Torts 2- epstein/Miles Outline: C. Proximate cause: Proximate Cause



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Torts 2- Epstein/Miles Outline:
C. PROXIMATE CAUSE:

*Proximate Cause is used to determine the extent of the Def’s liability after actual causation (cause in fact) is est. It is an attempt to deal w/the problem of liability for unforeseeable or unusual consequences following the Def’s acts. Proximate cause deals w/ how far public policy will extend liability to the Def for the consequences of his act.

  • Foreseeability of harm: 2 Opposing Views= 1) the Def’s act will be considered the proximate cause of the P’s injury only if such consequences, judged at the time and place and under the circumstances when the Def acted, were reasonably foreseeable (is the injury reasonable foreseeable as something likely to happen?); 2) where the injury to P is the direct result of the Def’s act, foreseeability is important only in determining whether there is negligence; if the injury follows in an unbroken sequence of events, the Def will be liable for the consequences regardless of the remoteness of the injury.

  • Intervening Actions- Modern theories of Prox. Cause allow P to recover form Def’s wrongful act even if T’s negligent act intervenes

    • Deliberate Intervening Actions- one view asserts that only in cases where Def has explicit duty to prevent T’s mischief/criminal conduct will T’s act sever the causal connection btwn Def’s act and the harm

*Alternative Causation Tests = [???- Discuss w/ Prof Miles]

  • But-For test- treats a given act or omission as the cause of harm as long as the harm would not have occurred had the actor not been negligent.

  • Directness Test- Def is liable for any damages that are direct, even if they are not foreseeable.

  • Last Wrongdoer Test- Under earlier common law tests for Prox. Cause, Def held liable only when he was the last wrongdoer who caused the loss; (BUT- innocent actions under the compulsion of Def never sever causal connections to Def’s prior act)

  • Independent causes test- - Def not liable for unforeseeable damages; only liable when type of risk that one expects to materialize from the Def’s negligence results in harm = Foresight Test—were the damages foreseeable ex ante? [???]

  • Foreseeability Test- Def liable only for those damages that are reasonably foreseeable (those which are natural, necessary, or probable) [same as previous?]

    • Foresight test can be used to further limit Def’s responsibility and assert that Def doesn’t owe duty of car to particular person b/c that P was not w/in the ambit of danger when Def acted—not a foreseeable P (see Palsgraf).

    • How to distinguish foreseeable events= low probability of harm; freakish events

  • Substantial Factor Test- est. by J. Andrews in Palsgraf case- was Def’s act a substantial factor causing P’s harm.

NOTE- Each test is inadequate in some way and can even be misleading; thus it is better to view proximate cause as several distinct scope of liability problems, the principle ones being: 1) unforeseeable consequences [see Palsgraf, Polemis, Wagon Mound, Wagner]; 2) intervening causes [see City of Lincoln, Jones, Georgia RR, Bell, Brower]
*Debate between the Foresight v. Directness Test-

  • Directness & Foresight- with sequential events, the critical inquiry is whether some act or event intervene btwn Def’s negligence and P’s harm such that the intervening act counts as a superseding cause that severs causal connection.

  • While the Theory of direct causation is not explicitly tied to a theory of negligence liability, theory of foreseeability is.

  • Polemis Case ruling v. Wagon Mound ruling- Polemis ct held that explosion from the dropped plank was not foreseeable but Def still held liable on directness test; In Wagon Mound I the ct rejected Polemis ruling and P was denied recovery b/c the fire was not a foreseeable result of Def’s negligent oil spill. NOTE- in Wagon Mound II, the original P from Wagon Mound I should have been liable as well since P’s negligence did not excuse Def’s negligence.

    • The 2 cases are viewed as est. fault lines btwn the two theories; but differences exist, such as in Polemis its not a stranger case (harm arose btwn an owner and charterer/leasee where there was a murky contract)


*2nd Restatement § 281-[follows Cardozo’s duty requirement] = Risk to class of which P is member—if the actor’s conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured.”
*2nd Restatement § 431- [Incorporates J. Andrews’ Substantial Factor test] - What constitutes Legal Cause- the actor’s 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 b/c of the manner in which his negligence has resulted in harm.”


  1. Physical Injury (Cases)-

    1. Ryan v. NY Central RR- Def’s engine caused fire whish spread to subsequent houses, including P’s house that was 130 ft way. Ct Affirmed non-suit on P; Def not liable b/c P’s damages too remote, Def not the proximate cause, not foreseeable that fire would spread to P’s home.

