Torts Summer 2008 Brooklyn Law School Chapter V Cause in Fact Multiple Defendants

Proximate Cause Scope of Liability1Product Liability Spring 2014Chapters 11 & 12 Proximate Cause and Scope of LiabilityGeorge W. ConkAdjunct Professor of Law & Senior FellowStein Center for Law & EthicsFordham Law SchoolRm 409212-636-7446gconk@law.fordham.eduTorts Today: http://tortstoday.blogspot.comOtherwise: http://blackstonetoday.blogspot.com

1Stavenski v. Tennant (Fl App 1993) p. 450What is the nature of the risk that created a duty to the plaintiff who fell from a forklift?Proximate Cause Scope of Liability2In Re September 11 (SDNY 2003)p. 453Hijacking risk imposed duty on Boeing to make cockpits secureDoes that properly extend the duty to:Passengers?Crew?Ground victims (person and property)?Proximate Cause Scope of Liability3Union Pump V. Albritton (TX 1995)How would you frame the nature and extent of the risks presented by the chemical pump that caught fire here?Proximate Cause Scope of Liability4Jeld-Wen, Inc. V. Gamble(VA 1998), p. 466The window screens manufacturing defect made it insecure when pushed from the inside.What risks were created by that defect?What should be the limits aof the manufacturers liability?Proximate Cause Scope of Liability5Donovan v. Philip Morris, USA(Mass 2009), p. 489Have the members of the plaintiff class suffered a loss?Are they seking a benefit or a remedy?Why does the New York Court of Appeals reject such an action in Caronia?Who has the better of it Massachusetts or New York?Proximate Cause Scope of Liability6A proximate cause?There must be some way out of here, said the joker to the thief. There's too much confusion here. I can't get no relief.Bob Dylan, `All Along the Watchtower

7Proximate Cause Scope of Liability

7A proximate cause?"Proximate cause remains a tangle and a jungle, a palace of mirrors and a maze...`proximate cause' covers a multitude of sins It is a complex term of highly uncertain meaning under which other rules, doctrines and reasons lie buried..." - William L. Prosser, Proximate Cause in California, 38 California Law Review 369, 379 (1950)

8Proximate Cause Scope of Liability8Discussion ? - use Mitchell v. Gonzalez facts.Proximate Cause a Question of FactIt is well-settled that questions of negligence or proximate cause are ordinarily for the jury Only in exceptional cases should they be decided as a matter of law.Thompson v. Kaczinski (Iowa 2009)Proximate Cause Scope of Liability99Proximate Cause Scope of Liability10Ch. 3 The duty requirement - Physicial Injuries10A matter of lawDuty - defined

Duty is an obligation recognized by the law to conform to a particular standard of conduct toward another

Prosser on Torts, 2d Edition, Ch. 6 Negligence195510The Elements of a Negligence Cause of Action

a) a legal duty to conform to a standard of conduct for the protection of others

b) a failure to conform to the standard

c) a reasonably close causal connection between the conduct and the resulting injury

d) actual loss or damage resulting to the interests of another

Proximate Cause Scope of Liability11Ch. 3 The duty requirement - Physicial Injuries11Duty a flexible concept (Prosser)"Duty" is not a rigid formalism according to the standards of a simpler society, immune to the equally compelling needs of the present order; duty must of necessity adjust to the changing social relations and exigencies and man's relation to his fellowsProximate Cause Scope of Liability12Ch. 3 The duty requirement - Physicial Injuries12Restatement of Torts (2d) 314 Duty to Act for Protection of Others The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action. 12NO GENERAL DUTY to ACT for the Protection of OTHERSProximate Cause Scope of Liability13Ch. 3 The duty requirement - Physicial Injuries13Duty 3rd Restatement (2010) 7. Duty(a) An actor ordinarily has a duty to exercise reasonable care when the actors conduct creates a risk of physical harm.(b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.

