Proximate Cause

Question 1

Cause In Fact

Answer 1

1. “But for” test - But for (negligent action) (harm) would not have occurred.
   a. HYPO: But for Carlton-Saddler negligently using gasoline to clean her drier, a fire would not have occurred in Kent’s house, burning his deeds.
   b. Relationship between the negligence and the harm.

Question 2

Proximate Cause Rule

Answer 2

A policy limitation on how far the law will allow cause-in-fact to be traced to create liability.

Question 3

Proximate Cause Question

Answer 3

1. Asks whether liability should be cut off even if we can trace it back to the act or omission.
   a. Not a “fill-in-the blanks”
   b. How closely the negligence is related to the harm done.

Question 4

Policy for Proximate Cause 1

Answer 4

1. logic
2. common sense
3. Precedent
4. Justice
5. Administrative possibility
6. May take into account temporal or physical proximity (forseeability)

Question 5

Policy for Proximate Cause 2

Answer 5

1. Creates a limit to liability - not just a tenuous link between cause-and-effect.
   a. Practicality concern - if we don’t limit liability, it could be traced back to absurd results (if not born, no harm would be done).
   b. Fairness - not fair or just to hold someone liable in some cases.
   c. Can be arbitrary (recovery for house A, but not for house B).

Question 6

Atlantic Coast Line R. Co. v. Daniels

Answer 6

Facts

Question 7

Atlantic RULE

Answer 7

1. Proximate cause is a limit to liability
2. One of the most important tools to limit liability in negligence
3. Most significant hurdles for a P to meet
4. Proximate cause is a vague rule in the law- it is not always possible to state a tidy rule
5. Rule is more illusive and more of a policy decision on logic, common sense, precedent, and what justice demands
6. Asks whether if at some point even can trace back to D, is there liability?
7. Takes proximity into account but is a much broader test (Atlantic)

Question 8

Atlantic POLICY

Answer 8

1. Why not just have cause in fact? Does not deter the conduct
2. Can go back to the beginning of time and have endless liability on someone
3. Absurd if just use cause in fact, cannot go back to all causes, no way to stop this
4. Judicial efficiency- what can legally do in the judicial system- practicality
5. Deterrence cant work if no way to stop liability

Question 9

Ryan v. New York Central R.R. Co.

Answer 9

RR Co. negligently maintained its engine, which caught its woodshed on fire. The fire spread to Ryan’s house which burned down. Court held that the fire to the woodshed was proximate, while spread of the fire to adjacent buildings or houses was remote. (Ryan)

Question 10

Ryan HOLDING

Answer 10

1. Court held that “ordinary, natural, expected” consequences create liability, not “unforseeable” damage. Liability ended with the first building that caught on fire.
2. House A would be the woodshed and house B would be P’s house.
   Since fire landed on woodshed= only natural consequence of fire but spreading to P’s house is not= remote
   This is a remote cause so no recovery beyond the first building which was the woodshed.
   (Ryan)

Question 11

Ryan POLICY

Answer 11

1. Who is in the best position to insure against harm, D may face ruinously expensive liability, risk of having neighbors/living in society.
2. Fairness: Don’t want to subject someone to liability which no prudence could guard.
3. May cause punishment beyond the offense committed.
4. Risk of loss is a result of living in society.
5. “Destruction of society”
   (Ryan)

Question 12

Ryan RULE (unforseen consequences)

Answer 12

A defendant is liable in damages which are proximately caused by the defendant’s negligence, but not liable for damages remotely caused by the defendant’s negligence. (Ryan)

Question 13

Natural/Ordinary Result:

Answer 13

When likely not anticipated, not a natural and ordinary result. (Ryan)

Question 14

FORSEEABLITY RULE

Answer 14

1. Concept that D is responsible for ordinary consequences of his negligence and not determinative of accidental circumstances.
2. Where courts draw the line between natural and unnatural and foreseeable and unforeseeable. (Ryan)

Question 15

“Proximate Consequences”

Answer 15

Are natural, ordinary, expected consequences- not accidental. (Ryan)

Question 16

EXAMPLE P. 305:

Answer 16

A can recover but Z cannot.

