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|1||Show/Hide More||I. Introduction; Assault and Battery I: Reconciling Harm with Culpability/Intro to the course|
|1.1||Show/Hide More||Righting (or Punishing) the Wrong|
|1.1.1||Show/Hide More||Vosburg v. Putney--"The Schoolboy Kicker"|
|1.1.2||Show/Hide More||Alcorn v. Mitchell--"The Angry Spitter"|
|1.2||Show/Hide More||The Boundaries of Battery and Assault|
|1.2.1||Show/Hide More||Picard v. Barry Pontiac-Buick, Inc.--"The Camera Toucher"|
|1.2.2||Show/Hide More||Garratt v. Dailey--"The Chair-Pulling Five Year Old"|
|1.3||Show/Hide More||The Restatement Approach to Assault and Battery|
|2||Show/Hide More||II. Assault and Battery: Intent and Autonomy|
In the absence of statutes that delineate acceptable from unacceptable behavior – that’s the realm of criminal law, and still plenty complicated – tort law often requires a court to make distinctions on the fly as individual cases come up. Here we look at a cluster of problems arising generally from situations in which society might say the wrongness of an act may be minimal or entirely lacking – yet a victim steps forward to earnestly claim that his or her wishes about bodily integrity have been disrespected.
The rough and tumble of daily life – “the implied license of the playground” – allows some license for those who offend with physical contact, including against the especially sensitive. When does that license end, particularly if a plaintiff’s special sensitivities are known to a defendant? Are there any larger principles at work to help us resolve conflicts in this zone, or that at least capture the instincts that might find themselves in opposition?
|2.1||Show/Hide More||Latent Sensitivities and Reservations|
|2.1.1||Show/Hide More||Wishnatsky v. Huey--"The Overly-Sensitive Intruder"|
|2.1.2||Show/Hide More||O'Brien v. Cunard--"The Silent Vaccine Objector"|
|2.2||Show/Hide More||The Spectrum Between Subjective and Objective|
|2.2.1||Show/Hide More||Leichtman v. WLW Jacor Communications, Inc.--"The Smoke in the Face Case"|
|2.2.2||Show/Hide More||Werth v. Taylor--"The Blood-Transfusion-Refusing Jehovah's Witness"|
|2.3||Show/Hide More||Beyond Physical Contact Or The Threat Thereof|
|2.3.1||Show/Hide More||Womack v. Eldridge--"The Distressing Accusation of Molestation"|
|3||Show/Hide More||III. False Imprisonment: Taking Care of Others|
Assault and battery are broad torts: they can be used to cover many different situations, perhaps including ones in which barriers or the threat of force are used to force someone to go where he or she doesn’t want to go, or to keep a person in one place without assent. Yet tort law has evolved a more specific tort to cover that particular set of situations: false imprisonment.
What, if anything, does false imprisonment accomplish as a category that assault and battery cannot? What plausible situations could arise that would test a colloquial notion of what counts as false imprisonment, and how can we best sort those out? Are there “good” imprisonments that can come up in everyday life that should be excused from the tort’s reach?
|3.1||Show/Hide More||The Clashing of Wills|
|3.1.1||Show/Hide More||Lopez v. Winchell's Donut House--"The Accused Employee Who Freely Left"|
|3.1.2||Show/Hide More||Parvi v. City of Kingston--"The Dropped Off Drunk"|
|3.2||Show/Hide More||Defining "Confinement"|
|3.2.1||Show/Hide More||Shen v. Leo A. Daly Co.--"The Confined-to-Taiwan Case"|
|3.2.2||Show/Hide More||Peterson v. Sorlien--"The Unsuccessfully Deprogrammed Daughter"|
|3.3||Show/Hide More||"Good" Imprisonments - Exceptions to False Imprisonment Liability|
|3.3.1||Show/Hide More||Eilers v. Coy--"The Falsely Consenting Cultist"|
|4||Show/Hide More||IV. Defenses: Overriding the Choices of Others|
Nearly any defined pattern of wrongdoing is likely to admit exceptions. That’s in part what can make it so difficult to simply stipulate by legal text ahead of time what behavior is allowed and what is not. But we can try. Efforts to taxonomize carve-outs from legal rules or standards can be worked into the prima facie – “at first glance” – case for a wrong. For example, we might start by defining a battery as an “…unconsented touching… .” Exceptions can also be enshrined as affirmative defenses: all the requirements of a prima facie case might be met, but a defense may then be invoked against it. In this configuration, a battery could be a mere “touching,” but a case for damages would be derailed if the defendant can show consent by the plaintiff. Is there any meaningful difference between defining a tort in a way that captures exceptions in the definition itself, compared to a simpler definition accompanied by a set of defenses?
