Negligence

Element 5: Proximate or Legal Cause

The proximate cause requirement is a policy determination, arising out of a judicial sense that a defendant, even one who has behaved negligently, should not automatically be liable for all of the consequences, no matter how improbable or far-reaching. This is the element in a negligence claim by which courts/juries decide whether the actual consequences of a D's conduct was so far-removed from the risk that made the actor's conduct negligent that the D, although blameworthy, should not be held liable for the resulting harm. The courts create a fictional legal line, where beyond this line it is unreasonable/unfair/inappropriate to hold one liable. The court is making the decision to cut off liability off because it thinks it would be bad public policy and unreasonable for a D to be liable for all the consequences of his negligence regardless of proximity or time. There is a jurisdictional split as to where to draw this fictional line. Some courts would impose liability for any harm that may be said to have directly resulted from the defendant's negligence, no matter how unforeseeable or unlikely it may have been at the time the defendant acted, providing that the causal chain is not broken by "superseding intervening causes." (Andrews in Palsgraff v. Long Island, Polemis). However, this view could potentially lead to limitless liability (Ryan v. New York Central RR Co., Yun v. Ford). The majority view is that courts should limit the defendant's liability to those results that are of the same general sort that made the defendant's conduct negligent in the first place; i.e., results of a generally foreseeable nature, both as to the kind of injury and as to the person injured. Proximate cause under this view is established if the P and the type, extent, and manner of the P's injury were the foreseeable result of the D's negligent conduct under the circumstances. (Cardozo in Palsgraff v. Long Island, Wagon Mound 1). As for the unforeseeable plaintiff or harm, there are certain types of danger that the are so remote and unlikely but the consequences are so severe that a reasonable person would take steps to avoid it. In those cases, D may be liable for the unforeseeable harm (Wagon Mound 2). INDIRECT CAUSATION: INTERVENING AND SUPERSEDING CAUSES Intervening causes are normal consequences created by a D's negligent conduct. Some intervening causes are sufficient to prevent the defendant's negligence from being held to be the proximate cause of the injury. Intervening causes of this kind are usually called superseding causes, since they supersede, or cancel, the defendant's liability. §440. The issue of whether a particular intervening cause is a superseding one is determined by the application of a test much like the Cardozo "foreseeability" test. If the defendant should have foreseen the possibility that the intervening cause might occur, or if the kind of harm suffered by the plaintiff was foreseeable the defendant's conduct will nonetheless be the proximate cause. But if neither the intervening cause nor the harm was foreseeable, the intervening cause will be a superseding one, relieving the defendant of liability. There are situations in which the risk of a particular kind of intervening cause is the very risk that makes the defendant's conduct negligent in the first place. When this is the case, the intervening cause will virtually never relieve the defendant of liability (Derdiarian). Criminal acts by 3rd parties are usually superseding causes, unless foreseeable (Watson v. Kentucky). If a D's negligent conduct forces a P to act w/ a irresistible impulse, it is generally a superseding cause. Suicide is the prime example (Fuller v Preis). RESCUE DOCTRINE: If the defendant's negligence creates a danger, which causes some third person to attempt a rescue, this rescue will normally not be a superseding cause, unless it is performed in a grossly careless manner. Assuming that the rescue is not of this latter class, the defendant may be liable either to the person being rescued, or to the rescuer (McCoy v American Suzuki). In order for the rescue doctrine to apply the following elements must be present: (1) D was negligent to person being rescued & such negligence caused the peril or appearance of peril to the person rescued, (2) the peril or appearance of peril was imminent, (3) the reasonably prudent person would have concluded peril existed, and (4) the rescuer acted with reasonable care in effectuating the rescue. However, injury sustained during course of work that rescuer is employed to do is not compensable. SOCIAL HOSTS: Almost all states decline liability on hosts who serve alcohol to guests who then injure a third party, except New Jersey (Kelly v. Gwinnell). Liability will lie if the hosts serves a minor who injures a third party. Courts have been more willing to extend liability to an employer whose employees get drunk at a work event. ACTS OF GOD: An "Act of God" which brings about damage to the plaintiff different from the damage threatened by the defendant's negligence, will relieve the defendant of liability. KEY-IN-IGNITION CASES: Suppose the defendant leaves his car unlocked, with the key in the ignition, and a thief steals it, later running down the plaintiff. Is the thief's act a superseding one? In most circumstances, the courts have answered, "yes," whether or not there is a local car-locking ordinance. The risk of the intervening act is not one of the risks that make the defendant's conduct negligent. The kind of result is not the kind of result that is threatened by the defendant's negligence. Statutes requiring car locking are sometimes held to be for the protection of third persons, and violations are held to be negligent per se towards a bystander who is injured. Where negligence per se is found on this basis, the court will normally also conclude that the theft and the thief's negligence are not superseding causes, since their conduct was somewhat foreseeable and was part of the risk that the statute was designed to prevent.

