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XVI. Proximate Cause

Proximate cause tends to be the least understood element of the case for negligence. It may be best to think of it as a catch-all: even with every other element satisfied, there might be philosophical or policy reasons to ask a plaintiff to show more. The “duty” element of negligence, as we have seen, has also served this role – a way of circumscribing liability through fiat, as a matter of law, and therefore early in a case. Proximate cause is harder to pin down; whether it’s been met can become a jury issue when a judge thinks it’s not an easy call. (Indeed, in the celebrated Palsgraf case for today, the dueling opinions differ on whether the hiccup found within the fact pattern is best categorized as one of duty (Cardozo) or proximate cause (Andrews).)

Perhaps the best way to capture the essence of proximate cause is in a single word: fortuity. Sometimes only the barest fortuity ends up linking the other elements of negligence, and in those cases we stop to consider whether there should be liability. Our opening case of the year, Vosburg, saw the prospect of major harm from a simple kick to the leg in a classroom. Fair to have the defendant pay all? The law’s answer tends to be yes.

Suppose I’m speeding recklessly, and a falling boulder strikes the car spontaneously from above, injuring my passenger. My negligence – represented by the speeding – was a but-for cause of the harm, since if I’d been going slower (or faster, for that matter), the boulder would have missed us. But it’s a mere fortuity that my negligent act caused the harm in question; the harm is not anticipated from the undue risk that makes my behavior negligent. Fair for me to pay for my passenger’s harm, if I wouldn’t be responsible if the boulder hit us when we were driving normally? The law’s answer tends to be no.

Proximate cause comes up when fortuity is at work, and the cases we review today seek patterns in the spectrum from Vosburg’s “eggshell plaintiff” rule to the no-liability outcome of the boulder hypothetical.

  • 1 In re Polemis--"The Plank that Exploded a Ship"

    Should defendants be directly liable for their negligence, even if the type of damage was not reasonably foreseeable?

    1

    In re an Arbitration Between Polemis and Another and Furness, Withy & Co., Ltd.

    Court of Appeal, 1921. [1921]. 3 K.B. 560, [1921] All E.R. 40.

    2

    [The owners of the ship Thrasyvoulos sought to recover damages from the defendants who chartered the ship. The contract of charter was read to hold the defendant charterers responsible for damage caused by fire due to their negligence. Stevedores, for whose conduct the defendants were responsible, were moving benzine from one hold to another by means of a sling. The stevedores had placed wooden boards across an opening above one hold to make a temporary platform to facilitate the transfer. "When the sling containing the cases of benzine was being hoisted up, owing to the negligence of the stevedores the rope by which the sling was hoisted or the sling itself came in contact with the boards, causing one of the boards to fall into the hold, and the fall was immediately followed by a rush of flames, the result being the total destruction of the ship."

    3

    The case was heard by arbitrators who found "that the fire arose from a spark igniting petrol vapour in the hold; that the spark was caused by the falling board coming into contact with some substance in the hold; . . . [and] that the causing of the spark could not reasonably have been anticipated from the falling of the board though some damage to the ship might reasonably have been anticipated." Damages were set at almost £200,000.

    4

    Subject to the court's opinion on the law, the arbitrators decided that the owners were entitled to recover the full loss from the charterers. The court was required to accept the arbitrator's findings. Although the case arose in the contract context, none of the three opinions mentions this point, and all rely on tort cases in their analyses.]

    5

    BANKES, L.J.

    6

    . . . According to the one view, the consequences which may reasonably be expected to result form a particular act are material only in reference to the question whether the act is or is not a negligent act; according to the other view, those consequences are the test whether the damages resulting from the act, assuming it to be negligent, are or are not too remote to be recoverable. Sir F. Pollock in his Law of Torts, 11th ed., pp. 39, 40, refers to this difference of view, and calls attention to the fact that the late Mr. Beven, in his book on Negligence, supports the view founded on Smith v. London and South Western Ry. Co. . .

    7

    In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendant's servants. The fire appears to me to have been directly caused by the falling of the plank. Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The appellant's junior counsel sought to draw a distinction between the anticipation of the extent of damage resulting from a negligent act, and the anticipation of the type of damage resulting from such an act. He admitted that it could not lie in the mouth of a person whose negligent act had caused damage to say that he could not reasonably have foreseen the extent of the damage but he contended that the negligent person was entitled to rely upon the fact that he could not reasonably have anticipated the type of damage which resulted from his negligent act. I do not think that the distinction can be admitted. Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to me to be irrelevant. I consider that the damages claimed are not too remote.

    8

    . . .

    9

    For these reasons I think that the appeal fails, and must be dismissed with costs.

    10

    SCRUTTON, L.J.

    11

    . . .

    12

    The second defense is that the damage is too remote from the negligence, as it could not be reasonably foreseen as a consequence. . . To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. once the act is negligent, the fact that its exact operation was not foreseen is immaterial. . . In the present case it was negligent in discharging cargo to knock down the planks of the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.

    13

    Appeal dismissed.

    14

    [The concurring opinion of WARRINGTON, L.J. is omitted.]

  • 2 Wagon Mound (No. 1) -- "The Oil in the Wharf Case"

    Should courts hold defendants responsible when their negligence causes both expected and unexpected damage?

    1

    Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Company Ltd [1961] UKPC 1 (18 January 1961)

    Privy Council Appeal No. 23 of 1960

    Overseas Tankship (U.K.) Limited
    - Appellants
    v.
    Morts Dock & Engineering Company Limited
    - Respondents
    2

    FROM THE SUPREME COURT OF NEW SOUTH WALESJUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, DELIVERED THE 18TH JANUARY 1961.

    3

    Present at the Hearing:

    4

    VISCOUNT SIMONDS
    LORD REID
    LORD RADCLIFFE
    LORD TUCKER
    LORD MORRIS OF BORTH-Y-GEST
    [Delivered by VISCOUNT SIMONDS]

    5

    This appeal is brought from an order of the Full Court of the Supreme Court of New South Wales dismissing an appeal by the appellants, Overseas Tankship (U.K.) Ltd" from a judgment of Mr. Justice Kinsella exercising the Admiralty Jurisdiction of that Court in an action in which the appellants were defendants and the respondents Morts Dock & Engineering Co, Ltd. were plaintiffs,

    6

    In the action the respondents sought to recover from the appellants compensation fm ,the damage which its property known as the Sheerlegs Wharf in Sydney Harbour and ,the equipment ,thereon had suffered by reason of fire which broke out on the 1st November, 1951. For this damage they claimed that the appellants were in law responsible,

    7

    The relevant facts can be, comparatively shortly slated inasmuch as not one of the findings of fact in the exhaustive judgment of the learned trial Judge has been challenged,

    8

    The respondents at the relevant time carried on the business of ship-building, ship-repairing and general engineering at Morts Hay, Balmain, in the Port of Sydney, They owned and used for their business the Sheerlegs Wharf, a timber wharf about 400 feet in length and 40 feet wide, where there was a quantity of tools and equipment. In October and November, 1951, a vessel known as the "Corrimal" was moored alongside the wharf and was being refitted by the respondents. Her mast was lying on the wharf and a number of the respondents' employees were working both upon it and upon the vessel itself, using for this purpose electric and oxy-acetylene welding equipment.

    9

    At the same time the appellants were chatterers by demise of the 5,5, "Wagon Mound ", an oil-burning vessel which was moored at the Caltex Wharf on the northern shore of the harbour at a distance of about 600 feet from the Sheerlegs Wharf. She was there from about 9 am on the 29th October until 11 am on the 30th October, 1951, for the purpose or discharging gasoline products and taking in bunkering oil.

    10

    During the early hours of the 30th October, 1951, a large quantity of bunkering oil was through the carelessness of the appellants' servants allowed to spill into the bay and by 10:30 on the morning of that day it had spread over a considerable part of the bay, being thickly concentrated in some places and particularly along the foreshore near the respondents' property. The appellants made no attempt to disperse the oil. The" Wagon Mound" unberthed and set sail very shortly after.

    11

    When the respondents' works manager became aware of the condition of things on the vicinity of the wharf he instructed their workmen that no welding or burning was to be carried on until further orders. He enquired of the manager of the Caltex Oil Company, at whose wharf the "Wagon Mound" was then still berthed, whether they could safely continue their operations on ,the wharf or upon the "Corrimal". The results of this enquiry coupled with his own belief as to the inflammability of furnace oil in the open led him to think that the respondents could safely carry on their operations. He gave instructions accordingly but directed that all safety precautions should be taken to prevent inflammable material falling off the wharf into the oil.

    12

    For the remainder of the 30th October and until about 2 p.m. on 1st November work was carried on as usual, the condition and congestion of the oil remaining substantially unaltered. But at about that time the oil under or near the wharf was ignited and a fire, fed initially by the oil, spread rapidly and burned with great intensity. The wharf and the "Corrimal" caught fire and considerable damage was done to the wharf and the equipment upon it.

    13

    The outbreak of fire was due, as the learned Judge found, to the fact that there was floating in the oil underneath the wharf a piece of debris on which lay some smouldering cotton waste or rag; which had been set on fire by molten metal falling from the wharf that the cotton waste or rag burst into flames; that the flames from the cotton waste set the floating oil afire either directly or by first setting fire to a wooden pile coated with oil; and that after the floating oil became ignited the flames spread rapidly over the surface of the oil and quickly developed into a conflagration which severely damaged the wharf.

    14

    He also made the all important finding, which must be set out in his own words. "The raison d'etre of furnace oil is, of course, that it shall burn, but I find the defendant did not know and could not reasonably be expected to have known that it was capable of being set afire when spread on water. This finding was reached after a wealth of evidence which included that of a distinguished scientist Professor Hunter. It receives strong confirmation from the fact that at the trial the respondents strenuously maintained that the appellants had discharged petrol into the bay on no other ground than that, as the spillage was set alight, it could not be furnace oil. An attempt was made before their Lordships' Board to limit in some way the finding of fact but it is clear that it was intended to cover precisely the event that happened.

    15

    One other finding must be mentioned. The learned Judge held that apart ,from damage by fire the respondents had suffered some damage from the spillage of oil in that it had got upon their slipways and congealed upon them and interfered - with their use of the slips. He said "The evidence of this damage is slight and no claim for compensation is made in respect of it. Nevertheless it does establish some damage which maybe insignificant in comparison with the magnitude of the damage by fire, but which nevertheless is damage which beyond question was a direct result of the escape of the oil" This upon this footing that their Lordships will consider the question whether the appellants are liable for the fire damage. That consideration must begin with an expression of indebtedness to Mr. Justice Manning for his penetrating analysis of the problems that today beset the question of liability for negligence. In the year 1913 in the case of H.M.S. London (reported in [1914] Prob. 72 at p. 76), a case to which further reference will be made. Sir Samuel Evans, P., said "The doctrine of legal causation, in reference both to the creation of liability and to the measurement of damages, has been much discussed by judges and commentators in this country and in America. Vast numbers of learned and acute judgments and dis¬quisitions have been delivered and written upon the subject. It is difficult to reconcile the decisions and the views of prominent com¬mentators and jurists differ in important respects. It would not be possible or feasible in this judgment to examine them in anything approaching detail." In the near 'hall-century that has passed since the learned President spoke those words the task has not become easier, but it is possible to point to certain landmarks and to indicate certain tendencies which, as their Lordships hope, may serve in some measure to simplify the law.

