Proximate Cause (ROFR, ZOD, Bystander v. Direct Victim, Intervening, Superseding and NIED)

Question 1

Causation 2-Prong Analysis

Answer 1

1. Cause In Fact

2. Proximate Causation

Question 2

Elements for Proximate Cause

Answer 2

1. If the actual consequences of D’s conduct fall within the scope of preliminary defined risks
2. Foreseeability: We look at the negligence in terms of harm that would’ve been foreseen by a reasonably prudent person.

Question 3

2 Types of Foreseeability

Answer 3

1. Of the consequences of the P as a potential victim of D’s negligence conduct, or
2. Of the particular way in which the P was injured

Question 4

Some Harm to Someone, But Unforeseeable P, Type and Extent of Harm

Answer 4

1. Andrews Dissent- Palsgraf

2. Kinsman

Question 5

Andrews Dissent in Palsgraf

Answer 5

Due care is a duty imposed on each one of us to protect society from unnecessary danger. When an act cerates an unreasonable threat of safety, the doer is liable for ALL of its proximate causes, even the ones thought to be OUTSIDE the range of foreseeability.

Question 6

Kinsman (‘64): D is aware of a risk of an event, but when it happens, the result is much greater than is foreseen, D is still liable

Answer 6

Barge owner knew there was a risk of barge breaking free, but did not foresee it getting stuck under a bridge downstream and causing massive flooding, but still liable.

Question 7

Foreseeable P - Even if Unforeseeable Type and Extent of Harm

Answer 7

1. Cardozo- Palsgraf
2. Polemis
3. Thin Skull Rule
4. Probably Majority of Jurisdictions Rule

Question 8

Palsgraf: Cardozo, “Duty of care to P when P is within the range of foreseeability and apprehension.

Answer 8

The lady was outside of the gaurd’s “Help a passenger get on a moving train who dropped an innocent newspaper wrapped package” situation foreseeability.

Question 9

Polemis (UK ‘21): Immaterial if extend of harm is unforeseeable

Answer 9

If the D’s act was the direct cause of the thing that caused the harm, no matter how unforeseeable he is liable

Question 10

Thin Skull Rule

Answer 10

Take the victim as he is. So if you agitate a pre-existing condition from a slight kick, and it cause severe harm, you’re liable for that harm, even if you didn’t know about the pre-condition.

Question 11

Wagon Mound 1 (’61): Foreseeability is introduced

Answer 11

Court rules that ship owners could not have foreseen the embers from the workers igniting the oil leaking from their boat which had soaked the wood on the front of dock

Question 12

ROT (29): Limitations on Liability of Tortious Conduct

Answer 12

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

Question 13

ROT (30): Risk Of Harm Not Generally Increased By Tortious Conduct

Answer 13

An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that does not generally increase the risk of that harm.

Question 14

Ford v. Trident Fisheries (’19): When P’s negligence has no effect on D’s harm

Answer 14

Court; “Even if the rescue boat worked properly, no indication death would’ve been less likely, b/c no one even knew where he was/could hear/locate him.

Question 15

Lyons (’96): When D’s conduct wouldn’t have made a difference

Answer 15

Court, “It appears, the P’s wife pulling out into a busy road unexpectedly was the PC of her death. Truck driver would have hit her even at 10 mph slower.

Question 16

ROT (31): Preexisting Conditions And Unforeseeable Harm

Answer 16

When an actor’s tortious conduct causes harm to a person that, because of a preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person.

Question 17

Cahoon (’00): Loss of Chance- Chance of survival decreased b/c of reliance

Answer 17

Court; Cannot hold doc liable for full amount b/c her chance of survival started out less than 50%, BUT there is room to hold him liable for the % lost between the first and second visit.

Question 18

Intervening Cause

Answer 18

A foreseeable cause that breaks the direct causal chain

Question 19

Marshall (’55): When D’s negligent act expands the ROFR

Answer 19

The chain of events (P being hit by other car while trying to warn traffic) was directly caused by D’s negligent driving causing original accident so he is the liable one.

