Product Liability Spring 2014 Chapters 11 & 12 Proximate Cause and Scope of Liability

George W. Conk Adjunct Professor of Law & Senior Fellow Stein Center for Law & Ethics Fordham Law School Rm 409 212-636-7446 gconk@law.fordham.edu Torts Today: http://tortstoday.blogspot.com Otherwise: http://blackstonetoday.blogspot.com
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Stavenski v. Tennant (Fl App 1993) p. 450

What is the nature of the risk that created a duty to the plaintiff who fell from a forklift?

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In Re September 11 (SDNY 2003)p. 453

Hijacking risk imposed duty on Boeing to make cockpits secure Does that properly extend the duty to: Passengers? Crew? Ground victims (person and property)?

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Union Pump V. Albritton (TX 1995)

How would you frame the nature and extent of the risks presented by the chemical pump that caught fire here?

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Jeld-Wen, Inc. V. Gamble(VA 1998), p. 466

The window screens manufacturing

defect made it insecure when pushed

from the inside.

What risks were created by that

defect?

What should be the limits aof the manufacturers liability?

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Donovan v. Philip Morris, USA (Mass 2009), p. 489

Have the members of the plaintiff class suffered a loss? Are they seking a benefit or a remedy? Why does the New York Court of Appeals reject such an action in Caronia? Who has the better of it Massachusetts or New York?

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A proximate cause?

There must be some way out of here, said the joker to the thief. There's too much confusion here. I can't get no relief. Bob Dylan, `All Along the Watchtower

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A proximate cause?

"Proximate cause remains a tangle and a jungle, a palace of mirrors and a maze...

`proximate cause' covers a multitude of sins It is a complex term of highly uncertain meaning under which other rules, doctrines and reasons lie buried..."

- William L. Prosser, Proximate Cause in California, 38 California Law Review 369, 379 (1950)
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Proximate Cause a Question of Fact

It is well-settled that questions of

negligence or proximate cause are

ordinarily for the jury

Only in exceptional cases should

they be decided as a matter of law.

Thompson v. Kaczinski (Iowa 2009)

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Duty - defined

A matter of law

Duty is an obligation recognized

by the law to conform to a particular standard of conduct toward another

Prosser on Torts, 2d Edition, Ch. 6 Negligence 1955 Ch. 3 The duty requirement - Physicial
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Duty a flexible concept (Prosser)

"Duty" is not a rigid formalism according to the standards of a simpler society, immune to the equally compelling needs of the present order; duty must of necessity adjust to the changing social relations and exigencies and man's relation to his fellows
Ch. 3 The duty requirement - Physicial Proximate Cause Injuries Scope of Liability

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Restatement of Torts (2d) 314 Duty to Act for Protection of Others

The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.

Ch. 3 The duty requirement - Physicial Proximate Cause Injuries Scope of Liability

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Duty 3rd Restatement (2010)

7. Duty (a) An actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a risk of physical harm. (b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.
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Proximate Cause
A limiting factor

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The Proximate Cause Perplex What to call it?

Legal cause Proximate Cause Scope of liability Substantial (contributing) factor Superseding cause Sole proximate cause Cause
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Metaphors and maxims

Direct causes Efficient causes Initiating causes Chain reactions Foreseeable effects Natural and continuous Substantial factors Legal causes Proximate causes
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Chain of events

"Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate. For such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.

Christianson v. Chicago, St. Paul, Minn. & Omaha Ry. Co. (1896)
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Proximate cause unexpected harm Duty? Breach? Damages? Foreseeability Directness

Polemis (Ct. of Appeal 1921) Palsgraf v. LIRR (1928) Wagon Mound No. 1 (Privy Council 1961) Wagon Mound No. 2 (Privy Council 1967) Kinsman II (1968) Doe v. Mannheimer (1989) (intervening causes) Benn v. Thomas (Iowa 1994) Kubert v. Best (N.J.A.D. 2013)
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 431 Legal Cause 2d Restatement

A negligent actor is liable if her conduct is

A) a substantial cause of harm

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A substantial factor?

New York Pattern Jury Instruction PJI 2:70 Proximate Cause--In General An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that

reasonable people would regard it as a

cause of the injury.
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A substantial factor?
PJI 2:70

There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial.

You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it.
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Proximate Cause - General Definition N.J. Model Jury Charge (1992) - The billiard ball model

By proximate cause is meant that the negligence of the defendant was an efficient cause of the accident, that is, a cause which necessarily set the other causes in motion and was a substantial factor in bringing the accident about. It is defined as a cause which naturally and probably led to and might have been expected to produce the accident complained of.