13Does this capture the neighbour principle or the foreseeability element inherent in Owens formulation?A limiting factorProximate CauseProximate Cause Scope of Liability1414Proximate Cause Scope of Liability15The Proximate Cause PerplexWhat to call it?Legal causeProximate CauseScope of liabilitySubstantial (contributing) factorSuperseding causeSole proximate causeCause 1515Metaphors and maximsDirect causesEfficient causesInitiating causesChain reactionsForeseeable effectsNatural and continuousSubstantial factorsLegal causesProximate causesProximate Cause Scope of Liability16Proximate carries the idea of closest in time or space, when in fact the legally relevant cause may be the most remote in time or in spaceE.g. if I inhale asbestos dust for 3 months in a factory and 30 years later develop mesothelioma which has no other known cause, is the dust the proximate cause?16Chain of events"Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate.For such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.Christianson v. Chicago, St. Paul, Minn. & Omaha Ry. Co. (1896) Proximate Cause Scope of Liability1717Proximate cause unexpected harmDuty? Breach? Damages? Foreseeability - DirectnessPolemis (Ct. of Appeal 1921)Palsgraf v. LIRR (1928)Wagon Mound No. 1 (Privy Council 1961)Wagon Mound No. 2 (Privy Council 1967)Kinsman II (1968)Doe v. Mannheimer (1989) (intervening causes)Benn v. Thomas (Iowa 1994)Kubert v. Best (N.J.A.D. 2013)

18Proximate Cause Scope of Liability18 431 Legal Cause 2d RestatementA negligent actor is liable if her conduct isA) a substantial cause of harmProximate Cause Scope of Liability1919A substantial factor?New York Pattern Jury InstructionPJI 2:70 Proximate Cause--In General

An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.

20Proximate Cause Scope of Liability20A substantial factor?PJI 2:70

There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it.

21Proximate Cause Scope of Liability21Proximate Cause - General Definition N.J. Model Jury Charge (1992) - The billiard ball modelBy proximate cause is meant that the negligence of the defendant was an efficient cause of the accident, that is, a cause which necessarily set the other causes in motion and was a substantial factor in bringing the accident about. It is defined as a cause which naturally and probably led to and might have been expected to produce the accident complained of.22Proximate Cause Scope of Liability22Proximate cause isan expression of line-drawing by courts and juries, an instrument of overall fairness and sound public policy.Juries, like courts, should understand the doctrine to be based on logic, common sense, justice, policy and precedent. Conklin v. Hannoch NJ 1996Proximate Cause Scope of Liability23Conklin v Hannoch Weisman 145 nj 395(1996)23The fairness modelProximate Cause General - NJ (1998)The basic question for you to resolve is whether the harm is so connected with the negligent actions or inactions of [the defendant] that you decide it is reasonable that the defendant should be held wholly or partially responsible for the harm. 24Proximate Cause Scope of Liability24Causal apportionment and fault apportionment Omit "wholly or partially" where neither comparative fault (N.J.S.A. 2A:15-5.1, et seq.) nor apportionment of causal factors is involved in the case, e.g., Dafler v. Raymark Industries, 132 N.J. 96 (1992). 3rd Restatement of TortsThe risk reasonably to be perceived defines the duty to be obeyed. CardozoThe Risk RuleProximate Cause Scope of Liability25

3rd Restatement - Scope of Liability (Proximate Cause)Liability within the scope of the risk 29 Limitations on Liability for Tortious ConductAn actors liability is limited to those physical harms that result from the risks that made the actors conduct tortious.26Proximate Cause Scope of Liability26

3rd Restatement - Scope of Liability Liability within the scope of the risk 30 Risk of Physical Harm Not Generally Increased by Tortious ConductAn actor is not liable for physical harm when the tortious aspect of the actors conduct was of a type that does not generally increase the risk of that harm.

27Proximate Cause Scope of Liability27The eggshell plaintiff rule - Damages? Liability?Unexpected Harm

Proximate Cause Scope of Liability2828Restatement (Second), Torts 461 (1965)eggshell plaintiff rule: foreseeability excused The negligent actor is subject to liability for harm to another even though a physical condition of the other ... makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct.29Proximate Cause Scope of Liability29The egg shell plaintiff rule the tortfeasor takes the victim as she finds herThe foreseeability rule does not apply here

So long as you can foresee that some harm will be done you are responsible for all that occurs as a result of the wrongful conduct

ALL? ALL?

