Corrective Justice "Making the victim whole,"

The doctrine of res ipsa loquitur—the thing speaks for itself—is invoked when the plaintiff seeks to establish the defendant’s negligence by circumstantial evidence. In these cases, the mere accident itself may be enough for a reasonable jury to infer negligence.

Generally, Res Ipsa Loquitur can be invoked when:

1. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;

2. The accident is caused by an agency or instrumentality within the exclusive control of the defendant; and

3. The accident is not due to any voluntary action on the part of the plaintiff.

If all three requirements are met, the jury may infer that the defendant was negligent even though there is no direct evidence to that effect. (Colmenares Vivas v. Sun Alliance Insurance Co – held that res ipsa loquitur could apply to an unusal escalator malfunction in an airport) (Second Restatement 328 – (1) the event is of a kind which ordinarily does not occur in absence of negligence; (2) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; (3) the indicated negligence is within the scope of the defendant’s duty to plaintiff.) (Third Restatement 17 – Fact-finder may infer negligence when accident is a type of accident that ordinarily happens as a result of negligence of a class of persons of which the defendant is the relevant member.)

But in many res ipsa cases, the thing does not really speak for itself. Other factors prompt judges to allow plaintiffs to present a case based solely on circumstantial evidence. Res ipsa is often shaped by a defendant’s higher duties and risk creation (e.g. common carriers, innkeepers, dangerous areas). Res ispa is also shaped by particularly vulnerable plaintiffs with little control or information (passengers, passers-by, unconscious patients). Res ipsa functions as quasi-strict liability.

Invoking Res Ipsa Loquitur allows the plaintiff to shift the burden of proof against the defendant by creating a rebuttal presumption of negligence. (Byrne v Boadle – held that the plaintiff was not bound to show that the barrel of flour could not have fallen out of defendant’s window without negligence and if there were any facts inconsistent with negligence it was for the defendant to prove them.)

Res Ipsa Loquitur cases are often shaped by the defendant’s higher duties and risk creation with respect to vulnerable plaintiffs with little control or information. (Ybarra v Spangard – held that since the plaintiff was unconscious when he was injured, the defendant medical professionals had the responsibility to explain why they weren’t negligent or hadn’t caused plaintiff’s injury.) (Newing v Cheatham – held that in case where the plaintiff was killed when a plane piloted by defendant crashed because it ran out of fuel and the defendant was drunk, res ipsa loquitur applied.)

(BUT the Third Restatement says that res ipsa loquitur should be regarded exclusively as a doctrine of circumstantial evidence unrelated to any differential knowledge between the parties. “The plaintiff may invoke res ipsa even though the defendant is as ignorant of the facts of the accident as the plaintiff is.”)

Pros: Because Res Ipsa Loquitur shifts the evidentiary burden to the defendant, it promotes settlements and allows a plaintiff to say that something the defendant did was wrong even if it would be impossible for the plaintiff to find direct evidence proving the defendant’s negligence.

Cons: It’s unfair to penalize a defendant who may not have done anything wrong and may not know who did do something wrong. (This is esp. true in Ybarra v Spangard)

Shug Says: the argument that RIL will smoke out information is a weak argument. The real effect is the shift of litigation costs from the P to the D. RIL decides that between two innocents there is a shift to a duty bound defendant (a duty to provide safety and maybe bear litigation costs). RIL’s shift in litigation cost is also likely to promote settlement. Uncertainty is a very powerful factor in negligence cases. Oftentimes the accident destroys the evidence and in certain classes of cases (hazards and duties/D who is the best cost avoider) RIL splits the difference between a negligence rule and strict liability and appropriately shifts the burden. RIL promotes safety and achieves the goal of deterrence by creating a stronger incentive to avoid accidents.

The plaintiff must prove that the defendant’s act or omission caused the injury or damage for which the plaintiff claims compensation. This means that the tortious conduct must have been a necessary condition to the occurrence of the plaintiff’s injury. Necessary causation thus serves as a matching function between the plaintiff and the defendant.

The most widely accepted test for cause-in-fact is the “but-for” or sine qua non test. This test requires a determination whether, “but for” the defendant’s breach, the plaintiff would have suffered injury. If the injury would not have happened without the tortious conduct then causation-in-fact is proven. (Third Restatement 26) (New York Central RR v Grimstad – held that negligent failure to equip a barge with proper life preservers did not make the defendant liable for the plaintiff’s harm because there was no evidence that the life buoy would have saved the plaintiff.) (Ford v Trident Fisheries – decedent fell overboard and plaintiff sued because the rescue boat was lashed to the deck instead of being suspended from davits. The court held that even if the defendant was negligent, “there is nothing to show they in any way contributed to Ford’s death.”)