    16

    It is inevitable that first consideration should be given to the case of In re Polemis & Furness Withy & Company Ltd. [1921] 3 K.B. 560 which will henceforward be referred to as "Polemis ". For it was avowedly in deference to that decision and to decisions of the Court of Appeal that followed it that the Full Court was constrained to decide the present case in favour of the respondents. In doing so Mr. Justice Manning after a full examination of that case said "To say that the problems, doubts and difficulties which I have expressed above render it difficult for me to apply the decision in In re Polemis with any degree of confidence to a particular set of facts would be a grave understatement. I can only express the hope that, if not in this case, then in some other case in the near future the subject will be pronounced upon by the House of Lords or the Privy Council in terms which, even if beyond my capacity fully to understand, will facilitate for those placed as I am, its everyday application to current problems." This cri de coeur would in any case he irresistible but in the years that have passed since its decision Polemis has been so much discussed and qualified that it cannot claim, as counsel for the respondents urged fur it, the status of a decision of such long standing that it should not be reviewed.

    17

    What then did Polemis decide? Their Lordships do not propose to spend time in examining whether the issue there lay in breach of contract or in tort. That might be relevant for a tribunal for which the decision was a binding authority: for their Lordships it is not. It may however be observed that in the proceedings there was some confusion. The case arose out of a charter partly and went to arbitration under a term of it and the first contention of the charterers was that they were protected from liability by the exception of fire in the charter party. But it is clear from the pleadings and other documents, copies of which were supplied from the Record Office, that alternative claims for breach of contract and negligence were advanced and it is clear too that before Mr. Justice Sankey and the Court of Appeal the case proceeded as one in which, independently of contractual obligations, the claim was for damages for negligence. It was upon this footing that the Court of Appeal held that the charterers were responsible for all the consequences of their negligent act even though those consequences could not reasonably have been anticipated. The negligent act was nothing more than the carelessness of stevedores (for whom the charterers were assumed to be responsible) in allowing a sling or rope by which it was hoisted to come into contact with certain boards, causing one of them to fall into the hold. The falling board hit some substances in the hold and caused a spark; the spark ignited petrol vapour in the hold; there was a rush of flames and the ship was destroyed. The special case submitted by the arbitrators found that the causing of the spark could not reasonably have been anticipated from the falling of the board, though some damage to the ship might reasonably have been anticipated. They did not indicate what damage might have been so anticipated.

    18

    There can be no doubt that the decision of the Court of Appeal in Polemis plainly asserts that, if the defendant is guilty of negligence, he is responsible for all the consequences whether reasonably foreseeable or not. The generality of the proposition is perhaps qualified by the fact that each of the Lords Justices refers to the outbreak of fire as the direct result of the negligent act. There is thus introduced the conception that the negligent actor is not responsible for consequences which are not "direct," whatever that may mean. It has to be asked, then, why this conclusion should have been reached. The answer appears to be that it was reached upon a consideration of certain authorities, comparatively few in number, that were cited to the court. Of these, three are generally regarded as having influenced the decision. The earliest in point of date was Smith v. London & South Western Railway Co. Law Rep. 6 C.P. 14. In that case it was said that "when it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not"; see per Baron Channell at page 21. Similar observations were made by other members of the court. Three things may be noted about this case: the first, that for the sweeping proposition laid down no authority was cited; the second, that the point to which the court directed its mind was not unforeseeable damage of a different kind from that which was foreseen, but more extensive damage of the same kind; and the third, that so little was the mind of the court directed to the problem which has now to be solved that no one of the seven judges who took part in the decision thought it necessary to qualify in any way the consequences for which the defendant was to be held responsible. It would perhaps not be improper to say that the law of negligence as an independent tort was then of recent growth and that its implications had not been fully examined. The second case was "H.M.S. London", which has already been referred to. There the statement in Smith's case was followed, Sir Samuel Evans citing Blackburn J.: "What the defendants might reasonably anticipate is only material with reference to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence." This proposition, which provides a different criterion for determining liability and compensation, goes to the root of the matter and will be discussed later. It was repeated by Lord Sumner in the third case which was relied on in Polemis, namely, Weld-Blundell v. Stephens [1920] A.C. 956 at p. 983. In that case the majority of their Lordships, of whom Lord Sumner was one, held, affirming a decision of the Court of Appeal, that the plaintiff's liability for damages in certain libel actions did not result from an admitted breach by the defendant of the duty that he admittedly owed to him. Lord Dunedin (another of the majority) decided the case on the ground that there was there no evidence which entitled the jury to give the affirmative answer that they did to the question as put to them that the actions of libel and damages recovered were the "natural and probable consequences" of the proved negligence of the defendant. Lord Wrenbury (the third of the majority) summed up his view of the case by saying : "I am quite unable to follow the proposition that the damages given in the libel actions are in any way damages resulting from anything which Stephens did in breach of duty." Lord Sumner, whose speech their Lordships, like others before them, have not found all respects easy to follow, said : "What a defendant ought to have anticipated as a reasonable man is material when the question is whether or not he was guilty of negligence, that is. of want of due care according to the circumstances. This. however, goes to culpability, not to compensation." But this observation followed a passage in which His Lordship, directing his mind to the problem of causation, had asked what were "natural, probable and necessary consequences," and had expressed the view that "direct cause" was the best expression. Adopting that test he rejected the plaintiff's claim as too remote. The question of foreseeability became irrelevant and the passage cited from his speech was unnecessary to his decision. Their Lordships are constrained to say that this dictum (for such it was) perpetuated an error which has introduced much confusion into the law.

    19

    Before going forward to the cases which followed Polemis,their Lordships think it desirable to look back to older authorities which appear to them to deserve consideration. In two cases in 5 Exchequer Reports Rigby v. Hewitt at p. 240 and Greenland v. Chaplin at p. 243, Pollock C.B. affirmed (stating it to be his own view only and not that of the court) that he entertained "considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise and in respect of mischief which could by no possibility have been foreseen and which no reasonable person would have anticipated." It was not necessary to argue this question and it was not argued.

    20

    Next, one of many cases may be cited which show how shadowy is the line between so-called culpability and compensation. In Sharp v. Powell Law Rep. 7 C.P. 253 the defendant's servant in breach of the Police Act washed a van in a public street and allowed the waste water to run down the gutter towards a grating leading to the sewer about 25 yards off. In consequence of the extreme severity of the weather the grating was obstructed by ice and the water flowed over a portion of the causeway and froze. There was no evidence that the defendant knew of the grating being obstructed. The plaintiff's horse, while being led past the spot, slipped upon the ice and broke its leg. The defendant was held not to be liable. The judgment of Bovill C.J. at p. 258 is particularly valuable and interesting. "No doubt," he said, "one who commits a wrongful act is responsible for the ordinary consequences which are likely to result therefrom; but, generally speaking, he is not liable for damage which is not the natural or ordinary consequence of such an act unless it be shown that he knows or has reasonable means of knowing that consequences not usually resulting from the act are by reason of some existing cause likely to intervene so as to occasion damage to a third person. Where there is no reason to expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the damage probable, if injury does result to a third person it is generally considered that the wrongful act is not the proximate cause of the injury so as to render the wrongdoer liable to an action." Here all the elements are blended, "natural" or "ordinary consequences," "foreseeability," "proximate cause." What is not suggested is that the wrongdoer is liable for the consequences of his wrongdoing whether reasonably foreseeable or not, or that there is one criterion for culpability, another for compensation. It would, indeed, appear to their Lordships that, unless the learned Chief Justice was making a distinction between "one who commits a wrongful act" and one who commits an act of negligence, the case is not reconcilable with Polemis. In that case it was not dealt with except in a citation from Weld-Blundell v. Stephens.

    21

    Mention should also be made of Cory & Son Ltd. v. France Fenwick & Co. Ltd. (1911) 1 K.B. 114. In that case Lord Justice Vaughan Williams citing the passage from the judgment of Pollock C.B. in Greenland v. Chaplin which has already been read, said at p. 122 "I do not myself suppose that although, when these propositions were originally laid down, they were not intended as positive judgments but as opinions of the learned judge, there would be any doubt nowadays as to their accuracy." And Kennedy L.J. said of the same passage," with that view of the law no one would venture to quarrel". Some doubt was expressed in Polemis as to whether the citation of which these learned judges so emphatically approved was correct. That is irrelevant. They approved that which they cited and their approval has high authority. It is probable in any case that it had not occurred to them that there was any such dichotomy as was suggested in Polemis. Nor, clearly, had it at an earlier date occurred to Lord Wensleydale in Lynch v. Knight 9 H.L.C. 577, nor to Cockburn C.J. in Clark v. Chambers 3 Q.B.D.327. The impression that may well be left on the reader of the scores of cases in which liability for negligence has been discussed is that the courts were feeling their way to a coherent body of doctrine and were at times in grave danger of being led astray by scholastic theories of causation and their ugly and barely intelligible jargon.

    22

    Before turning to the cases that succeeded it, it is right to glance at yet another aspect of the decision in Polemis. Their Lordships, as they have said, assume that the court purported to propound the law in regard to tort. But up to that date it had been universally accepted that the law in regard to damages for breach of contract and for tort was, generally speaking, and particularly in regard to the tort of negligence, the same. Yet Hadley v. Baxendale was not cited in argument nor referred to in the judgments in Polemis. This is the more surprising when it is remembered that in that case, as in many another case, the claim was laid alternatively in breach of contract and in negligence. If the claim for breach of contract had been pursued, the charterers could not have been held liable for consequences not reasonably foreseeable. It is not strange that Sir Frederick Pollock said that Blackburn and Willes J.J. would have been shocked beyond measure by the decision that the charterers were liable in tort: see Pollock on Torts, 15th edn., p. 29. Their Lordships refer to this aspect of the matter not because they wish to assert that in all respects to-day the measure of damages is in all cases the same in tort and in breach of contract, but because it emphasises how far Polemis was out of the current of contemporary thought. The acceptance of the rule in Polemis as applicable to all cases of tort directly would conflict with the view theretofore generally held.

    23

    If the line of relevant authority had stopped with Polemis, their Lordships might, whatever their own views as to its unreason, have felt some hesitation about overruling it. But it is far otherwise. It is true that both in England and in many parts of the Commonwealth that decision has from time to time been followed: but in Scotland it has been rejected with determination. It has never been subject to the express scrutiny of either the House of Lords or the Privy Council, though there have been comments upon it in those Supreme Tribunals. Even in the inferior courts judges have, sometimes perhaps unwittingly, declared themselves in a sense adverse to its principle. Thus Lord Justice Asquith himself, who in Thurogood v. Van den Berghs & Jurgens [1951] 2 K.B. 537 had loyally followed Polemis, in Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd. [1949] 2 Q.B. 528, holding that a complete indemnity for breach of contract was too harsh a rule, decided that "the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach." It is true that in that case the Lord Justice was dealing with damages for breach of contract. But there is nothing in the case to suggest, nor any reason to suppose, that he regarded the measure of damage as different in tort and breach of contract. The words "tort" and "tortious" have perhaps a somewhat sinister sound but, particularly where the tort is not deliberate but is an act of negligence, it does not seem that there is any more moral obliquity in it than in a perhaps deliberate breach of contract, or that the negligent actor should suffer a severer penalty. In Minister of Pensions v. Chennell [1947] 1 K.B. 253 Denning J. (as he then was) said: "Foreseeability is as a rule vital in cases of contract; and also in cases of negligence, whether it be foreseeability in respect of the person injured as in Palsgref v. Long Island Rly. (discussed by Professor Goodhart in his Essays, p. 129), Donoghue v. Stevenson and Bourhill v. Young, or in respect of intervening causes as in Aldham v. United Dairies (London) Ltd. and Woods v. Duncan. It is doubtful whether In re Polemis and Furness Withy & Co. can survive these decisions. If it does, it is only in respect of neglect of duty to the plaintiff which is the immediate or precipitating cause of damage of an unforeseeable kind." Their Lordships would with respect observe that such a survival rests upon an obscure and precarious condition.

