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Torts II
University of Kansas School of Law
Kautsch, M.A. (Mike)

Torts 2 Outline

Points and counter-points in argument between plaintiff and defendant

Plaintiff’s allegations to Defendant.
Your negligence was a cause in fact of my harm. Your breach of duty more likely than not caused my damage or injury.

Your negligence not only was a cause in fact, but it also was a proximate cause of my harm:
–The harm I suffered was reasonably foreseeable by you, as was any related negligence by me or any one else.
–Holding you liable would be consistent with public policy.

Defendant’s response to plaintiff.
My negligence was not a cause in fact of the harm to you. You would have suffered the harm even if I had not been negligent.

However, even if my negligence was a cause in fact of harm to you, it was not a proximate cause.

The harm you suffered was an unforseeable consequence of my negligence; the harm was remote and a matter of chance.

Moreover, any negligence by you or anyone else was an intervening cause. Because the negligence by you and by anyone else, other than me, foreseeably resulted in the harm you suffered, that negligence, not mine, should be viewed, not only as intervening, but also as superseding.

Holding me liable would not be consistent with public policy.

Chapter VI, Proximate or Legal Cause

I. Determining proximate cause requires an evaluation of causes in fact.

A. Main issue: Which causes in fact, if any, are proximate, meaning which will be accepted for the purpose of imposing or cutting off liability?

B. How and why do courts determine proximate cause?
1. Courts set limits on causation as an element of a cause of action to avoid absurd extensions of liability. See Atlantic Coast Line R. Co. v. Daniels, p. 293.
2. Courts take into account time and space, along with other factors. See #2 in Notes and Questions (NQs), p. 293.
3. Cause in fact is distinct from proximate cause. See NQs #5, p. 294, citing the Tennessee Supreme Court.

C. A breach of duty is a proximate cause of harm if the harm was reasonably foreseeable; what are the characteristics of reasonably unforeseeable harm?:
1. They include remoteness, along with coincidence, improbability or chance, as illustrated in Ryan v. New York Central R.R. Co., p. 294.
2. They also may include policy considerations, such as the availability of insurance, as illustrated in Ryan v. New York Central R.R. Co., p. 294 and the following NQs.

D. What principles may courts choose to follow in determining reasonable foreseeability?
1. Thin skull rule: Ultimate harm is treated as having been foreseeable if an initial, reasonably foreseeable harm affects a pre-existing condition, as illustrated by Barolone v. Jeckovich, p. 297 and addressed in following NQs.
2. The ultimate harm is reasonably foreseeable if it directly, naturally and continuously followed, and was causally connected to, some foreseeable harm, as illustrated by In re Arbitration Between Polemis and Furness, Withy & Co., Ltd., p. 300. Also see the dissent, pp. 312-316, in Palsgraf v. Long Island R.R. Co.
3. An ultimate harm is reasonably foreseeable only if it constituted a specific type of foreseeable harm, and if the tortfeasor’s knowledge was sufficient to make that specific type of harm foreseeable, as illustrated by Wagon Mound No. 1 and Wagon Mound No. 2, pp. 302 and 306, respectively, and as addressed in NQs that follow the cases. Also note the wording of the test that is attributed to appellant’s junior counsel on p. 300 in In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.
4. Harm is reasonably foreseeable only if a plaintiff was one whom the tortfeasor could foresee, within a zone of danger, and to whom a duty of reasonable care therefore was owed, as illustrated by Palsgraf v. Long Island R.R. Co., p. 308, and as

mments on the illustrative, principal cases, their implications and the issues they raise, see the NQs that follow them.

III. Public policy may be a determinant of proximate cause; courts weigh the implications of imposing liability.
A. Practicalities courts consider may include whether an alleged tortfeasor has or had an
opportunity to:
1. be insured and/or pass costs of liability to others, and/or
2. discover risk to others and avert it at an affordable cost.

B. In considering social costs and benefits of imposing liability, courts may ask:
1. Would imposing liability constitute an incentive for responsible and safe conduct?
2. What would be the effects on research and development?
3. What would be the effects on social order, individual freedom, and
4. To what degree are the consequences of negligence measurable and manageable, and would an imposition of liability lead to an overburdening of the judicial system?
5 For illustrations, see these principal cases and related NQs:
a. Regarding social hosts, Kelly v. Gwinnell, p. 344;
b. Regarding DES, Enright v. Lilly & Co., p. 349.
6. How may one develop public policy arguments for and against a finding of proximate cause? As discussed in class July 8:
a. Identify the types of people whom the parties, i.e., plaintiffs and defendants, represent.
b. Predict the effects of raising or lowering a risk of liability—or imposition or denial of liability—upon those people.
c. Assess whether the effects would be fair.