      1. Rule= one house limit on fire cases; est. limit on foreseeability

      2. Miles- similar to Vaughn v. Menlove (hay rick case)—Def held liable; case re: reasonable care—

        1. Def held to objectively reasonable std of care

      3. Miles- also like Vosburg v. Putney- BUT there P/Putney was found wholly liable for an unforeseeable damage

        1. but that was an intentional tort

    2. Smith v. London & SW RR- RR/Def found negligent for not removing heap of grass trimmings near the railway which caught fire.

      1. Rule= If Def found to be negligent, Def responsible for all consequences of their conduct (remoteness doesn’t limit liability).

    3. City of Lincoln- P’s ship destroyed after City of Lincoln ship crashed into it. B/c of loss of equipment/compass, P’s ship captain couldn’t save the ship. Def held liable for P’s loss b/c loses were “in the ordinary course of things.”

      1. Ryan Ct placed a narrow meaning to the phrase but here the ct broadens scope of “ordinary & natural result”—

      2. Rule= the phrase “Ordinary and Natural results” must be construed not only with intervening natural events but also w/ intervening human conduct (should include at least the reasonable conduct of those who have sustained the damage and who are seeking to save further loss.”

    4. Emergency Situations:

    5. Jones v. Boyce- P was injured when he jumped from the coach after it had gotten out of control. Ct held Def liable b/c Def’s misconduct put P in a position to have to act in such a manner and injure himself.

      1. Rule- the nature of human intervention can either break proximate cause (def not liable), or intervening human action can still leave the Def liable under Proximate cause

      2. See also, Tuttle v. Atlantic City, ct est. that “if a Def’s negligence puts the P under reasonable apprehension of physical injury, and P, in an effort to escape, sustains an injury, a right of action arises to recover for the physical injury

      3. Occasionally cts invoke a foresight limitation to bar recovery in emergency cases: Mauney v. Gulf Refining Co (Miss. 1942).- Def not liable when P tripped on chair in own restaurant; Def was outside and couldn’t have foreseen what P didn’t even see right at her feet!

    6. Berry v. Sugar Notch Borough(Pa. 1889)- P/driver of railcar, was speeding in excess of 8 mph speed limit, when chestnut tree fell on car. Def/Borough claimed P’s violation of statute was cause of P’s injury. Ct held that proximate cause was fall of the tree, not P’s speeding (mere coincidence).

      1. Rule= P’s violation of statute does not conclusively relieve Def of liability for their negligence; must still est. what negligent act was prox cause of harm

      2. The difficulty of the but-for test—here the answer to that test is not so clear; test has weakness b/c it doesn’t ID the relevant risks***

    7. Georgia RR v. Price (1898) = RR/Def’s negligent act here was exposing the P to an increased risk of injury by missing P’s stop. But Ct found that the P’s harm was too remote from RR”s negligence.

      1. Rule= the existence of an intervening action by a 3rd party is what breaks the causal connection and relieves Def of liability (here it is the negligence of the hotel).

    8. Hines v. Garrett (VA 1921)- P was exposed to an increased risk when RR conductor took P nearly 1 mile away from her stop at night, forcing her to walk back. P was raped twice during her walk back. Ct held that the general proposition (re: no Def liability when intervening act severs) does not apply where the very negligence alleged consists of exposing the injured party to the act causing the injury. Def/RR liable.

    9. Bell v. Board of Edu. (NY 1998)- Def/school board left P/sixth grade girl while on a drug awareness fieldtrip and as she had to walk back she was accosted by three boys and raped. Jury verdict for P, as ct asserted that “We cannot say that the intervening act of rape was unforeseeable as a matter of law.” (Notion of an increased risk of harm for P)

    10. Brower v. NY Central- After collision caused by Def/RR’s negligence, P/driver of horse cart was too stunned to protect his scattered goods. Def’s detectives, who were on train, failed to prevent theft of P’s goods. Ct held Def liable b/c Def made no effort to protect P’s goods, theft was foreseeable and (since due to Def’s negligence) not too remote.

      1. Rule= A party is liable for the consequence of damages caused by 3rd parties if that damage is foreseeable.

      2. Thieves not an intervening cause b/c theft is a natural and ordinary consequence of a train accident

    11. Modern cases follow the 2nd Rstmt 448/449 [re: deliberate 3rd party intervention & substantial factor test]= holds that the Def should be held liable precisely b/c the 3rd party did exploit the dangerous condition created by the Def (& its foreseeable that one could exploit the situation)



    12. Wagner v. Int’l Railway- [Acts of compulsion] P’s cousin was thrown from overcrowded train. Def/RR was negligent in leaving door open. P was injured, fell off trestle, while looking for the body. Trial Ct instructed jury that Def only liable if P was invited by conductor to go on the trestle. P appeals and Ct held that the limitation of trial ct not correct.

