Actual Causation

NEGLIGENCE Negligence: General  Basis of liability – creation of an unreasonable risk of harm to another o Risk of harm must be greater than society is willing to accept in light of the benefits to be derived from that activity o * Used Learned Hand rest to see if it’s unreasonable (B< PL)  How does this compare to intentional torts? o Intentional torts: our concern is almost always, what is in the head of the defendant. o Negligence: we don’t care what is in the head of the defendant, only was it objectively reasonable?  Courts use a reasonable person (objective) standard to see if a person of ordinary prudence would do what ∆ did under the same circumstances o If person would have acted differently  negligence  Actors need to take proper care in the circumstances, behave in ways that are reasonable in relationship to the circumstances (Brown v. Kendall) o π must show the injury was avoidable and conduct of ∆ was not free from blame o only time π can recover is if ∆ is not using ordinary care when π is  (π cannot recover if both ∆ and π are using ordinary care or both are not using ordinary care or if ∆ is using ordinary care and π is not) o In line with Holmes test  Ordinary care – kind and degree of care which prudent and cautious men would use to guard against probably danger (depends on circumstances and foreseeability) o Only exception: children are to be judged according to what might be expect of children of similar age and experience More subjective standard used to determine ∆’s physical disabilities: “when a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them.” (Holmes) o R2 §283C follows this approach (ex. if ∆ was blind then jury is to measure his conduct against that of a reasonably prudent blind person)  Classic Tests for Negligence Black Letter: (Prosser Test) (1) Duty (2) Breach 3a. Causation in fact (3) Causation 3b. Proximate cause (4) Damages * ALL 5 elements missing, ∆ not negligent must be proven to find negligence (if 1 is 23 1. Duty: ∆ has to conform duty to standard of conduct to protest against unreasonable risk 2. Breach: unreasonable conduct = breach of duty 3. Causation: causation in fact (but for, substantial factor tests) + proximate causation (foreseeability) 4. Damages: actual damages; not all possible consequences but only foreseeable (only compensable harm was the one caused unreasonably) Learned Hand Test: (United States v. Carroll Towing) ∆’s duty to provide against resulting injuries is a function of 3 variables:  Magnitude of Loss (L)  Probability of Loss/Foreseeability (P)  Burden of Precaution (B)  LP > B = negligence    LP > B  if the magnitude of the loss times the probability of the loss is greater than the burden of preventing it from happening, then it is negligence Economic analysis (balance of cost and risk) Marginal cost: When the marginal cost of each accident begins to exceed the marginal cost of each precaution, at that point the actor has demonstrated reasonable care and is no longer negligent  An electric company does not owe a duty to ensure that the public will not come into contact with every electrical line (Washington v. Louisiana Power and Light Co.) o Using Hand’s test, the Court determined that the burden of precaution was too large, even though a person died o Great harm, low probability  does not equal or exceed burden/cost of relocating or insulating the power lines o Contributory negligence on part of π (duty to be careful)  A company’s failure to undertake voluntary but well-established security measures, when the company has created an expectation of such security measures in the public, may constitute negligence. (Erie Railroad Co. v. Stewart) Holmes Test: (1) ∆ is in fault (2) Injury is foreseeable (3) Social Rules Test (how to find unreasonable conduct): o Statutes  If a statute directly addresses conduct, then that’s the measure of reasonableness (ex. speed limits) o Custom  If there’s a societal/market custom, then that guides duty  Much more specific group of people than society in general (ex. industry or trade specific) o Reasonable person/societal expectation  Can a jury find that a reasonable person would act that way in this set of 24 circumstances? o Statutes have a far greater binding legal power than custom if conflicting  If ∆ should have known of a risk that others would have behaved negligently due to ∆’s actions, then ∆ may be liable for those foreseeable risks  need to act with reasonable care (Weirum v. RKO General, Inc.) o One breaches his duty of ordinary care when his actions foreseeably cause a third party to act negligently, which results in unreasonable harm (focus here on foreseeability of other’s actions) o CA radio station contest which has teenagers during the summer driving recklessly o Duty extends to those who could