    24

    Instances might be multiplied of deviation from the rule in Polemis, but their Lordships think it sufficient to refer to certain later cases in the House of Lords and then to attempt to state what they conceive to be the true principle. In Glasgow Corporation v. Muir [1943] A.C. 448 at p. 454 Lord Thankerton said that it had long been held in Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of the failure to take care judged by the standard of the ordinary reasonable man, while Lord Macmillan said that "it is still left to the judge to decide what in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen." Here there is no suggestion of one criterion for determining culpability (or liability) and another for determining compensation. In Bourhill v. Young [1943] A.C. 91 at p. 101 the double criterion is more directly denied. There Lord Russell of Killowen said : "In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e., to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, i.e., to the question of culpability not to compensation." This appears to be in flat contradiction to the rule in Polemis and to the dictum of Lord Sumner in Weld-Blundell v. Stephens.

    25

    From the tragic case of Woods v. Duncan [11946] A.C. 401, the facts of which are too complicated to be stated at length, some help may be obtained. There Viscount Simon analysed the conditions of establishing liability for negligence and stated them to be (1) that the defendant failed to exercise due care (2) that he owed the injured man the duty to exercise due care, and (3) that his failure to do so was the cause of the injury in the proper sense of the term. He held that the first and third conditions were satisfied, but inasmuch as the damage was due to an extraordinary and unforeseeable combination of circumstances the second condition was not satisfied. Be it observed that to him it was one and the same thing whether the unforeseeability of damage was relevant to liability or compensation. To Lord Russell of Killowen in the same case the test of liability was whether the defendants (Cammell Laird & Co. Ltd.) could reasonably be expected to foresee that the choking of a test cock (itself undoubtedly a careless act) might endanger the lives of those on board; Lord Macmillan asked whether it could be said that they, the defendants, ought to have foreseen as reasonable people that if they failed to detect and rectify the clogging of the hole in the door the result might be that which followed, and later, identifying, as it were, reasonable foreseeability with causation, he said : "the chain of causation, to borrow an apposite phrase, would appear to be composed of missing links."

    26

    Enough has been said to show that the authority of Polemis has been severely shaken though lip-service has from time to time been paid to it. In their Lordships' opinion it should no longer be regarded as good law. It is not probable that many cases will for that reason have a different result, though it is hoped that the law will be thereby simplified, and that in some cases, at least, palpable injustice will be avoided. For it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be "direct." It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour.

    27

    This concept applied to the slowly developing law of negligence has led to a great variety of expressions which can, as it appears to their Lordships, be harmonised with little difficulty with the single exception of the so-called rule in Polemis. For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them. Thus it is that over and over again it has happened that in different judgments in the same case, and sometimes in a single judgment, liability for a consequence has been imposed on the ground that it was reasonably foreseeable or, alternatively, on the ground that it was natural or necessary or probable. The two grounds have been treated as coterminous, and so they largely are. But, where they are not, the question arises to which the wrong answer was given in Polemis. For, if some limitation must be imposed upon the consequences for which the negligent actor is to be held responsible - and all are agreed that some limitation there must be - why should that test (reasonable foreseeability) be rejected which, since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind, and a test (the "direct" consequence) be substituted which leads to no-where but the never-ending and insoluble problems of causation. "The lawyer," said Sir Frederick Pollock, "cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause." Yet this is just what he has most unfortunately done and must continue to do if the rule in Polemis is to prevail A conspicuous example occurs when the actor seeks to escape liability on the ground that the "chain of causation" is broken by a "nova causa" or "novus actus interveniens."

    28

    The validity of a rule or principle can sometimes be tested by observing it in operation. Let the rule in Polemis be tested in this way. In the case of the "Liesbosch" [1933] A.C. 448 the appellants whose vessel had been fouled by the respondents, claimed damages under various heads. The respondents were admittedly at fault; therefore, said the appellants, invoking the rule in Polemis, they were responsible for all damage whether reasonably foreseeable or not. Here was the opportunity to deny the rule or to place it secure upon its pedestal. But the House of Lords took neither course: on the contrary it distinguished Polemis on the ground that in that case the injuries suffered were the "immediate physical consequences" of the negligent act. It is not easy to understand why a distinction should be drawn between "immediate physical" and other consequences, nor where the line is to be drawn. It was perhaps this difficulty which led Lord Denning in Roe v. Minister of Health [1954] 2Q.B. 66 at p. 85) to say that foreseeability is only disregarded when the negligence is the immediate or precipitating cause of the damage. This new word may well have been thought as good a word as another for revealing or disguising the fact that he sought loyally to enforce an unworkable rule.

    29

    In the same connection may be mentioned the conclusion to which the Full Court finally came in the present case. Applying the rule in Polemis and holding therefore that the unforeseeability of the damage by fire afforded no defence, they went on to consider the remaining question. Was it a "direct" consequence? Upon this Mr. Justice Manning said: "Notwithstanding that, if regard is had separately to each individual occurrence in the chain of events that led to this fire, each occurrence was improbable and, in one sense, improbability was heaped upon improbability, I cannot escape from the conclusion that if the ordinary man in the street had been asked, as a matter of common sense, without any detailed analysis of the circumstances, to state the cause of the fire at Mort's Dock, he would unhesitatingly have assigned such cause to spillage of oil by the appellant's employees." Perhaps he would, and probably he would have added: "I never should have thought it possible." But with great respect to the Full Court this is surely irrelevant, or, if it is relevant, only serves to show that the Polemis rule works in a very strange way. After the event even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility. The Polemis rule by substituting "direct" for "reasonably foreseeable" consequence leads to a conclusion equally illogical and unjust.

    30

    At an early stage in this judgment their Lordships intimated that they would deal with the proposition which can best be stated by reference to the well-known dictum of Lord Sumner: This however goes to culpability not to compensation." It is with the greatest respect to that very learned judge and to those who have echoed his words, that their Lordships find themselves bound to state their view that this proposition is fundamentally false.

    31

    It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. Just as (as it has been said) there is no such thing as negligence in the air, so there is no such thing as liability in the air. Suppose an action brought by A for damage caused by the carelessness (a neutral word) of B, for example, a fire caused by the careless spillage of oil. It may, of course, become relevant to know what duty B owed to A, but the only liability that is in question is the liability for damage by fire. It is vain to isolate the liability from its context and to say that B is or is not liable, and then to ask for what damage he is liable. For his liability is in respect of that damage and no other. If, as admittedly it is, B's liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened - the damage in suit? And, if that damage is unforeseeable so as to displace liability at large, how can the liability be restored so as to make compensation payable?

    32

    But, it is said, a different position arises if B's careless act has been shown to be negligent and has caused some foreseeable damage to A. Their Lordships have already observed that to hold B liable for consequences however unforeseeable of a careless act, if, but only if, he is at the same time liable for some other damage however trivial, appears to be neither logical nor just. This becomes more clear if it is supposed that similar unforeseeable damage is suffered by A and C but other foreseeable damage, for which B is liable, by A only. A system of law which would hold B liable to A but not to C for the similar damage suffered by each of them could not easily be defended. Fortunately, the attempt is not necessary. For the same fallacy is at the root of the proposition. It is irrelevant to the question whether B is liable for unforeseeable damage that he is liable for foreseeable damage, as irrelevant as would the fact that he had trespassed on Whiteacre be to the question whether he has trespassed on Blackacre. Again, suppose a claim by A for damage by fire by the careless act of B. Of what relevance is it to that claim that he has another claim arising out of the same careless act? It would surely not prejudice his claim if that other claim failed: it cannot assist it if it succeeds. Each of them rests on its own bottom, and will fail if it can be established that the damage could not reasonably be foreseen. We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill v. Young. As Lord Denning said in King v. Phillips [1953] 1 Q.B. 429 at p. 441 "There can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock." Their Lordships substitute the word "fire" for "shock" and endorse this statement of the law.

    33

    Their Lordships conclude this part of the case with some general observations. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is "direct." In doing so they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. This accords with the general view thus stated by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562 at p. 580 "The liability for negligence, whether you style it such or treat it as in other systems as a species of 'culpa,' is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay." It is a departure from this sovereign principle if liability is made to depend solely on the damage being the "direct" or "natural" consequence of the precedent act. Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done; cf. Woods v. Duncan.[1946] A.C. at p 442. Thus foreseeability becomes the effective test. In reasserting this principle their Lordships conceive that they do not depart from, but follow and develop, the law of negligence as laid down by Baron Alderson in Blyth v. Birmingham Waterworks Coy (1856) 11 Ex. 784.

    34

    It is proper to add that their Lordships have not found it necessary to consider the so-called rule of "strict liability" exemplified in Rylands v. Fletcher and the cases that have followed or distinguished it. Nothing that they have said is intended to reflect on that rule.

    35

    One aspect of this case remains to be dealt with. The respondents claim, in the alternative, that the appellants are liable in nuisance if not in negligence. Upon this issue their Lordships are of opinion that it would not be proper for them to come to any conclusion upon the material before them and without the benefit of the considered view of the Supreme Court. On the other hand, having regard to the course which the case has taken, they do not think that the respondents should be finally shut out from the opportunity of advancing this plea, if they think fit. They therefore propose that on the issue of nuisance alone the case should be remitted to the Full Court to be dealt with as may be thought proper.

    36

    Their Lordships will humbly advise Her Majesty that this appeal should be allowed and the respondents' action so far as it related to damage caused by the negligence of the appellants be dismissed with costs but that the action so far as it related to damage caused by nuisance should be remitted to the Full Court to be dealt with as that court may think fit. The respondents must pay the costs of the appellants of this appeal and in the Courts below.

    37

    (39371) WI. 8109-.53 150 2/61 D.L.

  • 3 Palsgraf v. Long Island Railroad Co. -- "The Fireworks on the Train Platform"

    Should courts only impose liability when a duty to the victim exists prior to the injury; or should courts extend liability to all victims whose injuries are closely linked to the defendant's wrongful act, even if harms suffered were not foreseeable?

    A Comic of Palsgraf— http://i.imgur.com/6KnoA.jpg

    1
    248 N.Y. 339
    2
    HELEN PALSGRAF, Respondent,
    v.
    The LONG ISLAND RAILROAD COMPANY, Appellant.

    4

    Negligence — Railroads — Passengers — Package carried by passenger, dislodged while guards were helping him board train, and which falling to track exploded — Plaintiff, an intending passenger standing on platform many feet away, injured as result of explosion — Complaint in action against railroad to recover for injuries dismissed.

    A man carrying a package jumped aboard a car of a moving train and, seeming unsteady as if about to fall, a guard on the car reached forward to help him in and another guard on the platform pushed him from behind, during which the package was dislodged and falling upon the rails exploded, causing injuries to plaintiff, an intending passenger, who stood on the platform many feet away. There was nothing in the appearance of the package to give notice that it contained explosives. In an action by the intending passenger against the railroad company to recover for such injuries, the complaint should be dismissed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right, and the conduct of the defendant's guards, if a wrong in relation to the holder of the package, was not a wrong in its relation to the plaintiff standing many feet away.

