Lecture notes for presentation at Beijing Jiaotong University School of Law

WORKING DRAFT not for publication or use without consent

Prepared by: Prof. George Conk - most recent revision: June 15, 2015
American Tort Law

Author : Vincent R. Johnson St. Marys School of Law, San Antonio,
Texas
- 2015
Editorial Assistant: Liu Daqi, LLM (Fordham Law School 2015)

Chapter Eight

Proximate Causation

1.
A Policy Decision on Fairness

Proximate causation (also called Legal Cause or Scope of Liability)

Restatement of the Law of Torts, 1st and 2d Legal Cause

Most Courts Use Proximate Cause
Proximate Cause


One does not bear an insurer's liability for whatever loss proximately results from
dangerous conduct. The victim must prove there is a causal relationship between
the loss and the defendant's tortious conduct.

And faulty conduct or a product defect may be regarded as a proximate cause.
Restatement of Torts (2d) (1965)
Section 431 Legal Cause
A negligent actor is liable if her conduct is

A) a substantial cause of harm

B) not subject to any privilege, immunity or rule of law relieving the actor of liability

Restatement of Torts 3rd - Scope of Liability (2010)

The "harm within the risk" rule
29. Limitations on Liability for Tortious Conduct

An actor's liability is limited to those harms that result from the risks that made the
actor's conduct tortious.

In other words: An actor is responsible only for those harms he had a duty to preven
t or avoid.

Palsgraf v. Long Island Railroad(1929)

2.
The Direct- Causation and Foreseeability Views

In Re Polemis U.K.1921

.
Wagon Mound # 1 (U.K. 1961) No liability for unforeseeable harm.

An assessment from hindsight

3.
Modified Foreseeability

Wagon Mound # 2 (U.K. 1967)

Liability for remotely foreseeable harm.

A fortuitous turn of events

A learned Hand-type balancing test

Learned Hand
"balancing test" B<PL---->negligence liability

Same general sort

Eggshell-skull rule
4


Take the plaintif as is

How remote is too remoteWould appear to be anybody's guessProsser

Kinsman 2 (1968) cause of harm too remote

Kinsman 1

4.
Superseding Causation

A.
Intervening and Superseding Causes

Increased harm due to medical care

[Restatement Torts (3rd) Section 35]

Normal

Antecedent tortious conduct

B.
Foreseeable End Results

C.
Foreseeable Intervening Acts

Ran out of control

Act of God, Act of Providence, or Vis Major

Risk came to fruition

D.
Exceptions to the General Rule

E.
Intervening Criminal or Intentionally Tortious Conduct

As a general rule one is not responsible for harm done by the criminal acts of
another person. But there are some exceptions. These have been called "enabling
Torts"
This tort is most often recognized when one engages in a lawful activity which
creates a risk of criminal acts by third persons.

For example:
1)a manager of an apartment building does not repair locks on the entry doors, an
intruder enters the building and assaults a woman.

1
2) a tavern-keeper sells liquor and serves an intoxicated person who injures others
by driving while intoxicated.
2

A city ordinance

The Prior- similar- incidents rule

Custody

F.
Normal Developments

Aggravated injuries

Intentionally inflicted injury

G.
The Rescue Doctrine

Unless there is a special relationship, a person has no duty to another if his conduct
did not create the danger.

Imminent Peril

Act of Aid

Firefighters rule

H.
Intervening Acts of the Victim

Irresistible- impulse test

Mental derangement

I.

Limits on Foreseeability

A guilty verdict

5.
Shifting Responsibility

A manufacturer's product contains a defect, injuring a worker; but before the

accident the producer tells the employer about the defect and ofers to replace it.
The employer doesn't use the non-defective replacement, the employer's conduct
may be a superseding cause because there is not a direct relationship between the
manufacturer's negligence and the injury.
In California the courts held the manufacturer liable but in New Jersey the court said
that the employer's conduct is a superseding cause.

Balido v. Improved Machinery (Cal. App. 1973) - liability

Hinojo v. NJM (N.J. App. 2002)- no liability

.

Omission

Exercise proper care

10

Workers compensation laws

Lapse of time

Exclusive control of the property

11