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Torts II
University of Nebraska School of Law
Lawson, Craig M.

Proximate Cause

If it’s a duty question, court will decide. Proximate cause goes to jury

Polemis – doesn’t matter if not foreseeable; liable in unbroken chain of events
WagonMound1 – only responsible for probable (foreseeable) consequences – have to be able to foresee the specific type of harm.
WagonMound2 – “should have known”

Ryan – how court applied contexts to remoteness and fairness. (other J’s different things)
Polemis – direct injury. D responsible for all damages directly caused, even though couldn’t see exact injury. Could foresee some harm from negligent conduct.
Wagon Mound 1 – direct/indirect distinction inadequate. Need reasonable foreseeability of the type of injury
Wagon Mound 2 – Elements of test for reasonable foreseeability – similar to Learned Hand test. (burden small compared to magnitude of harm)

Palsgraf – Cardozo – only have duty to a foreseeable P. If can’t foresee that the person would be harmed, then have no duty to them, don’t even have to get into proximate cause. “no duty to unforeseeable plaintiffs”
Cardozo – duty cuts off liability. Andrews – broad look at duty, cut off by prox cause.
Factors to determine proximate cause:
Was the one a substantial factor in producing the other?
Was there a direct connection between them, without too many intervening causes?
Is the effect of cause on result not too attenuated (not too remote)?
Is the cause likely, in the usual judgment of mankind, to produce the result?
Or, by the exercise of prudent foresight, could the result be foreseen?

Substantial factor
Direct connection w/o too many intervening causes (Polemis)
Effect not too remote? (Ryan)
Cause likely to produce result using normal judgment?
Could result be foreseen? (WM1)[was it highly extraordinary that the conduct brought about the harm?] [if a substantial factor, may still be liable even if harm not foreseeable] [“should have known” – similar to learned hand test – burden small compared to magnitude of harm – WM2]

Intervening anything in between, superseding means that D not liable b/c it supersedes. Factors, nothing that definitely makes it a superseding force
Factors R2T442: [more likely, less likely] a)force’s intervention brings about harm diff in kind from that which would otherwise have resulted from the negligence
b)fact that the force’s operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation
c)fact that intervening force is operating independently of any situation created by the actor’s negligence, or on the other hand, is or is not a normal result of such a situation
d)fact that the operation of the intervening force is due to a third person’s act or to his failure to act
e)fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him
f)degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

More extraordinary, more likely to be superseding cause.

2 things must do for every legal issue: figure out when situation arises, what to do when situation arises.
What has to be in place for the situation to arise (superseding cause) – conditions of generic situation of superseding cause.
How do you know if you’re in a superseding cause situation?
Need D’s negligence. Must be substantial negligence (if not, don’t even need to talk about it).
Need an intervening cause (to get into situation, need at least another cause) – can be an act of god, and if that is a superseding cause, nobody liable.
Needs at least the 2 causes
Need an injury (injured P)
Need a third party normally (sometimes don’t, but classic situation need)
Need antecedent negligence (D’s negligence, then 3rd party’s negligence, then the injury)

(always think fairness and justice [fair way to allocate loss], or law and economics [trying to influence future behavior, create incentives – reduce number, encourage precautions, reduce transaction costs]

more likely that something will be a superseding cause when act is intentional/malicious (notes point out not determinative, even criminal and/or malicious acts may not be superseding causes, but it does cut in that direction)

Suicide normally a superseding cause, but certain situations (certain states) where if creates irresistible impulse.
If a deliberate, intentional act, then probably a superseding cause. But if not a deliberate, intentional act (irresistible impulse) then maybe not superseding.

Rescue doctrine – rescuer can sue party that caused the danger requiring the rescue in the first place. – must still show proximate cause
rescuer doctrine more of an exception in superseding causes. Have option to characterize (maybe as superseding cause, maybe as “how far should liability go” Ryan-like)- figure out which characterization helps you the most (when you have options)

[can’t avoid social policy issues no matter which way you go. These types of issues there is a ‘conversation’ between courts and legislatures]

Tort law intended to encourage people to think about effects on other people. Imposing liability can encourage to think about others (law and econ)

Role of public policy comes to the front in certain circumstances – change in law, new situations (like social host drinking case).
Courts can’t really avoid public policy. They have to do it. Constraints considering public policy for courts.

