Anglo-American Contract and Torts Prof. Mark P. Gergen Class Seven

1. Anglo-AmericanContract and TortsProf. Mark P. GergenClass Seven Proximate cause—scope of liability Contributory negligence Comparative responsibility

2. Duty/Injury • Breach • Factual cause • Legal cause/scope of liability • Damages Proximate cause Duty of reasonable care. Breach: was the defendant’s conduct unreasonable? Cause in fact: was the plaintiff harmed by the defendant’s failure to act reasonably? Scope of liability/legal cause: is the harm among the risks that made the defendant’s conduct unreasonable? Injury: was the plaintiff physically harmed or is this in the limited categories (“pockets”) of cases in which recovery is available for pure economic or emotional harm?

3. Palsgraf v. Long Island RR Co. (1928) Two men run to catch a departing train. The second, who is carrying a package, jumps aboard but seems about to fall. Two guards, who are employees of LIRR, one on the train, one off, pull and push the man, dislodging the package, which falls. The package contained fireworks. These explode, causing a heavy scale to topple on Palsgraf, grievously injuring her. Jury verdict for Palsgraf. Affirmed by the intermediate court of appeals.

4. Reasonable people may disagree about whether the guard’s conduct was reasonable with respect to the man and the package. So that is a question for the jury. But Ms. Palsgraf is the plaintiff. May she recover? Cardozo argues no and that it is a question of duty properly resolved by the court. Andrews disagree. What they disagree about is the generality of the duty of care owed.

5. Cardozo: “The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all.” p. 80 (top 2nd para) “If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong . . .with reference to some one else.” p. 80 a bit further down “What the plaintiff must show is ‘a wrong’ to herself; i. e., a violation of her own right, and not merely a wrong to some one else, nor conduct ‘wrongful’ because unsocial, but not ‘a wrong’ to any one.” p. 81 top. “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” p. 81 further down.

6. Andrews responds: “Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm, might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone.” p. 83 top

7. So who has the better argument, Cardozo or Andrews? As a matter of fairness . . . LIRR—our conduct was not negligent with respect to your injury. Palsgraf—my injury was a consequence of your negligent conduct. As an administrative matter . . . . Is it possible to resolve that LIRR’s conduct was not negligent with respect to Palsgraf’s injury by a rule or standard? At what procedural stage can the claim be fairly resolved? Should the plaintiff be given an opportunity to develop evidence and theories of liability?

8. Andrews position prevailed in most states and the 3rd Restatement. Duty determinations should not be overly particularized. A common carrier owes a general duty of care to a passenger. As for the other elements—breach, causation, and scope of liability—let the parties develop the facts and their legal theories to see if Palsgraf can make out a claim. As for scope of liability (legal cause), this will turn on the facts in most cases. It will depend on the breach is “framed.” What if the scales were dangerously top heavy? Or P claims LIRR’s negligence was in allowing crowds to congregate on the platform? This question should be taken from the jury only if no reasonable person could disagree about the answer.

9. Proximate cause/legal cause/scope of liability Under the Restatement Third actual cause is a largely factual or scientific inquiry “Scope of liability” is the preferred to “proximate cause” or “legal cause” because the traditional labels suggest we are still talking about causation.

10. Two famous British cases discussed at p. 74 . . . . In re Polemis (1921). D drops a board in the hold of P’s ship, unforeseeably causing a fire. Wagon Mound I (1961). D negligently spills oil in harbor. The oil catches fire as a result of P’s doing welding work on a vessel. The fire harms P’s property. Everyone assumes it is unforeseeable that an oil slick might catch fire. D is held liable for the fire damage in Polemis but not in Wagon Mound.

11. Prof. Lundmark suggests Polemis applies a “directness” test while Wagon Mound applies a foreseeability test. Polemis actually applies a foreseeability test. The court holds D is liable for the fire damage to the vessel and cargo because it was a foreseeable that dropping the board might harm the property. If D’s negligent act foreseeably harms P’s person or property, then D is liable for any and all harm to P’s person or such property resulting from D’s negligence. Wagon Mound asks if the fire—the hazard that occurred—was among the foreseeable risks. Following the logic of Polemis in Wagon Mound P could recover for the fire damage to a dock if the presence of the oil harmed the dock in any way.

12. --Two general principles on offer-- P’s interest within the risk (Polemis/Second Restatement) Harm within the risk (Wagon Mound/Third Restatement) Neither is clearly superior to the other normatively, descriptively, or analytically . . . though harm within the risk is more in tune with modern more expansive theories of duty. At the core of negligence is a simple duty that people act reasonably if there conduct creates a risk of harm to others. If someone acts unreasonably, then they are liable for the resulting harm if the harm is among the risks that made their action unreasonable.

13. There are some fairly well-settled rules . . . The eggshell skull rule. If bodily harm to the plaintiff* is foreseeable, then an actor is liable for the full extent of the harm though the harm is aggravated by the plaintiff’s unusual pre-existing mental or physical condition. *The plaintiff means someone in the class of persons including the plaintiff exposed to the risk. The extent rule “An actor is liable if he could foresee harm of the type that occurred even if the extent of the harm was unforeseeable.” If an auto accident can be expected to harm pedestrians, then the driver is liable for an unexpected death because a wound is not treated promptly or correctly.

14. The mechanism rule An actor is liable if he could foresee harm of the type that occurred, even if he could not foresee the specific way the harm occurred.

15. These rules—egg shell skull, extent, and mechanism—are consistent with the “interest within the risk” principle. Procedurally, if physical harm to someone like the plaintiff is a foreseeable consequence of the defendant’s carelessness, then the defendant is not allowed to quibble that unforeseeable factors magnified the harm or that the specific mechanism was unforeseeable.