be foreseeably injured by your conduct o Court used Holmes test  danger beyond foreseeable = high degree of risk Special Rules: Custom   Custom does not have the power of a statute How do you prove custom? o Experts, participants in the industry, opponent, any statutes or regulations that are moving to make change, literature in the industry, internet  A party is liable for negligence when a custom or accepted practice is coupled with proof that such custom or accepted practice was ignored and that this departure was the proximate cause of one’s injuries (Trimarco v. Klein) o Landlord had a duty to use shatterproof glass, which he breached when he failed to do so (or it was unreasonable for him not to) o When proof of custom is accompanied by evidence that ∆ conformed to it, this may establish due care o What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not  A business may be liable for failing to adopt new technology, even if the industry has not widely adopted it, if the use of the technology constitutes reasonable prudence (The TJ Hooper) o In most cases reasonable prudence is in fact common prudence, but strictly it is never the measure o Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission o Apply Hand test: having a radio is a cheap item, reasonable to have precaution o Statute here fails preliminary test of negligence per se (aimed more for the protection of the crew, not the company itself)  A “reasonable prudence” standard should be followed in medical diagnosis and treatment even when there is no requirement under generally accepted professional standards (Helling v. Carey) o Woman who is diagnosed with glaucoma 25 o If a test is so imperative that irrespective of the standards of the profession, it is the duty of the courts to say what is required to protect patients o Hand test used (B< PL): not that hard/expensive to administer test and value of doing so is immense (eyesight saved) o Custom does not set standard for reasonable care (reasonable prudence required giving the test) Special Rules: Negligence Per Se  Negligence per se is applied (1) when there is a statute regarding the case/situation AND (2) violation of the statute passes the preliminary test  Preliminary test: 1. Was the π in the class of individuals that the statute is set out to protect? 2. Was the harm that occurred of the type that the legislature was trying to protect?  Violation of a statute is negligence itself, thus negligence per se o Preliminary test MUST be satisfied to use negligence per se How do you know if there’s a statute out there? Legal research (malpractice to not find relevant statutory applications)  Majority rule: negligence per se π must prove Duty Breach Proximate cause Cause in fact Damage ∆ must prove contributory negligence Effect of neg per se Proven Proven Proven Must prove Must prove Violation of the Statute Leads to: 1) Express Civil Liability  If the statute expressly gives right to civil recovery by π then statute takes over and tort disappears ∆ option X X X Can contest Can contest Can prove Defenses Available at Trial: 1) Common law superseded 26 2) Majority Rule – Negligence per se (see chart above) 2) Cannot contest duty or breach of duty (including foreseeability) but can claim “no causation” and/or contributory negligence 3) ∆ cannot contest duty or breach of duty (including foreseeability) but has burden of persuasion. Can raise “no causation” (cause in act) and contributory negligence 3) Minority Rule A – Rebuttable Presumption of Negligence  Some states think it gives statutes too much power, so adopt this rule  Shift the responsibility of proof from π to ∆, (after violation is showed, we presume the 3 parts of liability until proven otherwise)  lesser kind of enforcement (Summer v. Tice) 4) Minority Rule B – Some Evidence of 4) Same as (3) but π retains burden of persuasion Negligence  You can introduce the statute because it shows the state’s reasoning, but it does not shift the burden of proof   An omission, or failure to perform an act required by statute, is negligence per se (Martin v. Herzog) o Jury should not be given the power to decide whether violation of the statute was negligence or not, it is negligence o If the disregard of the statue is a contributing factor to the harm, then and only then, does π forfeit the right to damages o Contributory negligence is a full defense A violation of a statute will be excused where it would have been more dangerous to comply (Tedla v. Ellman) o In a negligence suit, one does not always commit contributory negligence by failing to obey a statute o This is an exception to Martin v. Herzog, not a reversal o The general duty is established by the statute and deviation from it without good cause is a wrong and the wrongdoer is responsible for the damages resulting