    Palsgraf v. Long Island R. R. Co., 222 App. Div. 166, reversed.

    (Argued February 24, 1928; decided May 29, 1928.)

    APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, [*340] entered December 16, 1927, affirming a judgment in favor of plaintiff entered upon a verdict.

    William McNamara and Joseph F. Keany for appellant. Plaintiff failed to establish that her injuries were caused by negligence of the defendant and it was error for the court to deny the defendant's motion to dismiss the complaint. (Paul v. Cons. Fireworks Co., 212 N. Y. 117; Hall v. N. Y. Tel. Co., 214 N. Y. 49; Perry v. Rochester Lime Co., 219 N. Y. 60; Pyne v. Cazenozia Canning Co., 220 N. Y. 126; Adams v. Bullock, 227 N. Y. 208; McKinney v. N. Y. Cons. R. R. Co., 230 N. Y. 194; Palsey v. Waldorf Astoria, Inc., 220 App. Div. 613; Parrott v. Wells Fargo & Co., 15 Wall. 524; A., T. & S. Fe Ry. Co. v. Calhoun, 213 U. S. 1; Prudential Society, Inc., v. Ray, 207 App. Div. 496; 239 N. Y. 600.)

    Matthew W. Wood for respondent. The judgment of affirmance was amply sustained by the law and the facts. (Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469; Lowery v. Western Union Tel. Co., 60 N. Y. 198; Insurance Co. v. Tweed, 7 Wall. 44; Trapp v. McClellan, 68 App. Div. 362; Ring v. City of Cohoes, 77 N. Y. 83; McKenzie v. Waddell Coal Co., 89 App. Div. 415; Slater v. Barnes, 241 N. Y. 284; King v. Interborough R. T. Co., 233 N. Y. 330.)

    CARDOZO, Ch. J.

    Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help [*341] him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues.

    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. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. "Proof of negligence in the air, so to speak, will not do" (Pollock, Torts [11th ed.], p. 455; Martin v. Herzog, 228 N. Y. 164, 170; cf. Salmond, Torts [6th ed.], p. 24). "Negligence is the absence of care, according to the circumstances" (WILLES, J., in Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679, 688; 1 Beven, Negligence [4th ed.], 7; Paul v. Consol. Fireworks Co., 212 N. Y. 117; Adams v. Bullock, 227 N. Y. 208, 211; Parrott v. Wells-Fargo Co., 15 Wall. [U. S.] 524). The plaintiff as she stood upon the platform of the station might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor ([*342] Sullivan v. Dunham, 161 N. Y. 290). 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, though apparently not one involving the risk of bodily insecurity, with reference to some one else. "In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury" (McSHERRY, C. J., in W. Va. Central R. Co. v. State, 96 Md. 652, 666; cf. Norfolk & Western Ry. Co. v. Wood, 99 Va. 156, 158, 159; Hughes v. Boston & Maine R. R. Co., 71 N. H. 279, 284; U. S. Express Co. v. Everest, 72 Kan. 517; Emry v. Roanoke Nav. Co., 111 N. C. 94, 95; Vaughan v. Transit Dev. Co., 222 N. Y. 79; Losee v. Clute, 51 N. Y. 494; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94; 1 Shearman & Redfield on Negligence, § 8, and cases cited; Cooley on Torts [3d ed.], p. 1411; Jaggard on Torts, vol. 2, p. 826; Wharton, Negligence, § 24; Bohlen, Studies in the Law of Torts, p. 601). "The ideas of negligence and duty are strictly correlative" (BOWEN, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.

    A different conclusion will involve us, and swiftly too, in a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise [*343] which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary. His claim to be protected against invasion of his bodily security is neither greater nor less because the act resulting in the invasion is a wrong to another far removed. In this case, the rights that are said to have been violated, the interests said to have been invaded, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which may very well be doubted, it was a wrong to a property interest only, the safety of his package. Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff's right upon the basis of a wrong to some one else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one's neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.

    The argument for the plaintiff is built upon the shifting meanings of such words as "wrong" and "wrongful," and shares their instability. What the plaintiff must [*344] 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. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. 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 (Seavey, Negligence, Subjective or Objective, 41 H. L. Rv. 6; Boronkay v. Robinson & Carpenter, 247 N. Y. 365). This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. "It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye" (Munsey v. Webb, 231 U. S. 150, 156; Condran v. Park & Tilford, 213 N. Y. 341, 345; Robert v. U. S. E. F. Corp., 240 N. Y. 474, 477). Some acts, such as shooting, are so imminently dangerous to any one who may come within reach of the missile, however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even today, and much oftener in earlier stages of the law, one acts sometimes at one's peril (Jeremiah Smith, Tort and Absolute Liability, 30 H. L. Rv. 328; Street, Foundations of Legal Liability, vol. 1, pp. 77, 78). Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A resulting by misadventure in injury to B (Talmage v. Smith, 101 Mich. 370, 374) [*345] These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional (Parrot v. Wells-Fargo Co. [The Nitro-Glycerine Case], 15 Wall. [U. S.] 524). The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff's safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

    Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all (BOWEN, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, 694). Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one's bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong. Confirmation of this view will be found in the history and development of the action on the case. Negligence as a basis of civil liability was unknown to mediaeval law (8 Holdsworth, History of English Law, p. 449; Street, Foundations of Legal Liability, vol. 1, [*346] pp. 189, 190). For damage to the person, the sole remedy was trespass, and trespass did not lie in the absence of aggression, and that direct and personal (Holdsworth, op. cit. p. 453; Street, op. cit. vol. 3, pp. 258, 260, vol. 1, pp. 71, 74.) Liability for other damage, as where a servant without orders from the master does or omits something to the damage of another, is a plant of later growth (Holdsworth, op. cit. 450, 457; Wigmore, Responsibility for Tortious Acts, vol. 3, Essays in Anglo-American Legal History, 520, 523, 526, 533). When it emerged out of the legal soil, it was thought of as a variant of trespass, an offshoot of the parent stock. This appears in the form of action, which was known as trespass on the case (Holdsworth, op. cit. p. 449; cf. Scott v. Shepard, 2 Wm. Black. 892; Green, Rationale of Proximate Cause, p. 19). The victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental difference between tort and crime (Holland, Jurisprudence [12th ed.], p. 328). He sues for breach of a duty owing to himself.

    The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 54; Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264; Smith v. London & S. W. Ry. Co., L. R. 6 C. P. 14; 1 Beven, Negligence, 106; Street, op. cit. vol. 1, p. 90; Green, Rationale of Proximate Cause, pp. 88, 118; cf. Matter of Polemis, L. R. 1921, 3 K. B. 560; 44 Law Quarterly Review, 142). There is room for [*347] argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong.The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.


    ANDREWS, J.  (dissenting).  Assisting a passenger to board a train, the defendant's servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling they injured the plaintiff, an intending passenger.

    Upon these facts may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept—the breach of some duty owing to a particular person or to particular persons? Or where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis [*348] we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.

    Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect oneself from the dangers resulting from such acts. Here I confine myself to the first branch of the definition. Nor do I comment on the word "unreasonable." For present purposes it sufficiently describes that average of conduct that society requires of its members.

    There must be both the act or the omission, and the right. It is the act itself, not the intent of the actor, that is important. (Hover v. Barkhoof, 44 N. Y. 113; Mertz v. Connecticut Co., 217 N. Y. 475.) In criminal law both the intent and the result are to be considered. Intent again is material in tort actions, where punitive damages are sought, dependent on actual malice— not on merely reckless conduct. But here neither insanity nor infancy lessens responsibility. (Williams v. Hays, 143 N. Y. 442.)

    As has been said, except in cases of contributory negligence, there must be rights which are or may be affected. Often though injury has occurred, no rights of him who suffers have been touched. A licensee or trespasser upon my land has no claim to affirmative care on my part that the land be made safe. (Meiers v. Koch Brewery, 229 N. Y. 10.) Where a railroad is required to fence its tracks against cattle, no man's rights are injured should he wander upon the road because such fence is absent. (Di Caprio v. N. Y. C. R. R., 231 N. Y. 94.) An unborn child may not demand immunity from personal harm. (Drobner v. Peters, 232 N. Y. 220.)

    But we are told that "there is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff [*349] himself and not merely to others." (Salmond Torts [6th ed.], 24.) This, I think too narrow a conception. Where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger but to all who might have been there— a wrong to the public at large. Such is the language of the street. Such the language of the courts when speaking of contributory negligence. Such again and again their language in speaking of the duty of some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on any other theory. (Perry v. Rochester Line Co., 219 N. Y. 60.) As was said by Mr. Justice HOLMES many years ago, "the measure of the defendant's duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another." (Spade v. Lynn & Boston R. R. Co., 172 Mass. 488.) Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or C alone.

    It may well be that there is no such thing as negligence in the abstract. "Proof of negligence in the air, so to speak, will not do." In an empty world negligence would not exist. It does involve a relationship between man and his fellows. But not merely a relationship between man and those whom he might reasonably expect his act would injure. Rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm some one, it harms him a mile away as surely as it does those on the scene. We now permit children to recover for the negligent killing of the father. It was never prevented on the theory that no duty was owing to them. A husband may be compensated for [*350] the loss of his wife's services. To say that the wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit facts to theory. An insurance company paying a fire loss recovers its payment of the negligent incendiary. We speak of subrogation—of suing in the right of the insured. Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also injured the company. Even if it be true that the fault of father, wife or insured will prevent recovery, it is because we consider the original negligence not the proximate cause of the injury. (Pollock, Torts [12th ed.], 463.)

    In the well-known Polemis Case (1921, 3 K. B. 560), SCRUTTON, L. J., said that the dropping of a plank was negligent for it might injure "workman or cargo or ship." Because of either possibility the owner of the vessel was to be made good for his loss. The act being wrongful the doer was liable for its proximate results. Criticized and explained as this statement may have been, I think it states the law as it should be and as it is. (Smith v. London & Southwestern Ry. Co., [1870-71] 6 C. P. 14; Anthony v. Slaid, 52 Mass. 290; Wood v. Penn. R. R. Co., 177 Penn. St. 306; Trashansky v. Hershkovitz, 239 N. Y. 452.)

    The proposition is this. 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. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected. Harm to some one being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise. Indeed in the Di Caprio case we said that a breach of a [*351] general ordinance defining the degree of care to be exercised in one's calling is evidence of negligence as to every one. We did not limit this statement to those who might be expected to be exposed to danger. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.

    If this be so, we do not have a plaintiff suing by "derivation or succession." Her action is original and primary. Her claim is for a breach of duty to herself—not that she is subrogated to any right of action of the owner of the parcel or of a passenger standing at the scene of the explosion.

    The right to recover damages rests on additional considerations. The plaintiff's rights must be injured, and this injury must be caused by the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property down stream. We are not liable if all this happened because of some reason other than the insecure foundation. But when injuries do result from our unlawful act we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen and unforseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former.

    These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only omniscience can say. You may speak of a chain, or if you please, a net. An analogy is of little aid. [*352] Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing.

    Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources. No man may say whence any drop of water is derived. Yet for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water stained by its clay bed. The three may remain for a space, sharply divided. But at last, inevitably no trace of separation remains. They are so commingled that all distinction is lost.