Not really it has to be damage of the general type that made the conduct tortious

Of a type that one would regard as a cause, according to the PJI

Not a coincidence like speeding to get to Philly where your early arrival puts you in place for a wall to collapse on you

A bolt from the blue?Superseding CauseProximate Cause Scope of Liability3030An outmoded idea?In (Prof. Green)'s opinion the doctrine of superseding cause is already incorporated into the test for proximate cause. Repeating the test for superseding cause, then, merely adds confusion to an already confusing subject, and serves no meaningful purpose in a jurisdiction, such as ours, wherein a defendant will be liable only for his or her proportion of the plaintiff's damages.Barry v. Quality Steele Products, Inc., 820 A.2d 258 (Conn. 2003)Proximate Cause Scope of Liability3131Restatement 3d of Torts: Liability for Physical and Emotional Harm, 34Superseding Cause

When a force of nature or an independent act is also a factual cause of harm, an actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious.Proximate Cause Scope of Liability32Medical malpracticeP is injured by DPs surgeon is negligent in his care of PD is responsible for the full consequences of the treatment and the initial injury

Why?Proximate Cause Scope of Liability3333Rest. 3rd 35. Enhanced Harm Due to Efforts to Render Medical or Other AidAn actor whose tortious conduct is a factual cause of physical harm to another is subject to liability for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other's injury, so long as the enhanced harm arises from a risk that inheres in the effort to render aid.Proximate Cause Scope of Liability34COMMENTS & ILLUSTRATIONS: Comment:a. Liability for enhanced harm from efforts to aid an injured person. As with the specific rules developed and reflected in 30-32, courts have developed a specialized rule to deal with the recurring matter of enhanced harm caused by those who provide aid to an injured person. Restatement Second, Torts 457 provided that a negligent actor was liable for enhanced harm caused by third persons in rendering aid reasonably required by the injured person, regardless of whether the third person acted negligently. This section reiterates that rule, which continues to retain virtually unanimous acceptance, and expands it to cover other tortious conduct. Negligence in medical treatment of a tortiously caused injury is the most common invocation of the rule in this section.34The Palsgraf legacyIs Duty Relational or Act-Centered?

Is Plaintiff-Foreseeability a Duty Inquiry or an Aspect of Proximate Cause?

Is Court or Jury the Proper Arbiter of Foreseeability?

Proximate Cause Scope of Liability35Per Cardis review: Relationality plays only a bit part in courts descriptions of dutys essence (except in affirmative duty cases) Plaintiff-foreseeability is relied on by overwhelming majority of courts in duty determinations But most courts leave foreseeability even as part of duty to the jury Andrews wins! Cardozos foreseeability as a categorical determination has gotten little traction NY is an outlier on foreseeability not part of duty and its foreseeability as relating to scope of duty is unique Overall disarray in how to resolve duty issues35Palsgraf v. LIRRDuty, breach, causation & damage all appear to be present.Why does Helen Palsgraf lose?36Proximate Cause Scope of Liability36Why does neither Cardozo nor Andrews mention that she was a passenger who had bought a ticket?Was that scale in safe condition if it was so easily toppled?Was the explosion foreseeable?Was a rushing crowd?If the trainman is innocent toward Helen P, isnt Mrs. P entirely free of negligence? Why should she bear the burden?PalsgrafCardozo: The plaintiff sues for breach of duty owing to himself.Andrews: Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. 37Proximate Cause Scope of Liability37Who has the better of this argument?

Andrews: Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. Duty to Unforeseeable Persons Palsgraf v. LIRR3rd Restatement:If the harms risked by the tortious conduct include the general sort of harm suffered by plaintiff, the defendant is subject to liability for plaintiffs harmHow would Helen Palsgraf fare under this test?