In certain situations, the plaintiff can recover even if he hasn’t established that the defendant was a necessary cause of the harm that the plaintiff suffered.

When there is uncertainty about whether or not the defendant’s tortious conduct was necessarily the cause of the plaintiff’s harm, the judge may simply let the jury decide. (Kirincich v Standard Dreging Co – held that if reasonable men might disagree about whether the defendant’s actions had caused the plaintiff’s death, then the case should not be dismissed and the issue should go to the jury.) (Reyes v Vantage Steamship – held that the jury could be instructed to decide whether the plaintiff hypothetically would have been saved had the defendant had the regulation safety equipment.)

a. Where there is a strong causal link between the negligence and the harm because the harm that occurred is the harm within the risk of the negligence, there is a permissible inference that the cause-in-fact requirement is satisfied and the burden shifts to the defendant to disprove necessary causation. (Zuchowicz v United States – prescription overdose danocrine case – If a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur and a mishap of that very sort did happen, this is enough to support a finding by the trier of fact that the negligent behavior caused the harm. It is up to the negligent party to bring in evidence denying but-for cause and suggesting that in the actual case the wrongful conduct had not been a substantial factor.)

b. When the defendant’s negligence has greatly multiplied the chances of accident to the plaintiff, and is the kind of conduct that naturally leads to such accident, the mere possibility that the accident might not have happened without the negligence is not enough to break the chain of causation (Reynolds v Texas and Pacific Ry – slip and fall case)

3. Limited Information

When the defendant’s negligence is reason that plaintiff cannot prove causation, the court may shift the burden of proof to the negligent defendant. (Haft v. Lone Palm Hotel – held that it was unfair to force the family of a father and son who had drowned in a pool without a lifeguard to meet the burden of proof when the defendant’s negligence in not providing a life guard or posting warnings had created the evidentiary void.)

In medical malpractice cases, the defendant may be held liable for the reduction that he caused in the decedent’s chances of surviving, even if the plaintiff would most likely have died anyway. [[NB: in these cases, only partial damages are awarded; the plaintiff can only recover the percentage of damages that correspond to the percentage increased risk. This is the majority rule for medical malpractice cases.]] (Herskovits v Group Health Cooperative – held that the plaintiff could recover when the Hospital negligently failed to diagnose plaintiff’s cancer when the chance of survival fell from 39% to 25%.)

When multiple possible causes are involved, the causation requirement is sometimes held to be satisfied even when the defendant’s negligence is not a necessary cause of the plaintiff’s harm.

When two actors are negligent, they are not both exempted from liability just because it’s impossible to prove which one was the cause of the plaintiff’s harm. Instead, the courts “stick it to the breacher” and the burden shifts to each of the defendants to prove that their negligence did not cause the harm. (Summers v Tice – Each defendant was as probably as not the but-for cause of injury to the plaintiff, but not more probably than not the cause. The court held that under these circumstances the burden shifted to each of the defendants to disprove that he had caused the harm. But in practice Summers is ordinarily understood to involve more than a mere shift of the burden of proof on the causation issue. It is the classic case of “alternative” liability, imposing liability on negligent defendants, each of whom is equally likely to have harmed the plaintiff.) (Second Restatement 433) In these cases, the defendants may be held jointly and severally liable for the plaintiff’s harm.

If there are a comparatively small number of defendants and those defendants consciously act in parallel to produce products in a manner that makes it difficult to identify the manufacturer of a product after the product causes an injury, those defendants may be held liable for the plaintiff’s injury even if the plaintiff cannot prove that a specific defendant caused his injury. (Hall v Dupont – held that if a child could establish that it was more likely than not that any of the six defendants manufactured the particular cap that caused that child’s injury, then the burden shifted to each defendant to prove that a cap it manufactured did not cause the injury in question.)

Once a plaintiff has established that it was negligent for a group of defendants to have sold the product that caused the plaintiff’s injury, courts have sometimes held that the defendants should not escape liability merely because the plaintiff cannot show which defendant caused her harm. Thus, each defendant may be held liable for the proportion of the judgment represented by its share of the market in cases where the following factors are present

1. all the named defendants are potential tortfeasors;

2. allegedly harmful products are identical and share the same defective qualities (or were “fungible”);

3. the plaintiff is unable to identify which defendant caused her injury through no fault of her own; and

4. substantially all of the manufacturers which created the defective products during the relevant time are named as defendants.