    As we have said, we cannot trace the effect of an act to the end, if end there is. Again, however, we may trace it part of the way. A murder at Serajevo may be the necessary antecedent to an assassination in London twenty years hence. An overturned lantern may burn all Chicago. We may follow the fire from the shed to the last building. We rightly say the fire started by the lantern caused its destruction.

    A cause, but not the proximate cause. 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. Take our rule as to fires. Sparks from my burning haystack set on fire my house and my neighbor's. I may recover from a negligent railroad. He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad was not the proximate cause of our neighbor's fire. Cause it surely was. The words we used were [*353] simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot say the stream comes from any one source.

    Take the illustration given in an unpublished manuscript by a distinguished and helpful writer on the law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration. A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that C may not recover while A may. As to B it is a question for court or jury. We will all agree that the baby might not. Because, we are again told, the chauffeur had no reason to believe his conduct involved any risk of injuring either C or the baby. As to them he was not negligent.

    But the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it. C's injury and that of the baby were directly traceable to the collision. Without that, the injury would not have happened. C had the right to sit in his office, secure from such dangers. The baby was entitled to use the sidewalk with reasonable safety.

    The true theory is, it seems to me, that the injury to C, if in truth he is to be denied recovery, and the injury to the baby is that their several injuries were not the proximate result of the negligence. And here not what the chauffeur had reason to believe would be the result of his conduct, but what the prudent would foresee, may have a bearing. May have some bearing, for the problem [*354] of proximate cause is not to be solved by any one consideration.

    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. We have in a somewhat different connection spoken of "the stream of events." We have asked whether that stream was deflected—whether it was forced into new and unexpected channels. (Donnelly v. Piercy Contracting Co., 222 N. Y. 210). This is rather rhetoric than law. There is in truth little to guide us other than common sense.

    There are some hints that may help us. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attentuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or by the exercise of prudent foresight could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space. (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, where we passed upon the construction of a contract—but something was also said on this subject.) Clearly we must so consider, for the greater the distance either in time or space, the more surely do other causes intervene to affect the result. When a lantern is overturned the firing of a shed is a fairly direct consequence. Many things contribute to the spread of the conflagration—the force of the wind, the direction and width of streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can.

    Once again, it is all a question of fair judgment, always [*355] keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.

    Here another question must be answered. In the case supposed it is said, and said correctly, that the chauffeur is liable for the direct effect of the explosion although he had no reason to suppose it would follow a collision. "The fact that the injury occurred in a different manner than that which might have been expected does not prevent the chauffeur's negligence from being in law the cause of the injury." But the natural results of a negligent act—the results which a prudent man would or should foresee—do have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? No human foresight would suggest that a collision itself might injure one a block away. On the contrary, given an explosion, such a possibility might be reasonably expected. 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 chauffeur is responsible.

    It may be said this is unjust. Why? In fairness he should make good every injury flowing from his negligence. Not because of tenderness toward him we say he need not answer for all that follows his wrong. We look back to the catastrophe, the fire kindled by the spark, or the explosion. We trace the consequences—not indefinitely, but to a certain point. And to aid us in fixing that point we ask what might ordinarily be expected to follow the fire or the explosion.

    This last suggestion is the factor which must determine the case before us. The act upon which defendant's liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable. If its contents were broken, to the owner; if it fell upon and crushed a passenger's foot, then to him. If it exploded [*356] and injured one in the immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some distance away. How far cannot be told from the record—apparently twenty-five or thirty feet. Perhaps less. Except for the explosion, she would not have been injured. We are told by the appellant in his brief "it cannot be denied that the explosion was the direct cause of the plaintiff's injuries." So it was a substantial factor in producing the result—there was here a natural and continuous sequence—direct connection. The only intervening cause was that instead of blowing her to the ground the concussion smashed the weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And surely, given such an explosion as here it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury in some form was most probable.

    Under these circumstances I cannot say as a matter of law that the plaintiff's injuries were not the proximate result of the negligence. That is all we have before us. The court refused to so charge. No request was made to submit the matter to the jury as a question of fact, even would that have been proper upon the record before us.

    The judgment appealed from should be affirmed, with costs.

    POUND, LEHMAN and KELLOGG, JJ., concur with CARDOZO, Ch. J.; ANDREWS, J., dissents in opinion in which CRANE and O'BRIEN, JJ., concur.

    Judgment reversed, etc.

  • 4 Benn v. Thomas--"The Time-Delayed Heart Attack"

    Should a negligent actor be liable for the unforeseeably severe injuries of unusually sensitive victims?

    1
    512 N.W.2d 537 (1994)
    2
    Carol A. BENN, As Executor of the Estate of Loras J. Benn, Deceased, Appellant,
    v.
    Leland R. THOMAS, K-G, Ltd., and Heartland Express, Inc., of Iowa, Appellees.
    3
    No. 92-933.
    4

    Supreme Court of Iowa.

    5
    February 23, 1994.
    6

    538*538 Gary L. Robinson and Jeffrey P. Taylor of Klinger, Robinson, McCuskey & Ford, Cedar Rapids, for appellant.

    7

    John M. Bickel and Diane Kutzko of Shuttleworth & Ingersoll, Cedar Rapids, for appellees.

    8

    Considered by McGIVERIN, C.J., and HARRIS, LARSON, SNELL, and ANDREASEN, JJ.

    9

    McGIVERIN, Chief Justice.

    10

    The main question here is whether the trial court erred in refusing to instruct the jury on the "eggshell plaintiff" rule in view of the fact that plaintiff's decedent, who had a history of coronary disease, died of a heart attack six days after suffering a bruised chest and fractured ankle in a motor vehicle accident caused by defendant's negligence. The court of appeals concluded that the trial court's refusal constituted reversible error. We agree with the court of appeals and reverse the judgment of the trial court and remand for a new trial.

    11

    I. Background facts and proceedings. On February 15, 1989, on an icy road in Missouri, a semi-tractor and trailer rear-ended a van in which Loras J. Benn was a passenger. In the accident, Loras suffered a bruised chest and a fractured ankle. Six days later he died of a heart attack.

    12

    Subsequently, Carol A. Benn, as executor of Loras's estate, filed suit against defendants Leland R. Thomas, the driver of the semi-tractor, K-G Ltd., the owner of the semi-tractor and trailer, and Heartland Express, the permanent lessee of the semi-tractor and trailer. The plaintiff estate sought damages for Loras's injuries and death. For the purposes of simplicity, we will refer to all defendants in the singular.

    13

    At trial, the estate's medical expert, Dr. James E. Davia, testified that Loras had a history of coronary disease and insulin-dependent diabetes. Loras had a heart attack in 1985 and was at risk of having another. Dr. Davia testified that he viewed "the accident that [Loras] was in and the attendant problems that it cause[d] in the body as the straw that broke the camel's back" and the cause of Loras's death. Other medical evidence indicated the accident did not cause his death.

    14

    Based on Dr. Davia's testimony, the estate requested an instruction to the jury based on the "eggshell plaintiff" rule, which requires the defendant to take his plaintiff as he finds him, even if that means that the defendant must compensate the plaintiff for harm an ordinary person would not have suffered. See Becker v. D & E Distrib. Co., 247 N.W.2d 727, 730 (Iowa 1976). The district court denied this request.

    15

    The jury returned a verdict for the estate in the amount of $17,000 for Loras's injuries but nothing for his death. In the special verdict, the jury determined the defendant's negligence in connection with the accident did not proximately cause Loras's death.

    16

    The estate filed a motion for new trial claiming the court erred in refusing to instruct the jury on the "eggshell plaintiff" rule. The court denied the motion, concluding that the instructions given to the jury appropriately informed them of the applicable law.

    17

    The plaintiff estate appealed. The court of appeals reversed the trial court, concluding that the plaintiff's evidence required a specific instruction on the eggshell plaintiff rule. Two other assignments of error are raised in which we find no merit.

    18

    II. Jury instructions and the "eggshell plaintiff" rule. The estate claims that the court erred in failing to include, in addition to its proximate cause instruction to the jury, a requested instruction on the eggshell plaintiff rule. Such an instruction would advise the jury that it could find that the accident aggravated Loras's heart condition and caused his fatal heart attack. The trial court denied this request, submitting instead a general instruction on proximate cause. The court of appeals reversed, concluding that the trial court erred in refusing to specifically instruct on the eggshell plaintiff doctrine.

    19

    Under Iowa rule of civil procedure 244(h), an aggrieved party may, on motion, have an adverse verdict or decision vacated 539*539 and a new trial granted for errors of law occurring in the proceedings only if the errors materially affected the party's substantial rights. When jury instructions contain a material misstatement of the law, the trial court has no discretion to deny a motion for a new trial. See Brown v. Lyon, 258 Iowa 1216, 1222, 142 N.W.2d 536, 539 (1966). Our review, therefore, is for correction of errors at law. Iowa R.App.P. 4. We find reversible error when the instructions given to the jury, viewed as a whole, fail to convey the applicable law. Sanders v. Ghrist, 421 N.W.2d 520, 522 (Iowa 1988).

    20

    A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be liable in damages for the full disability. Becker, 247 N.W.2d at 731. This rule deems the injury, and not the dormant condition, the proximate cause of the plaintiff's harm. Id. This precept is often referred to as the "eggshell plaintiff" rule, which has its roots in cases such as Dulieu v. White & Sons, [1901] 2 K.B. 669, 679, where the court observed:

    21
    If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.
    22

    See generally 4 Fowler V. Harper et al., The Law of Torts § 20.3, at 123 & n. 25 (2d ed. 1986); W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 43, at 292 (5th ed. 1984) [hereinafter Prosser & Keeton].

    23

    The proposed instruction here stated:

    24
    If Loras Benn had a prior heart condition making him more susceptible to injury than a person in normal health, then the Defendant is responsible for all injuries and damages which are experienced by Loras Benn, proximately caused by the Defendant's actions, even though the injuries claimed produced a greater injury than those which might have been experienced by a normal person under the same circumstances.
    25

    See Iowa Uniform Jury Instruction 200.34 (1993) (citing Becker).

    26

    Defendant contends that plaintiff's proposed instruction was inappropriate because it concerned damages, not proximate cause. Although the eggshell plaintiff rule has been incorporated into the Damages section of the Iowa Uniform Civil Jury Instructions, we believe it is equally a rule of proximate cause. See Christianson v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 69 N.W. 640, 641 (Minn.1896) ("Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.").

    27

    Defendant further claims that the instructions that the court gave sufficiently conveyed the applicable law.

    28

    The proximate cause instruction in this case provided:

    29
    The conduct of a party is a proximate cause of damage when it is a substantial factor in producing damage and when the damage would not have happened except for the conduct.
    30
    "Substantial" means the party's conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.
    31

    See Iowa Uniform Jury Instruction 700.3. Special Verdict Number 4 asked the jury: "Was the negligence of Leland Thomas a proximate cause of Loras Benn's death?" The jury answered this question, "No."

    32

    We agree that the jury might have found the defendant liable for Loras's death as well as his injuries under the instructions as given. But the proximate cause instruction failed to adequately convey the existing law that the jury should have applied to this case. The eggshell plaintiff rule rejects the limit of foreseeability that courts ordinarily require in the determination of proximate cause. Prosser & Keeton § 43, at 291 ("The defendant is held liable for unusual results of personal injuries which are regarded as unforeseeable...."). Once the plaintiff establishes that the defendant caused some injury to the plaintiff, the rule imposes liability for 540*540 the full extent of those injuries, not merely those that were foreseeable to the defendant. Restatement (Second) of Torts § 461 (1965) ("The negligent actor is subject to liability for harm to another although a physical condition of the other ... makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct.").

