Liability and compensation




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Duty to Protect Against Criminal Activity - in some relationships, common law imposes a duty on a party to take reasonable affirmative measures, such as security precautions, to protect the other party from foreseeable criminal activity

Delta Tau Delta v. Johnson (INSU 1999) - ∆ college student was raped at a party at ∏ fraternity house. Trial court denied ∏'s motion for summary judgment on the grounds they did not owe invitee a duty of care against third party criminal behavior. Court of Appeals reversed. Supreme says "IN courts confronted with the issue of whether a landowner owes a duty to take reasonable care to protect an invitee from the criminal acts of a third party should apply the totality of the circumstances tests to determine whether the crime in question was foreseeable. Here, the circumstances show that it was foreseeable.

      1. four basic approaches that courts use to determine foreseeability in this context

        1. specific harm test - no duty unless the owner knew or should have known that the specific harm was occurring or was about to occur

        2. prior similar incidents (PSI) test - landowner may owe a duty of reasonable care if evidence or prior similar incidents of crime on or near the landowner's property shows that the crime in question was foreseeable

        3. totality of circumstances - all circumstances surrounding an events, including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable

        4. balancing test - court balances "the degree of foreseeability of harm against the burden of the duty to be imposed." (McClung)

    1. Public Agency Duty to Protect Citizens

Cuffy v. City of New York (NYSU 1987) ∏ family was involved in dispute with one of their tenants, had called the police in response to several altercations. After one incident police told the father that they would arrest tenant in the morning, ∆ family decided to stay. Next day, in the evening, huge fight between tenant & ∏'s visiting son, he, mother, and his brother were all severely injured. Court held those ∏'s justifiable reliance had dissipated by midday, was not causally related to their involvement in the fight in the evening. Narrow class of cases recognize exception to the general rule of no municipal duty based on "special relationship" between municipality and claimant - elements: (1) assumption by the municipality through promises or actions of an affirmative duty to act on behalf of the party who was injured (2) knowledge on the part of the municipality's agents that inaction could lead to harm (3) some form of direct contact between the municipality's agents and the injured party (4) that party's justifiable reliance on the municipality's affirmative undertaking

      1. Public Duty Rule - very well established rule that you can't sustain a claim against municipalities/police, not an immunity, this is a no duty situation

        1. followed in majority of jurisdictions as articulated in Cuffy

        2. tort claims acts waive “immunity” and set conditions and limits for governmental liability - exclusions from liability based on governmental discretionary policies such as resource allocations

      2. Requirements for a Special Relationship - Beal v. City of Seattle (WA) - requiring "direct contact or privity" between victim and plolice, and "express assurances" from police that they would assist, leading to "justifiable reliance." - police promised to accompany woman, they didn't show up, husband murdered her

      3. Domestic Violence Protective Orders as Basis for Finding Duty

4.01 CONCEPTUAL BASIS OF CAUSATION (p.438)



cause in fact = literal (distinguished from proximate cause or legal cause)

  1. But for Causation: ’s conduct is a cause of the event if the event would not have occurred but for the conduct – sine qua non - No defense for one negligent actor that somebody else’s negligence also contributed

Sowles v. Moore (VTSU 1893) - ∏'s horses became frightened and drowned after falling through an unguarded ice hole in a lake. The court held that the ∏ cannot recover if the ∆ by exercises of due care, could not have prevented the accident from occurring. - statute imposes a fine for failure to place suitable guards around such openings, but did not prescribe the manner in which such openings should be guarded, might be liable for other incidents under the statute, but not for this incident
New York Central R.R. Co. v. Grimstad (2C 1920) - ∏'s husband falls off the barge and drowns, ∏ couldn't find anything to save him with. Court held that the ∆ wasn't negligent in failing to provide life preserver because it was not clear that a preserver would have helped at all.