1. Things out of D’s control= less likely to find proximate cause= not the standard for proximate cause= not enough to create liability.
2. Possible and not infrequent is not the std for proximate cause.
3. A’s house was proximate cause but Z’s was accidental and varying circumstances
4. Court would cut off liability at house A.
   This is a case of unforeseeable consequences and whether there can still be proximate cause in these situations.
   (Ryan)

Question 17

Natural (Proximate) v. Remote

Answer 17

1. Expectedness v. NOT
2. Anticipation and Forseeability
   (Ryan)

Question 18

SUB-RULE (Note 1)

Answer 18

NY modified rule to allow recovery of the first adjoining landowner as distinct from first building (which could be D’s own house) or the first property to which the fire jumps, although not adjoining.
(Ryan)

Question 19

Ryan HYPO: : After woodshed caught fire RR did not try to put it out because wanted a new one anyway. If stuck with Ryan rule is there a way to argue for P to still recover?

Answer 19

1. Difference between letting the fire be vs. trying to put it out = could foresee the harm taking place if do not stop the fire.
2. There is a duty
3. Negligent act and omission different from just letting it burn vs. the accident of it.

Question 20

Proximate Cause

Answer 20

1. IMMEDIATE CONSEQUENCE of the negligent act.

2. “Result was to have been anticipated the moment the fire was communicated.” (Ryan)

Question 21

Remote Cause

Answer 21

Z’s house, burned by “accidental and varying circumstances” which defendant has no control over. (Ryan)

Question 22

Possible Alternative Rules

Answer 22

1. Revised NY law - first adjacent landowner.
2. First property burned (regardless if not adjacent).
   (Ryan)

Question 23

Alternative: Majority

Answer 23

Will be allowed to recover for spreading of fire. (Ryan)

Question 24

Bartolone v. Jeckovich

Answer 24

Man involved in minor accident suffered from severe psychotic break as a result of the accident. Court held that driver was liable for psychotic break. (Barolone)

Question 25

Barolone HOLDING

Answer 25

D liable for all injuries that result from injury to the P even if a normal person would not suffer such injury. Doesn’t matter if the injury might have occurred even without the accident. (Bartolone)

Question 26

THIN SKULL/EGGSHELL RULE

Answer 26

Defendant is liable for all consequences, even if they are not foreseeable, even if the defendant was not aware of them, and even if other plaintiffs would not have suffered the same harm. (Bartolone)

Question 27

MAJORITY RULE (Thin Skull)

Answer 27

Injury has to set off the fragile psyche (religious beliefs are a matter of choice, not pre-existing mental conditions). (Bartolone)

Question 28

MINORITY RULE (Thin Skull)

Answer 28

Rule applies to pre-existing physical condition only. (Bartolone)

Question 29

Bartolone HYPO 1: Guy with swine flu negligently drives co-worker with compromised immune system to work, giving co-worker swine flu who is hospitalized.

Answer 29

1. Cause-in-fact? Yes, passing on the swine flu.

2. Proximate cause? Yes, “take plaintiff as you find him”, not foreseeable, but still liable.

Question 30

BARTOLONE RULE

Answer 30

“the defendant must take the plaintiff as he finds him, and hence may be held liable in damages for aggravation of a pre-existing illness”. (Bartolone)

Question 31

Bartolone HYPO 2: D does not have swine flu anymore and out for a drive and causes a car accident. The injured couple is part of religious colt to not receive blood transfusion and wife dies.

Answer 31

Psyche cannot control but religious beliefs can control and does not extend its scope to cover P’s religious beliefs.

Question 32

In Re Arbitration Between Polemis and Furness, Withy & Co., Ltd
(Directly Traceable)

Answer 32

Cargo boat carrying petrol was being unloaded when a negligently placed wooden beam fell, causing an explosion that destroyed the boat. Court held that although the type of damage was unforeseeable, the fact that some damage could be foreseen was enough to create proximate cause liability.