      1. Rule= (J. Cardozo) Danger invites rescue; it is a natural human response to seek to rescue other who may be in distress.

      2. Danger invites rescue is well est. doctrine today—it informs a tortfeasor it is foreseeable a rescuer will come to the aid of a person imperiled by the tortfeasor’s actions and thus the tortfeasor owes the rescuer a duty

    13. Direct Harm Test: The foreseeability is only important to est. negligence; once negligence is est, Def is liable for all damages regardless of foreseeability.

    14. See, In re Polemis & Furness (1921) P/owner of vessel chartered it to Def. Def hired workers that were unloading cargo and negligently dropped a plank in to the hold of vessel causing spark from the petrol- this caused fire. Arbitrators held that while the spark could not have been anticipated other damages could be. Ct held that explosion not foreseeable but Def liable on the directness test).

      1. Rule= Def is liable for unforeseeable consequences of his acts if some damage is foreseeable—once Def’s negligence is shown, Def liable for all damages!



      2. he foreseeability only is important to determine existence of negligence; BUT once negligence is est. the Def is liable for all damages regardless of foreseeability.



    15. Majority View Today: Def not liable to 3rd party if the risk of harm to that P, due to Def’s negligent act, is not foreseeable.

    16. Palsgraf v. Long Island RR (NY 1928) Def/RR employees were negligent in trying to assist passenger trying to jump the moving train w/ package in hand. Def not aware that package contained explosives. Package dropped on rail and caused explosion that rattled the platform and caused scale to fall on Palsgraf, who was standing at other end. Ct finds,

      1. Def not liable b/c Def owed no duty to P as she was not a foreseeable P.

      2. Dissent= J. Andrews= est. the substantial factor test; asserts that due care is a duty imposed on each one of us to protect society form unnecessary danger, not to protect A, B, or C alone.

      3. NOTE-

        1. Polemis re: unforeseeable risks;

        2. Palsgraf re: unforeseeable Plaintiff!

      4. Miles= Negligence must be founded on a foreseeable risk to the injured person –if it is not foreseeable, then there is no duty to protect that person, and thus no proximate cause to; But if the risk is foreseeable than there may be a duty to take care to that person and if that person is harmed b/c of failure to take care then the harm is foreseeable.

    17. Marshall v. Nugent- Def/driver for Oil Co. negligently caused P’s car to go off-road to avoid collision. Def offered to pull P’s car back onto highway and told P to go warn other cars. P was struck by oncoming car driven by Nugent. Def’s negligence subjected P to, had not yet dissipated at time of P’s injury (i.e. normal traffic flow had not yet resumed).

      1. Rule= A negligent tortfeasor remains liable until the situation has returned to normal.

  2. But-For test v. Proximate Cause test- proximate cause limits the liability that would be assigned under the but-for test by looking at the extra risks caused by Def’s negligence (are those risks over? If so, then Def no longer liable!)

    1. In this case, Def held liable b/c the additional risks that Def’s negligence subjected P to have not yet dissipated at time of P’s injury (i.e. normal traffic flow had not yet resumed).

  3. Rejection of Polemis (Def wholly liable)=

    1. Overseas Tankship (UK) Ltd. v. Morts Dock Co.(Wagon Mound 1-1961)- Def’s ship negligently discharged oil when docked at Sidney harbor. The oil spread under P’s wharf where workers were welding. Molten metal dripped, set fire to cotton floating on water, and ignited the oil. P sued to recover from fire damage. Def not held liable.

      1. Rule= To recover, the actual damages or results must be foreseeable to. It is not enough just that any damage or results are foreseeable or follow in an unbroken sequence; limits must be imposed upon the consequence for which a negligent actor is to be held responsible.

      2. The thin skull rule- “You take your victim as you find him”- this rule of tort law was shaken by the Wagon Mound 1 ruling.

        1. Smith v. Brain Leech & Co.- P’s deceased had a propensity to develop cancer and did when burnt by a splash of molten metal caused by Def’s negligence. Ct noted that death by cancer was unforeseeable to Def but the Ct still allowed recovery for P b/c ct was upholding the “take P as he is” principle (ct noted the Thin Skull case).

        2. Thin Skull Rule- (Cardozo) when def negligently lightly strikes P w/ thin skull, def liable for the unexpected breaking of skull—The negligent person takes his victims as they are.

      3. Wagon Mound 2 (1967)- P/other ship owners that did not spill the oil but suffered loss were able to recover b/c Ct held that the fire was foreseeable!