38Proximate Cause Scope of Liability38What was the kind of harm that the RR attendant risked when he mishandled the package?What relation did Helen Palsgraf have to the LIRR?Was fireworks smtg he had reason to foresee might be in the package?Cardozos maximsThe orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.Why doesnt the Cardozo majority defer to the jury which ruled for Helen Palsgraf wasnt she as a person lawfully on the platform within the orbit of LIRRs duty of reasonable care?39Proximate Cause Scope of Liability39Joseph Little, Palsgraf Revisited, Again, 6 Pierce L. Rev. 75, 79 (2007)

so connected is the exact phrase used in the NJ Model Instruction

People went to Chinatown for fireworks regularly and brought them home on the LIRR suppose ordianry people know that and Cardozo in his ivory tower does not?* How far is 30 feet?Helen Palsgraf was a business invitee. Should unsecured scale on a crowded platform have been the Ps theory of liability? isnt she a direct victim of the negligence? Why isnt that a sufficient limit?What makes the judge superior to the jury in deciding that the consequence was so little to be foreseen that Helen Palsgrafs injury was not smtg he (and LIRR) should have been responsible for, even though it was a direct cause of her injury?* summary judgment in one-sided cases?Cardozo plaintiff-specific foreseeabilityWhat the plaintiff must show is a wrong to herself; i.e., a violation of her own right, and not merely a wrong to some one else, nor conduct wrongful because unsocial, but not a wrong to any one. . . Proximate Cause Scope of Liability4040Cardozos maximsThe risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. 41Proximate Cause Scope of Liability41Joseph Little, Palsgraf Revisited, Again, 6 Pierce L. Rev. 75, 79 (2007)

Determining dutyThe overwhelming majority of courts determine duty by using a multi-factor test which includes foreseeability as a central feature as well as fairness and other policy considerations (e.g. Rowland v. Christian)Cardi: The Hidden legacy of Palsgraf (forthcoming 2011)Proximate Cause Scope of Liability42The most frequently-adopted set of factors stems from the California Supreme Courts decisions in Biakanja v. Irving19 and Rowland v. Christian.20 These factors include (1) foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant's conduct and the injury suffered, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved.2 42Cardozos maximsOne who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. 43Proximate Cause Scope of Liability43Joseph Little, Palsgraf Revisited, Again, 6 Pierce L. Rev. 75, 79 (2007)

The analects of AndrewsProximate causeThese two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. 44Proximate Cause Scope of Liability44The analects of AndrewsYou may speak of a chain, or if you please, a net. An analogy is of little aid. Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing.45Proximate Cause Scope of Liability45The analects of AndrewsShould analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources.46Proximate Cause Scope of Liability46The analects of AndrewsNo man may say whence any drop of water is derived. Yet for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water stained by its clay bed. The three may remain for a space, sharply divided. But at last, inevitably no trace of separation remains. They are so commingled that all distinction is lost.47Proximate Cause Scope of Liability47The analects of AndrewsThe problem of proximate cause is not to be solved by any one consideration.It is all a question of expediency. There are no fixed rules to govern our judgment. 48Proximate Cause Scope of Liability48* If it is all a matter of common sense to whom should we assign this? Judge or Jury? The analects of AndrewsWhat we do mean by the word "proximate" is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.49Proximate Cause Scope of Liability49The analects of AndrewsWe have in a somewhat different connection spoken of "the stream of events." We have asked whether that stream was deflected -- whether it was forced into new and unexpected channels. This is rather rhetoric than law. There is in truth little to guide us other than common sense.There are simply matters of which we may take account. 50Proximate Cause Scope of Liability50* If it is all a matter of common sense to whom should we assign this? Judge or Jury? Kinsman 2- unexpectable consequences?As a result of this disaster, transportation on the river was disrupted until approximately March 13, 1959 -- a period of about 2 months.Proximate Cause Scope of Liability51The bridge collapsed and its wreckage, together with the Tewksbury and the Shiras, formed a dam which caused extensive flooding and an ice jam reaching almost 3 miles upstream.

51Kinsman 2Cargill was under contract to deliver 124,000 bushels of wheat which were stored in its ship which could not be movedThey had to buy more expensive replacement wheat to avoid breaching their contractProximate Cause Scope of Liability52At the time of the accident, Cargill had some 336,000 bushels of wheat stored aboard the S.S. Donald B. Gillies berthed in the Buffalo harbor below the Michigan Avenue Bridge. (It is apparently not an uncommon practice for companies to "winter storage" wheat in this manner.) Cargill, it appears, was under contract to deliver 124,000 bushels of the Gillies' wheat during the period from January through March 1959. Because of the accident the vessel could not be moved to Cargill's grain elevators located above the collapsed bridge so that it could be unloaded. In order to comply with its contractual obligations, Cargill was required to secure replacement wheat in the Midwest. The Commissioner allowed Cargill $30,231.38 for its extra transportation costs and $8,232 for increased "storage costs."