Question 33

Direct Consequences Rule:

Answer 33

If a negligent act is the direct cause of damage, it is irrelevant that the type or extent of the damage was reasonably foreseeable, so long as some harm or damage resulting from the negligence was foreseeable. (Polemis)

Question 34

POLEMIS RULE

Answer 34

As long as D was negligent, Polemis held that he or she would be liable for even unforeseeable consequences as long as those consequences are directly traceable to the negligent act and not due to the operation of independent causes having no connection to the negligent act. (Polemis)

Question 35

Unbroken Sequence of Events

Answer 35

1. As long as an unbroken sequence of events and no intervening causes.
2. Directly traceable to defendants negative act.
3. Different things that happen in between= broken sequence.
4. In this rule it is immaterial whether can foresee it or not- can foresee damage to the building even if not foresee the manner in which it happened..
5. Enough when directly traceable to defendants act or omission.
   (Polemis)

Question 36

POLEMIS COURT

Answer 36

1. The court will not differentiate between the type and extent of the injury.
2. Most courts have concluded that unforseeability in the manner in which the harm occurs will not negate liability.
3. As long as there is some type of foreseeable harm, the court will hold the D liable for harm that occurs that is of a similar type (regardless of extent). 4. Establish and ID what harms were foreseeable from the original negligent act, then ID what harm actually occurred. (favorable to P).
   a. Requires unbroken sequence of events - intervening cause will “break” sequence.
   (Polemis)

Question 37

POLEMIS ANALYSIS

Answer 37

1. Was there some type of harm foreseeable?

2. Was a harm actually caused as a direct result of the negligence? (Polemis)

Question 38

Polemis HYPO 1: If fire spread from ship to all ships and all buildings, causing mass dislocation. Proximate cause?

Answer 38

Probably not - some type of harm was foreseeable, but the spreading can be said to be the operating of independent causes.

Question 39

Polemis HYPO 2: See Note 3 - driver who severed gas line. Liability?

Answer 39

Yes, doesn’t matter that type or manner of harm was unforeseen, still liable for damages directly resulting.

Question 40

Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co., Ltd. “Wagon Mound No. 1” (Reasonable Foreseeability)

Answer 40

Ship negligently discharged oil into harbor, which caught fire and burned plaintiff’s dock. Court held that the oil catching fire was not reasonably foreseeable and liability did not apply. (Wagonmound)

Question 41

Reasonable Foreseeability Test

Answer 41

A consequence has been imposed on the ground that it was not reasonable for the defendant to foresee the fire damage. (Wagonmound)

Question 42

Under Polemis in this case:

Answer 42

There would be liability because there was some type of foreseeable harm/damage (environmental damage, mucking up of the docks) and actual harm/damage (fire) occurred. (Wagonmound)

Question 43

Wagonmound HOLDING (Reasonable Foreseeability):

Answer 43

Court holds that proximate cause is limited to “reasonable forseeability” damage/harm that is direct.

1. Exact type of damage that P seeks recovery for must be foreseeable type of damage.
2. The area within which liability is imposed is that which is within the circle of reasonable forseeability.
3. “There is no negligence is the air” - mere negligence (duty & breach) does not create liability for all damage that occurs as a result (not an umbra of liability for harm).
   a. Forseeability or scope of proximate cause. (Wagonmound)

Question 44

Wagonmound RULE ((Foreseeability/scope of the risk approach) :

Answer 44

1. The area within which liability is imposed is that which is within the circle of reasonable foreseeability. (Note 1).
2. Only liable to the risks that make his or her conduct negligent in the first place. (Wagonmound)

Question 45

AGAINST POLEMIS:

Answer 45

1. Does not like Polemis because very strict toward the defendant.
2. Justice, morality, and fairness.
3. Can’t deter if it cant foresee it to prevent it.
4. No liability simply because there was some negligence- does not mean liable to all damage that occurs

Question 46

Natural results:

Answer 46

Natural results are those that are reasonably foreseeable. (Wagonmound)

Question 47

WAGONMOUND TEST:

Answer 47

1. What unreasonable risk D assume from conduct.
2. Look at what actually happened.
3. Risks that could have been anticipated v.. injury that actually occurred.