Element 2: Duty

The second element of duty, as a matter of law, requires an actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. A general duty of care is a duty owed by the actor to everyone. A specific duty of care is a duty owed by the actor to a specific person. Each person owes a duty to act as a reasonable person would under the same or similar circumstances. Subjective good faith of the actor is irrelevant (Vaughan v. Menlove). It is not necessary that damage as a more rather than a less probable result should be anticipated. If there is some probability of harm sufficiently serious that a reasonable person would take precautions to avoid it, then failure to do so is negligence (Tullgren v. Amoskeag*). The reasonable person may not act in one specific way under the circumstances; there may be more than one way the reasonable person would act and so the reasonable person standard is a range of conduct. Duty is determined in light before injury, not after (Lubitz v. Wells). There typically is no duty to come to someone's assistance, however, if the actor begins to assist, they must follow through. The exceptions to this are when there is a special relationship that creates an affirmative duty to come to their assistance such as a teacher and her pupil, parents and children, doctors and patients, etc. REASONABLE PERSON STANDARD: The standard is always one of a reasonable person under the same or similar circumstances; it never varies (but the circumstances do). If circumstances presented are more dangerous, then a reasonable person would be more careful in dangerous circumstances. However, if certain circumstances were not foreseeable by a reasonable person, then there will be no liability when those unforeseeable circumstances occur (Blyth v. Birmingham Waterworks Co.). If circumstances presented are an emergency, a reasonable person would act a certain way in an emergency. To qualify as an emergency the event must be unforeseen, sudden, and unexpected (Cordas v. Peerless Transp. Co.). However, there are EXCEPTIONS to the reasonable person standard: MINORS: For minors doing minor's activities, the standard of conduct is that of a reasonable person of like age, intelligence, and experience under like circumstances. §283A. There are variations among jurisdictions on the age limits of minors. The restatement has a minimum age of 5 years §10B. Some jurisdictions have a conclusive presumption that children under the age of 7 are incapable of negligence and a rebuttable presumption that children between 7-14 years old are not capable of negligence (Patterson v. Central Mills*). The maximum age for minors was held to be 17 years (Charbonneau v. MacRury*). For minors doing adult activities, there is no exception to the reasonable person standard. Adult activities consist of driving a car, motorboat, motorcycle, motor scooter, hunting, etc. §10C (Robinson v. Lindsay). COMMON CARRIERS: Common carriers have a heightened duty to others. PHYSICAL DISABILITY: If the actor is ill or otherwise physically disabled, the standard of conduct is that of a reasonable man under like disability (Roberts v. State of Louisiana), §283C. A person with a physical disability is held to have knowledge that they have a physical disability, but if they are using due care to treat it they may not be liable for damages from the resulting condition. MENTAL DEFICIENCY: If a person has a mental deficiency, there is no exception to the reasonable person standard (Breunig v. American Family Ins. Co.). There is a jurisdictional split on the exception to the reasonable person standard for when there is onset insanity or the insanity prevents the person from conceiving of the consequences of their actions. SUPERIOR KNOWLEDGE/PROFESSIONALS: At a minimum reasonable person will have knowledge of conduct appropriate in everyday/common activities and there is no excuse if an actor claimed to have no knowledge of the appropriate conduct because they should know (Delair v. McAdoo). There is a duty for an individual to investigate certain circumstances when he does not know of something that may cause a risk (Gobrecht v. Beckwith*). When a learner or beginner is participating in an activity that presents a risk to others, there is no exception to the reasonable person standard (Heath v. Swift Wings, Inc). For a professional, the standard of care is that of a person with the knowledge, training, and skill of an ordinary member of the profession in good standing. For all but medical professionals who are not nationally certified, the standard of