52Kinsman 2 (2d Cir. 1968Limiting principles must exist in any system of jurisprudence for cause and effect succeed one another with the same certainty that night follows day and the consequences of the simplest act may be traced over an ever-widening canvas with the passage of time.

53Proximate Cause Scope of Liability53See Prosser, ; Harper and James; Hart and Honore, Causation in the Law, (1959).** , as Edgerton has noted, Legal Cause, U.Pa.L.Rev. (1924)Kinsman 2 (2d Cir. 1968)In Anglo-American law "except only the defendant's intention to produce a given result, no other consideration so affects our feeling that it is or is not just to hold him for the result so much as its foreseeability.**54Proximate Cause Scope of Liability54See Prosser, ; Harper and James; Hart and Honore, Causation in the Law, (1959).** , as Edgerton has noted, Legal Cause, U.Pa.L.Rev. (1924)Kinsman 2 (2d Cir. 1968) On the previous appeal we stated aptly: "somewhere a point will be reached when courts will agree that the link has become too tenuous -- that what is claimed to be consequence is only fortuity.Neither ship suffered any direct or immediate damage for which recovery is sought. The instant claims occurred only because the downed bridge made it impossible to move traffic along the river.55Proximate Cause Scope of Liability55Kinsman 2 (2d Cir. 1968) [T]he connection between the defendants' negligence and the claimants' damages is too tenuous and remote to permit recovery. The law does not spread its protection so far." Holmes, J., in Robins Dry Dock (1927)56Proximate Cause Scope of Liability56Kinsman 2 (2d Cir. 1968)To anyone familiar with N. Y. traffic there can be no doubt that a foreseeable result of an accident in the Brooklyn Battery Tunnel during rush hour is that thousands of people will be delayed. A driver who negligently caused such an accident would certainly be held accountable to those physically injured in the crash.

57Proximate Cause Scope of Liability57Kinsman 2 (2d Cir. 1968)But we doubt that damages would be recoverable against the negligent driver in favor of truckers or contract carriers who suffered provable losses because of the delay or to the wage earner who was forced to "clock in" an hour late. An yet it was surely foreseeable that among those who would be delayed many would be truckers and wage earners58Proximate Cause Scope of Liability58Kinsman 2 (2d Cir. 1968) In the final analysis, the circumlocution whether posed in terms of "foreseeability," "duty," "proximate cause," "remoteness," etc. seems unavoidable. 59Proximate Cause Scope of Liability59Kinsman 2 (2d Cir. 1968)As we have previously noted (in Kinsman 1) we return to Judge Andrews' frequently quoted statement in Palsgraf v. Long Island R.R.: "It is all a question of expediency * * * of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind." 60Proximate Cause Scope of Liability60The Second Restatement ViewLegal (Proximate Cause)Proximate Cause Scope of Liability6161Restatement 2d, Torts 281 281 Statement of the Elements of a Cause of Action for Negligence

The actor is liable for an invasion of an interest of another, if:(a) the interest invaded is protected against unintentional invasion, and(b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and(c) the actor's conduct is a legal cause of the invasion, and(d) the other has not so conducted himself as to disable himself from bringing an action for such invasion.62Proximate Cause Scope of Liability62What interest of HP was invaded?What class of persons was Helen Palsgraf a member of?Was the actors conduct a cause in fact of harm to Mrs. P?Was Helen paslgraf negligent?Restatement, 2d 281If the actor's conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the persons so injured.63Proximate Cause Scope of Liability63Restat 2d of Torts, 281Comment on Clause (b):c. Risk to class of which plaintiff is member. In order for the actor to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of persons -- as, for example, all persons within a given area of danger -- of which the other is a member. 64Proximate Cause Scope of Liability64Restat 2d of Torts, 281Illustrations:1. A, a passenger of the X Railway Company, is attempting to board a train while encumbered with a bulky and apparently fragile package. B, a trainman of the Company, in assisting A, does so in such a manner as to make it probable that A will drop the package.65Proximate Cause Scope of Liability65Restat 2d of Torts, 281A drops the package, which contains fireworks, although there is nothing in its appearance to indicate it. The fireworks explode. The force of the explosion knocks over a platform scale thirty feet away, which falls upon C, another passenger waiting for a train, and injures her. X Railway Company is not liable to C.