OR

1. ID what unreasonable risks the D should have anticipated.
2. Compare to harm/damage that actually occurred.

(Wagonmound)

Question 48

Anticipation of Event:

Answer 48

(Note 4): The way in the event occurs need not be foreseeable, so long as the event itself is to be anticipated.
(example of kids with manhole and warning lamps - foreseeable that someone falls in the hole or gets burned, but not lamp exploding when dropped in hole, sucking in kid). (Wagonmound)

Question 49

Polemis v. Wagonmound HYPO: Negligently leave out dynamite - kid trips over it and gets hurt.

Answer 49

1. Polemis - Yes, could have exploded.

2. Wagon Mound - no, tripping not foreseen.

Question 50

Palsgraf v. Long Island R.R. Co.

Answer 50

Man carrying a package of dynamite was “helped” onto departing train by RR employees, causing him to drop the package. Dynamite exploded, knocking down scales which fell on passenger standing on platform. Court held that sequence of events and potential harm to platform passenger was too tenuous to be foreseeable, so no liability. (Palsgraf)

Question 51

Foreseeable Ps/Zone of Danger Test

Answer 51

Ct rejected Poelmis rule in favor of reasonably foreseeable for the negligent act. Only extend liability for those harmed who were reasonably foreseeable when the negligent act or omission occurred. Look at specific harm suffered and see if it was foreseeable. (Palsgraf)

Question 52

Cardozo (Majority)

Answer 52

Negligence is a duty owed to a specific plaintiff which is breached- no transfer of negligence. Duty is defined by the risk reasonably foreseen.

1. If the package was clearly labeled (i.e. “WARNING: Explosive! Dynamite!”) then there would be a duty to protect against the risk of explosion.
2. If “foreseeable harm” for or “foreseeable zone of danger”, then “unforeseeable plaintiff” can recover, even under Eggshell rule.
3. Bright line rule - limits liability.
4. Recap: Cardozo - transferred negligence doesn’t exist - doesn’t transfer duty owed from A to B if only B was harmed. Liability extends only to those P who were within the orbit or the zone of danger. Focus on the type of foreseeable harm that makes D negligent in the first place - if P was foreseeable then there is proximate cause. If not, no proximate cause. Thin skull rule still applies. (Palsgraf)

Question 53

Andrews (Dissent)

Answer 53

There is a general duty of care not to engage in negligent behavior which may foreseeably cause harm to unknown persons, then there will be liability for people who actually are directly and proximately harmed.

1. “Unforeseeable plaintiff” is allowed if there was negligence and actual harm caused.
2. Problem of predictability.
3. Recap: Andrews - proximate cause with duty owed to society generally. Proximate cause has to be evaluated in each particular case, with factors - natural and continuous sequence of causes, substantial factor in producing result, direct connection, without too many intervening causes. (Palsgraf)

Question 54

Cardozo POLICY:

Answer 54

Says Andrews’ argument would not be fair and would not deter because there was no way of knowing the danger involved.

Question 55

Andrews POLICY:

Answer 55

1. Says Cardozo’s argument would not be fair, P would not be able to recover, and the RR is in a better opinion to absorb the loss.
2. So broad of a test- Pro Planitiff. (Palsgraf)

Question 56

Derdiarian v. Felix Contracting Corp. (Third Party Negligence)

Answer 56

Construction worker injured when car swerved and crashed through the construction site. Court held the negligent lack of barriers was the proximate cause of the accident, despite the crash being and intervening cause, especially since the barriers were to protect workers from car crashes. (Derdiarian)

Question 57

Intervening Cause

Answer 57

1. Ordinary/Foreseeable.
2. If intervening act is foreseeable then it does not cut off liability and there is still proximate cause.
   (Derdiarian)

Question 58

Superseding Cause

Answer 58

1. Extraordinary/Not Foreseeable.
2. When courts have decided the intervening act should cut off liability.
   (Derdiarian)

Question 59

Derdiarian RULE:

Answer 59

• Liability depends upon whether the intervening act is a normal or foreseeable consequences of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from defendant’s conduct, it may well be a superseding act which breaks the causal nexus. (Derdiarian)

Question 60

POLICY:

Answer 60

A person is deemed to have foreseen the normal consequences of his conduct, but is not responsible for extraordinary negligent intervening acts of third persons. (Note 3). (Derdiarian)

Question 61

Can P’s own negligence cut off liability?