care is the degree of care exercised by members of the profession nationwide (Morrison v. MacNamara). For all other medical professionals, the same or similar community standard is used. For attorneys, the standard consists of three elements: (1) possession of knowledge and skill, (2) exercise of best judgment, and (3) use of due care (Hodges v. Carter). In medical or legal malpractice suits, the P must prove that case would have been won or patient would not have had specific injury (the outcome would have been different) if the attorney or physician would have done something differently. Other types of professionals are accountants, architects and engineers, clergy, designer of group health insurance plan, dentists, vets, pharmacists, teachers. To establish the standard for professionals, expert testimony is required except for when there is an obvious or egregious occurrence (Boyce v. Brown). Custom is not dispositive, but may go to determine whether there is a duty (Trimaco v. Klein). Physicians and surgeons have a duty to disclose relevant information about benefits and risks inherent in proposed treatment, alternatives to the treatment, and the likely results if the patient remains untreated. There is a jurisdictional split regarding the standard for disclosure. The majority of jurisdictions use the reasonable physician standard which requires a level of disclosure customary in medical profession. The minority of jurisdictions use the reasonable patient standard which requires a level of disclosure of what a doctor should reasonably recognize would be material to the patient's decision (Scott v. Bradford, Canterbury v. Spence*, Moore v. Regents). Exceptions to the disclosure standards are in emergencies where the patient is unconscious or unable to comprehend and prompt medical treatment is necessary, or where a patient is so distraught or unstable that the physician reasonably concludes that full disclosure would be detrimental, or for a physician who has never done a procedure before and there is no duty to disclose that fact to the patient. SCOPE OF DUTY: The scope of duty is determined by the degree of foreseeability that a certain type of behavior would cause an injury to someone. If a reasonable person would not have foreseen that a certain type of behavior would cause an injury to someone, then there is no duty. However, there is a jurisdictional split on how broad or narrow this foreseeability is. The broad view is that of Justice Andrews of the unforeseeable P: if a duty is owed to anyone, duty is owed to all (Palsgraff v. Long Island RR). The narrower view is that of Justice Cardozo of the zone of danger where a duty is owed only to those whom a reasonable person would have foreseen a risk of harm under the circumstances and there is no duty to those outside the zone of danger (Palsgraff v. Long Island RR). Additionally, the scope of duty extends to rescuers. If an actor owes a duty to someone, then he also owes a duty to any other person who goes to the rescue of the person imperiled because "danger invites rescue" (McCoy v. American Suzuki Motor Corp.). The rescue attempt, however, must be reasonable and the extended liability does not extend to professional rescuers. NEGLIGENCE PER SE: Additionally, the court may adopt as the standard of care the requirements of a legislative enactment or an administrative regulation whose purpose is to protect a class of persons which includes the one whose interest is invaded, and to protect the particular interest which is invaded, and to protect that interest against the kind of harm which has resulted, and to protect that interest against the particular hazard from which the harm results (Negligence Per Se). §286. However, compliance with a legislative enactment or an administrative regulation does not prevent a finding of a breach of duty where a reasonable man would take additional precautions. §288C. A cause of action for negligence per se will lie when 1) the P is within the class of Ps that the statute is designed to protect, 2) the harm is the type of harm the statute is designed to protect Ps from and 3) the intent of the legislature in enacting the statute (Stachniewicz v. Mar-Cam). The court may use the statute in one of three ways: 1) as imposing a strict duty on the D, not allowing any excuses or justifications, 2) as evidence for the jury to determine whether or not the D had the statutory duty or 3) as a rebuttable presumption in which the D may bring in excuses and justifications to clear him/her from liability (Zeni v. Anderson).