    33

    The instruction given by the court was appropriate as to the question of whether defendant caused Loras's initial personal injuries, namely, the fractured ankle and the bruised chest. This instruction alone, however, failed to adequately convey to the jury the eggshell plaintiff rule, which the jury reasonably could have applied to the cause of Loras's death.

    34

    Defendant maintains "[t]he fact there was extensive heart disease and that Loras Benn was at risk any time is not sufficient" for an instruction on the eggshell plaintiff rule. Yet the plaintiff introduced substantial medical testimony that the stresses of the accident and subsequent treatment were responsible for his heart attack and death. Although the evidence was conflicting, we believe that it was sufficient for the jury to determine whether Loras's heart attack and death were the direct result of the injury fairly chargeable to defendant Thomas's negligence. See Nicoll v. Sweet, 163 Iowa 683, 684-85, 144 N.W. 615, 616 (1913).

    35

    Defendant nevertheless maintains that an eggshell plaintiff instruction would draw undue emphasis and attention to Loras's prior infirm condition. We have, however, explicitly approved such an instruction in two prior cases. See Woode v. Kabela, 256 Iowa 622, 632, 128 N.W.2d 241, 247 (1964) ("It was proper for the court to instruct with reference to the condition because if the negligent actions of defendant were such that [plaintiff's] former poor physical condition was revived or was enhanced he was entitled to damages because of such condition."); Hackley v. Robinson, 219 N.W. 398, 398-99 (Iowa 1928) (approving instruction allowing plaintiff to recover upon a showing "that the injury directly caused the dormant or inactive tuberculosis to become revivified").

    36

    Moreover, the other jurisdictions that have addressed the issue have concluded that a court's refusal to instruct on the eggshell plaintiff rule constitutes a failure to convey the applicable law. See Priel v. R.E.D., Inc., 392 N.W.2d 65, 69 (N.D.1986) (stating that instructions must advise the jury that defendant "cannot escape the consequences of its negligence merely because its negligence would not have caused that extent of injury to a normal person"); Pozzie v. Mike Smith, Inc., 33 Ill.App.3d 343, 337 N.E.2d 450, 453 (1975) (stating that the failure of the court to instruct on the eggshell plaintiff rule "left the jury without proper judicial guidance").

    37

    To deprive the plaintiff estate of the requested instruction under this record would fail to convey to the jury a central principle of tort liability.

    38

    III. Hearsay objection to deposition evidence. Because it may arise on retrial, we address another of plaintiff's assignments of error, namely, its contention that the district court erred in excluding portions of the deposition testimony of a treating physician, Dr. Webb, on the basis that it was inadmissible hearsay. The estate argues that the defendant, who took the deposition, waived his objection to the deposition testimony by failing to object to the alleged hearsay during the deposition.

    39

    We reject this contention. Hearsay objections need not be made prior to or during a deposition and may be made when the deposition is offered at trial. See Iowa R.Civ.P. 158(e); Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893, 899 (Iowa 1980) (party does not have a duty to object to own questions during a deposition to preserve error for objection at trial).

    40

    IV. Disposition. We have reviewed the third assignment of error raised by plaintiff and conclude that it has no merit.

    41

    The record in this case warranted an instruction on the eggshell plaintiff rule. We therefore affirm the decision of the court of appeals. We reverse the judgment of the district court and remand the cause to the district court for a new trial consistent with this opinion.

    42

    541*541 DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

  • 5 Steinhauser v. Hertz Corp. -- "The Sudden Schizophrenia Case"

    Should a defendant be liable if their wrongful act that triggers a harmful state in a latent condition?

    2

    Page 1169

    5
    421 F.2d 1169

    8
    Cynthia STEINHAUSER, an infant, by Carl P. Steinhauser, her
    guardian ad litem, and Carl P. Steinhauser,
    individually, Plaintiffs-Appellants,
    v.
    The HERTZ CORPORATION, a corporation of the State of
    Delaware authorized to do business in New York,
    and Louis J. Ponzini, Defendants-Appellees.

    11
    No. 381, Docket 33946.

    14
    United States Court of Appeals, Second Circuit.

    17
    Submitted Dec. 18, 1969.
    Decided Jan. 26, 1970.
    19

    Page 1170

    21

            Benjamin H. Siff, New York City (A. Robert Lieberman, New York City, of counsel), for plaintiffs-appellants.

    23

            Benjamin Heller, New York City (Cymrot, Wolin & Simon, New York City, of counsel), for defendants-appellees.

    25

            Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.

    27

            FRIENDLY, Circuit Judge:

    29

            On September 4, 1964, plaintiff Cynthia Steinhauser, a New Jersey citizen then 14 years old, her mother and father were driving south through Essex County, N.Y. A northbound car, owned by defendant Hertz Corporation, a Delaware corporation authorized to do business in New York, and operated by defendant Ponzini, a citizen of New York, crossed over a double yellow line in the highway into the southbound lane and struck the Steinhauser car heavily on the left side. The occupants did not suffer any bodily injuries.

    31

            The plaintiffs' evidence was that within a few minutes after the accident Cynthia began to behave in an unusual way. Her parents observed her to be 'glassy-eyed,' 'upset,' 'highly agitated,' 'nervous' and 'disturbed.' When Ponzini came toward the Steinhauser car, she jumped up and down and made menacing gestures until restrained by her father. On the way home she complained of a headache and became uncommunicative. In the following days things went steadily worse. Cynthia thought that she was being attacked and that knives, guns and bullets were coming through the windows. She was hostile toward her parents and assaulted them; becoming depressed, she attempted suicide.

    33

            The family physician recommended hospitalization. After observation and treatment in three hospitals, with a final diagnosis of 'schizophrenic reaction-- acute-- undifferentiated,' she was released in December 1964 under the care of a psychiatrist, Dr. Royce, which continued until September 1966. His diagnosis, both at the beginning and at the end, was of a chronic schizophrenic reaction; he explained that by 'chronic' he meant that Cynthia was not brought to him because of a sudden onset of symptoms. She then entered the Hospital of the University of Pennsylvania and, one month later, transferred to the Institute of Pennsylvania Hospital for long-term therapy. Discharged in January 1968, she has required the care of a psychiatrist. The evidence was that the need for this will continue, that reinstitutionalization is likely, and that her prognosis is bad.

    35

            As the recital makes evident, the important issue was the existence of a causal relationship between the rather slight accident and Cynthia's undoubtedly serious ailment. 1 The testimony was

    37

    Page 1171

    39241

            Dr. Royce testified that a person may have a predisposition to schizophrenia which, however, requires a 'precipitating factor' to produce an outbreak. As a result of long observation he believed this to have been Cynthia's case-- that 'she was a rather sensitive child and frequently exaggerated things and distorted things that happened within in the family' but that the accident was 'the precipitating cause' of her serious mental illness. Under cross-examination he stated that prior to the accident Cynthia had a 'prepsychotic' personality but might have been able to lead a normal life. Dr. Stevens, attending psychiatrist at the Institute of Pennsylvania Hospital, who had treated Cynthia, in answer to a hypothetical question which included the incidents relied on by the defendants to show prior abnormality, was of the opinion that the accident 'was the precipitating cause of the overt psychotic reaction,' 'the last straw that breaks the camel's back.' 3 In contrast defendants' expert, Dr. Brock, while agreeing that 'with a background of fertile soil' schizophrenia can be induced by emotional strain, was of the opinion, based largely on the matters recited in footnote 2, that Cynthia was already schizophrenic at the time of the accident.

    43

            At the conclusion of the evidence the judge remarked to counsel, outside the presence of the jury, that, as he saw it, the sole question in the case was whether plaintiff had established that defendants caused Cynthia's condition or aggravated a pre-existing one. Even though plaintiffs' experts had testified in terms of precipitating rather than aggravating, it may be that if matters had been left right there, the jury would have understood. However, defendants' counsel, after correctly noting that 'the question is not aggravate but precipitate,' went on to say that, while that had been his understanding of plaintiffs' theory as outlined in counsel's opening statement, he now understood plaintiffs to be taking the position that the accident 'caused schizophrenia.' Taking this up, the judge asked plaintiffs' counsel, 'Isn't it your position that this child was perfectly normal before this accident and that this accident caused schizophrenia?' When counsel responded that 'this child was a fairly normal child, your Honor, and -' the judge demanded a direct answer whether it was

    45

    Page 1172

    47

            The charge followed the black-and-white pattern prefigured in the colloquy. The judge said the plaintiffs claimed the accident caused the schizophrenia whereas defendants contended 'that this plaintiff has had this disease all along.' Defendant was not liable unless it 'proximately caused' the disease. 'Proximately * * * is just a big word for what people use for cause.' If there was a 'logical relationship' between the accident and plaintiffs' 'psychotic injuries,' defendants were responsible. But 'if the child had this condition or disease all along and this defendant did not cause it,' the defendants were not liable. Damages could be awarded only if the accident caused the schizophrenic condition but not if Cynthia 'already had the disease.'

    49

            After several hours of deliberation the jury propounded the following question:

    51

            If we find the auto accident was the precipitating factor, but not the cause of the illness (schzophrenia) must we find for the plaintiff?

    53

            The judge responded by rereading what he had already said on proximate cause. Ten minutes later the jury brought in a defendants' verdict.

    55

            It is plain enough that plaintiffs were deprived of a fair opportunity to have the jury consider the case on the basis of the medical evidence they had adduced. The testimony was that before the accident Cynthia was neither a 'perfectly normal child' nor a schizophrenic, but a child with some degree of pathology which was activated into schizophrenia by an emotional trauma although it otherwise might not have blossomed. Whatever the medical soundness of this theory may or may not be, and there does not seem in fact to have been any dispute about it, see Guttmacher and Weihofen, Psychiatry and the Law 43-55 (1952), plaintiffs were entitled to have it fairly weighed by the jury. They could not properly be pinioned on the dilemma of having either to admit that Cynthia was already suffering from active schizophrenia or to assert that she was wholly without psychotic tendencies. The jury's question showed how well they had perceived the true issue. When they were told in effect that plaintiffs could recover only if, contrary to ordinary experience, the accident alone produced the schizophrenia, the result was predestined.

    57

            It is unnecessary to engage in exhaustive citation of authority sustaining the legal validity of plaintiffs' theory of the case. Since New York law governs, the oft-cited decision in McCahill v. New York Transportation Co., 201 N.Y. 221, 94 N.E. 616, 48 L.R.A.,N.S. 131 (1911), which plaintiffs' appellate counsel has discovered, would alone suffice. There the defendant's taxicab negligently hit McCahill, broke his thigh and injured his knee. After being hospitalized, he died two days later of delirium tremens. A physician testified that 'the injury precipitated his attack of delirium tremens, and understand I mean

    59

    Page 1173

    61463

            Defendants argue that, however all this may be, plaintiffs cannot be heard to complain because of the failure of their counsel to except to the charge and his statement that he had no objection to the judge's handling of the jury's question. This forgets that the purpose of the rule requiring objections is to prevent reversals and consequent new trials because of errors the judge might well have corrected if the point had been brought to his attention. Here counsel had made his position abundantly clear not only in the colloquy we have cited but also in one of his requests to charge, and it was plain that further efforts would be unavailing. See Keen v. Overseas Tankship Corp., 194 F.2d 515 (2 Cir.), cert. denied, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363 (1952). Indeed the judge had warned plaintiffs' attorney not to take exceptions, which F.R.Civ.P. 46 makes unnecessary. In saying this we do not mean to excuse trial counsel for his apparent lack of acquaintance with the relevant authorities and his consequent failure to give the court the full assistance it deserved.