Answer 61

1. P’s negligence has to be more than contributory negligence to cut the chain of causation.
2. D has to anticipate not only negligence from a third party but from the P himself. (Note 10). (Derdiarian)

Question 62

Derdiarian HYPO: Failing to provide fuel and person killed by volcano when had to land.

Answer 62

D would not be liable because superseding cause- not intervening 3rd party.

Question 63

Jury Question:

Answer 63

This is often a question for a jury so arguments on both sides is very important- unpredictable- judge decides if enough for a jury to get there but does not decide it. (Derdiarian)

Question 64

Derdiarian Analysis:

Answer 64

1. Is there liability?
2. Is there proximate cause? (Was the act of the 3rd party foreseeable by the D?) 3. Tip: The harm itself doesn’t need to be foreseen, but the type of harm does. (Derdiarian)

Question 65

Foreseeability:

Answer 65

2. A person must foresee the normal consequences of his conduct, but is not responsible for extraordinarily negligent intervening acts of third persons. (Derdiarian)

Question 66

P’s Negligent Act as Intervening Cause

Answer 66

Plaintiff’s own conduct may constitute an intervening cause. (Derdiarian)

Question 67

Acts of God:

Answer 67

Acts of God generally will not be will be superseding unless it was the type of accident that A should have foreseen and protected against. (Derdiarian)

Question 68

Intentional Act

Answer 68

An intentional act (as opposed to a mere negligent act) will raise the liability of the intervening act. (Derdiarian)

Question 69

Restatement 442

Answer 69

1. A person must foresee the normal consequences of his conduct, but is not responsible for extraordinarily negligent intervening acts of third persons. (Derdiarian)

Question 70

Watson v. Kentucky & Indiana Bridge & R.R. Co.

Answer 70

Guy threw a lit match in a cloud of gasoline negligently spilled by railroad company, causing an explosion. The court held if the act was negligent, it was merely intervening as it should have been foreseen that someone might light a match, but if malicious, it was superseding because the RR couldn’t have foreseen someone criminally igniting it. (Watson)

Question 71

Intentional v. Negligent Acts:

Answer 71

Generally intentional, malicious or criminal acts are considered “unexpected or extraordinary” and will likely be found to be superseding acts, while merely negligent acts that should be foreseen are intervening. (Watson)

Question 72

Unforeseeable Intervening Acts

Answer 72

Note 3 (p. 343) Intervening acts that are unforeseeable, unusual or highly culpable may be outside the scope of the risk. (Watson)

Question 73

Exception to NOTE 3:

Answer 73

When the defendant’s original negligent act or omission was designed to protect against the type of malicious or criminal act, the intervening act is not superseding.

1. Note 3 examples: Failure to supervise children, failure to patrol, failure to perform protections, failure to lock.
2. Note 4: Custody of dangerous criminals. (Watson)

Question 74

POLICY:

Answer 74

1. We want to punish people who act intentionally, maliciously or criminally, but we do also want to punish people who are foreseeably negligent.
2. Also don’t want to make the tortfeasor liable for all consequences.
3. Should expect people to make mistakes but not foresee do horrible things all the time.
4. Intentional or criminal act can cut off liablility because a criminal act is morally culpable.
5. Making someone liable for all of the consequences can lead to disproportionate liability.
   (Watson)

Question 75

Watson HYPO: P’s tire blows out in the mountains - P gets raped & murdered.

Answer 75

1. Tire manufacture liable? No.
2. Manufacture also left off locks - liable? Yes, removed protection that locks were designed to protect against.
3. P calls for help, repair shop sends employee who is known to be violent - liable? Very much yes.

Question 76

Watson Analysis:

Answer 76

ID intervening act, determine if D could foresee intervening act.

Question 77

ISSUE: intentional (malicious) or not (accidental)?

Answer 77

1. Intentional (Malicious) then act is superseding and no proximate cause.
2. Non-intentional (Ordinary Negligence) then act is intervening and there is proximate cause because it is foreseeable. (Watson)

Question 78

Do criminal acts always cut off liability?