 Shug Says: Skipworth questions the uncertainty of causation but that’s missing the point the real problem is that not all the tortfeasors identified are negligent since the ability to be negligent only started at a certain time (when there were alternatives to lead as an ingredient in paint or the knowledge of the risk of lead in the paint). The P should have reshaped her case to identify the truly negligent

 Judge Sykes talk: Some courts (including Wisconsin) are shifting from proximate cause language to policy analysis of limiting scope of liability. This is called “Risk Contribution Theory.” Six degrees of proximate cause:

(1) Injury too remote from negligence?

(2) Injury out of proportion to the culpability of the tortfeasor?

(3) Too extraordinary that negligence brought about harm?

(4) Unreasonable burden placed on tortfeasor through allowance of recovery?

(5) Would allowance of recovery open the way to fraudulent claims? (policy)

(6) Would allowance of recovery enter a field that has no sensible or just stopping point? (judicial economy)

There is a split on exculpatory evidence  Sindell stated that a defendant could be excused if it demonstrated that it could not have made the product that caused the plaintiff’s injuries, but Hymowitz v Eli Lilly, allowed for NO exculpatory evidence in individual cases, even if the company did not sell in Hymowitz’s area, because liability is based on overall risk produced nationally, and court (1) wanted to avoid administrative costs and (2) was worried about disincentivizing companies from operating in NY by holding only NY markets liable. Note that the Hymowitz position is the minority rule on this issue.

Minority Rule: Substantial Factor Test

A minority rule asks if the defendant’s negligence substantially increased the risk of the harm. The “but-for” test requires a firm finding that the defendant’s negligence was an absolute pre-requisite to what happened, whereas the “substantial factor” test could be understood merely to require a finding that the defendant’s negligence was a major contributor. This rule has a lower threshold for causation and presents a muddy standard as opposed to a clear rule, but it does away with the need for all of the complicated majority exceptions.

Even if the defendant’s conduct caused the plaintiff’s injury factually, the plaintiff must also show that the conduct was “proximate” enough to the harm to hold the defendant liable. The doctrine of proximate cause operates as a limitation on the scope of the defendant’s liability. The defendant’s conduct is a proximate cause of the plaintiff’s harm if causing that harm was a foreseeable result of the defendant’s negligence.

One way of assessing whether or not the plaintiff’s injury was a proximate cause of the defendant’s actions is to ask if the plaintiff’s injury was the harm within the risk of the defendant’s conduct. Negligence that results in harm by mere coincidence (and not because it is the type of harm that results from that type of injury) is NOT a proximate cause of the injury. (Berry v Sugar Notch Borough – held that the plaintiff’s breach of a safety statute was not causally connected with his injuries because it did not increase the risk or hazard of his being hit by a falling tree.) (Gorris v Scott – held that, in case where animals were washed overboard in a storm, failure to comply with a statute requiring animals to be penned up on a ship was not necessarily evidence of negligence because the statutory purpose was to prevent the spread of disease.) (Central Georgia Ry v Price – held that a railroad’s negligence in not dropping plaintiff off at her station was not proximate to the injury the plaintiff suffered by being burned by a lamp at a hotel.)

There are also some cases in which the risk that the plaintiff would suffer the harm that actually materialized was not the principal risk that rendered the defendant’s action negligent, but that risk was nonetheless a foreseeable and relevant risk. (Hines v Garrett – held that a railroad’s negligence carrying plaintiff past her station and forcing her to walk a mile through an unsettled area was a proximate cause of her being raped by two men during that walk home.)  BUT NOTE – In Central Georgia Ry v Price, the plaintiff could have sued the hotel instead, whereas in Hines v Garrett the hobo and solider who raped the plaintiff were probably judgment proof.

Foreseeability and Remoteness

1. The Plaintiff must be Foreseeable

If the plaintiff is entirely unforeseeable with respect to the defendant’s negligence, courts are reluctant to impose liability on the defendant. The defendant only owes a duty of care to those the reasonably foreseeable zone of danger. (Palsgraf v Long Island Railroad Co – Cardozo’s opinion held that the defendant was not liable to a plaintiff that was hit by scales in a station when fireworks exploded on the tracks as a result of the defendant’s negligence because the harm to her was entirely unforeseeable.)  BUT NOTE: Andrew’s Dissent in Palsgraf was very important. It said that the defendant should be liable for all harm caused by his tortious act, regardless of foreseeability, because there is a duty of all to all. Andrews says that what triggers liability is damage, not breach and that the proximate cause is a factual matter better left to the jury.  Shug says that he’s right.