Joint Tortfeasors

Joint Tortfeasors
acting in concert (common enterprise or plan) – 2 acting in concert, one injures somebody, both liable. Question of how close were they to acting in concert

Differences between J/S and only several only matter when someone unknown or immune
Affects who ends up bearing the cost of that unknown or immune party; P or known/non-immune D.

[in comparative, Ds not liable for % of P’s negligence] Comparative – J/S (Illinois)
Comp. – Several (New Mexico)
Comp. – Modified (Neb) – economic (J/S) and non-economic (S)
Contributory Negligence – J/S. If P negligent gets nothing. (NE, does not bar unless P’s negligence ≥50%)

2 ways to think about: justice and equity, incentives that might be created in future (law and econ.)[deter negligence, encourage to take proper precautions] Intuition on which better depends on whether thinking about fairness/incentives for P or for D. Could say P did nothing wrong, so focus on them. Could make good arguments also for D (e.g. only 15% liable but having to pay all not fair, focus on them)

Focus on the issues and the terminology – standard across. Rules tend to vary across Js.
Issues: – (still talking about joint tortfeasors)
Satisfaction and release
Contribution and Indemnification

Ps can only recover once – one satisfaction.
P Shouldn’t get windfall – bad for overdeterrence (want people to take right amount of precautions)

Signed agreement that would not sue Goodwill but will retain right to sue other tortfeasor.
Court said, look at what they say in K. Said were only releasing Goodwill, reserving right to sue Pearl. Court will respect that agreement.

judgment means nothing. Only satisfaction if get money, so if not satisfied, can pursue

P v. D1 and D2. D1 settles for $30k. Trial finds $10

bear the burden, who’s in a better position to determine whether wheel is safe. How do we allocate that risk. Interest we’re trying to protect is sellers putting out safe products.
Big factor out of MacPherson is foreseeability (of danger if negligent), probable knowledge (of a danger, not merely possible), manufacturer in better position to be responsible to make sure putting out a safe product (burden), proximity or remoteness of the relation.

Moch-Applied privity of K. “the assumption of one relation would mean the involuntary assumption of a series of new relations, inescapably hooked together.
Putting heavy consideration of burden on D. Maybe P in better position to prevent the fire (factors that apply in deciding whether there should be a duty to the
affected party).

privity of K comes under duty of care. Finding no duty is a way to limit liability. Prox cause also a way to limit liability.
If it’s a duty question, court will decide. Proximate cause goes to jury.

D and P in K, promises exchanged. D acts wrongfully in trying to fulfill promise. Claim might sound in tort (negligence) or could sound in K (breached K).
To distinguish, courts apply mis and nonfeasance.
Nonfeasance – don’t do anything, fail to perform. More like K law, that’s how P should proceed (even if facts could support negligence claim). Remedy in K.
Misfeasance – tortious conduct when undertaking performance. Doing something in furtherance of K that injures P. More likely to find P has cause of action in negligence (tort law)
Privity of K cases. Claims by 3rd parties, outside of contractual relationship. Injured by action/inaction of D who is under the K. P says owe them a duty.
Macpherson – did away w/ no remedy if not in privity of K. True of products, repairs. Privity of K no longer controls, but still does have a place.
Difference between Moch and Macpherson (probably came down to public policy, suing public utility, liability may be too great, private individuals in better position to prevent fire to home than utility).
In duty of care cases, look to public policy (societal interest). Can usually say that it will be foreseeable that negligence will lead to the injury, but other factors play into it; generally public policy.
Prox cause, thinking at some point D’s actions too remote to hold D responsible.
No absolute take away rule from each case. The facts they look at and the policy they implement.

(strong rule against allowing recovery for solely economic losses)
Most professional liability cases deal solely w/ economic losses. – privity of K comes into play there.

Affirmative Actions

default rule in tort law is if don’t do anything, won’t be liable for anything. Are exceptions.
Morality of no duty to rescue rule – still basic rule (unless special circumstance or relationship that requires D to act)

Court holds although generally no duty to rescue, if invite someone onto your property or