MOST IMPORTANT PART OF CHAPTER IS PAGE 134 FOR ELEMENTS OF CASE OF ACTION FOR NEGLIGENCE!!!

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Element 1: Act

An actor acts or fails to act when there is a duty to do so.

Negligence

A person acts negligently if the person does not exercise reasonable care under all the circumstances. R.3d §3. The elements of negligence are (1) an act or omission, (2) a duty, (3) breach of that duty, (4) actual cause, and (5) legal or proximate cause.

Element 3: Breach of Duty

A breach of duty is conduct that exposes others to an unreasonable risk of harm (i.e. conduct falling short of the duty owed). Direct and circumstantial evidence may be used to show a breach of duty. Breach issue is typically reserved for the jury, but sometimes on a motion for summary judgment a court may decide the issue by holding that no reasonable jury could find in favor of the nonmoving party. These decisions create mini-rules of law for specific circumstances (Baltimore & Ohio RR v. Goodman*). However, courts are reluctant to make rules of law from anything but the clearest cases because the breach is a fact-specific determination and there can be exceptions to rules of law because of different facts (Pokora v. Wabash). BALANCING TEST: Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done (Chicago v. Krayenbuhl, Davison v. Snohomish County). §291. The following factors are important to determine the utility of the actor's conduct: the social value which the law attaches to the interest which is to be advanced or protected by the conduct; the extent of the chance that this interest will be advanced or protected by the particular course of conduct; the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct. §292. The following factors are important to determine the magnitude of the risk: the social value which the law attaches to the interests which are imperiled; the extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member; the extent of the harm likely to be caused to the interests imperiled; the number of persons whose interests are likely to be invaded if the risk takes effect in harm. §293. Justice Learned Hand developed a balancing formula for this: Breach = Probability x Loss > Burden on D of taking risk (United States v. Carrol Towing). Generally, where the risk of injury is low and the cost of alternative (safer) method is high, D's conduct is more likely to be considered reasonable (non-negligent). However, where the utility of the conduct is slight and less dangerous alternatives are available at little cost or effort, it is more likely that negligence will be found - especially if the risk of injury is significant (Pease v. Sinclair Refining Co.*). Where factors other than economic benefit and harm are used in the reasonableness determination, the Learned Hand formula is not always used because it can lead to a counterintuitive and unacceptable result (Grimshaw v. Ford Motor Co.*). RES IPSA LOQUITOR If there is no evidence as to whether there was a breach of duty, then Res Ipsa Loquitor ("the thing speaks for itself") may apply. The very fact that a particular ham has occurred may itself tend to establish both parts of the breach requirement. The first element of RIL is that the accident must be of a type that normally does not occur absent someone's negligence (Byrne v. Boadle, McDougald v. Perry). However, some accidents occur without fault and so RIL would not apply. To determine whether the accident was a type that would not occur absent negligence, expert testimony is needed in cases like medical malpractice suits where a jury would not have the expertise to determine if the act is one that would not normally happen absences some negligence (Connors v. University Associates*, Timbrell v. Suburban Hosp*). Ultimately, it must appear to a trier of fact that it is more likely than not that negligence was associated with the harm. The second element of RIL is that the negligence is attributable to the D. This is established by examining the extent of the D's control over the source of harm. There is a jurisdictional split over how much control the D must have. Some courts require that the instrumentality be in the exclusive control of D at the time of the injury (Larson v. St. Francis Hotel, Hill v. Thompson*, Holzhauer v. Saks*). Some courts ask whether D had a duty to guard against the injury by the instrumentality. Other courts extend the "exclusive control" concept to a group of doctors when an unconscious patient, with whom each D had some contact, suffers harm of a type that might be found attributable to someone's negligence. In those cases, the P must name all the Ds who could have caused the injury and each will be found liable, unless they can prove that they weren't (the burden of proof is shifted to the Ds) (Ybarra v. Spanguard). The third element of RIL is that neither the P nor a third party contributed to or caused the P's injuries. The restatement uses only a single element approach to RIL where the fact finder may infer that the D has been negligent when the accident causing the P's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which D is a relevant member. §17. ACCESIBILITY OF EVIDENCE: Another factor affecting the application of RIL is the accessibility of evidence. There is a jurisdictional split on whether there must be evidence. Some courts say that it is necessary that no evidence is available, as long as the elements are met. Other courts say that if there is some evidence of specific acts of negligence and the elements are met, RIL may be applied. Some other courts say that if there is too much evidence of specific acts of negligence, RIL may not be applied. PROCEDURAL IMPACTS: The majority of courts say that RIL warrants an inference of negligence, if the jury wishes it to (Sullivan v. Crabtree). Some courts say that RIL establishes a rebuttable presumption of negligence, which requires the jury to find if D doesn't rebut the presumption. Other courts say that RIL establishes a presumption of negligence and shifts ultimate burden of proof to D, requiring D to prove by a preponderance of the evidence that the injury was not caused by D's negligence.