    65

            We add a further word that may be of importance on a new trial. Although the fact that Cynthia had latent psychotic tendencies would not defeat recovery if the accident was a precipitating cause of schizophrenia, this may have a significant bearing on the amount of damages. The defendants are entitled to explore the probability that the child might have developed schizophrenia in any event. While the evidence does not demonstrate that Cynthia already had the disease, it does suggest that she was a good prospect. Judge Hiscock said in McCahill, 'it is easily seen that the probability of later death from existing causes for which a defendant was not responsible would probably be an important element in fixing damages, but it is not a defense.' 201 N.Y. at 224, 94 N.E. at 617. In Evans v. S. J. Groves & Sons Company, supra, we noted that if a defendant 'succeeds in establishing that the plaintiff's pre-existing condition was bound to worsen * * * an appropriate discount should be made for the damages that would have been suffered even in the absence of the

    67

    Page 1174

    69

            Reversed for a new trial.

    71

    ---------------

    73 74

    1 The fact that no physical harm was suffered as a result of the accident does not affect plaintiff's right to recover. New York has abandoned the rule disallowing recovery for mental disturbance in the absence of a physical impact, see Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 (1961), and although some courts deny recovery for mental disturbance unaccompanied by physical injuries, see Prosser, Torts 348-49 (3d ed. 1964); A.L.I. Restatement 2d Torts 436A, New York allows such recovery if the 'mental injury (is) marked by definite physical symptoms, which are capable of clear medical proof,' Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958), quoting Prosser, Torts 212 (1st ed. 1941); see also Battalla v. State, supra, and 'A. A.' v. State, 43 Misc.2d 1004, 252 N.Y.S.2d 800 (Ct.Cl.1964) (awarding damages where slight physical impact 'aggravated and exacerbated that pre-existing condition' to produce schizophrenia).

    76

    2 She was a normal child except one incident when at the age of nine one of the friends of her uncle molested her three times. Two years before while in camp she fell down from a horse. There she liked one horse called Silverfox, which she wanted to buy and felt much attached to him. Against her wishes, she saw that horse sold to another party. She felt depressed. Food seemed the only answer. She ate and felt better. As a result of it she became fat and felt further depressed. Later on she felt attached to a Riviera automobile but the family bought a Cadillac, which she hated very much. 'Horses go away, car goes away but food never does.' One year before she got involved with 'hoods.' They were fast and did everything-- also in quotes. Quote, I felt much better among them. I wished to be liked and did everything to please them, unquote.

    78

    There was evidence that in fact the first incident was exposure by the brother of an uncle rather than molestation.

    80

    3 Plaintiff's medical testimony was introduced over repeated objections by defendants' counsel, far too many of which were sustained. Trial judges should not prevent doctors from using the method of expression normal in their profession and insist on their talking like lawyers.

    82

    4 The seeming severity of this doctrine is mitigated by the prevalence of liability insurance which spreads the risks.

  • 6 Wagner v. International Railway Co.--"The Injured, Would-Be-Rescuer"

    Should defendants be liable for a rescuer who is hurt when attempting to aid victims of defendant's wrongful conduct?

    1

    232 N.Y. 176; 133 N.E. 437; 1921 N.Y. LEXIS 490; 19 A.L.R. 1

    Arthur Wagner, Appellant,
    v.
    International Railway Company, Respondent

    Court of Appeals of New York

    October 24, 1921,
    Argued November 22, 1921, Decided
    2

    Appeal from a judgment, entered March 9, 1920, upon an order of the Appellate Division of the Supreme Courtin the fourth judicial department, overruling plaintiff's exceptions ordered to be heard in the first instance bythe Appellate Division, denying a motion for a new trial and directing judgment in favor of defendant upon theverdict.

    3

    JUDGES: Cardozo, J. Hiscock, Ch. J., Hogan, Pound, McLaughlin, Crane and Andrews, JJ., concur.

    4

    OPINION BY: CARDOZO

    5

    OPINION:

    6

    The action is for personal injuries.

    7

    The defendant operates an electric railway between Buffalo and Niagara Falls. There is a point on its line where an overhead crossing carries its tracks above those of the New York Central and the Erie. A gradual incline upwards over a trestle raises the tracks to a height of twenty-five feet. A turn is then made to the left at an angle of from sixty-four to eighty-four degrees. After making this turn, the line passes over a bridge, which is about one hundred and fifty-eight feet long from one abutment to the other. Then comes a turn to the right at about the same angle down the same kind of an incline to grade. Above the trestles, the tracks are laid on ties, unguarded at the ends. There is thus an overhang of the cars, which is accentuated at curves. On the bridge, a narrow footpath runs between the tracks, and beyond the line of overhang there are tie rods and a protecting rail.

    8

    Plaintiff and his cousin Herbert boarded a car at a station near the bottom of one of the trestles. Other passengers, entering at the same time, filled the platform, and blocked admission to the aisle. The platform was provided with doors, but the conductor did not close them. Moving at from six to eight miles an hour, the car, without slackening, turned the curve. There was a violent lurch, and Herbert Wagner was thrown out, near the point where the trestle changes to a bridge. The cry was raised, "Man overboard." The car went on across the bridge, and stopped near the foot of the incline. Night and darkness had come on. Plaintiff walked along the trestle, a distance of four hundred and forty-five feet, until he arrived at the bridge, where he thought to find his cousin's body. He says that he was asked to go there by the conductor. He says, too, that the conductor followed with a lantern. Both these statements the conductor denies. Several other persons, instead of ascending the trestle, went beneath it, and discovered under the bridge the body they were seeking. As they stood there, the plaintiff's body struck the ground beside them. Reaching the bridge, he had found upon a beam his cousin's hat, but nothing else. About him, there was darkness. He missed his footing, and fell.

    9

    The trial judge held that negligence toward Herbert Wagner would not charge the defendant with liability for injuries suffered by the plaintiff unless two other facts were found: First, that the plaintiff had been invited by the conductor to go upon the bridge; and second, that the conductor had followed with a light. Thus limited, the jury found in favor of the defendant. Whether the limitation may be upheld, is the question to be answered.

    10

    Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid. The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

    11

    The defendant says that we must stop, in following the chain of causes, when action ceases to be "instinctive." By this, is meant, it seems, that rescue is at the peril of the rescuer, unless spontaneous and immediate. If there has been time to deliberate, if impulse has given way to judgment, one cause, it is said, has spent its force, and another has intervened. In this case, the plaintiff walked more than four hundred feet in going to Herbert's aid. He had time to reflect and weigh; impulse had been followed by choice; and choice, in the defendant's view, intercepts and breaks the sequence. We find no warrant for thus shortening the chain of jural causes. We may assume, though we are not required to decide, that peril and rescue must be in substance one transaction; that the sight of the one must have aroused the impulse to the other; in short, that there must be unbroken continuity between the commission of the wrong and the effort to avert its consequences. If all this be assumed, the defendant is not aided. Continuity in such circumstances is not broken by the exercise of volition. So sweeping an exception, if recognized, would leave little of the rule. "The human mind," as we have said, "acts with celerity which it is sometimes impossible to measure." The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion.

    12

    The defendant finds another obstacle, however, in the futility of the plaintiff's sacrifice. He should have gone, it is said, below the trestle with the others; he should have known, in view of the overhang of the cars, that the body would not be found above; his conduct was not responsive to the call of the emergency; it was a wanton exposure to a danger that was useless. We think the quality of his acts in the situation that confronted him was to be determined by the jury. Certainly he believed that good would come of his search upon the bridge. He was not going there to view the landscape. The law cannot say of his belief that a reasonable man would have been unable to share it. He could not know the precise point at which his cousin had fallen from the car. If the fall was from the bridge, there was no reason why the body, caught by some projection, might not be hanging on high, athwart the tie rods or the beams. Certainly no such reason was then apparent to the plaintiff, or so a jury might have found. Indeed, his judgment was confirmed by the finding of the hat. There was little time for delay, if the facts were as he states them. Another car was due, and the body, if not removed, might be ground beneath the wheels. The plaintiff had to choose at once, in agitation and with imperfect knowledge. He had seen his kinsman and companion thrown out into thedarkness. Rescue could not charge the company with liability if rescue was condemned by reason. "Errors of judgment," however, would not count against him, if they resulted "from the excitement and confusion of the moment". The reason that was exacted of him was not the reason of the morrow. It was reason fitted and proportioned to the time and the event.

    13

    Whether Herbert Wagner's fall was due to the defendant's negligence, and whether plaintiff in going to the rescue, as he did, was foolhardy or reasonable in the light of the emergency confronting him, were questions for the jury.

    14

    The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

  • 7 Gibson v. Garcia -- "The Rotten Telephone Pole and the Car"

    Should courts allow intervening, wrongful acts to “supersede” a defendant's negligence, and thereby cut off his liability?

    1
    96 Cal.App.2d 681 (1950)
    3
    ADA GIBSON, Appellant,
    v.
    PAUL GARCIA et al., Defendants; LOS ANGELES TRANSIT LINES (a Corporation), Respondent.
    5
    Civ. No. 17045.
    7

    California Court of Appeals. Second Dist., Div. Three.

    9
    Mar. 28, 1950.
    11

    DeForrest Home for Appellant.

    13

    Melvin L. R. Harris for Respondent.

    15

    SHINN, P. J.

    17

    Appeal from a judgment in favor of defendant Los Angeles Transit Lines, following an order sustaining its demurrer to plaintiff's complaint for personal injuries without leave to amend. Appellant recovered judgment by default against defendants Paul and C. M. Garcia in the sum of $25,000, which remains wholly unsatisfied.

    19

    Respondent corporation operates a general street railway system in Los Angeles, and maintains wooden poles adjacent to the curbing on Whittier Boulevard near the corner of Spence Street, as part of its system. Appellant was standing on the sidewalk near one of these poles when a 1938 Plymouth automobile, negligently driven by Paul Garcia, collided with the pole. It broke a short distance above the ground and fell on appellant, causing severe injuries. Paragraph IV of the complaint alleges: "That at the time of the aforesaid accident, defendant, Los Angeles Transit Lines, carelessly and negligently maintained the aforesaid wooden pole in that said pole was rotten and its strength had become badly impaired by rot or termites; that said pole had been in a rotten condition for a long period of time which condition was known to defendant, Los Angeles Transit Lines, or by the exercise of reasonable care, should have been known to said defendant; that said Whittier Boulevard is a main and heavily traveled highway used by thousands of automobiles daily and said defendant, Los Angeles Transit Lines, in the exercise of reasonable care, should have anticipated that accidents would occur upon said highway and that automobiles would be likely to come 683*683 over the curbing and strike said pole and that if said pole was permitted to remain in a weakened condition as aforesaid that it would constitute a hazard to persons on the sidewalk and that the same was likely to be caused to fall upon or against said persons, and in particular, upon plaintiff; that the negligence of the defendant, Los Angeles Transit Lines, as aforesaid in maintaining said wooden pole in the condition above described together with the negligence of defendant Paul Garcia, in the operation of his said automobile contributed concurrently to cause the injuries to plaintiff hereinafter complained of."