for its wrong  If violation of the statute has no bearing on the injury (not the proximate cause), proof of the violation becomes irrelevant (Brown v. Shyne) o Statute viewed as not satisfying preliminary test o Violation of a statute will only give rise to an action for negligence if the violation itself is the proximate cause of any resulting injury o The requirement of a license was intended to protect the public against incompetent practitioners. Therefore, π must prove that ∆ was in fact incompetent by showing that the treatment given to π wasn’t in accordance with the standards of skill and care which prevail among those treating disease o ∆ failed to get license, not proof that he failed to exercise due care  Recap: violation of statute is negligence per se only when 27 o The injury is one contemplated by the legislature and intended to protect that class of person o Violation is a proximate cause of injury (Brown v. Shyne and Martin) o Strict adherence would not lead to a lower standard of care (Tedla) Special Rules: Res Ipsa Loquitur  Res ipsa loquitur – “the thing speaks for itself” o Permits the inference that ∆ was negligent even though there was no direct eyewitness evidence that he was (permits but does not compel jury to find ∆ negligent) o Sanctifies the use of a particular kind of circumstantial evidence Helps decide whether there’s been a breach or not, doesn’t dictate result of negligence  permits but does not compel jury to find ∆ negligent o If applies, provides the equivalent of circumstantial evidence of breach of duty o Jury will be advised that they can draw an inference of fault but may not be directly told of doctrine Circumstantial evidence directed at ∆, instead of a preliminary test (must be proved by the preponderance standard) o Ex. skid marks, injuries suffered  sometimes more persuasive Often used when π doesn’t have knowledge or access to the facts about ∆’s conduct    Black Letter: (Prosser Requirements) 1. 2. 3. 4. Event is of the sort that does not generally happen without negligence Caused by instrumentality when ∆ is in exclusive control No voluntary or contributory act by π Explanation of this is not something that by normal investigation π can discover (information disparity) * Information disparity generally not considered part of Prosser requirements but important for Landsman R3 §17: Res Ipsa Loquitur The factfinder may infer that ∆ has been negligent when the accident causing π’s physical harm is a type of accident that ordinarily happens as a result of the negligence of the class of actors of which ∆ is the relevant member.  One may establish liability in negligence when it is not possible to identify the exact cause of the injury (Boyer v. Iowa High School Athletic Association) o The burden is on ∆ to determine that something else caused the injury if π doesn’t have the ability to inspect o The bleachers were in the exclusive control of ∆ at the time of the negligent act, as failure to inspect AND the occurrence is such as in the ordinary course of 28 things would not happen if reasonable care had been utilized (bleachers don’t ordinarily collapse)  A plaintiff cannot establish negligence through res ipsa loquitur by establishing that she could not have foreseen the manner in which the injury would occur (Shutt v. Kaufman’s Inc.) o The shopkeeper must exercise reasonable care for the business visitor, but is not an insurer of the safety of such visitor o π could have checked to see if the display table was unstable…had the means available to her to establish negligence on the part of ∆  A prison keeper cannot be held liable in negligence under a theory of res ipsa loquitur simply because it is established that an inmate was injured while in custody (City of Louisville v. Humphrey) o The instrumentality wasn’t in control of the police at all times (he could have hurt himself before he was in police custody) o Court says that the prison keeper is not the insurer of the safety and well-being of the prisoner  A manufacturer incurs absolute liability when an article that he has placed on the market, knowing it is to be used without inspection, proves to have a defect that causes injury to human beings (Escola v. Coca-Cola Bottling Co. of Fresno) o Information disparity hidden defect, bottle has been destroyed, process of manufacturing/shipping hard to understand and gain access by π o As long as ∆ had control at the time of the alleged negligent act, although not at the time of the accident, and π proves that the condition of the instrumentality has not been changed after it left ∆’s possession, ∆ can be held liable o Res ipsa loquitur doesn’t apply as long as πs and any third parties can account for their own conduct  must find that there’s no other reasonable explanation  Ends up applying