Torts Class Notes 10/27/03




Summers is a theory of alternative liability.  The burden of proof shifts to the defendant if:


·        Each defendant is shown to be negligent

·        The actual wronger is one of the defendants

·        The nature of the accident makes it impossible to prove negligence either way


Why shift the burden of proof?  The view is that, as in res ipsa loquitur, defendants have better access to information and they will be better able to establish, for example, which bullet hurt the plaintiff.


We know these defendants were both negligent.  We know that the defendant who didn’t hit the plaintiff is still culpable in some sense because they were responsible for obscuring the evidence.


The Summers theory is universally accepted.


On the other hand, in DES cases, the theory of market share liability is used.


·        All the manufacturers of a substantial share of DES are brought before the court.

·        Each defendant is liable for the portion of the judgment that is proportional to their market share unless the defendant can rebut the connection between their particular drug and the harm done.


Another way to establish liability is enterprise liability.


Note that there is a current issue involving actual cause: some of the fires currently in Southern California were set by arson, but there were multiple fires, some of which were perhaps innocent or set by multiple defendants.


How is market share liability different from Summers?  In market share liability, you don’t have all of the defendants in front of you.


Proximate causation asks whether liability should be limited to foreseeable consequences of negligence.  If a physical injury is foreseeable, the defendant is liable even if the consequences of the physical injury are out of line with one’s expectations.  This is known as the “thin skull” or “eggshell skull” rule.  This gives the defendant extra incentive to act reasonably under the circumstances.


Direct causation – In re Arbitration Between Polemis and Furness, Withy & Co. Ltd.


This was the initial view of the courts regarding actual causation.


How did this case get to arbitration?  Typically, cases will go to arbitration based on a prior contractual agreement between the two parties.  The arbitrators said that the spark couldn’t have reasonably anticipated.


What rule comes out of this case?  I don’t know.


It doesn’t matter what is foreseeable as long as something is foreseeable.  This case is about negligence.  If the defendant is negligent, he will be liable for any harm that is directly linked to his negligence.


Under this case, you have liability no matter how remote the consequences of one’s negligence are.


The rule of this case is tough on two actors acting very close in time.  There must be a direct link between the harm and the negligence.  This rule held sway for a long time.


What can be said for this rule?  What is good about it?  It’s easy for a judge to apply and it’s easy to predict what will happen in court.


Is it foreseeable that if you drop a plank you might set a boat on fire?  Probably a reasonable person would be surprised that a fire resulted from a plank being dropped.


What are the possible harms you might foresee from negligently dropping a plank?  You might hit someone or damage a ship.  The standard will be that of the reasonable person, but if you’re an expert you may be held to a higher standard.


The Polemis test is:


1.     Was the defendant negligent?

2.     Is the defendant’s negligence a direct cause of the damages?


This is no longer the current test, but it is important to know.  It is an alternative to the foreseeability analysis of Wagon Mound and Palsgraf.


Wagon Mound No. 1


The defendants spilled some furnace oil into the harbor.  Later, it caught on fire.  Was it foreseeable?


The plaintiff tries to prove his case according to Polemis.  What would be the result under this rule?  If the plaintiffs can show that they weren’t negligent, they may be able to recover under this rule.  Under the direct caution theory, if the plaintiff is not negligent, then the defendant must be liable.


That would be the old way of looking at this case.  What is the new way to look at the case?  What question will the court ask?  The court uses sort of a Hadley v. Baxendale rule.  This change in the law follows a similar view in contracts.  Damages are limited to what is foreseeable.


This is the rule now.  Damage must be foreseeable.


The defendant wins!


Wagon Mound No. 2


What’s different about this case is the lawyering.  The lawyer brings forth evidence that something like this has happened before, and thus the engineer should have been aware that this was a possibility.  Another difference between the cases is that the plaintiffs will not be barred from recovery by their own negligence.


Having read this case, does it seem as though it will be easy or difficult to establish foreseeability in a future case?  Is this case good for plaintiffs or bad for plaintiffs?  Compare this case to Carroll Towing and the Hand Formula.  This case makes it very difficult for a defendant to avoid liability.  This case, according to Cole, is driven by what the engineer should have known about the risk of oil on water catching on fire.


The defendant loses.




Is it foreseeable that if you break a gas main a factory a mile away will lose power?


Economic harm is treated differently from ordinary damages.  Sometimes we won’t hold someone liable if it would be impractical.  Generally speaking, we won’t hold a defendant liable for the pure economic harm of their negligence unless that harm is very closely related to the negligence.


What about the case of an airline that negligently fails to fill gas tanks and forces an emergency landing on an island where a volcano erupts and hurts the passengers?  Will the airline be liable?  How often do volcanoes erupt?


The risks of the failure to fill are the gas tanks are exactly the risks involved with an emergency landing.  Those risks, however, do not include harm related to a volcano.


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