Answer 78

1. RESTATEMENT NOTE 3: Intervening acts that are unforeseeable, unusual, or highly culpable may be outside the scope of risk.
2. When the intervening act is intentionally tortuous or criminal, it is more likely to be considered independent. (Watson)

Question 79

Fuller v. Preis

Answer 79

Man was involved in car accident and suffered brain damage, resulting in seizures and suicide 7 months after accident. Court held the suicide was “irresistible” and “involuntary”, proximately caused by the brain injury from the car accident. (Fuller)

Question 80

Fuller RULE:

Answer 80

Suicide is a superseding cause unless P is unaware of what he is doing or there is and irresistible impulse or sudden frenzy. (Irresistible Impulse Exception). If there is evidence of planning it is not an irresistible impulse. (Fuller)

Question 81

Majority RULE:

Answer 81

When there is evidence of pre-planning (suicide note, obtaining means of suicide, etc.) or person is lucid at the time of the suicide, courts are likely to hold suicide as superseding cause (original tortfeasor is not liable).
1. Not superseding if suicide was committed in a “sudden frenzy.” (Fuller)

Question 82

Minority RULE:

Answer 82

An act of suicide is not, as a matter of law, a superseding cause (i.e. original tortfeasor liable) - An intervening cause which is “irresistible” or “involuntary” is an intervening, not a superseding cause. (Fuller)

Question 83

What if decedent left a note?

Answer 83

Controllable and pre-meditated to a certain extent, not acting on impulse.
(Fuller)

Question 84

Why does Fuller rule benefit the plaintiff?

Answer 84

1. Plaintiff wants to argue for Fuller rule which is broader while most courts apply the narrower rule (maj.)- favors defendant
2. Fuller- have to have an accident victim that suffers organic brain damage
   (Fuller)

Question 85

POLICY of Fuller Rule:

Answer 85

1. Not to encourage suicide so courts keep a tight reign with the narrow majority rule.
2. Courts struggle with how to treat mental illness. (Fuller)

Question 86

McCoy v. American Suzuki Motor Corp.

Answer 86

Man, seeing a car crash happen, went to rescue the people in the car crash. After helping with the rescue, while walking back to his car with a flare in hand, man was injured by a hit-and-run driver. Court held that the Rescue Doctrine is a reflection of forseeability for what might happen - man had rescuer status and injury was foreseeable under Rescue Doctrine. (McCoy)

Question 87

The Rescue Doctrine

Answer 87

1. The beneficial intentional act

2. “the danger invites rescue” (McCoy)

Question 88

Doctrine Serves two functions:

Answer 88

Rescuers can be foreseeable under some circumstances. The doctrine, as here asserted, allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place.
Doctrine serves two functions:
1. Informs a tort-feasor it is foreseeable a rescuer will come to the aid of the person imperiled by the tort-feasor’s actions, and therefore, the tort-feasor owes the rescuer a duty similar to the duty he owes the person he imperils.
2. The rescue doctrine negates the presumption that the rescuer assumed the risk of injury when he knowingly undertook the dangerous rescue, so long as he doe not act rashly or recklessly. (McCoy)

Question 89

TO ACHIEVE RESCUER STATUS ONE MUST DEMONSTRATE:

Answer 89

1. D was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued;
2. the peril or appearance of peril was imminent;
3. a reasonably prudent person would have concluded such peril or appearance of peril existed; and
4. the rescuer acted with reasonable care in effectuating the rescue. (McCoy)

Question 90

POLICY

Answer 90

1. Want to encourage rescuers.
2. Encourages people to help rescue others from dangerous situations without creating a superseding cause of liability. (McCoy)

Question 91

Elements of Rescuer Doctrine Status:

Answer 91

1. The defendant was negligent to the person rescued;
2. Such negligence caused (cause-in-fact) the peril or appearance of peril to the person rescued;
3. The peril or appearance of peril was imminent
4. A reasonable prudent person would have concluded such peril or appearance of peril existed; and
5. The rescuer acted with reasonable care in effectuating the rescue.
6. Walk-through of analysis:
   i. The defective manufacturing of the Samurai created the car accident which put the original passenger in peril;
   ii. The car swerving and rolling off the road created peril or an appearance of peril, and people could be hurt, trapped or injured;
   iii. Most people upon seeing a car accident would assume there was peril;
   iv. McCoy was holding a flare to make himself visible and followed the direction of the trooper in aiding in the rescue;
   (McCoy)

Question 92

Contrast to Hartley and Maltman, where the intervening cause was too remote to be foreseeable.