66Proximate Cause Scope of Liability66 431 Legal CauseA negligent actor is liable if her conduct isA) a substantial cause of harmB) not subject to any privilege, immunity or rule of law relieving the actor of liabilityProximate Cause Scope of Liability6767 432 Negligent Conduct as Necessary Antecedent of Harm(1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.Proximate Cause Scope of Liability6868 432 Concurrence of negligent and non-negligent causes(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about.Proximate Cause Scope of Liability6969 433 Considerations Important in Determining Whether Negligent Conduct Is Substantial Factor in Producing Harm(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;Proximate Cause Scope of Liability7070 433(b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

(c) lapse of time.Proximate Cause Scope of Liability71The chain reaction or billiard ball metaphorThere is a moral judgment embedded in here a fairness judgment not just a pure fact judgment.

71Restatement (Second) of Torts 433A (1965)1) Damages for harm are to be apportioned among two or more causes where(a) there are distinct harms, or(b) there is a reasonable basis for determining the contribution of each cause to a single harm.(2) Damages for any other harm cannot be apportioned among two or more causes.Proximate Cause Scope of Liability7272`Enhanced harm Restatement 3d of Torts, 35An actor whose tortious conduct is a factual cause of harm to another is subject to liability for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the other's injury, so long as the enhanced harm arises from a risk that inheres in the effort to render aid.Proximate Cause Scope of Liability73Superseding cause definedRestatement 2d 440 A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.74Proximate Cause Scope of Liability74Therefore, if in looking back from the harm and tracing the sequence of events by which it was produced, it is found that a superseding cause has operated, there is no need of determining whether the actor's antecedent conduct was or was not a substantial factor in bringing about the harm.

Superseding cause definedRestatement 2dComment:b. A superseding cause relieves the actor from liability, irrespective of whether his antecedent negligence was or was not a substantial factor in bringing about the harm. 75Proximate Cause Scope of Liability75Therefore, if in looking back from the harm and tracing the sequence of events by which it was produced, it is found that a superseding cause has operated, there is no need of determining whether the actor's antecedent conduct was or was not a substantial factor in bringing about the harm.

Rest. 3rd 33 Intervening Acts and Superseding Causes(a) When an actor's tortious conduct is a factual cause of harm that is among the harms whose risks made the actor's conduct tortious, the actor is subject to liability for the harm even if an unforeseeable intervening act, including an unusual force of nature or independent culpable or nonculpable human act, is also a factual cause of the harm.Proximate Cause Scope of Liability7676 442 A Intervening Force Risked by Actor's Conduct Where the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause.77Proximate Cause Scope of Liability77 449 Tortious or Criminal Acts the Probability of Which Makes Actor's Conduct Negligent If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.

78Proximate Cause Scope of Liability78 441 Intervening force defined(1) An intervening force is one which actively operates in producing harm to another after the actor's negligent act or omission has been committed.(2) Whether the active operation of an intervening force prevents the actor's antecedent negligence from being a legal cause in bringing about harm to another is determined by the rules stated in 442-453.

79Proximate Cause Scope of Liability79 442 Considerations Important in Determining Whether an Intervening Force Is a Superseding Cause(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;(b) the fact that its 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) the fact that the 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;80Proximate Cause Scope of Liability80Comment on Clause (c):d. The words "situation created by the actor's negligence" are used to denote the fact that the actor's negligent conduct is a substantial factor in bringing about the situation and that, therefore, the actor would be liable for creating the situation if the situation were in itself a legal injury. 442 Considerations Important in Determining Whether an Intervening Force Is a Superseding Cause(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;(e) the 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) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

81Proximate Cause Scope of Liability81 442B Intervening Force Causing Same Harm as That Risked by Actor's Conduct 442B Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.