Here we look at some of the most common defenses to a range of intentional torts, and their limits. When, for example, should consent of the victim not be enough to eliminate liability for a wrongdoer? What happens when someone hurts someone else in an act of self-defense, but has made a mistake about the intentions of the person acted against? At what point should one’s personal or property rights yield to an emergency in which someone else’s life or property is at stake? This last question also offers us an opportunity to think in a more nuanced way about “plaintiffs” and “defendants” – in many situations the parties are interacting with one another, and each is prepared to claim wrong by the other. A court, then, might find each party as both plaintiff and defendant against the other, and one could imagine a range of actions that ought to be demanded or incented in order to reach a just outcome. Part of the nuance here is to recognize that the law can indeed alternatively “demand” and “incent”: the first, even in civil tort, could be backed up by a threat of jail time or crippling fines; the second, imposed as a carefully calibrated “cost of doing business.” By charging the “right” amount of damages for a harm, is it sensible to then speak of achieving the proper – “efficient,” even – level or amount of such harm in society?
|4.2||Show/Hide More||Preservation of Bodily Integrity|
|4.2.1||Show/Hide More||Courvoisier v. Raymond--"The Mistaken Self-Defender"|
|4.3||Show/Hide More||Preservation of Property|
|4.3.1||Show/Hide More||Ploof v. Putnam -- "The Private Island in a Storm"|
|4.3.2||Show/Hide More||Vincent v. Lake Erie Transp. Co.--"The Boat-Slamming-Against-the-Dock Case"|
|4.4||Show/Hide More||Beyond the Common Law - Statutory Exceptions and Constitutional Protections|
|4.4.1||Show/Hide More||Barbara A. v. John G.--"The Lying, Impregnating Attorney"|
|5||Show/Hide More||V. Trespass to Chattels: The Limits of Self-Help|
Lawsuits are expensive and unwieldy. They take a lot of time – years, even. They are emotionally draining, sometimes devastating – even for winners. And a court and its enforcement mechanisms may not be available in an exigently-unfolding situation. In light of this, the law contemplates that private actors faced with perceived wrongdoing might be given license to take matters into their own hands. Recognizing the defense of self-defense in battery is one way that the law understands that it can be better, or at least acceptable, for people to help themselves. What about less dire situations than defense of life or bodily integrity? Is it OK to chase after someone who has stolen something? To set a trap on one’s own property to deter or incapacitate wrongdoers, especially if the trap is only sprung against people who are manifestly in a place where they have no permission to be? How much should barriers to effective legal enforcement — expressed as defenses to otherwise-valid tort claims — grant license to individual action, even vigilantism?
This section’s cases look at these questions through some classic formulations – a spring-gun, for example – and through some more recent ones: the problems arising from spam. In the latter cases, we look both at how this new and vexing phenomenon might be worked into the canon of tort, in particular, trespass to chattel, and also how the law should view acts of self-help taken against spammers.
|5.1||Show/Hide More||Glidden v. Szybiak--"The Dog Ear Puller"|
|5.2||Show/Hide More||Katko v. Briney--"The Spring-Gun Case"|
|5.3||Show/Hide More||CompuServe v. CyberPromotions--"The Damaging Spam Case"|
|5.4||Show/Hide More||Intel Corp. v. Hamidi (Court of Appeal)--"The Critical Emails Case"|
|6||Show/Hide More||VI. Negligence: The Standard of Reasonable Care|
We now shift gears away from intentional wrongdoing and its defenses and toward what many consider to be the heart of tort law, both in volume of cases (and damages) and in conceptual challenge: negligence. Under what circumstances should someone’s actions be deemed careless enough to warrant damages, while falling short of the level of riskiness (or even certainty of harm) associated with intentional tort? At the core of negligence is a deceptively simple-sounding standard: to behave reasonably.