Element 4: Actual Cause/Cause in Fact

The general test to determine whether D's conduct is the actual cause of P's injury is the "but for" test, or sin qua non. But for the negligent conduct of this D, would P have been injured? If not, then D's negligent conduct is a cause in-fact of P's injury (Perkins v. Texas and New Orleans Ry. Co.). CONCURRENT LIABILITY: Where two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other, it is generally stated that each of these concurring events is a cause of the injury, insofar as it would have been sufficient to bring that injury about (Kingston v. Chicago). §432. Where each of the two events would have been sufficient by themselves to bring about the harm, the test for each event is often said to be whether it was a "substantial factor" in bringing about the harm. If so, that harm is a cause in fact. The rule of double liability for concurrent causes applies only where each of the concurrent causes would be sufficient, by itself, to bring about substantially the same harm as occurred. If the defendant's conduct would not have been sufficient, by itself, to do so, but the other concurrent event would have been sufficient, the defendant will not be liable. When successive acts of unrelated independent tortfeasors produce harm that is difficult to apportion because each act alone would not be sufficient to cause the harm, each tortfeasor is responsible for the entire result (Hill v. Edmonds). Additionally, when one of several D's jointly engages in a course of negligent conduct, each D is liable even though only one of them actually inflicted the injury (Bierczynski v. Rogers). For these concurrent liability situations, the "but for" test is replaced with the "substantial factor" test, which asks whether the actors conduct was a substantial factor in causing the harm. PROOF OF ACTUAL CAUSE: The plaintiff bears the burden of proving that the defendant actually caused his injury. However, he must demonstrate this actual causation merely by a preponderance of the evidence. Thus the plaintiff does not have to prove with absolute certainty that had it not been for the defendant's conduct, the injury would not have occurred. All he has to do is to show that it is probable that the injury would not have occurred without the defendant's act (Reynolds v. Texas & Pacific Ry. Co.). However, a possibility that the injury would not have occurred without D's act will not be sufficient (Gentry v. Douglas Hereford Ranch, Inc., Kramer Services, Inc. v. Williams). The jury is permitted to make common-sense inferences that the negligence caused the damage, as long as such an inference is not unreasonable. However, where there are concurrent causes, the burden of proof is on the Ds. Also, where there are joint tortfeasors who act together to cause harm, the burden of proof is on the Ds to prove that each has individually not caused the harm (Summers v. Tice). §433B. This burden of proof may only be shifted to the Ds if all possible Ds are named. APPORTIONMENT OF LIABILITY: In DES and some products liability cases, the "market share" theory of apportioning liability is used. Where P is only able to name a product and not the specific manufacturer of the product, the Ds are a class of all of the manufacturers. If a given member of the class of Ds is unable to prove that he did not cause the injury, the court will require him to pay the percentage of the plaintiff's injuries which the defendant's sales of the product bore to the total market sales of that type of product (Sindell v. Abbott Laboratories). SCIENTIFIC EVIDENCE AND EXPERT TESTIMONY There is a jurisdictional split on the admissibility of scientific evidence. Some states hold that only "generally accepted" scientific theories may be presented to the jury. This is the so-called Frye standard. Under this theory, a scientific theory or piece of evidence that was accepted by only a minority of specialists would not be admissible at all. Some states allow virtually any scientific theory or evidence to be placed before the jury, so long as it is relevant, and so long as the expert presenting it has reasonable scientific credentials; Under this approach, it is up to the jury how much or little weight to give the evidence. The Supreme Court has adopted a middle approach for scientific evidence presented in federal cases. Under this middle approach, the evidence does not need to be "generally accepted." But it does need to be "scientific knowledge," which means that it must have been "derived by the scientific method." Usually, this will mean that the proposition has been, or is at least capable of being tested. The fact that the theory or technique has not been subjected to peer review and publication is one factor in determining whether it is scientific knowledge, but this is not a dispositive factor. (Daubert v. Merrell Dow Pharmaceuticals). LOSS OF CHANCE: If D's conduct cannot be shown to have necessarily caused a later event to come about, but can be shown to have increased the risk that that later event would happen, and the later event does in fact happen, then is the defendant a "cause in fact" of the later event? Some courts require a certain percentage of loss to be shown (Herskovits v. Group Health Cooperative of Puget Sound) and others do not allow recovery for loss of chance.

SEE PAGE 148 for R2d §291, 292, 293 & R3d §3

§291: Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct • Where an act is one that a reasonable man would see as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk outweighs what the law regards as the utility of the act or of the particular manner in which it is done. ○ [unreasonable if risk > utility or manner of act] §292: Factors Considered in Determining Utility of Actor's Conduct • For purposes of determining negligence in respect to the utility of actor's conduct: a. Social value attached to the interest which is to be advanced or protected by the D's conduct b. Extent of the chance such interest will be advanced or protected by the particular conduct c. Extent of the chance such interest can be advanced or protected by another less dangerous course of conduct §293: Factors Considered in Determining Magnitude of Risk • In determining the magnitude of risk for the purposes of determining whether the actor is negligent: a. The social value attached to the interests which are imperiled b. The extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of one of the class of which the other is a member c. The extent of harm likely to be caused to the interested imperiled d. The number of persons whose interests are likely to be invaded if the risk takes effect in harm §3: Negligence [Same as Learned Hand's negligence formula] A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors in ascertaining if behavior lacks reasonable care are (1) the foreseeable probability that the person's conduct will result in harm, (2) the foreseeable severity of any harm that may ensue, and (3) the burden of precautions to eliminate or reduce the risk of harm.