here because of Prosser elements 3/4 mostly, 1/2 very wobbly o Dissent: want to Impose strict liability when the manufacturer placed the product in the market and knows it won’t be inspected but has a defect which causes injury to a person  Manufacturer in the best position to absorb costs (can anticipate hazards + guard against them + can insure) Special Relationship: Landowner Liability      Duty of reasonable care can be raised or lowered because of special relationships between the parties Formal classification of persons on the land as trespassers, licensees and invitees  often lower, but never raise normal duty of reasonable care (benefit landowners) Traditional rationale: in old days, land = essence of citizenship (determined whether or not you had political power) First duty of landowners is to have a responsibility for things that may come off their land General Rule: landowner has no duty except when his action adds to the risk 29 R2 §332: Invitee Defined (1) An invitee is either a public invitee or a business visitor. (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for the purpose for which the land is open to the public. (3) A business visitor is a person who is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land.     For public invitee: not enough to hold land open to the public that the public are permitted to enter  must be some inducement/encouragement to enter o Ex. posting a sign that playground is open to all children Person who provides services for the benefit of the landowner is generally held to be an invitee, even if that person does not enter for any explicit business purpose o Mail carriers, utility company meter readers – usually invitees (although in NY mailmen – licensee) Persons who accompany invitees can be inferred to be invitees as well (ex. wife accompanying husband) Public invitees: person in a grocery store R2 §330: Licensee Defined A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.     Invitees and licensees share the common characteristic of being on the land with the permission of the possessor POs, firefighters, door to door salesmen – usually licensees Licensee – come onto the land with the landowner’s consent but who gain something themselves (benefit from entry) o Their advantage to come onto their land o Dinner guests are licensee o If there’s no benefit but there’s something shared (ex. guest brings a movie and food), then still licensee If the renter gets the whole property, then he assumes the status of the landowner o If the landowner reserves his rights to the common area, then the duty is divided R2 §329: Trespasser Defined A trespasser is a person who enter or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise. 30     In general: duty of possessor towards trespasser is to refrain from wanton and willful conduct But if trespasser is on the land for purposes of committing a crime, the possessor may be liable only for intentionally injuring the trespasser What’s evidence of a known trespasser? o Worn path, hole in the fence, any indications of presence Extend limited protection to them – when threat is of life or severe harm, only then duty Undiscovered or unknown trespasser Expected trespasser Definition Natural Conditions A person who enters No duty the landowner’s land without permission or privilege; landowner does not know nor should know of trespasser’s presence A person who enters No duty the landowner’s land without permission or privilege; landowner expects the trespasser A person who enters the landowner’s land without permission or privilege; landowner knows or has reason to know about trespasser’s actual presence A child who enters Child trespasser (Attractive Nuisance the landowner’s land without permission or Doctrine) privilege; child’s presence on land is foreseeable Known trespasser Licensee A person who enters the landowner’s land for his own purpose or business, with the Duty to warn of, or make safe, known dangerous conditions that the known trespasser is unlikely to discover Limited application of attractive nuisance doctrine; when applicable, duty is the same as for artificial conditions Duty to warn of, or make safe, known dangerous conditions that licensee is Artificial Conditions No duty Duty to warn of, or make safe, known conditions that present a risk of death or serious bodily harm and are unlikely to be discovered by the trespasser Duty to warn of, or make safe, known dangerous conditions that the known trespasser is unlikely to discover Duty to warn of, or make safe, known dangerous conditions that are likely to cause injury because of a child’s inability to appreciate the risk; cost of fixing the condition must be minor compared to risk of injury Duty to warn of, or make safe, known dangerous conditions that licensee is 31 Invitee landowner’s