16. Some rules are best explained on special grounds . . . Rescuers Rescuers recover without regard to whether rescue was foreseeable, p. 76 top.

17. The “harm within the risk” rule or “risk rule” best explains some cases. Is this risk among the risks we have in mind when we determine the actor’s conduct to be unreasonable? A speeding car is hit by a falling tree, injuring the passenger. Cause yes. Scope no. You saw a similar principle at work in the law of negligence per se . . . P parks next to a fire hydrant, violating a local law. D loses control of his car, crashing into P. Parking rule does not apply to treat P’s conduct as negligent per se.

18. D hands a small but loaded pistol to a 9 year old child. The child drops the pistol. The pistol does not discharge. The impact of the pistol breaks the child’s toe. Is the injury within the scope of liability under the risk rule? What if the gun discharged as a result of being dropped and someone was hit by the bullet?

19. Does a zoo owe a duty to securely cage a tiger? So if a zoo keeper negligently leaves the cage unlocked and the tiger escapes and bites someone the zoo is liable, right? What if the tiger is able to escape because it can jump over the fence? What if a visitor takes advantage of the arguably unreasonably low fence to push another visitor into the cage with the tiger?

20. Criminal conduct as a special problem of superseding cause.

21. Sometimes criminal conduct clearly is within the scope of liability . . . Tarasoff v. Regents, p. 41 (psychologist has duty to warn intended victim of patient) Kline v. 1500 Mass Ave, p. 41 (building owner has duty to maintain security in common areas to protect tenants and their guests). Hines v. Garrett, p. 71 (after missing stop conductor drops offf young passenger one mile from station in dangerous area telling her to walk back to station, passenger is raped).

22. Weirum v. RKO General, p. 76. Radio station has promotion in which DJ drives around Los Angeles and then announces over radio that first listener to get to him receives a prize. Wanting to win the prize, two young men (17 and 19) followed the DJ in their cars, often driving at high speeds and recklessly. One of them forces P off the road. She dies in the accident. Jury verdict for P’s family (wrongful death) against radio station and one of the boys (the other settled for policy limits).

23. California Supreme Court affirms (1975) • The reasoning at the top of p. 78 is confusing. It states: • The issue is duty, which is for the court to decide case by case. • There is a general duty of care with foreseeability as the primary criterion of duty. • Foreseeability is a question of fact for the jury. Can you do better using the analytics of the “risk rule”? Is what happened among the risks that made the radio station’s promotional stunt an unreasonable thing to do?

24. The paragraph at the bottom of p. 78 and top of p. 79 addresses what usually is described as an issue of “superseding cause.” “An actor is entitled to assume that others will not act negligently” [or we might add recklessly or criminally]. The court applies a limitation . . . “This concept is valid, however, only to the extent the intervening conduct was not to be anticipated. If the likelihood that a third person may react in a particular manner is a hazard which makes the actor negligent, such reaction . . . does not prevent the actor from being liable.”

25. An actor generally is entitled to assume that others will not act negligently, recklessly or criminally. But only to the extent the intervening conduct was not to be anticipated and not if the likelihood that a third person may react in a particular manner is a hazard which makes the actor negligent. A visitor to a zoo takes advantage of an arguably unreasonably low fence to push another visitor into the cage with the tiger. What if a visitor leans over the fence and falls in?

26. Contributory negligence/comparative fault P’s own careless is a cause of the harm for which P seeks damages from D. At one time contributory negligence was a complete bar to recovery. Under comparative fault it reduces the damages P may recover by P’s “percentage of responsibility” (“POR”). In “modified comparative fault” states P will be denied any recovery if P’s POR equals or exceeds 50% (some states make the cut-off 51%).

27. Gonzalez v. Garcia, p. 85 P accepts a ride home in D’s car though he is aware D is quite drunk. D loses control of car and P is severely injured. D argues P “voluntarily assumed the risk” of his driving while drunk, which is a complete bar to recovery. The court holds that an unreasonable choice to engage in an unreasonable activity should be treated as contributory negligence. The jury found P was 20% at fault and D was 80% at fault. So damages awarded to P were reduced by 20%.

28. D—the driver—also was injured in the accident. Assume he brings a counter-claim against P arguing that P bears partial responsibility for D’s losses. Which of the following is the best explanation of why this counter-claim fails: • Absence of duty. • No breach. • No cause in fact. • D’s loss was not within scope of liability. • D assumed the risk of his own drunk driving.

29. The move to abolish joint and several liability

30. Some states have abolished joint and several liability for non-intentional torts. An example is Texas. Some states have abolished joint and several liability for non-economic damages. Examples include California and New York.

31. In California and Texas, a non-party wrongdoer may be assigned a percentage of responsibility, this includes • An immune wrongdoer (e.g., employers protected from employee claims by workmen’s compensation). • A settling wrongdoer. • A “phantom” wrongdoer who cannot be identified or for other reasons cannot be served. • An insolvent wrongdoer.

32. Weirum v. RKO General, p. 76. Radio station has promotion in which DJ drives around Los Angeles and then announces over radio that first listener to get to his current receives a prize. Wanting to win the prize, two young men (17 and 19) followed the DJ in their cars, often driving at high speeds and recklessly. One of them forces P off the road. She dies in the accident. In California today the radio station and each of the young men would be assigned a percentage of responsibility (“POR”) by the jury. A POR is assigned to the settling defendant. The radio station would be liable only for its percentage of non-economic damages.

33. An unknown person (the Phantom John Doe) leaves a hazard in the road. Driver negligently runs into hazard, injuring P. • In California and Texas, responsibility for the injury is apportioned between Driver and Phantom. • In Texas, Driver is liable only for his proportionate share of all of P’s damages. In California, Driver is liable only for his proportionate share of Ps’ non-economic damages.