Negligence law naturally draws in a group of defendants rarely seen in intentional tort: corporations. Can a standard of reasonableness be as intuitively grasped by a jury for judgment of a firm’s behavior as for a person’s actions? How much of the application of that standard should be left to a jury, and how much to a judge, who can decide whether a fact pattern – even one most sympathetic to a plaintiff – merits a jury’s look at all?
The cases in these sections look at how the law conceives of a negligence standard by examining cases in which judges had to decide whether a jury should hear the case – or, if they heard it, whether they applied the standard correctly. Included is a case famed among legal scholars but typically unknown to senior practitioners: U.S. v. Carroll Towing. Carroll Towing introduces a formula by which one judge thought negligence might be further fleshed out – “unreasonable” behavior unpacked. How helpful is Judge Hand’s formula of b<pl? When, if ever, should a jury be exposed to it? Are there elements of unreasonable behavior not always captured by those three variables?
|6.1||Show/Hide More||The Murky Line Between Intentional Torts and Negligence|
|6.1.1||Show/Hide More||Topps v. Ferraro--"The Unintentional Punch in the Face"|
|6.2||Show/Hide More||Understanding the Standard|
|6.2.1||Show/Hide More||Chicago, B. & Q. R. Co. v. Krayenbuhl--"The Foot-Severing Turntable"|
|6.2.2||Show/Hide More||United States v. Carroll Towing Co., Inc.--"The Learned Hand Formula Case"|
|6.2.3||Show/Hide More||Adams v. Bullock--"The Swinging Wire Case"|
|6.3||Show/Hide More||Judge or Jury: Who Should Decide?|
|6.4||Show/Hide More||The Restatement Approach to the Standard of Reasonable Care|
|7||Show/Hide More||VII. Negligence: Adjusting the Standard?|
Although “reasonable care” may sound like a simple, straightforward standard, its simplicity is also its problem: there may be situations in which we wish there were more guidance to settle upon a judgment of negligence, even with the facts clearly presented. Suppose a six-year-old playing a game of tag in the local park knocks over a responsibly-behaving passerby. Does reasonable care naturally scale to meet a six-year-old's capacities? Should it?
The question of how to judge a six-year-old opens the door to a broader question that has the ring of applied philosophy to it: to what extent should society forgive, and reflect in its standards, the infirmities and limitations of a defendant? How much should expectations be raised for those with extra abilities?
|7.1||Show/Hide More||Challenges in Conveying the Standard|
|7.1.1||Show/Hide More||Vaughan v. Menlove--"The Unreasonable Hay Stacker"|
|7.1.2||Show/Hide More||Wood v. Groh--"The Gun from the Cabinet"|
|7.1.3||Show/Hide More||Ellis v. D'Angelo-- "The 4-Year-Old Bone Breaker"|
|7.2||Show/Hide More||The Effect of Defendant's Infirmities and Limitations on the Standard|
|7.2.1||Show/Hide More||McCarty v. Pheasant Run--"The Chained, But Unlocked, Sliding Door"|
|7.2.2||Show/Hide More||Bashi v. Wodarz--"The Driver Who Wigged Out"|
|7.2.3||Show/Hide More||Miller v. Reilly--"The Defective Brakes Case"|
|8||Show/Hide More||VIII. Res Ipsa Loquitur|
|8.1||Show/Hide More||"The Thing Speaks for Itself" - The Basic Rule of Res Ipsa Loquitur|
|8.1.1||Show/Hide More||Byrne v. Boadle--"The Falling Flour Barrel"|
|8.2||Show/Hide More||Questions About Control - The "Exclusive Control" Requirement|
|8.2.1||Show/Hide More||Larson v. St. Francis Hotel--"The Falling Armchair"|
|8.2.2||Show/Hide More||Connolly v. Nicollet Hotel--"The Chaotic Convention"|
|8.3||Show/Hide More||The Problem of Multiple Defendants|
|8.3.1||Show/Hide More||Ybarra v. Spangard--"The Unconscious, but Injured Patient"|
|8.3.2||Show/Hide More||Fireman's Fund American Insurance Cos. v. Knobbe--"The One-of-Four Smokers Case"|
|9||Show/Hide More||IX. Negligence Per Se|
This section explores yet another way in which – sometimes – the vague negligence standard of reasonableness can be supplemented: negligence per se. In those rare (and happy?) occasions in which a rule of behavior is laid down by, say, statute – for the purpose of safety, and perhaps as part of the criminal canon – we see courts willing to adopt the law itself as the standard of care. When this is done, it does not merely provide a basis for inference as res ipsa does, but rather substitutes for the standard itself. If the conditions for NPS are met and the law can be shown to be broken, the defendant is liable (or, if contributory negligence is claimed by the defendant as arising from negligence per se, the plaintiff’s case is lost). To be sure, not violating a statute typically does not establish the absence of negligence — the common law still exists for that.