The Law follows BOTH Cardozo and Andrews

2nd RST § 281, p. 528 follows Cardozo: conduct that creates recognizable risk of harm to particular class does not render the actor liable to a person of a different class, to whom actor could not reasonably have anticipated injury who is injured.

2nd RST § 431, p. 530 adopts Andrews “substantial factor” hints in defining what constitutes legal cause. Cause “in the popular sense, in which lurks the idea of responsibility.” Note that this is a limiting use of the phrase (as opposed to its use in cause in fact inquiries).

2. Unforeseeable type or kind of harm? (case-by-case)

The law is unclear about whether a defendant could be liable to a foreseeable plaintiff with an unforeseeable type of harm.

The old rule was that if the harm is unforeseeable with respect to the defendant’s negligence, the court may still hold the defendant liable if there is a direct relationship between the act and the damage. (In Re Polemis – held that the defendant was liable even though the harm that the ship would catch fire was unforeseeable because of the “directness” between the act of dropping a plank into the hold of the ship and the damage caused when the plank made a spark that set fire to the petrol in the hold.)

The rule in Polemis about “directness” was later overruled in Wagon Mound. There can be no liability when a foreseeable plaintiff suffers an unforeseeable type of harm, even if that harm is a direct consequence of such negligence. (Wagon Mound I – held that the defendant could not be held liable for fire damage to the dock because that damage was not foreseeable.)

The American response to these English cases rejects the Wagon Mound view. Damages are not limited to the foreseeable consequences of the defendant’s negligent conduct if the unforeseen consequences are direct and the damage is of the same general sort that was risked. Thus, an actor engaging in conduct that entails a large risk of small damage and a small risk of other and greater damage of the same general sort and to the same possible plaintiffs can be held liable for both types of harm. (Kinsman Transit – a boat got loose, floated down a river, hit another boat and both got lodged in front of a drawbridge that resulted in a huge flood – held that both the boat owners and the drawbridge workers were liable for the damage caused by the flood)

Thus, most courts make the proximate cause determination on this issue on a case-by-case basis. Some courts decide the issue of an unforeseeable type of harm to a foreseeable plaintiff by simply sending the case to the jury. The law is unsettled on this matter.

If the plaintiff is foreseeable and the type of harm is also foreseeable, but the manner in which the harm occurred is unforeseeable, the defendant is still liable for the plaintiff’s injury. Generally, unless the manner in which the foreseeable plaintiff suffered a foreseeable type of harm appears to be extraordinary, the fact that the harm occurred in an unforeseeable manner does not bar recovery. (Marshall v Nugent – held that the defendant was still liable to a plaintiff that was hit by a third car while he was walking down the road even though the plaintiff had not been hurt in the initial accident caused by defendant’s negligent driving.).

Courts universally hold that, under the “thin skull” rule, it is no defense that the plaintiff had an unforeseeable weakness or infirmity that caused his or her injury, or caused injury of much greater severity than would have been suffered in the absence of this weakness. The defendant takes his victim as he finds him. (Vosburg v Putney) (In Re Polemis)

If eventual harm to the plaintiff was foreseeable to the defendant, then the intervening third party’s action does not break the chain of causation and the defendant’s actions are still the proximate cause the plaintiff’s injury. (Marshall v Nugent – held that the defendant was still liable to a plaintiff that was hit by a third car even though the plaintiff had not been hurt in the initial accident caused by defendant’s negligent driving.). Furthermore, if the defendant’s negligence conduct created the situation that offered an opportunity for the third person to commit a tort or a crime, AND THE DEFENDANT SHOULD HAVE FORESEEN that the that a third party might make advantage of the situation, then the defendant is still liable for the injury to the plaintiff. (Brower v NY Central – held that the defendant was still liable to a plaintiff who was robbed by a third party after the defendant’s train had hit plaintiff’s wagon and disoriented his driver.) (2nd Restatement 448)

If the actions of a third party were unforeseeable of very remote with respect to the defendant’s negligence, then the defendant is not liable for the injury suffered by the plaintiff.

It is generally considered foreseeable to a defendant that a rescuer will come to the aid of someone injured by the defendant’s actions, therefore, the defendant owes the rescuer a duty similar to the one he owes the victim. (Wagner v International Railway – held that the plaintiff could recover from the defendant when the plaintiff attempted to rescue someone else who was a victim of the defendant’s negligence.) However, if the rescue is unreasonable or carried out negligently, the defendant may not be liable for the full extent of the injury to the plaintiff rescuer. Instead, the court may apply comparative negligent rules. (3rd Restatement 32)

In order to recover for his injury, the plaintiff must prove that the defendant owes the plaintiff damages.