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Proximate cause is

an expression of line-drawing by courts and juries, an instrument of overall fairness and sound public policy.

Juries, like courts, should understand

the doctrine to be based on logic,

common sense, justice, policy and

precedent. Conklin v. Hannoch NJ 1996

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The fairness model

Proximate Cause General - NJ (1998) The basic question for you to resolve is whether the harm is so connected with the negligent actions or inactions of [the defendant] that you decide it is reasonable that the defendant should be held wholly or partially responsible for the harm.
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The Risk Rule

3rd Restatement of Torts The risk reasonably to be perceived defines the duty to be obeyed. Cardozo

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3rd Restatement - Scope of Liability (Proximate Cause)

Liability within the scope of the risk

29 Limitations on Liability for Tortious Conduct

An actors liability is limited to those physical harms that result from the

risks that made the actors conduct

tortious.
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3rd Restatement - Scope of Liability

Liability within the scope of the risk

30 Risk of Physical Harm Not Generally Increased by Tortious Conduct

An actor is not liable for physical harm when the tortious aspect of the actors conduct was of a type that does not generally increase the risk of that harm.
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Unexpected Harm

THE EGGSHELL PLAINTIFF RULE - DAMAGES? LIABILITY?

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Restatement (Second), Torts 461 (1965) eggshell plaintiff rule: foreseeability excused

The negligent actor is subject to liability for harm to another even though 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.
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Superseding Cause
A bolt from the blue?

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An outmoded idea?

In (Prof. Green)'s opinion the doctrine of superseding cause is already incorporated into the test for proximate cause. Repeating the test for superseding cause, then, merely adds confusion to an already confusing subject, and serves no meaningful purpose in a jurisdiction, such as ours, wherein a defendant will be liable only for his or her proportion of the plaintiff's damages.
Barry v. Quality Steele Products, Inc., 820 A.2d 258 (Conn. 2003) Proximate Cause Scope of Liability
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Restatement 3d of Torts: Liability for Physical and Emotional Harm, 34

Superseding Cause When a force of nature or an independent act is also a factual cause of harm, an actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious.

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Medical malpractice

P is injured by D Ps surgeon is negligent in his care of P D is responsible for the full consequences of the treatment and the initial injury

Why?

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Rest. 3rd 35. Enhanced Harm Due to Efforts to Render Medical or Other Aid An actor whose tortious conduct is a factual cause of physical harm to another is subject to liability for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other's injury, so long as the enhanced harm arises from a risk that inheres in the effort to render aid.
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The Palsgraf legacy

Is Duty Relational or Act-Centered? Is Plaintiff-Foreseeability a Duty Inquiry or an Aspect of Proximate Cause? Is Court or Jury the Proper Arbiter of Foreseeability?

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Palsgraf v. LIRR

Duty, breach, causation & damage all appear to be present.

Why does Helen Palsgraf lose?

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Palsgraf

Cardozo: The plaintiff sues for breach

of duty owing to himself.

Andrews: Every one owes to the world

at large the duty of refraining from
those acts that may unreasonably

threaten the safety of others.

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Duty to Unforeseeable Persons Palsgraf v. LIRR

3rd Restatement: If the harms risked by the tortious conduct include the general sort of harm suffered by plaintiff, the defendant is subject to liability for plaintiffs harm How would Helen Palsgraf fare under this test?
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Cardozos maxims

The orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.

Why doesnt the Cardozo majority defer to the jury which ruled for Helen Palsgraf wasnt she as a person lawfully on the platform within the orbit of LIRRs duty of reasonable care?
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Cardozo plaintiff-specific foreseeability

What the plaintiff must show is a wrong to herself; i.e., a violation of her own right, and not merely a wrong to some one else, nor conduct wrongful because unsocial, but not a wrong to any one. . .
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Cardozos maxims

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.
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.
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Determining duty

The overwhelming majority of courts determine duty by using a multi-factor test which includes foreseeability as a central feature as well as fairness and other policy considerations (e.g. Rowland v. Christian) Cardi: The Hidden legacy of Palsgraf (forthcoming 2011)
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Cardozos maxims

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.
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The analects of Andrews

Proximate cause 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.

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The analects of Andrews

You may speak of a chain, or if you please, a net. An analogy is of little aid. 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.
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The analects of Andrews

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.