The cases here provide good examples of when the doctrine works – and when exceptions to its application are sought and granted.
|9.1||Show/Hide More||The Basic Doctrine|
|9.1.1||Show/Hide More||Martin v. Herzog--"The Buggy Without Lights"|
|9.2||Show/Hide More||The Objective of the Statute|
|9.2.1||Show/Hide More||Platz v. City of Cohoes--"The Sunday Carriage Accident"|
|9.2.2||Show/Hide More||Brown v. Shyne--“The Unlicensed, Paralyzing Chiropractor”|
|9.2.3||Show/Hide More||Rushink v. Gerstheimer--"The Key in the Ignition Case"|
|9.2.4||Show/Hide More||Robinson v. District of Columbia--"The Jaywalking Custom Case"|
|9.2.5||Show/Hide More||Tedla v. Ellman--"Walking on the Other Side of the Highway"|
|10||Show/Hide More||X. Duty: Introduction; Action vs. Inaction|
We now look at a conceptually distinct (at least most of the time) inquiry in a negligence case from that of reasonableness and the standard of care: did the defendant owe a duty to the plaintiff? This question can be asked independently of whether the defendant acted reasonably. Imagine it in this form: “Suppose all you say is true and I behaved unreasonably. You still don’t have a case.”
Why wouldn’t the plaintiff have a case? Circularly, because the defendant is said not to bear a duty to the plaintiff. The circumstances in which this is true are numerous and often unrelated. For example, a lack of duty can be found in cases of immunity, such as when the “sovereign immunity” of government is found to preclude any claims from being lodged against it.
Certain types of negligently-inflicted harm, standing alone, have traditionally been thought to be unsuitable for resolution in tort: purely emotional harm, for example, or purely economic harm. (Consider how each of the cases in the preceding section involved at least some claimed physical harm as an anchor for the case.) Further, cases in which harm is mediated through another person are also sometimes thought to fall within a no-duty rule for the upstream wrongdoer, e.g. whether a bartender should face liability for serving drinks to someone who ends up causing a car accident. These are found in the “duty” section when the identities or configuration of the parties lends itself to a policy judgment about the merits of weighing reasonableness at all.
We will examine each of these situations. But we start with yet another example of I-might-be-wrong-but-you-still-can’t-sue-me: cases in which the wrong arises from inaction rather than action. Is it possible to be held liable for just sitting around? Couch potatoes, take heart: you may not owe a duty to anyone as you unreasonably take in reality TV while pleas for help and assistance coalesce right next to you.
|10.1||Show/Hide More||Action Versus Inaction|
|10.1.1||Show/Hide More||Moch Co. v. Rensselaer Water Co.--"The Failure to Supply Water During a Fire"|
|10.1.2||Show/Hide More||Strauss v. Belle Realty Co.-- "The Man who Tripped Down the Stairs"|
|10.1.3||Show/Hide More||Union Pacific Railway v. Cappier--"The Railroad that Ran Over a Man and Let Him Bleed to Death"|
|10.2||Show/Hide More||Special Relationships and Other Exceptions|
|10.2.1||Show/Hide More||Harper v. Herman--"The Boat Owner Who Failed to Warn"|
|10.2.2||Show/Hide More||Farwell v. Keaton--"The Fatal Pickup Attempt"|
|10.2.3||Show/Hide More||Randi W. v. Muroc Joint Unified School District--"The Alleged Sexual Predator's Recommenders"|
|11||Show/Hide More||XI. Duty to Control Others|
At common law, a person does not generally have an affirmative duty to control the conduct of another. An exception to this rule exists when a special relationship between parties is sufficient to establish a duty of care. Such a duty can be symmetrical (husband-wife) or asymmetrical (adult-minor, doctor-patient). The nature of the relationship determines the nature of the duty owed.