  1. Substantial Factor Test - ∆ would be a cause in fact of the damage if the jury found that its act was a material or substantial element in producing it

    1. Overview

      1. in multiple cause situations, the test can fail to produce fair and equitable results - sometimes over-inclusive, sometimes under-inclusive

      2. substantial factor language communicates to the jury more clearly their function in weighing and evaluating the evidence - the adequacy of proof - in difficult causation cases - allows more equitable and appropriate result

Corey v. Havener (MASU 1902) - ∆s were on motor-tricycles when they passed ∏ quickly on either side of the horse he was riding, the ∏ was thrown. Court held that where there was no evidence of concert between the ∆s, damages could be extruded from both ∆s, no "but for" instruction needed.
Mitchell v. Gonzales (CASU 1991) - ∏'s son went to a lake with ∆'s family, they were aware that he couldn't swim, didn't watch him very closely and he drowned. Court held that when jury was given a "but for" instruction without a "substantial factor" instruction, it was confusing and they might have found otherwise. Restatement 2d Torts §431 - "What constitutes legal cause. The actors negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm."
Smith v. JC Penney (ORSU 1974) - ∏ burned when gasoline fire broke out at service station and ignited "fake fur" coat ∏ was wearing. ∆ argued for jury instruction that if jury found one ∆'s conduct was such a predominant cause of the injury, that the other ∆'s conduct would be insignificant and not a cause. Court said no, substantial factor test.

    1. Incorporation of But-For into Substantial Factor

      1. many courts use substantial factor

      2. some courts use either test depending on the nature of the case presented

      3. substantial factor test is not easier test than but-for test

        1. different way of stating the same requirement for typical case

        2. incorporates a workable rule for the multiple causation cases

        3. articulates rule for juries that is more consistent with their role in evaluating cumulated evidence on causation under the preponderance of the evidence test

  1. Proof of Causation

    1. Cumulating Proof to Identify the Cause

Ingersoll v. Liberty Bank of Buffalo (NYSU 1938) - ∏ was tenant of lower apartment owned by ∆, there was a step that was faulty on stairs to basement. ∏'s husband, a large man, carried a large box down the stairs, fell through the faulty step, and fell, he died. Court held that the question of whether the broken step caused the fall was one for the jury, it was not unreasonable to think that it might have been. - G - lots of cases where you can call it cause in fact, but it's not really a verifiable fact, there's discretion here, you'll never be able to prove one way or the other

      1. ∏’s evidence -

        1. Rosenberg v. Schwartz (NY) "The ∏ was not required to offer evidence which positively excluded every other possible cause of the accident."

        2. Stubbs v. City of Rochester (NY) - It is enough that he shows facts and conditions from which the negligence of the ∆ and the causation of the accident by that negligence may be reasonably inferred.

      2. Proving Causation Note - Morris on Torts (1980) §2 Actual Cause-Proof Problems

        1. tort ∏ usually has the burden of proving that the ∆'s wrong was a cause in fact of ∏'s injury

        2. Methods of Establishing Actual Cause

          1. Eyewitnesses - can foreclose a dispute on causation

          2. Expert Testimony

          3. Circumstantial Evidence

    1. Untaken Precautions: Proving the Counterfactual

Saelzler v. Advanced Group 400 (CASU 2001) - ∏, a FedEx delivery person, was assaulted while delivering package to ∆'s apt complex - sued ∆ for failing to meet duties to provide adequate security. Court held that the ∏ must establish, by nonspeculative evidence, some actual causal link between the ∏'s injury and the ∆'s failure to provide adequate security measures. Dissent: ∏ only has to raise a triable issue as to whether she would have been attacked were there additional security precautions.
Zuchowicz v. United States (2C 1998) - ∏ filled a prescription, erroneous instructions to take 2x the maximum recommended dosage, ∏ became ill and died. Expert testified that the timeline of her illness suggested the cause was the overdose. Court held that expert suggested a finding of causation was reasonable. Cardozo Test - if 1) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur and 2) a mishap of that very sort did happen - enough to support finding by trier of fact that negligent behavior caused the harm (∏ gets to the jury). Here, FDA regulation designed to prevent harms.

      1. Untaken Precautions and Causation

        1. G - under Zuchowicz test, sort of like res ipsa, ordinarily you'd need somebody to come in and precisely identify the negligence, here the jury can infer on less

        2. where the injury that happens is precisely the risk that made the ∆'s conduct negligent, courts often find that the connection between the risk and the harm to be sufficient proof of causation

        3. Haft v. Lone Pine Hotel (CA 1970) - hotel failed to have a lifeguard or post a sign warning that there was no lifeguard, two people drowned, court shifted burden of proof on the issue of causation to ∆ - "to require the ∏'s to establish … causation to a greater certainty than they have in the instant case, would permit ∆s to gain the advantage of the lack of proof inherent in the lifeguardless situation which they have created."

