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Torts II
University of Dayton School of Law
Gerla, Harry S.

I.  Proximate Cause:
General:  Even after P has shown that D was the “cause in fact” of P’s injuries, P must still show that D was the “proximate cause” of those injuries.  The proximate cause requirement is a policy determination that a D, even one who has behaved negligently, should not automatically be liable for all the consequences, no matter how improbable or far-reaching, of his act.
Where you draw the line.
If not a cause in fact, don’t have to worry about proximate cause because already failed.
If have res ipsa loquitor case, no proximate cause issue.
In real world don’t have proximate cause issues.  Only arise when 1. Fluky circumstances and 2. Intervening act and want to not hold D liable.
Enright v. Eli Lilly:  Neg. claim involving DES given to mothers that caused problems in children born from those mothers later on in life.  Court said:  not going to extend liability to children not born of the mothers who ingested the drug while pregnant (future generations), only the mothers who took the drug and the children in utero can make claims.  Public Policy:  don’t want to discourage drug co. research and development.  What if the drug co. never did any studies concerning gene alteration?  The answer would vary with fairness.
Ryan v. NY:  spark from RR caused House1 to catch on fire which spread to House2.  Court said RR not liable for House2 only for House1.  (eventually overturned)  House2 was foreseeable but if don’t cut off their liability, the RR could go bankrupt, too expensive to operate.  It is up to the houses to get insurance, they know better how much they need to insure. 
Both cases limit liability to the first set of people/property.
You take your P’s as you find them (Egg Shell Syndrome)
Egg Shell Syndrome Hypo:  D negligently knocks something on person’s head.  Normally would cause minimal damage/small cut, but P has the egg shell skull syndrome, a very rare disease, only 2 cases in U.S.  P becomes a vegetable (not foreseeable).  P should be able to recover:  Defendants take their plaintiffs as they find them.  Any condition that D’s P has that exaggerates the injury, D is still liable for.
Bartolone v. Jeckovich:  afraid of doctors.  Carpenter lived alone in one room.  He worked out 4 hours a day at YMCA.  He was in a car accident.  Life falls apart b/c he can’t go to gym, mental/social anguish.  Auto accident D is liable for body building P for injuries to mental anguish up to the time that he naturally wouldn’t be able to work out anymore.
How does the court decide to send it to the jury?  Problem with deciding proximate cause by a gut sense of fairness is that each person’s gut sense of fairness is different and gut sense of fairness differs with time.  So, use Two Models instead of gut sense of fairness:  SPLIT:
Direct Cause Model
Foreseeablity Model
Courts don’t like the consequences of either model so th

of the fire is foreseeable but not by a burning rabbit.  It doesn’t matter what manner the consequence occurs, as long as the consequence is foreseeable.
Kids throwing basketball/dodge ball.  P jogging on track around the basketball court.  Kids throw the basketball wildly.  Reasonably can foresee that one of the joggers would be hit.  But hit a clock on the wall, and then the clock hit a jogger.  Kids still liable because hitting one of the joggers is foreseeable, just the manner of a clock instead of a ball is not foreseeable.  Jogger still suffered an injury by and impact.
e.  Flexibility of Foreseeability Model:
Courts have different ideas of what is foreseeable
Wagon Mound 1:  Neg act: discharging diesel fuel that caused the fire that burnt down the dock. The trial court used the   Direct Cause Model but the app. court used the Foreseeablity Model  and said it was unforeseeable.
Wagon Mound 2:  Same neg. act but burnt the ship.  The trial court used the Foreseeablity Model and said it was unforeseeable.  The app. ct. used the Foreseeablity Model and said it was foreseeable b/c it was the ship’s engineer who discharged the diesel fuel.