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The analects of Andrews

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.

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The analects of Andrews

The problem 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.

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The analects of Andrews

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.

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The analects of Andrews

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. This is rather rhetoric than law. There is in truth little to guide us other than common sense. There are simply matters of which we may take account.

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Kinsman 2- unexpectable consequences?

As a result of this disaster, transportation on the river was disrupted until approximately March 13, 1959 -- a period of about 2 months.
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Kinsman 2

Cargill was under contract to deliver 124,000 bushels of wheat which were stored in its ship which could not be moved They had to buy more expensive replacement wheat to avoid breaching their contract

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Kinsman 2 (2d Cir. 1968

Limiting principles must exist in any system of jurisprudence for cause and effect succeed one another with the same certainty that night follows day and the consequences of the simplest act may be traced over an ever-widening canvas with the passage of time.

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Kinsman 2 (2d Cir. 1968)

In Anglo-American law "except only the defendant's intention to produce a given

result, no other consideration so affects

our feeling that it is or is not just to hold

him for the result so much as its

foreseeability.**

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Kinsman 2 (2d Cir. 1968)

On the previous appeal we stated aptly: "somewhere a point will be reached when courts will agree that the link has become too tenuous -- that what is claimed to be consequence is only fortuity. Neither ship suffered any direct or immediate damage for which recovery is sought. The instant claims occurred only because the downed bridge made it impossible to move traffic along the river.

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Kinsman 2 (2d Cir. 1968)

[T]he connection between the defendants' negligence and the claimants' damages is

too tenuous and remote to permit

recovery.

The law does not spread its protection so far." Holmes, J., in Robins Dry Dock (1927)

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Kinsman 2 (2d Cir. 1968)

To anyone familiar with N. Y. traffic there can be no doubt that a foreseeable result of an accident in the Brooklyn Battery Tunnel during rush hour is that thousands of people will be delayed. A driver who negligently caused such an accident would certainly be held accountable to those physically injured in the crash.

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Kinsman 2 (2d Cir. 1968)

But we doubt that damages would be recoverable against the negligent driver in favor of truckers or contract carriers who suffered provable losses because of the delay or to the wage earner who was forced to "clock in" an hour late. An yet it was surely foreseeable that among those who would be delayed many would be truckers and wage earners
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Kinsman 2 (2d Cir. 1968)

In the final analysis, the circumlocution whether posed in terms of "foreseeability," "duty," "proximate cause," "remoteness,"

etc. seems unavoidable.

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Kinsman 2 (2d Cir. 1968)

As we have previously noted (in Kinsman 1) we return to Judge Andrews' frequently quoted statement in Palsgraf v. Long Island R.R.: "It is all a question of expediency * * * of fair judgment, always 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."

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Legal (Proximate Cause)

The Second Restatement View

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Restatement 2d, Torts 281 281 Statement of the Elements of a Cause of Action for Negligence

The actor is liable for an invasion of an interest of another, if: (a) the interest invaded is protected against unintentional invasion, and (b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and (c) the actor's conduct is a legal cause of the invasion, and (d) the other has not so conducted himself as to disable himself from bringing an action for such invasion.

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Restatement, 2d 281

If the actor's conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the persons so injured.
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Restat 2d of Torts, 281

Comment on Clause (b):

c. Risk to class of which plaintiff is member.

In order for the actor to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of persons -- as, for example, all persons within a given area of danger -- of which the other is a member.
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Restat 2d of Torts, 281

Illustrations:

1. A, a passenger of the X Railway

Company, is attempting to board a train

while encumbered with a bulky and apparently fragile package.

B, a trainman of the Company, in assisting A, does so in such a manner as to make it probable that A will drop the package.
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Restat 2d of Torts, 281

A drops the package, which contains fireworks, although there is nothing in its

appearance to indicate it.

The fireworks explode.

The force of the explosion knocks over a

platform scale thirty feet away, which falls

upon C, another passenger waiting for a

train, and injures her.

Proximate Causeis Scope of Liability X Railway Company not liable to C. 66

 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
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 432 Negligent Conduct as Necessary Antecedent of Harm

(1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.
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 432 Concurrence of negligent and non-negligent causes

(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about.
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 433 Considerations Important in Determining Whether Negligent Conduct Is Substantial Factor in Producing Harm

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in

producing it;

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 433

(b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

(c) lapse of time.