82Proximate Cause Scope of Liability82 442B Intervening Force Causing Same Harm as That Risked by Actor's ConductIllustrations:1. A negligently fails to clean petroleum residue out of his oil barge moored at a dock, thus creating the risk of harm to others in the vicinity through fire or explosion of gasoline vapor. The barge is struck by lightning and explodes, injuring B, a workman on the dock. A is subject to liability to B.83Proximate Cause Scope of Liability83* Is this any help in Doe v. manheimer? 448 Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor's Negligence The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.84Proximate Cause Scope of Liability84 448 Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor's NegligenceIllustration:1. The A Railroad Company negligently runs down a truck driven by a servant of B and containing barrels of cider. The collision occurs at night and at a place where there have been frequent thefts from the company's freight cars. It results in the scattering of the barrels of cider along the road and the stunning of the driver. The cider is stolen by unknown thieves. The negligence of the A Railroad Company is a legal cause of the loss of the cider by the theft of the unknown persons.85Proximate Cause Scope of Liability85b. When special grounds for anticipating criminal action by third person. There are certain situations which are commonly recognized as affording temptations to which a recognizable percentage of humanity is likely to yield. So too, there are situations which create temptations to which no considerable percentage of ordinary mankind is likely to yield but which, if they are created at a place where personsof peculiarly vicious type are likely to be, should be recognized as likely to lead to the commission of fairly definite types of crime. If the situation which the actor should realize that his negligent conduct might create is of either of these two sorts, an intentionally criminal or tortious act of the third person is not a superseding cause which relieves the actor from liability.

449 Tortious or Criminal Acts the Probability of Which Makes Actor's Conduct Negligent1. A is traveling on the train of the B Railway Company. Her ticket entitles her to ride only to Station X, but she intentionally stays on the train after it has passed that station. When she arrives at Station Y the conductor puts her off the train. This occurs late at night after the station has been closed and the attendants have departed. The station is situated in a lonely district, and the only way in which she can reach the neighboring town is by passing a place where to the knowledge of the conductor there is a construction camp. The construction crew is known to contain many persons of vicious character. While attempting to pass by this camp, A is attacked and ravished by some of the construction crew. The B Railway Company is subject to liability to A.86Proximate Cause Scope of Liability86 442 Considerations Important in Determining Whether an Intervening Force Is a Superseding Cause(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;(b) the fact that its 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) the fact that the 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;87Proximate Cause Scope of Liability87Comment on Clause (c):d. The words "situation created by the actor's negligence" are used to denote the fact that the actor's negligent conduct is a substantial factor in bringing about the situation and that, therefore, the actor would be liable for creating the situation if the situation were in itself a legal injury. 442 Considerations Important in Determining Whether an Intervening Force Is a Superseding Cause(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;(e) the 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) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

88Proximate Cause Scope of Liability88Intentional wrongs3rd RestatementScope of the risk standard inadequate for intentional harmsProximate Cause Scope of Liability898933. Scope of Liability for Intentional and Reckless Tortfeasors [3rd Restatement](a) An actor who intentionally causes physical harm is subject to liability for that harm even if it was unlikely to occur.Proximate Cause Scope of Liability909033. Scope of Liability for Intentional and Reckless Tortfeasors(b) An actor who intentionally or recklessly causes physical harm issubject to liability for a broader range of harms than the harms for which that actor would be liable if only acting negligently. In general, the important factors in determining the scope of liability are the moral culpability of the actor, as reflected in the reasons for and intent in Proximate Cause Scope of Liability919133. Scope of Liability for Intentional and Reckless Tortfeasorscommitting the tortious acts, the seriousness of harm intended and threatened by those acts, and the degree to which the actor's conduct deviated from appropriate care.Proximate Cause Scope of Liability9292 33. Scope of Liability for Intentional and Reckless Tortfeasors(c) Notwithstanding Subsections (a) and (b), an actor who intentionally or recklessly causes physical harm is not subject to liability for harm the risk of which was not increased by the actor's intentional or reckless conductProximate Cause Scope of Liability9393