Torts – Outline Part 3

Breach

• Breach of duty = failure to conform to required standard of care
• Foreseeability of ensuing harm = makes situation blameworthy
• Creating danger of harm
• Think of carelessness here
• REMEMBER = even if a breach of duty (negligence), not actionable unless causation
  • Negligence must be the cause in fact + proximate cause to be actionable

Cause-In-Fact

• Actual cause; use the but-for test to determine
  • “But for (X), (Y) wouldn’t have occurred”
  • Would P have been injured anyway if D’s negligent act was removed?
• Proof of Causation
  • Must prove that D’s negligence caused P’s damages
    • Sine Qua Non = indispensable condition or thing; something on which something else entirely depends
• 2 kinds:
  • General
    • Whether something is even capable of causing damage
  • Specific
    • Did it directly cause the P’s damages?
• As long as evidence supports conclusion = no error in negligence
• Concurrent Causes
  • Indivisible Injury
    • Instance where not capable of figuring out who is responsible for injury
      • Ds jointly liable; each liable for full amount of damage to P
        • Difficult to differentiate which D is responsible for each amount
          • Solution = P can determine amount to receive from each out of damage award
            • If possible to apportion = done instead
      • Rule made to protect P
  • Concurrent necessary causes = but for test
  • Concurrent sufficient causes = substantial factor
    • Two factors combined to cause harm, but each would have caused harm acting alone
    • Problem = but-for test fails in application here
      • Solution = substantial factor test
        • Were each D’s act substantial factors?
      • 2 independent acts of negligence combined to cause 1 injury = both held liable
    • Anderson = case of 2 fires burning down P’s house; Summer’s test applied
    • Substantial factor test = will work every time

Proximate Cause

• Legal cause
• NOT A FACTOR IN INTENTIONAL TORTS
• Checklist for attacking issue: policy, foreseeability, + intervening act
• Measured by foreseeability in relation to the result
  • Limits scope of liability for harm to harm that is foreseeable to D and their conduct
  • Foreseeability = product of breach of duty
    • Breach = before the fact analysis
    • Proximate cause = after the fact analysis
      • Ask what harm made D negligent
        • See if it connects to foreseeability
    • Affirms what happened is what was foreseeable to happen
      • If harm generally foreseeable = sufficient
      • Exact way the harm happened = doesn’t have to be specific
    • Not foreseeable = not liable bc fails proximate cause
      • Total emphasis on blameworthiness
      • Foreseeability matching the breach
    • Generally a jury question
  • P has to prove foreseeability of D
• Eggshell Skull Rule
  • Factor of proximate cause not related to duty or breach
    • Applied in every jurisdiction
  • Take the P as you find them
  • D liable for all harm if any is foreseeable
    • If you’re liable for foreseeable harm, also liable for the unforeseeable portions of that harm
    • Don’t have to see the full extent of harm to be responsible for it
  • Eggshell psyche rule:
    • D responsible for all mental harm
      • Not accepted by only a minority of jurisdictions
    • If D caused physical harm, mental harm adjoins to this
• Unforeseeable P
  • If so, case is over
    • Matter of duty
  • Palsgraf
  • No liability because no duty; P was unforeseeable
  • Duty arises as danger presents itself
    • Doesn’t apply until someone put in the zone of danger
  • If damage is foreseeable = unforeseeable P disappears
  • Puts judge in charge of discerning issue rather than jury
  • Most issues about unforeseeable
• Intervening Causes
  • 2 part analysis:
    1. Did P suffer foreseeable harm?
    2. Was intervening cause foreseeable?
  • If intervening cause was foreseeable = D retains liability
    • If intervening cause not foreseeable = issue of intervening superseding cause + D’s liability cut off
  • Other Ds can trigger the dorman negligence of a D
    • Must come after original D’s negligence
    • Can be anything that triggers D’s negligence to harm P
    • Ask = was causal factor in exist before?
  • Intervening cause + P’s harm must be foreseeable for P to win
  • Things that can apply as intervening causes:
    • Intentional acts
    • Criminal acts
    • Reckless acts
    • Innocent conduct
  • Best example: trench worker (Derdarian)
    • Was the 3rd party’s action foreseeable?
      • If not = liability cut off (superseding cause)
  • Act of nature = intervening cause
  • Irresistible impulse
    • Intentional but not voluntary
      • Ex: suicide
    • Most courts will say no liability here
    • Generally a jury question

Damages

• Actual damage suffered by P
• Usually monetary
  • Ex: medical expenses, lost wages, pain + suffering, etc.
• For exam, only required to recognize that they are present; acknowledge and move on
• Pure economic loss
  • General rule = D not liable for pure econ loss
    • Out-of-pocket, monetary loss not associated
    • Ex: losing revenue due to negligence of D
      • Exception = malpractice
    • HOWEVER, if P suffers bodily injury or property damage, then able to recover for pure econ loss