    21

    [1] It was the duty of respondent to select and maintain poles sufficiently strong to withstand the ordinary strain of weather conditions and other tests of strength likely to be encountered along a busy highway. (Keller v. Pacific Tel. & Tel. Co., 2 Cal.App.2d 513, 519 [38 P.2d 182].) It was bound to exercise ordinary care to keep its poles in a safe condition, so as not to expose passersby to an unreasonable risk of harm. The extent of this duty is measured by the standard of foreseeability of injury to the eyes of a reasonably prudent man having regard for the accompanying circumstances. (Mosley v. Arden Farms Co., 26 Cal.2d 213, 216 [157 P.2d 372, 158 A.L.R. 872]; 1 Shearman & Redfield on Negligence, 24; Rest., Torts, 284, 289, 290.) Of course, "[d]efendant is not bound to build its line so strong that it cannot be blown or broken down. It does not insure the safety of travelers on the highway from injuries if its poles and wires are properly and lawfully placed, but it is bound to use reasonable care. ... Its poles, wires and equipment must be strong enough to withstand any violence which reasonably may be anticipated." (Ray v. New York Telephone Co., 260 App.Div. 405 [23 N.Y.S.2d 508, 509], paraphrasing Ward v. Atlantic & Pacific Telegraph Co., 71 N.Y. 81 [27 Am.Rep. 10]; see, also, Stewart v. San Joaquin L. & P. Co., 44 Cal.App. 202, 207 [186 P. 160]; Royal Indemnity Co. v. Midland Counties Public Serv. Corp., 42 Cal.App. 628, 632-633 [183 P. 960].) [2] Under the allegations of the complaint, plaintiff would be entitled to prove that respondent's pole was in such an advanced state of deterioration that it could be caused to fall by a relatively light force, such as an ordinary rain or wind storm might produce, or that it might even be upon the verge of falling of its own weight; that respondent knew, or should have known of such condition; and that reasonable precautions were not 684*684 taken. Such proof would justify a conclusion that respondent was negligent. Whether the test of ordinary care was met was an issue for the trier of fact. (19 Cal.Jur. 134, p. 723.)

    23

    It is respondent's contention that, as a matter of law, any negligence of which it may have been guilty could not have been the proximate cause of plaintiff's injuries. The termite-weakened pole, it is argued, furnished only the condition upon which the unforeseeable intervening act of Paul Garcia operated independently to cause the harm. In the cases upon which respondent relies in support of this proposition (Sweet v. Los Angeles Railway Co., 79 Cal.App.2d 195 [179 P.2d 824]; Hayden v. Paramount Productions, Inc., 33 Cal.App.2d 287 [91 P.2d 231]; and Klarquist v. Chamberlain & Proctor, 124 Cal.App. 398 [12 P.2d 664]), it was determined, either as a matter of law or as a matter of fact, that the condition created by defendant was not, of itself, likely to result in the injury which occurred, and the sole proximate cause of the injury was the intervening act. We must take the facts as they are alleged in the complaint, and as will be developed, the presented questions of fact on the issues of negligence and of proximate cause.

    25

    [3] It is well settled that proximate causation is not always arrested by the intervention of an independent force. If the original negligence continues to the time of the injury and contributes substantially thereto in conjunction with the intervening act, each may be a proximate concurring cause for which full liability may be imposed. (Gerberich v. Southern Calif. Edison Co., 5 Cal.2d 46 [53 P.2d 948]; Lacy v. Pacific Gas & Electric Co., 220 Cal. 97 [29 P.2d 781]; De Corsey v. Purex Corp., 92 Cal.App.2d 669, 675 [207 P.2d 616].)

    27

    [4] Respondent appears to contend that it is absolved from liability since it was not foreseeable that a motorist would negligently collide with its pole with such force as to cause it to fall upon plaintiff. However, in order to prevent an intervening act from being a superseding cause which will relieve the defendant of responsibility for his negligence, the law does not inevitably require that the precise act be foreseeable. Numerous cases have declared that if the defendant's conduct exposes persons in the class to which plaintiff belongs to a foreseeable risk of injury, and his act or omission contributes substantially to injury of that nature actually occurring, he may be held liable notwithstanding the fact that an unforeseeable independent intervening act is a concurring 685*685 cause. (Prosser on Torts, pp. 369-372, and cases cited; Sandel v. State, 115 S.C. 168 [104 S.E. 569, 13 A.L.R. 1268].) As the Supreme Court stated in Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 602 [110 P.2d 1044], "the fact that neither party could reasonably anticipate the occurrence of the other concurrent cause will not shield him from liability so long as his own negligence was one of the causes of the injury. (Herron v. Smith Bros., Inc., 116 Cal.App. 518 [2 P.2d 1012]; Sawdey v. Producers' Milk Co., 107 Cal.App. 467 [290 P. 684].)" (See, also, Rodriguez v. Savage Transportation Co., 77 Cal.App.2d 162, 168-169 [175 P.2d 37].)

    29

    The principle is recognized in section 435 of the Restatement of Torts: "If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable." (Emphasis added.) Thus, in Carroll v. Central Counties Gas Co., 74 Cal.App. 303 [240 P. 53], which also arose on demurrer, it appeared that the car in which plaintiff was riding went through the railing of a bridge and in falling struck and broke defendant's gas pipe line which was suspended near the bridge, resulting in a fire from which plaintiff's injuries were sustained. Deciding that the complaint presented a question of fact whether defendants had been negligent in the maintenance of its pipe line, the court rejected defendant's contention that since the chain of events leading up to the accident was not foreseeable, it was not liable. It was held that if defendant could reasonably have foreseen that its conduct involved the likelihood of some danger to users of the highway, it would be liable, since its negligence was continuous to the time of the accident, and the type of injury which occurred was foreseeable and hence a natural and probable consequence of its wrongful act. Additional authorities applying the same rule include Johnson v. Kosmos Portland Cement Co., (6 Cir.) 64 F.2d 193, explosive gases in empty oil barge exploded by a bolt of lightning; Mummaw v. Southwestern Telegraph & Telephone Co., (Mo.App.) 208 S.W. 476, rotten pole caused to fall by unforeseeable fire; Higgins v. Dewey, 107 Mass. 494 [9 Am.Rep. 63], negligently guarded fire caused to spread in unforeseeable manner; Munsey v. Webb, 231 U.S. 150 [34 S.Ct. 44, 58 L.Ed. 162], passenger unforeseeably collapses with head protruding from unguarded open elevator door; Dalton v. Great Atlantic & Pacific Tea Co., 241 Mass. 400 [135 N.E. 318], plaintiff injured 686*686 by awning negligently left over street and thereafter pulled down by unforeseeable third party; Moore v. Townsend, 76 Minn. 64 [78 N.W. 880], ladder blown down by unusually strong wind; Derosier v. New England T. & T. Co., 81 N.H. 451 [130 A. 145], electrocution due to negligent maintenance of pole by defendant together with unforeseeable failure of traction company, which jointly occupied the pole, to insulate its equipment; McDowell v. Village of Preston, 104 Minn. 263 [116 N.W. 470, 18 L.R.A.N.S. 190], horse, frightened by unforeseeable raising of umbrella, running into structure negligently permitted in street by defendant; Washington & G. R. Co. v. Hickey, 166 U.S. 521 [17 S.Ct. 661, 41 L.Ed. 1101], unforeseeable closing of gates while defendant's horsecar is negligently crossing railroad tracks; Elder v. Lykens Val. Coal Co., 157 Pa. 490 [27 A. 545], refuse negligently thrown into stream carried on to plaintiff's land by extraordinary flood; Salisbury v. Herchenroder, 106 Mass. 458 [8 Am.Rep. 354], sign negligently maintained over street in violation of ordinance blown down by gale of unforeseeable proportions; and Virginian Ry. Co. v. Staton, (4 Cir.) 84 F.2d 133, injury occurring in unforeseeable manner from negligently protruding railroad spike. It must be conceded, of course, that if the intervening act is reasonably foreseeable, its occurrence will not shield the defendant from liability, for under such circumstances his negligence consists of a failure to guard against the very hazard that the act will occur. (Rest., Torts, 449, and comment a.) On the other hand, as we have seen, it may not be safely assumed that the unforeseeability of the intervening agency is always a reliable criterion of nonliability.

    31

    Although language found in some of the California cases which discuss concurrent causes may not be entirely reconcilable with the views here expressed, we are satisfied that the decisions themselves are not in conflict with the principles we have stated. Without unduly extending this opinion we may say that the facts alleged in the present case distinguish it from cases where the intervening act was committed either deliberately or with knowledge of the existing danger (Polloni v. Ryland, 28 Cal.App. 51 [151 P. 296]; Loftus v. Dehail, 133 Cal. 214 [65 P. 379]; Stultz v. Benson Lumber Co., 6 Cal.2d 688 [59 P.2d 100]; Catlin v. Union Oil Co., 31 Cal.App. 597 [161 P. 29]; Newman v. Steuernagel, 132 Cal.App. 417 [22 P.2d 780]; Hale v. Pacific Tel. & Tel. Co., 42 Cal.App. 55 [183 P. 280]. Cf., Katz v. Helbing, 205 Cal. 629, 636 [271 P. 1062, 62 A.L.R. 825]); and from cases where the defendant was 687*687 simply not negligent, and the subsequent act was thus the sole proximate cause of the injury (Camp v. Peel, 33 Cal.App.2d 612 [92 P.2d 428]; McMillan v. Thompson, 140 Cal.App. 437 [35 P.2d 419]).

    33

    [5] Whether an intervening act is a concurrent cause or a superseding cause of the injury normally presents a question of fact. (Stockwell v. Board of Trustees, 64 Cal.App.2d 197, 205 [148 P.2d 405], and cases cited.) [6] If the trier of fact in the present case were to find that a pole carefully maintained in sound condition would have broken under the impact of the collision, and that plaintiff's injuries would thus have been sustained even though respondent had not been negligent, the latter's breach of duty could not be regarded as a substantial cause. (Rest., Torts, 432, subd. (1).) On the other hand, if it were found that a sound pole would not have broken, and that harm to plaintiff would thus have been prevented by careful maintenance, respondent's omission could be considered a substantial concurring cause. (Carpenter, 20 Cal.L.Rev. 396-397, 38 Am.Jur., 54, p. 701, 64, p 716.) As said in Keller v. Pacific Tel. & Tel. Co., supra, 2 Cal.App.2d 513, 519, which involved a strikingly similar factual situation, "it is a proper question to submit to the jury as to whether the pole would have broken as a result of the blow received from the automobile under the circumstances of this case, if it had been reasonably sound throughout."

    35

    As we have seen, the allegations of the complaint were broad enough to admit of proof from which it could be found that respondent should have reasonably anticipated that its defective pole would be caused to fall and injure passing individuals such as plaintiff, either of its own weight, or by the forces of nature, or by the operation of any one of a number of other possible extraneous forces. If defendant failed to act as a reasonably prudent person to protect plaintiff and others from this hazard, it could be held liable for the injuries resulting from its occurrence. (See Mars v. Meadville Tel. Co., 344 Pa. 29 [23 A.2d 856], rotten pole caused to fall by cow bumping it.)

    37

    The judgment is reversed with directions to the trial court to overrule the demurrer.

    39

    Wood, J., and Vallee, J., concurred.

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