Torts Class Notes 11/3/03


Lawrence v. Texas Symposium Friday!!!  Go see Sunstein and MacKinnon!  Do it!  Do it!  DO IT!  You can go in and out.  Go between classes.




Near the end of proximate cause!  Last time, we talked about intervening forces and what the Restatement and most courts will call superceding forces.  A negligent party should be expected to foresee intervening forces.  Intervening forces are foreseeable by a negligent person.  Superceding forces are not foreseeable by a negligent person.  This is just a matter of labels (like “penalty” versus “liquidated damages”).


If you could have foreseen an intervening force, you’ll be liable for it, even if the manner in which it comes about in an unexpected way.


Sometimes, we’ll cut off liability because the intervening force is so unforeseeable that we actually call it a superceding force.


Use the “rules of the road” like the thin-skull rule and the rescue rule.  Sometimes it’s hard to say with certainty that a certain harm is foreseeable.


Restatement § 442


For a discussion of intervening versus superceding cause, look at Restatement § 442:


Considerations Important In Determining Whether An Intervening Force Is A Superseding Cause


The following considerations are of importance in determining whether an intervening force is a superseding cause of harm to another:


(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;

(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;

(c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;

(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;

(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;

(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.


Fuller v. Preis


Lewis was in a car accident after which he got seizures.  He couldn’t stand the seizures, and after seven months he committed suicide.


It is argued that traumatic organic brain damage created the irresistible impulse for Lewis to commit suicide.  Basically, the plaintiff argues that Lewis went insane because of the car accident.


This case is similar to cases where we’ve seen problems with proximate cause because of how much time passed between the cause and the supposed effect.


New York is often on the cutting edge of tort law and coming up with new arguments for plaintiffs.


Generally, however, suicide is not an intervening cause, but rather a superceding cause.  The standard for establishing third party liability for suicide is tough, but it’s not tough in New York compared to other jurisdictions.




“Danger invites rescue.” – Cardozo


It’s foreseeable that rescuers will come along when you create a danger.


McCoy v. American Suzuki Motor Corp.


McCoy stopped to help somebody who crashed in a Suzuki.  He got hit by another car.  He sues the manufacturer of the car that crashed.  The allegation is that a defect in the Suzuki Samurai caused it to crash which caused him to stop and rescue the driver which caused him to get hit by a car on the highway.


What are some of the relevant facts?  It was night, and a lot of time passed between the crash and his injury.


What is the products liability argument?  It’s foreseeable that the defect would cause a crash which would attract a rescuer.


Rescuers are well-treated by courts because public policy encourages them.  However, rescuers must still prove proximate cause.


You can rescue property as well as people.


A rescuer can take some risk in conducting a rescue.


If rescuing is part of your job, the view is that you’re already compensated for the risk you take.  Therefore, you cannot additionally recover from the defendant unless the situation is unusual.  This is the “firefighters’ rule”.


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