Tarasoff lays out the doctrine and arguments for and against the rule. Broadbent focuses on whether parents have a duty to protect their children from hurting themselves. Hawkins shows the bounds of a doctor’s duty to her patient, including the recurring theme of foreseeability of harm to a known plaintiff. The contrasting approaches in Charles and Kelly show the majority and minority (New Jersey) rules for social host liability. Einhorn discusses the landlord-tenant relationship and the limits of the duty within it. The extent to which the owner-invitee relationship requires protecting invitees from third party criminal acts is explored in Boyd.
|11.1||Show/Hide More||Duty Arising from and Limited by Special Relationships|
|11.1.1||Show/Hide More||Tarasoff v. Regents of University of California--"The Psychiatrist's Failure to Warn the Murder Victim"|
|11.1.2||Show/Hide More||Broadbent v. Broadbent--"The Elimination of Parental Immunity Case"|
|11.1.3||Show/Hide More||Hawkins v. Pizarro--"The Failure to Correctly Report Hepatitis C Test Results"|
|11.1.4||Show/Hide More||Einhorn v. Seeley--"The Locksmith's Failure to Properly Install a Lock"|
|11.1.5||Show/Hide More||Boyd v. Racine Currency Exchange--"The Non-Compliant Bank Teller and the Murdered Hostage"|
|11.2||Show/Hide More||Controlling the Intoxicated|
|11.2.1||Show/Hide More||Kelly v. Gwinnell--"The Don't let Friends Drink and Drive Case"|
|11.2.2||Show/Hide More||Charles v. Seigfried--"The Tragic Fate of the Minor Guest"|
|12||Show/Hide More||XII. Duty: Governmental Liability|
Government entities perform unique functions for, and perhaps accrue responsibilities to, their citizenries. When they are said to bungle them, can they be called to answer in tort for resulting harm? The answer, of course, is complicated. An early posture of sovereign immunity, drawn from a regent’s being above (or at least the source of) the law, meant that without more, suits alleging negligence by government actors might flatly fail. Exceptions to sovereign immunity have been created piecemeal, sometimes by judges acting at common law, and sometimes by statute, whether state or Federal for their respective jurisdictions.
One typical dividing line for liability is whether a government is acting in a “proprietary” capacity – i.e. as a private actor. If I slip on a freshly mopped but unmarked floor in the post office, why should sovereign immunity kick in for the Postal Service when a regular shopkeeper would have to answer for negligence? Another tends to invoke our previous duty analysis of action vs. inaction: police protection may not be proprietary (the existence of private security firms notwithstanding), but a failure to respond to a 911 call may count as “inaction” rather than action. At the very least, we must explore, as a matter of law, the extent of legal duty accepted by a municipality when it undertakes to offer policing services. (Indeed, would a failure to offer any services at all, as compared to offering them poorly, be subject to suit?) Our first cluster of readings examines some of these problems, along with the rationales for shielding some acts or omissions in policing from suit. It may be that act/omission isn’t really the key distinction. Rather, concern about judicial intrusion into budgeting and planning by the executive and legislative branches may be the touchstone.
|12.1||Show/Hide More||Riss v. City of New York--"The Lye in the Face Case"|
|12.2||Show/Hide More||Schuster v. City of New York-- "The Death of the Police Informant"|
|12.3||Show/Hide More||Weiner v. Metro. Transit Authority--"The Unmanned Train Station"|
|12.4||Show/Hide More||Garcia v. Superior Court of Santa Clara County--"The Fatally Wrong Parole Officer"|
|12.5||Show/Hide More||Florence v. Goldberg--"The Police-Manned Crosswalk"|
|13||Show/Hide More||XIII. Duty: Emotional and Economic Harm|
A background feature in our cases so far has been physical harm to the plaintiff. Our breakdown of the cause of action for Negligence (“big-N”) comprises duty, breach (“little-n negligence”), cause-in-fact, proximate cause, and harm. So if there are ways in which courts don’t wish to consider non-physical harm, why not save that for the fifth element of harm instead of our current exploration of the first, of duty? The answer lies in the catch-all function that duty plays: it’s meant to be an on/off gate, something determined as much as possible as a matter of law and early in a case, to see whether a case can be dismissed – even if the facts are as the plaintiff alleges.