Answer 92

1. Hartley - Estate of person killed by drunk driver sued state for failing to revoke driver’s license - too remote
2. Maltman - Rescue helicopter crashed for unrelated reason on the way to accident - too remote
   (McCoy)

Question 93

Professional Rescuer Rule:

Answer 93

1. (Note 9) Professionals already have been compensated for their potentially hazardous duty- the rule operates to preclude recovery only if the risk created was the type of risk reasonably anticipated by the job.
2. (police, firefighter, etc.) is generally held to have assumed the risk of injury in rescue as part of their job.
   (McCoy)

Question 94

What if the driver of the Suzuki was negligent vs. the manufacturer?

Answer 94

1. Rescuer doctrine could apply even against rescuee who caused it.
2. Why would want to apply rescue doctrine even against rescuee? Because do not want to deter people from helping others.
   3 POLICY: encourage rescue to take place. (McCoy)

Question 95

REASONABLE rescuer:

Answer 95

If rescuer does not act reasonable, cannot recover. (McCoy)

Question 96

MISTAKEN rescuer:

Answer 96

If rescuer mistaken, ok as long as act reasonably- peril or appearance of peril. (McCoy)

Question 97

Second Injury:

Answer 97

1. Generally will be held to not be superseding, because it is foreseeable that if you put someone in a position where they need medical attention (“weakened state”), they may encounter medical malpractice or disease.
2. P usually recovers for the second injury. (McCoy)

Question 98

Weakened State

Answer 98

Weakened state is more likely to be seen as a non-superseding act, because it was the D’s action that put the P in the weakened state. (McCoy)

Question 99

Factors that effect recovering for second injury:

Answer 99

1. length of time between incidents
2. location & nature of injury
3. reasonableness of P’s conduct
4. character of second accident
5. Disease - if the 2nd injury would have affected a normal, healthy person, or just a person who was put in a weakened state. (McCoy)

Question 100

Different from normal superseding cause because the original injury has already occurred, then secondary “superseding” cause occurs.

Answer 100

1. P will argue that the 2nd event was not a superseding cause, because it was completely separate from original negligence (ex: obvious medical malpractice - operating on wrong limb).
2. D will argue that 2nd event was superseding because it…

Question 101

Kelly v. Gwinnell (POLICY RULE- how far do we extend liability)

Answer 101

Social hosts, knowing guest had to drive to get home, served him drinks until he was visibly drunk, then let him drive. On his way home, guest hit plaintiff. Court held that although law did not extend liability to social hosts unless serving to minors, the law should extend to social hosts on a limited basis for policy reasons, including deterrence effect to prevent letting social hosts from letting visibly drunk guests drive home. (Kelly)

Question 102

Social Host Liability (majority)

Answer 102

A host who serves liquor to a guest, knowing the guest is intoxicated and will be operating a motor vehicle, is liable. (Kelly)

Question 103

Policy of this rule:

Answer 103

1. Court looked to criminal statutes (negligence per se)
2. Court looked to severity and pervasiveness of potential harm
3. Court looked to forseeability of consequences
4. Court looked to equity of assigning liability
   (Kelly)

Question 104

Minority Rule

Answer 104

Liability should not be extended because the liability of social hosts exceeded what was reasonable to impose on an individual (due to cost, inexperience in determining intoxication, lack of ability to enforce not driving). (Kelly)

Question 105

Policy of this rule:

Answer 105

1. More effective and appropriate for legislature to impose duty
2. Imposes liability for determining intoxication
3. No method of enforcement for individuals
4. Can’t spread the costs of liability as commercial entities can
   (Kelly)

Question 106

Common Law View: (Modified Limits)

