Torts Class Notes
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
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
Is this ruling primarily
political? It is basically protective of
big business?
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
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.
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.