other people; orbit of danger

o Negligence is not actionable unless it involves the invasion of a legallyprotected interest, the violation of a right

o If no hazard was apparent to the eye of ordinary vigilance, an act innocentand harmless, at least to outward seeming, with reference to her, did nottake to itself the quality of a tort because it happened to be a wrong,


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though apparently not one involving the risk of bodily insecurity, withreference to some one else.

b. dissent inPalsgraff-Andrews says an act can be negligentwhether it harms someone or not; When you harm someone, youhad a duty to them, but the right to recover depends on proximate

cause; court draws an arbitrary line as to how far proximate causegoes; forseeability is not everythingc.Kinsman I: claims for property damage-Friendly distinguishesfromPalsgrafbc you could not tell from the face of the packagethat there was anything but danger to someone in the immediatevicinity of the package; distinguishes WagonMoundbc there were2 different types of risks; here, there was the same risk (damagefrom the ships), just greater damage than was foreseeable; it wasdirect (likePolemis), and of the same general sort (unlike WagonMound) and to the same class of persons at risk (unlikePalsgraf),so no one is relieved of liability; really looking for a way to the

largest pocket (City of Buffalo) and therefore cant relieve theother two of liability; a lot of judicial decisions going on likeAndrews saidd.Kinsman II: claims for economic damages from bridge closure-movie excerpt physical forces have come to rest; no direct linefrom the cause; economic forces do not have a clear cutforseeability cut-off like physical forces do

can talk duty and causation like Palsgraffcan talk forseeability v. direct harm as in Polemis and Kinsman Iconsidering the extent and type of harm was rejected in Polemis2 different types of harm were distinguished in KinsmanTalk physical forcesOr just say expediency and practical politics ofAndrews andwatch what courts do, not what they say of Friendly

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TORTS.outline.fall 2005