Proximate Cause (ROFR, ZOD, Bystander v. Direct Victim, Intervening, Superseding and NIED) Flashcards
Causation 2-Prong Analysis
- Cause In Fact
2. Proximate Causation
Elements for Proximate Cause
- If the actual consequences of D’s conduct fall within the scope of preliminary defined risks
- Foreseeability: We look at the negligence in terms of harm that would’ve been foreseen by a reasonably prudent person.
2 Types of Foreseeability
- Of the consequences of the P as a potential victim of D’s negligence conduct, or
- Of the particular way in which the P was injured
Some Harm to Someone, But Unforeseeable P, Type and Extent of Harm
- Andrews Dissent- Palsgraf
2. Kinsman
Andrews Dissent in Palsgraf
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.
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
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.
Foreseeable P - Even if Unforeseeable Type and Extent of Harm
- Cardozo- Palsgraf
- Polemis
- Thin Skull Rule
- Probably Majority of Jurisdictions Rule
Palsgraf: Cardozo, “Duty of care to P when P is within the range of foreseeability and apprehension.
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.
Polemis (UK ‘21): Immaterial if extend of harm is unforeseeable
If the D’s act was the direct cause of the thing that caused the harm, no matter how unforeseeable he is liable
Thin Skull Rule
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.
Wagon Mound 1 (’61): Foreseeability is introduced
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
ROT (29): Limitations on Liability of Tortious Conduct
An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.
ROT (30): Risk Of Harm Not Generally Increased By Tortious Conduct
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.
Ford v. Trident Fisheries (’19): When P’s negligence has no effect on D’s harm
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.
Lyons (’96): When D’s conduct wouldn’t have made a difference
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.
ROT (31): Preexisting Conditions And Unforeseeable Harm
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.
Cahoon (’00): Loss of Chance- Chance of survival decreased b/c of reliance
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.
Intervening Cause
A foreseeable cause that breaks the direct causal chain
Marshall (’55): When D’s negligent act expands the ROFR
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.
Kush (’83): Civ Court liability for intervening tortfeasor is much higher then Crim
Teacher held liable for harm caused by his students who stole chemicals that were not locked up and injured a third party.
Herrera (’03): Zone of Danger created when D left keys in unlocked, unattended customer car
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.”
Superseding Cause
An unforeseeable cause that breaks the direct causal chain
Stahlecker (’03): Where Zone of Danger line is drawn
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.
Solomon (’90): “Danger invites rescue,” and ROFR
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?”
Cardozo in Wagner (’21)
- Danger invites rescue
- The law places their effects within the range of the natural and probable
- The wrongdoer may not have foreseen the rescuer, but he is accountable as if he had
Rasmussen (’09)
Rescuer recovered damages from the victim b/c the victim, by negligently driving car off the road, put rescuer in a foreseeably dangerous situation
ROT (3rd #14)
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.
Gorris (1875): When the crim safety statute’s purpose does not match the negligent act at bar
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.
ROT (3rd #47): Negligent Conduct Directly Inflicting Emotional Harm On Another
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.
Mitchell (1896): Limiting Proximate Cause for IIED (Impact Rule)
Court, “there had to be impact from the horses that caused the harm which caused the miscarriage.”
Waube (‘35): Limiting the Zone of Danger
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.
Wyoming Hypo: Is she a bystander or a direct victim?
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
Limiting Family Relation: Under or Over-Inclusive
- Over- You may be presuming that they are close to their family.
- Under- You may be presuming that people are not close to best friends or third cousins, etc. Also, what about gay couples.
Dillon (‘68): Degree of relationship of bystander
Court says ruling weighs on 3 factors;
- Whether plaintiff was located near the scene of the accident
- Whether the shock resulted from the observance of the accident compared to just hearing about it
- whether plaintiff and victim were closely related
Thing (‘89): Guidelines for recovery with NIED case - Mother from son’s injury
Court states guidelines as;
- Must be closely related to victim
- Must be present at the scene of incident and aware that the incident is causing injury to victim
- emotional distress suffered has to be more than an uninterested party would suffer and NOT abnormal to the circumstances.
Burgess (‘92): Like Wyoming case, issue of is victim a direct or bystander?
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.
