Negligence: Scope of Liability (James) Flashcards Preview

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Flashcards in Negligence: Scope of Liability (James) Deck (16):

Scope of Liability

Is the careless conduct of Δ sufficiently related to the harm suffered by the particular Π?


Direct Consequences Test

The resulting accident is directly caused by (nothing intervenes) & traced to the negligence of Δ’s actions.


Foresight Analysis

1. Unforeseen Plaintiffs
2. Unforeseen Consequences
3. Intervening Forces


Unforeseeable Plaintiffs

(Pasgraf v. Long Island R.R. Co.)
CARDOZO: The risk reasonably to be perceived defines the duty to be obeyed, & risk imports relation; it is risk to another or to others within the range of apprehension. NO DUTY = NO SCOPE.
ANDREWS: For proximate cause, the court must ask itself whether
1. there was a natural & continuous sequence between cause & effect;
2. was the one a substantial factor in producing the other;
3. was a direct connection between them, without too many intervening causes;
4. is the effect of cause on result not too attenuated;
5. is the cause likely to produce the result;
6. by exercise of prudent foresight, could the result be foreseen; and
7. is the result too remote from the cause in time & space?


Unforeseen Consequences

Was the result within the scope of risks created by Δ’s negligence? Juisti v. Hyatt Hotel Corp.
A. Type of Harm
B. Manner of Harm


Type of Harm Tests

–The actual harm to Π must be foreseeable as falling within the general kind or type of injury that the defendant’s negligence created.
–“Risk Standard”: Restatement 3d: Δ liable only for harm that was among the potential harms (risks) that made the actor's conduct tortious.
–“Hindsight Standard”: Restatement 2d: Δ isn’t liable for consequences which, looking backward after the event with full knowledge of all that has occurred, would appear to be "highly extraordinary."


Manner of Harm Test

As long as Δ’s negligence created a reasonably foreseeable risk of the general kind of harm that befell Π, the exact way or precise manner the harm occurs doesn’t matter for purposes of scope of liability. Dobbs § 189 at 446.


Intervening Forces

1. 3rd Party Intentional Conduct
2. 3rd Party Criminal Conduct
3. Gross Negligence Shifting Responsibility


3d Party Intentional Conduct

(McClenahan v. Cooley)
An intervening act, which is a normal response created by negligence, is not a superseding, intervening cause so as to relieve the original wrongdoer of liability, provided the intervening act could have reasonably been foreseen & the conduct was a substantial factor in bringing about the harm.
–Proximate Causation Test
1. The tortfeasor's conduct must have been a "substantial factor" in bringing about the harm being complained of; and
2. there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in harm; and
3. the harm giving rise to the action could have reasonably been foreseen or anticipated by a person of ordinary intelligence & prudence.


3d Party Criminal Conduct

(Price v. Blaine Kern Artista)
While criminal or tortious third-party conduct typically severs the chain of proximate causation between a plaintiff & defendant, the chain remains unbroken when the third party’s intervening intentional act is reasonably foreseeable & the conduct was a substantial factor in the harm.


Gross Negligence Shifting Responsibility

(McLaughlin v. Mine Safety Appliances Co.)
A. the culpability of the intervenor––intentional, criminal, reckless, negligent, or innocent;
B. the competence & reliability upon whom reliance is placed;
C. the intervenor’s understanding of the facts & situation;
D. the seriousness of the danger;
E. the number of personas likely to be at risk of danger;
F. the length of time elapsed between the conduct of the parties;
G. the likelihood that proper care will or will not be used; and
H. the ease with which each of the parties can take precautions.


Exceptions to Intervening Forces

A. Eggshell Plaintiff
B. Rescuer
C. Irresistible Impulse/Suicide
D. Medical Malpractice Complications


Eggshell Plaintiff

(Pace v. Ohio Dep't. of Transp.)
Restatement 2d 502, § 461:
"The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct."
§ 461, cmt. a
"A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act is negligent."



(Sears v. Morrison)
Where a person has negligently managed his own person he is liable for the foreseeable consequences. Generally, where an actor puts himself or others in danger, it is foreseeable a person will attempt to rescue those placed in danger. As Justice Cardozo said, “Danger invites rescue.” Wagner v. International Ry. Co. Accordingly, although the rescuer may be said to have willingly exposed himself to the danger, such act does not eliminate or excuse the culpability created by the actor's negligence.


Irresistible Impulse/Suicide

When Δ's actions cause Π to become insane & bereft of reason such that Π involuntarily commits suicide, Δ's actions can constitute the proximate cause of the death. An irresistible impulse is a form of insanity that could lead to an involuntary suicide. Stafford v. Neurological Medicine


Medical Malpractice Complications

(Association For Retarded Citizens-Volusia, Inc. v. Fletcher)
The negligence of the parties in contributing to the initial injury is held liable as proximate cause of the damages flowing from the subsequent negligent or unskillful medical treatment.