Torts Class Notes 10/22/03


Review – Substantial factor analysis


When you have two negligent actors or one negligent actor and one “innocent force”, you must use the substantial factor test to figure out who is at fault.  In cases like this, the “but for” test fails.


There are some alternatives to charging the defendant with the full liability.


From a law and economics perspective, a willing buyer would only be willing to pay what the property is actually worth.  If the property is going to be worth only $10,000 due to its being burned, then it makes more sense to charge the defendant that amount rather than the full value of the property, say, $100,000.


The Restatement allows apportionment between the defendant and the innocent cause.  The defendant can argue that he should be, at most, 50% liable for example.


What constitutes a material or substantial factor?  What do we mean by material or substantial?


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 because of the manner in which his negligence has resulted in the harm.

REST 2d TORTS § 431


Summers v. Tice


This is a very important case that is followed throughout the country.


Two defendants are members of a hunting party.  Both negligently fire in the direction of the plaintiff.  The plaintiff is struck in the eye by a shot from one of the guns, but he can’t prove which one injured him.  The trial court awards damages to the plaintiff from both defendants.


How can the plaintiff win in a case like this?  The court decides to shift the burden of proof to the defendants.  How does the court justify this?  If they don’t shift the burden of proof, the plaintiff will be without a remedy.  Compare this situation to the one in Ybarra, where there was asymmetric information between the plaintiff and defendants.  However, you can distinguish this case from Ybarra because the two hunters aren’t working as a team.  There’s more reason to shift the burden when the defendants are acting in concert.


If we force the defendants to fight each other, they might come forward with information they would otherwise be unwilling to provide.  The defendants are in a better position to come up with important information than the plaintiff is.


One of these defendants is not responsible for the harm.  Is it fair to shift the harm to that defendant?  The court justifies doing this by saying that both defendants were negligent.  Also, the “innocent” defendant’s negligence has caused the evidence in the case to be obscured.


So there are several reasons to shift the burden of proof to the defendants.


Sindell v. Abbott Laboratories


The plaintiff’s mother took DES to prevent miscarriages.  The plaintiff alleges that DES caused her to get cancer.  The plaintiff sued five drug companies that represented 90% of the market, but the plaintiff can’t prove which manufacturer made the particular DES that the plaintiff’s mother took.  The trial court dismisses the action and the plaintiff appeals.


There are several possible theories:


·        The Summers theory shifts the burden to the defendants if all the defendants are found to be negligent.

·        The companies worked together in a conspiracy to sell a dangerous drug.

·        The theory of enterprise liability says that if the plaintiff can show by the preponderance of the evidence that all the defendants are before the court and that one of the defendants manufactured the DES then the court will shift the burden of proof to the defendants.

·        The theory of market share liability says that all the manufacturers would be held liable, but only in proportion to their market share in the drug.


In this particular case, not all of the defendants are before the court, so we can’t use enterprise liability.


DES has been seen as a very unique drug because it is so identical between manufacturers.


Why should there be liability in Sindell, according to the court?


·        We shouldn’t let wrongdoers off the hook and leave the innocent without relief.

·        The court claims that defendants are better situated to bear the cost or risk of harm.  (Cole thinks this is a little bogus.)

·        We should deter other companies from selling dangerous drugs by raising the specter of liability down the road.


Joint and several liability is a target for tort reform.  It is claimed that it punishes defendants too heavily for their negligence.


Proximate cause


This is one of the hardest doctrines in torts.  We talked about actual cause, including “but for” causation and the substantial factor test.


But we’re not going to rely solely on actual causation.  Actual causation is usually very easy to prove, but we’re not going to hold defendants liable solely on this basis.  We only want to hold defendants liable when we think they could have foreseen or prevented the harm they caused in some sense.


The rationale for proximate cause is that we’re trying to change defendants’ behavior.  How do you get people to behave reasonably under the circumstances?  We should only hold them responsible for harm that they could reasonably foresee.  There will be a lot of limitations and exceptions on this description.


Generally speaking: what kinds of harm might I reasonably expect to occur if I am negligent in a particular way?  The goal of the law is to keep individuals from acting unreasonably.  However, people can’t change their behavior to avoid freak occurrences.


Some courts have tried to create rules to define proximate cause.  But sometimes rules that seem like a good idea at the time won’t apply in particular situations.


Ryan v. New York Central R.R. Co.


The defendant’s negligence causes a fire that spreads to the plaintiff’s property which is 130 feet away.  The defendant got a directed verdict saying that it was not responsible for damage to the plaintiff’s house which was 130 feet away.


Fires spread, and the railroad should reasonably know that their fire would spread.  Why did the court find that the result was too remote to be within the contemplation of the railroad?


The New York court creates a rule that you’re only responsible for the first thing that burns.  It would be easier to understand this ruling if the court just applied a hard and fast rule rather than using the language of foreseeability.  The court says if the railroad was held liable, they would go broke.


Is this ruling primarily political?  It is basically protective of big business?  New York is a state that will tend to be very favorable to railroads, especially compared to a rural state like Kansas.


Part of the intent of the rule is to make sure that the railroads don’t go bankrupt, because railroads are essential to the economy of New York.  Kansas has different community values than New York.


Proximate cause sometimes limits liability basically on the basis that the defendant could not possibly pay for all the damages.  The theory is that it doesn’t really benefit anyone for companies to go bankrupt.  This doctrine is surely open to criticism, but it is one that is applied frequently.


New York later modified this rule.  Today, New York would probably reverse this decision on the basis that it was foreseeable that the plaintiff’s property could burn.


Bartolone v. Jeckovich


This isn’t the Supreme Court of New York, but rather the New York Appellate Division.


The plaintiff and defendants are in a car wreck.  The plaintiff has a psychotic breakdown that he claims has totally disabled him.  The plaintiff’s experts claim that his mental breakdown was caused by the car wreck.  The defendants’ experts basically argue the opposite.


What does the doctrine of proximate cause have to say about this case?  Should the defendants be held liable for the plaintiff going nuts?  Was that foreseeable?


The rule applied is similar to the “eggshell skull” or “thin skull” rule of intentional torts.  You must “take the plaintiff as you find him”.  How does this fit with the notion of foreseeability?  Will the possibility of being liable for someone else’s mental breakdown change my driving behavior?  It seems like this result is justified much more on the “innocent plaintiff v. wrongdoer” theory than on foreseeability.  It is unlikely that defendants will be able to change their behavior in order to keep the injury from occurring.


Is there an argument to be made that this is foreseeable?  If what the defendants see as foreseeable is physical injury and that’s what actually happened, then what actually happened is foreseeable.


How do we justify the “eggshell skull” rule?


·        It’s easier to administer than a foreseeability scheme.

·        The accident victim can get full compensation.

·        The law places a very high value on life.


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