Traditionally, claims for purely emotional harm, with no corresponding physical element, were dismissed in just this fashion. Thus a review of claimed harm is analytically parked in the duty category, even as it becomes, awkwardly, a “no” answer to the ungainly question: “Does a defendant have a duty not to inflict purely emotional harm upon someone?” However awkward, the initial rule was simple: if there were no physical element to the defendant’s behavior towards the plaintiff (at least harm, and sometimes more broadly no physical “impact”), then there’s no case. Today’s situation is much more nuanced, as courts overcame a reluctance to entertain such cases and started, in common law fashion, to consider fact patterns in which a case could go forward despite no physical element. (But note: we are speaking here of purely emotional harm. Oddly, it’s been uncontroversially common for defendants to compensate plaintiffs for emotional harm so long as there is an initial physical hook. If someone’s negligence breaks my foot, I can sue not only for doctors’ bills to mend the break, but also pain and suffering – emotional harm – and lost wages – economic harm.)
The cases in this section explore the patchwork of exceptions as various jurisdictions have permitted them, one state at a time. The result, of course, is not a coherent whole that can be represented by a simple or even complicated flow chart. A case from one jurisdiction might flatly contradict the result in another jurisdiction. Our aim is to come away with an understanding of some of the exceptions that have been entertained and the rationales behind them (as well as the arguments against them). And then to be in a position, more generally, when confronted with fact patterns in other doctrinal areas that you think cry out for a day in court, to argue in a legal mode for why an exception should or shouldn’t be made. The history of the doctrine of purely emotional harm is a history of boundary pushing, with lessons perhaps transferrable to any area in which the law is thought to be ripe for expansion. As you’ll see, some of the exceptions have to do with allowing mere physical impact as a gateway, rather than actual physical harm. Others have to do with being in a “zone of danger,” with physical harm a possibility, even though it didn’t come about. (Indeed, in intentional tort, isn’t that what assault unaccompanied by battery is?)
(Intentional wrongdoing may seem less worthy of solicitude, so we also glimpse, outside of negligence entirely, the willingness of some courts to forge a new wrong of “intentional infliction of emotional distress.”)
We see exceptions for the highly specific category of contemporaneously witnessing at close range the death of a family member. And finally, we see some attempts to avoid the highly specific and instead craft a more general standard for the negligent infliction of (purely) emotional distress.
Purely economic harm has faced barriers similar to purely emotional harm: without a physical hook, such cases fail at the outset. Here the policy reasons behind the barrier may emphasize the unbounded nature of liability – too many negligent acts implicate the affairs of too many people, in ways that other elements of negligence (such as the proximate cause limitations we will learn about) might not be able to well contain. In this refreshingly brief subsection, we look to see how some courts have handled pleas for exceptions to a bar on purely economic harm.
|13.1||Show/Hide More||Emotional Harm|
|13.1.1||Show/Hide More||Falzone v. Busch--"The Almost Automobile Accident"|
|13.1.2||Show/Hide More||Portee v. Jaffee--"The Child Dying in the Elevator"|
|13.1.3||Show/Hide More||Pizarro v. 421 Port Associates--"The Decapitating Elevator"|
|13.1.4||Show/Hide More||Gammon v. Osteopathic Hospital of Maine, Inc.--"The Severed Leg in the Bodybag"|
|13.2||Show/Hide More||Economic Harm|
|13.2.1||Show/Hide More||People Express Airlines, Inc. v. Consolidated Rail Corp.--"The Evacuated Airport"|
|13.2.2||Show/Hide More||Koch v. Consolidated Edison Co.-- "The New York Blackout Case"|
|14||Show/Hide More||XIV. Causation|
There’s no tort of “attempted negligence.” In order for ultimate liability to accrue, a defendant must not only breach a duty owed to a harmed plaintiff, but that breach must be the cause-in-fact of the harm. Someone speeding through the pedestrian stop light in Harvard Square isn’t held responsible for harm done a few minutes later when a carefully-driven car just so happens to independently get into an accident with a pedestrian, even though it was mere fortuity that the earlier careless driver didn’t hurt anyone.