    2. American Response to Polemis and Wagon Mound 1-In a petition of Kinsman Transit Co.- a loose patch of ice hit a ship that was improperly tended (due to negligence) causing it to go downstream and hit another ship; both ships then hit a drawbridge. Action brought v. owner of 1st ship and the city. The crew of the drawbridge, had they been alert, could have raised the bridge and avoided injury. Ct held both Def’s jointly liable for P’s damages.

      1. Rule= Kinsman case is important in that J. Friendly notes that the ruling in Wagon Mound that def liability should be limited to foreseeable consequences seems inconsistent with the universally accepted rule that the Def takes the P as he finds him and is responsible for the full extent of the injury (as in Vosburg v. Putney).




  1. Emotional Distress Cases-

Mental or emotional distress can flow from wrongful acts; 1st Line of Defense for such claims denies connection btwn the distress and Def’s conduct; and 2nd line of defense holds that even if Def’s conduct is cause in fact of P’s injury, that conduct is not the proximate cause.

    1. Mitchell v. Rochester Railway (NY 1896)- P filed claim v. Def claiming that fright from Def’s horse car caused her miscarriage. P claimed the emotional injury from Def resulted in a physical injury. Ct held claim not valid b/c the phys injury has to be immediate to Def’s conduct.

      1. Rule= One cannot recover for injuries due to fright as there is no immediate personal injury.

      2. The Mitchell ruling gave the principle of proximate cause a bad name…cts were quick to reject the physical impact requirement in nervous shock cases in both England and the U.S.

      3. This led to the zone of danger test- where P on longer had to prove physical injury to recovery for emotional distress; P need only show that she was in the path of expected danger and held a reasonable or instinctive fear for her own safety.

      4. Ct here feared frivolous lawsuits!!!

    2. Rejecting the “Zone of Danger Requirement:

      1. Dillon v. Legg (CA 1968)- Ct rejected the “zone of danger” requirement; P/Dillon, a mother who watched her child get killed while crossing the street, brought 3 claims v. Def. Trial Ct dismissed 2nd count and held mother couldn’t recover from emotional distress (but the sister could b/c she was slightly closer to the incident) b/c she was not in the zone of danger. Judgment Reversed on grounds that…

        1. Rule= One who suffers physical injury as the result of the trauma upon apprehension of harm to another, if the risk of her injury is foreseeable, has a cause of action.

      2. To est. Foreseeability and that Def owed P a duty of due care, will depend on 3 factors:

        1. =1) P’s proximity to the scene of the accident; 2) whether P suffered direct emotional impact of viewing the accident; and 3) whether P and the victim were closely related.

      3. P cannot recover is she has contributed to the accident; P’s claim, as a 3rd party, must be based on the liability and fault of Def.

    3. Most cts permit the direct victims of misinformation to recover for their emotional anguish.

      1. Molien v. Kaiser Hospitals (Cal. 1980) Def’s employee (Dr.) negligently misdiagnosed P’s wife w/ syphilis, this caused P’s wife to get suspicious that her husband was cheating on her and caused their marriage to dissolve. Ct allowed the P’s claim for emotional distress due to Dr’s negligence b/c it was reasonably foreseeable that a misdiagnosis of syphilis could lead to marital discord.

      2. The “at risk” Plaintiff re: drugs and toxic torts- Payton v. Abbott Labs (MA 1982), Ct held that the at-risk cancer patients had to prove that P’s physical harm was either caused or be caused by the emotional distress alleged, that the physical harm must be manifested by medical testimony & symptoms, and that emotional distress was reasonably foreseeable.

      3. Potter v. Firestone- similar ruling, but here Def’s employees broke Co. policy as well as Fed and state statutes and dumped toxins into an unauthorized dump site to save on costs. P’s filed claim for emotional distress due to fear that they had increased risk of cancer now. Ct held P’s must prove their claim is foreseeable and backed by medical testimony. Miles notes that the knowledge of the increased risk for cancer is what causes the emotional distress.



Chapter 7- Affirmative Duties:

  • Affirmative Duty cases there are mostly incidents of inaction, and the question becomes did that person have a duty to act—if liability attaches, there was a duty to act, thus what are the sources of that duty? How far does it reach?

Section A. General Duty:

  • Introduction= deals w/ the care a person must show to others, the act of the Def must be the external manifestation of his will in order to support cause of action based on negligence; negligence can also be based on the failure or omission of the Def to act!

  • Generally, the law holds that there is no legal duty to come to the aid of others.

  • Notion of liability for nonfeasance, failure to act, b/c Def is under an affirmative duty to aid, assist, protect, the P from harms that the Def did not cause or bring about.



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