      2. Ruminations in Cause-in-Fact - Malone, Stan LR

        1. trier must arrange the events established by evidence into a relationship of some kind and he must satisfy himself that the relationship can properly be labeled "cause"

        2. formula - an issue must be submitted to a jury if reasonable persons may draw different conclusions from the evidentiary data

        3. the affinity of causal likelihood between ∆ and ∏ must be sufficiently close in the opinion of the judge to bring into effective play the rule of law that would make the ∆'s conduct wrongful

        4. task of defining the proper reach or thrust of a rule must be undertaken by courts in each case where it arises

    1. Multiple Parties: Apportionment of Damages or Joint Liability

      1. Where two or more independently negligent parties cause a single indivisible harm courts generally opt for the simple solution of holding each ∆ liable for the entire harm. - provides greater security for the ∏ for getting compensated in full in case one of the ∆s is insolvent or has no insurance

Fugere v. Pierce (WAAP 1971) - ∏ was in a three-car, two-stage traffic accident - poor driving conditions, no way to tell which of the two cars that hit ∏ had caused which elements of her injuries. ∏ objected to jury instruction that said, "∆s are not liable for any injury or damages sustained by ∏ which were proximately caused by the negligence of some person other than the ∆s." Court held that the instruction was an invitation to speculate, too high a burden of proof that would be impossible to sustain. Burden of proving the harm can be separated falls on the ∆s who believe it can be.

      1. Young v. Dille (WA 1923) - "to be joint tort-feasors the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury."

      2. ALR - majority view, where there are collisions in rapid succession producing a single end result, no substantial proof as to what damage was caused by which collision, it to hold each tort-feasor jointly and severally liable

      3. G - rule - where more than one ∆ combines to cause indivisible injury, the burden which is normally on the ∏, shifts to the ∆s

      4. Note on Joint and Several Liability

        1. concert of action - more than one ∆ taking part in harmful action

        2. joint and several liability - each ∆ can be held responsible for paying the entire judgment damage award to the ∏ instead of being liable only for a proportionate share - ∏ can only collect once for her harm, no multiple recoveries

        3. Three categories

          1. true joint tort category - purpose is to create joint liability where the parties deliberately engaged in a joint tort activity even though the harm was caused by only one party

          2. vicarious liability - typically imposed in employer-employee and principal and agent contexts - where employer pays the judgment, they could recover from employee, rarely do, insurance usually covers both employer and employee

          3. independent actions concurring to cause harm - courts treat these ∆s as jointly and severally liable as a way of dealing with what otherwise would be difficult causation problems.

        4. Effects

          1. where act of single tortfeasor alone was sufficient to cause the entire harm, joint and several

          2. where act of single tortfeasor was insufficient to cause the entire harm, but together results in harm, joint and several

          3. where act of single tortfeasor was sufficient to cause some but not all, and another tortfeasor contributed, courts require divisibility if possible

            1. ∆s have burden of proving more likely than not the division of the harm

            2. if the pedestrian dies, harm is (probably) indivisible

        5. History

          1. before comparative negligence

            1. no question of joint and several liability where the slightest fault of the ∏, that was enough to bar recovery

            2. if no contributory negligence, joint and several liability only if each ∆ was concluded to be negligent and the negligence of each was a contributing cause of the harm

          2. after adoption of comparative negligence

            1. percentages of fault are attributed to each party

            2. courts began to consider that in weighing the equities between the ∏ and ∆ , joint and several assured full compensation

            3. problem - assuring full recovery, not imposing too much damages on one ∆

4.01 PROVING WHO CAUSED THE HARM (p. 519)



  1. Alternative Liability –where there is inadequate proof of a causal relationship because the ∆'s actions or carelessness make it impossible to determine causation one way or the other - some courts shift burden of proof to ∆ - minimal requirements for ∏ - jury instruction Fn12p522

Summers v. Tice (CASU 1948) - ∏ was hunting with 2∆s, ∏ was hit in the face by birdshot. Court held that if ∆s are independent tortfeasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment.
Barron v. Martin-Marietta Corp (CAND 1994) - one group of ∏s was loading an MMI missile and were exposed to toulene, severe injuries. another group of ∏ was loading 3 MMI missiles with 3 IMI missiles and were exposed to toulene, severe injuries. The navy said the MMI missiles had a lower level of toulene, might explain leak, specific guides for building missiles. Court held the first group could get to the jury but the second group hadn't shown any evidence that the MMI missile was the cause of their injuries.