Answer 106

1. Only person who drank the liquor was liable, no extension of liability to third parties.
2. Host only liable for own portion of the judgment.
3. No question it is foreseeable so pure question of policy whether or not to extend liability.
   (Kelly)

Question 107

Social Policies:

Answer 107

Can also effect proximate cause because courts may look to social factors to change or amend the law to come into line with foreseeable consequences that they want to punish. (Kelly)

Question 108

Proximate Cause

Answer 108

1. Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others.
2. When the negligent conduct creates such a risk, setting off foreseeable consequences that lead to P’s injury, the conduct is deemed the proximate cause of the injury.
3. A tortfeasor is generally held answerable for the injuries which result in the ordinary course of events from his negligence and it is generally sufficient if his negligent conduct was a substantial factor in bringing about the injuries. (Kelly)

Question 109

Negligent act/omission:

Answer 109

Zaks serving him more alchohol and letting him drive. (Kelly)

Question 110

Kelly HOLDING:

Answer 110

A host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and that he will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle by the adult guest when such negligence is caused by the intoxication.
(Kelly)

Question 111

Policy:

Answer 111

1. The added assurances of just compensation to the victims of drunk driving as well as the added deterrent effect of the rule on such driving outweigh the importance of those other values.
2. Damage caused by such deaths is regarded increasingly as intolerable- thousands of deaths are caused each year by drunk drivers.
3. Imposition of such a duty by the judiciary seems both fair and fully in accord with the State’s policy.
   (Kelly)

Question 112

Dissent:

Answer 112

1. Do not know tolerance level if not commercial, cannot monitor if host v. bartender.
2. Licensees have insurance policy and hosts do not- one person bears the whole burden.
3. Grave burden on the average citizen of the U.S. who lacks knowledge and expertise in determining levels and degrees of intoxication.
4. Imposes high duties of care on social hosts.
5. Reasonable to impose tort liability on licensees based on their violation of explicit statutes and regulations- Social host is in a different position.
6. Significant difference between social host and commercial licensee- experience gives them expertise.
7. Social host’s inability to spread cost of liability (must bear entire cost alone) while commercial establishment has insurance
8. Limitless liability and may lose everything (Kelly)

Question 113

MINORS:

Answer 113

Most jurisdictions impose liability on those who serve alcohol to minors. (Kelly)

Question 114

DRAM SHOP ACT:

Answer 114

1. Civil COA against commercial furnishers of alcohol for damages resulting from a consumer’s intoxicated state.
2. Courts have consistently been unwilling to extend liability on these grounds to social hosts.
   (Kelly)

Question 115

EMPLOYERS:

Answer 115

Some courts impose liability on employers where employees became intoxicated at work or work-related social event and then injured someone while driving intoxicated. (Kelly)

Question 116

Enright v. Eli Lilly & Co.

Answer 116

Grandmother took DES while pregnant, which resulted in harm to mother’s reproductive system. As a result, daughter was born prematurely and suffered birth defects. Court held that liability ended with the individuals harmed, including mother who ingested DES and child in womb when ingested, but not successive generations (granddaughter). (Enright)

Question 117

Differentiate between Albala and Enright:

Answer 117

DES itself makes it different and should extend liability to successive generations. (Enright)

Question 118

Policy reasons:

Answer 118

1. P - Defendant is in a better position to cover a loss, because they can spread the cost around and they can test.
2. D - no end of liability in sight if extended to multiple generations, already regulated by FDA, already liable under torts, don’t want to over-deter (keep making drugs). (Enright)

Question 119

Example: Note 4(A): Doctor failed to tell patient her blood transfusion could have been infected with HIV - girl developed AIDS and infected her boyfriend, boyfriend sued doctor.

Answer 119

1. Policy of drawing a line to limit liability
2. Fairness, limitation, monetary, deterrence, punishment - take into consideration the policy values (re-review policy values).
3. Does torts system need to get involved in order to provide safety, deterrence and fairness (in Enright case, FDA has the job to prevent future outbreaks)
4. Policy issues often reflect the values of society, but these are also in tension with each other (deterrence versus undue punishment). (Enright)