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Restatement (Second) of Torts 433A (1965)

1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes.
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`Enhanced harm Restatement 3d of Torts, 35

An actor whose tortious conduct is a factual cause of harm to another is subject to liability for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other's injury, so long as the enhanced harm arises from a risk that inheres in the effort to render aid.
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Superseding cause defined Restatement 2d

440 A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being

liable for harm to another which his

antecedent negligence is a substantial

factor in bringing about.

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Superseding cause defined Restatement 2d Comment:

b. A superseding cause relieves the actor

from liability, irrespective of whether his antecedent negligence was or was not a substantial factor in bringing about the harm.

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Rest. 3rd 33 Intervening Acts and Superseding Causes

(a) When an actor's tortious conduct is a factual cause of harm that is among the harms whose risks made the actor's conduct tortious, the actor is subject to liability for the harm even if an unforeseeable intervening act, including an unusual force of nature or independent culpable or nonculpable human act, is also a factual cause of the harm.
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 442 A Intervening Force Risked by Actor's Conduct

Where the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause.
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 449 Tortious or Criminal Acts the Probability of Which Makes Actor's Conduct Negligent

If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.
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 441 Intervening force defined

(1) An intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed. (2) Whether the active operation of an intervening force prevents the actor's antecedent negligence from being a legal cause in bringing about harm to another is determined by the rules stated in 442-453.
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 442 Considerations Important in Determining Whether an Intervening Force Is a Superseding Cause

(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;
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 442 Considerations Important in Determining Whether an Intervening Force Is a Superseding Cause

(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act; (e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
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 442B Intervening Force Causing Same Harm as That Risked by Actor's Conduct

442B Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.
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 442B Intervening Force Causing Same Harm as That Risked by Actor's Conduct

Illustrations: 1. A negligently fails to clean petroleum residue out of his oil barge moored at a dock, thus creating the risk of harm to others in the vicinity through fire or explosion of gasoline vapor. The barge is struck by lightning and explodes, injuring B, a workman on the dock. A is subject to liability to B.
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 448 Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor's Negligence

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit Proximate Cause Scope of Liability 84 such a tort or crime.

 448 Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor's Negligence

Illustration: 1. The A Railroad Company negligently runs down a truck driven by a servant of B and containing barrels of cider. The collision occurs at night and at a place where there have been frequent thefts from the company's freight cars. It results in the scattering of the barrels of cider along the road and the stunning of the driver. The cider is stolen by unknown thieves. The negligence of the A Railroad Company is a legal cause of the loss of the cider by the theft of the unknown persons.
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 449 Tortious or Criminal Acts the Probability of Which Makes Actor's Conduct Negligent

1. A is traveling on the train of the B Railway Company. Her ticket entitles her to ride only to Station X, but she intentionally stays on the train after it has passed that station. When she arrives at Station Y the conductor puts her off the train. This occurs late at night after the station has been closed and the attendants have departed. The station is situated in a lonely district, and the only way in which she can reach the neighboring town is by passing a place where to the knowledge of the conductor there is a construction camp. The construction crew is known to contain many persons of vicious character. While attempting to pass by this camp, A is attacked and ravished by some of the construction crew. The B Railway Company is subject to liability to A.
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 442 Considerations Important in Determining Whether an Intervening Force Is a Superseding Cause

(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;
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 442 Considerations Important in Determining Whether an Intervening Force Is a Superseding Cause

(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act; (e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him; (f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
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Intentional wrongs

3rd Restatement Scope of the risk standard inadequate for intentional harms

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33. Scope of Liability for Intentional and Reckless Tortfeasors [3rd Restatement]

(a) An actor who intentionally causes

physical harm is subject to liability

for that harm even if it was unlikely to occur.

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33. Scope of Liability for Intentional and Reckless Tortfeasors

(b) An actor who intentionally or

recklessly causes physical harm is

subject to liability for a broader range of harms than the harms for which that actor would be liable if only acting negligently. In general, the important factors in determining the scope of liability are the moral culpability of the actor, as reflected in the reasons for and intent in
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33. Scope of Liability for Intentional and Reckless Tortfeasors

committing the tortious acts, the seriousness of harm intended and threatened by those acts, and the degree to which the actor's conduct deviated from appropriate care.

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 33. Scope of Liability for Intentional and Reckless Tortfeasors

(c) Notwithstanding Subsections (a) and (b), an actor who intentionally or recklessly causes physical harm is not subject to liability for harm the risk of which was not increased by the actor's intentional or reckless conduct
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