  1. Market Share Liability

    1. Market Share Theory

      1. generally - ∏ must present sufficient evidence that the alleged defective condition was a but-for cause or a substantial factor in contributing to the injuries

      2. theory of market share liability deals with problem where plaintiff cannot identify which manufacturer produced the product that caused the injury

Hymowitz v. Eli Lilly Co. (NYSU 1989) - ∏ took DES during her pregnancy, turned out to be a dangerous drug. Court held that even though there were many ∆-manufacturers and ∏ could not identify who caused her harm, they could be held liable through market share liability. Each ∆ has responsibility to show that they were NOT responsible and the others divide liability according to their national market share. Where there is a small number of possible wrongdoers, all of whom breached a duty to the ∏, the likelihood that nay one of them injured the ∏ is relatively high, so that forcing them to exonerate themselves, or be held liable, is not unfair. Use of alternative liability doctrine generally requires the ∆s have better access to information than does the ∏ and that all possible tortfeasors be before the court. Also concert of action does not work here.
5.01 THE CONCEPTUAL BASIS OF SCOPE OF LIABILITY (aka proximate cause, legal cause) (p.547)

  1. Basics

    1. purpose – set the outer boundaries of liability in negligence cases

    2. consider whether the careless conduct of the ∆ is sufficiently related to the harm suffered by the particular ∏ to warrant holding the ∆ liable

    3. Test - to determine if a scope of liability issue exists:

      1. is there an arguably unforeseeable plaintiff?

      2. are there arguably unforeseeable consequences?

      3. is there arguably intervening conduct?

      4. a positive answer to any of those questions suggests need for careful analysis of scope of liability

      5. negative answers to all of the questions probably means only primary risks are involved and no scope of liability issue exists

    4. when this element is in dispute - it tends to be in a certain group of scenarios

    5. situations involving an arguably unforeseeable type of harm (oh my gosh I can't believe that happened) - unforeseeable plaintiff - unforeseeable intervening events

  2. The Direct Consequence Test (old test)

    1. In Re Arbitration Between Polemis & Partner and Furness, Withy & Co. (EngRep 1921) - Stevedores dropped wooden planks in the cargo of a ship docked in Casablanca, planks sparked a fire that destroyed the ship - court found the ∆ liable because the fire was directly caused by and traced to the negligence of ∆s - since some collision injury or damage was foreseeable, under the direct consequences test, it did not matter that a spark from a falling plank was not a reasonably foreseeable result of the accident

    2. problem - no principled way to cut off liability without making arbitrary decision

  3. Foresight Test

    1. when courts apply the foresight analysis to scope of liability issues involving arguable unforeseeable plaintiffs or unforeseeable consequences, they examine:

      1. whether the plaintiff, or the class of persons that plaintiff is a member of, were within the scope of the risks created by the defendant's negligent conduct; OR

      2. whether the result was within the scope of the risks created

    2. not required that a reasonable person be able to foresee the exact manner in which the injury occurs or the precise person injured; she need only foresee the general manner in which the injury occurs and the class of persons likely to be affected by the conduct

    3. attractive b/c believed to set limit of liability based on risks that made the conduct unreasonable in the first place

    4. limits on liability must be based on a common sense, community values judgment about each risk in question

Allen v. Shiroma (ORSU 1973) - ∏ was injured when, as he was helping ∆ who had just been in an accident, he asked somebody to move his own car out of traffic and that individual drove into ∏. Court held that there was no evidence from which the jury could find that ∆ should have foreseen this kind of injury to the class of persons to which ∏ belonged.


    1. APPLICATIONS OF THE Foresight Rule (p.552)

  1. Unforeseeable Plaintiffs

Palsgraf v. Long Island R.R. Co. (NYSU 1928) - ∏ was standing on a platform at ∆'s railroad, ∆'s employee was assisting another passenger onto a train, that passenger dropped a package which turned out to be full of explosives. The package exploded upon hitting the track and caused a set of scales to fall and injure ∏. Court held that the ∆'s conduct might be wrong in relation to the package's holder, but was not wrong in relation to the ∏ who was standing far away. Dissent - everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others, there's a proximate cause (scope of liability) question here. (this is a torts classic)

    1. West Virginia central & P.R. Co. v. State - "In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury."

    2. Munsey v. Webb - "It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye."

    3. G - juries decide proximate cause (scope of liability) in the vast majority of cases - Lanzet v. Greenberg - A typical jury instruction might inform the jury that a proximate cause is a "cause which naturally and probably led to and might have been expected to produce the occurrence complained of."
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