If I carelessly spill oil on the floor and wander away, and you slip on it as you turn the corner, causation is pretty clear. But what if you were running so quickly over the area that I can show you would have taken a spill irrespective of the oil? That’s not so easy to prove, but in theory it could defeat causation, just as a negligently-maintained dam collapsing in a big storm could be thought of as mere “accident” if the storm were so large that even a well-maintained dam would have buckled. Causation can be tricky to prove in other contexts, such as establishing that a particular chemical causes cancer. To what level of certainty must a causal link be determined? Again, the usual standard is “more likely than not,” but other formulations might better capture the moral instinct that requires proving causation, and even small changes in phrasing can affect a jury’s deliberations.
Once we understand that causation is a required element, there are still questions about what exactly it means to say that X caused Y. Should the presence of other causes matter? One common formulation, good enough for most purposes, is “but-for” causation: without the defendant’s negligence, the harm would not have arisen. But what happens when there are two negligent parties, with each party’s act sufficient to cause the harm? Can each point the finger at the other, since one alone is sufficient to have harmed, and therefore neither is a “but for” cause? Not to bury the lede: the answer there tends to be “no”; we can’t allow a surfeit of negligence across multiple parties to perversely result in no liability. When else might “but-for” causation be loosened?
When there is more wrongdoing than there is harm to go around, the law runs into the issue of how to allocate liability among defendants. One simple route is “joint and several liability,” where each wrongdoer can be found liable for up to 100% of the harm, and the plaintiff may elect from whom to collect what, so long as no overcollection takes place. Should this be the rule, for example, when intentional and negligent acts combine, such as an assailant hurting someone thanks to a hotel’s negligently-maintained lock?
|14.1||Show/Hide More||Theories of Causation|
|14.1.1||Show/Hide More||Howard v. Wal-mart Stores, Inc.--"The 'More-Likely-Than-Not' Standard for Causation"|
|14.1.2||Show/Hide More||Stubbs v. City of Rochester--"The Sewage in the Drinking Water Case"|
|14.1.3||Show/Hide More||Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co.--"The Multiple Fires Case"|
|14.1.4||Show/Hide More||Brown v. Wal-Mart--"The Phantom Tortfeasor"|
|14.2||Show/Hide More||Joint and Several Liability|
|14.2.1||Show/Hide More||Summers v. Tice--"The Simultaneously Negligent Shooters"|
|14.2.2||Show/Hide More||Garcia v. Joseph Vince Co.--"Two Manufacturers, One Sabre"|
|14.3||Show/Hide More||Ravo v. Rogatnick--"The Indivisible Brain Damage"|
|15||Show/Hide More||XV. Proximate Cause|
Proximate cause tends to be the least understood element of the elements of a negligence claim. 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 among this section’s readings, 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 unanticipated 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 imprudently, 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 unreasonable act caused the harm in question; the harm is not anticipated from the undue risk that makes my behavior a breach of the standard of care. 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 in this section seek patterns in the spectrum from Vosburg’s “eggshell plaintiff” rule to the no-liability outcome of the boulder hypothetical.
|15.1||Show/Hide More||In re Polemis--"The Plank that Exploded a Ship"|
|15.2||Show/Hide More||Wagner v. International Railway Co.--"The Injured, Would-Be-Rescuer"|
|15.3||Show/Hide More||Palsgraf v. Long Island Railroad Co.--"The Fireworks on the Train Platform"|
|15.4||Show/Hide More||Benn v. Thomas--"The Time-Delayed Heart Attack"|
|15.5||Show/Hide More||Steinhauser v. Hertz Corp.--"The Sudden Schizophrenia Case"|
|15.6||Show/Hide More||Gibson v. Garcia--"The Rotten Telephone Pole and the Car"|
|15.7||Show/Hide More||Darby v. National Trust--"The Rat Urine as Proximate Cause Case"|
|15.8||Show/Hide More||Wagon Mound (No. 1)--"The Oil in the Wharf Case"|