Torts Class Notes
Review
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
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.
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.
Hypotheticals
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.