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Torts
Villanova University School of Law
Wertheimer, Ellen

NEGLIGENCE
1.)    Duty
2.)    Breach of duty
3.)    Cause-in-fact – did the defendant’s conduct have something to do with the plaintiff’s injury as a matter of science?
4.)    Proximate cause – a social policy question of does the defendant’s liability extend to this specific plaintiff and this specific injury
5.)    Damages
 
 
CAUSE IN FACT
Introduction
Proximate cause v. cause in fact – proximate cause is a matter of policy and answers the question of whether this particular defendant should be liable for this specific injury. Cause in fact is a matter of science: did the defendant’s act have something to do with the plaintiff’s injury as a matter of science?
                                                              i.      2 tests for cause in fact: (for all injuries, there is more than one cause in fact)
1.      But for test
2.      Substantial Factor test
 
New York Central Railroad Co. v. Grimstad, US Court of Appeals, 1920
1.)    Barge was entering a slip between piers when it bumped against a barge. P’s husband had fallen off the boat. Wife went to grab a line or life preserver. When she returned her husband had disappeared.
2.)    Lower court denied defendant’s motion to dismiss the complaint.
3.)    Whether D was negligent in not equipping the barge with life-preservers and whether, if there had been a life-preserver on board, decedent would have been saved from drowning?
4.)    No.
5.)    Proximate cause of death was falling into the water, and one can assume that it happened without negligence on the part of D or decedent. But on the question of whether the decedent would have been saved if there was a life preserver is mere speculation. Wife would have still gotten there at the same time she did with the line and even still he may not have been able to seize the line.
 
Stacy v. Knickerbocker Ice Co. – D. cut ice on a large lake and failed to fence the large hole. P’s horses ran across the ice and into the hole drowning. Court found that horses were uncontrollable and therefore would not have been stopped by a fence, therefore the absence of the fence was not the cause in fact of the drownings.
 
Reyes v. Vantage Steamship Co. – seaman jumps overboard and drowns while swimming in the ocean while he was drunk. Court finds for P stating that causation was presumed because “search and rescue” branch of the doctrine already recognized such a rebuttable presumption of causation in favor of seaman.
 
Haft v. Palm Hotel – A father and his son drowned at a motel’s pool. Court found that D’ failure to provide a lifeguard as required by statute sustained the initial burden of proof.
 
Reynolds v. Texas – A 250 lb. woman fell down the steps at a railroad station and sued for not providing a handrail and failing to light the steps. The railroad defended on the fact that she fell because of her weight. Where the negligence of the D greatly multiplies the chance of the accident… and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without negligence is no sufficient to break the chain of cause and effect.
 
CONCURRENT CAUSES
 
Anderson v. Minneapolis St. Paul & Sault ste. Marie Railway Co., SC of MN, 1920
D’s engines caught fire and spread to P’s property, burning it shortly before it was reached by one of the great fires which swept through MN that day. 
Verdict for P.
Whether a co. is liable for fire damage to a property when that fire combines with another that would have eventually ruined the property anyway. 
Yes.
If a fire set by the engine of one railroad co. unites with a fire set by the engine of another company, there is joint and several liability, even though either fire would have destroyed P.’s property. But if the doctrine of the Cook case is applied and one of the fires is of unknown origin, there is no liability. CA has adopted the “substantial factor” test by way of jury instruction as the test for cause in fact.
 
FAILURE TO IDENTIFY THE SPECIFIC ACTOR
 
Summers v. Tice, SC of CA, 1948
P. sues both defendants for an injury to his right eye as the result of being struck by bird shot discharged from a shotgun. Both D.s shot at a quail, shooting in P’s direction.
Judgement for P.
Whether the judgment made against both Ds may stand? Are Ds liable when they are not joint tort feasors, and thus jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which D was guilty of negligence which caused the injuries.
Yes
The wrongdoers should apportion the wrong between themselves. Each def. is liable for the whole damage whether they are deemed to be acting in concert or independently.
 
Hill v. Edmonds – where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.
 
Michie v. Great Lakes Steel Div. – three corps. That had emitted noxious pollutants were treated as joint tort feasors because “the independent acts of several actors concur to produce indivisible harmful consequences.”
 
Hymowitz v. Eli Lilly & Co.
1.)    DES case with numerous plaintiffs for injuries sustained from their mothers taking the drug. There were over 300 manufacturers of the drug, with companies entering and leaving the market continuously. The pregnant women who took the drug generally did not know who produced the drug they took.
2.)    Trial court denied def’s motion for summary judgment to dismiss actions because Ps could not identify the manufacturer.
3.)    Whether a DES P may recover against a DES manufacturer when identification of the producer of the specific drug that caused the injury is impossible.
4.)    Yes.
5.)    The court develops a market share theory – determining liability and apportioning damages in DES cases in which identification of t

hat the law must look for the answer.
4.)    No.
5.)    Whether an expert’s opinion has an adequate basis, and whether without it an evidentiary burden has been met, are matters of law for the court decide. Both sides offered expert testimony. P’s witness, Dr. Done, testified that “to a reasonable degree of medical certainty, Benedictin was not only capable of causing birth defects in humans but that it had in fact cause those limb defects with which P was born.” D. expert submitted 14 opposing articles. Even though Dr. Done was willing to testify about the likelihood that B caused the limb defects, there was no absolute evidence.
 
When a Benedictin case went to the SC, they decided that to determine whether the expert is proposing to testify to 1.) scientific knowledge that 2.) will assist the trier of fact to understand or determine a fact in issue. Whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts in issue.
 
Judge urged both sides to settle in a limb defect case for exposures to Agent Orange in Viet Nam because although it would be difficult to prove causation, a dismissal is unwarranted.
 
PROXIMATE CAUSE
 
–          Does the defendant’s liability extend to this specific plaintiff for this particular injury. Is based on or assumes that the def.’s conduct was the cause-in-fact of the P’s injury.
 
A.    THE BASIC THEORIES
 
Polemis, 1921
1.)    Ds chartered a vessel to carry cargo from Ps. While discharging, a heavy plank fell where petrol was stored and caused an explosion, which set fire to the vessel. Ps claimed the damage was due to Ds negligence.
2.)    Claim went to arbitration and they found that the ship was lost by fire, that the fire arose from a spark igniting the petrol vapour in the hold, that the spark was caused by falling board coming into contact with some substance in the hold, and that the causing of the spark could not reasonably have been anticipated from the falling board, though some damage to the ship might have been reasonable anticipated. They found in turn that the falling of the plank was due to D’s negligence.
3.)    Whether D negligently dropping a plank which by striking something caused a spark, the damage resulting being not foreseeable to the D., would make them liable for fire damages to the vessel?
4.)    Yes.