permission, including social guests A person who enters the landowner’s land because he was expressly or implied invited by the landowner unlikely to discover unlikely to discover Duty to make reasonable inspections to discover dangerous conditions and warn or make them safe Duty to make reasonable inspections to discover dangerous conditions and warm or make them safe Attractive Nuisance Doctrine: (child trespasser) 1. Dangerous conditions on land known to ∆ 2. ∆ knows kids come 3. Kids won’t appreciate risk 4. Cost to fix, modest Example of doctrine: Lyshak v. City of Detroit   Although π’s status as a trespasser, licensee, or invitee may have some bearing on the question of the landowner’s liability, this status alone is not determinative (Rowland v. Christian) o The proper test to be applied for determining the liability of a landowner is whether in the management of his property he has acted as a reasonable man given the probability of injury to others o Breaks down tort distinctions…∆ should be expected to exercise reasonable care regardless of relationship with π o Balancing of considerations:  Foreseeability of harm to π  Degree of certainty that π suffered injury  Closeness of the connection between ∆’s conduct and injury suffered  Moral blame attached to the ∆’s conduct  Policy of preventing future harm  Extent of the burden to ∆  Consequences to the community of imposing a duty to exercise care with resulting liability for breach  The availability, cost, and prevalence of insurance for risk involved Rowland – first case of abolishing land guest categories o Mixes response  some states abolish licensee/invitee distinctions but keep trespasser category, others abolish all 3 o Overall trend is for at least partial adoption of Rowland Special Relationship: Duty to Rescue  Absence of a general duty to rescue o Exception: duty to rescue when (1) foreseeable specific risk/degree of certainty, AND (2) special relationship 32  Where one has established a higher standard of due care for itself and through past custom has led π to rely upon the standard, it is negligent to discontinue the use of extra care without adequately warning of the discontinuance  there’s a duty to act (Erie R. Co. v. Stewart) o If one can conclude a lack of due care and there is no reason for that lack, then negligence appears as a matter of law  No duty to rescue, but there is a duty to act with due care once one has undertaken rescue operation (prevents others from acting in the expectation that effective aid is being rendered) (Lacey v. United States) Once you start, you have to finish. Or, stop and make things clear so there’s not clear reliance (Cottam v. CVS Pharmacy) There was negligence in a case where an underage girl was drunk at a party, her friends put a blanket over her and placed her on her side but did not call her parents or 911 and she died (Wakulich v. Mraz) Whether defendants failed to exercise reasonable care in performing a promise to warn Long of her husband’s discharge, thereby increasing the risk of harm to her or resulting in harm to her because of her reliance on the promised warning. Court ruled this was a triable question (Long v. Broadlawns Medical Center)     At common law, there’s no general duty to aid a person who’s in peril, BUT ∆ may be held liable for injuries if a special relationship exists or it’s an instrumentality under ∆’s control (Tubbs v. Argus) o One can be held liable in negligence for failing to render reasonable aid and assistance to one that is injured  moral and humanitarian considerations may require one to help someone who is injured, even if he did not cause the injury or the injured person caused their own injury o That person could be liable in negligence if, through his failure to aid the injured person, the person’s injuries become aggravated  Once a ∆ determines or should have determined from his professional standards, that one that he has a special relationship with poses a serious threat to another, ∆ bears a duty to exercise reasonable care to protect the foreseeable victim (should warn victim or her family) (Tarasoff v. Regents of University of California) o When a therapist learns from his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger o One need only exercise the reasonable skill, knowledge, and care ordinarily possessed and exercised by member of that professional specialty under similar circumstances  Rescue doctrine applies even if the victim was not actually in danger (Solomon v. Schull) o Requires 2 step analysis: (1) Would a reasonable person under the same or similar circumstances acted as the rescuer did? (2) Did the rescuer carry out the rescue attempt in a reasonable manner? If the rescuer did not, then the rescuer’s recovery is reduced by his comparative degree of fault. 33