Question 20

Kush (’83): Civ Court liability for intervening tortfeasor is much higher then Crim

Answer 20

Teacher held liable for harm caused by his students who stole chemicals that were not locked up and injured a third party.

Question 21

Herrera (’03): Zone of Danger created when D left keys in unlocked, unattended customer car

Answer 21

Sarracino; “…the criminal acts of a third party will not relieve a negligent defendant of liability if the defendant should have recognized that his or her actions were likely to lead to that criminal activity.”

Question 22

Superseding Cause

Answer 22

An unforeseeable cause that breaks the direct causal chain

Question 23

Stahlecker (’03): Where Zone of Danger line is drawn

Answer 23

The rape and murder of plaintiffs daughter was not a probable and natural cause by a foreseeable third party to Ford or Firestone due to their tires being faulty and leaving customers on the side of the road sometimes waiting for assistance.

Question 24

Solomon (’90): “Danger invites rescue,” and ROFR

Answer 24

Court, “the person who causes the “rescue situation” owes the victim’s rescuer a duty of reasonable care. BUT you have to ask for rescuer, “Would a reasonable person perceive the situation the same way?”

Question 25

Cardozo in Wagner (’21)

Answer 25

1. Danger invites rescue
2. The law places their effects within the range of the natural and probable
3. The wrongdoer may not have foreseen the rescuer, but he is accountable as if he had

Question 26

Rasmussen (’09)

Answer 26

Rescuer recovered damages from the victim b/c the victim, by negligently driving car off the road, put rescuer in a foreseeably dangerous situation

Question 27

ROT (3rd #14)

Answer 27

Actor is negligent if;
1. He violates a statute that is designed to protect against the type of accident his conduct caused and if accident victim is within the class of people statute is meant to protect.

Question 28

Gorris (1875): When the crim safety statute’s purpose does not match the negligent act at bar

Answer 28

D couldn’t be found liable for not keeping sheep in cages b/c the safety act P is claiming D violated was meant for preventing spread of disease, not for protection against being washed overboard.

Question 29

ROT (3rd #47): Negligent Conduct Directly Inflicting Emotional Harm On Another

Answer 29

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct:

(a) places the other in danger of immediate bodily harm and the emotional harm results from the danger; or
(b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.

Question 30

Mitchell (1896): Limiting Proximate Cause for IIED (Impact Rule)

Answer 30

Court, “there had to be impact from the horses that caused the harm which caused the miscarriage.”

Question 31

Waube (‘35): Limiting the Zone of Danger

Answer 31

Court, “The Zone of Danger should be limited to those directly put in fear of harm or harmed. Mother cannot collect for IIED from seeing kid killed by car.

Question 32

Wyoming Hypo: Is she a bystander or a direct victim?

Answer 32

Woman kills snowmobiler and he dies in her arms and she tries to sue his estate for the emotional harm he caused by his reckless snow mobiling which caused fatal accident

Question 33

Limiting Family Relation: Under or Over-Inclusive

Answer 33

1. Over- You may be presuming that they are close to their family.
2. Under- You may be presuming that people are not close to best friends or third cousins, etc. Also, what about gay couples.

Question 34

Dillon (‘68): Degree of relationship of bystander

Answer 34

Court says ruling weighs on 3 factors;

1. Whether plaintiff was located near the scene of the accident
2. Whether the shock resulted from the observance of the accident compared to just hearing about it
3. whether plaintiff and victim were closely related

Question 35

Thing (‘89): Guidelines for recovery with NIED case - Mother from son’s injury

Answer 35

Court states guidelines as;

1. Must be closely related to victim
2. Must be present at the scene of incident and aware that the incident is causing injury to victim
3. emotional distress suffered has to be more than an uninterested party would suffer and NOT abnormal to the circumstances.

Question 36

Burgess (‘92): Like Wyoming case, issue of is victim a direct or bystander?

Answer 36

Court rejects Doc “Mom is a bystander” defense and says, “Doc cannot access the fetus without coming in direct contact w/Mom’s body, and the inexplicable emotional connection between a mother and fetus is another duty of care owed by doctor.