b'1\n\n\x0cTorts:\nCases and Context\nVolume One\n\nEric E. Johnson\nAssociate Professor of Law\nUniversity of North Dakota School of Law\n\neLangdell Press 2015\n\n\x0cAbout the Author\nEric E. Johnson is an Associate Professor of Law at the University\nof North Dakota. He has taught torts, intellectual property, sales,\nentertainment law, media law, sports law, employment law, and\nwriting courses. He has twice been selected by students as the\nkeynote speaker for UND Law\xe2\x80\x99s graduation banquet. His writing on\nlegal pedagogy has appeared in the Journal of Legal Education.\nWith scholarly interests in science and risk, and in intellectual\nproperty, Eric\xe2\x80\x99s publications include the Boston University Law Review,\nthe University of Illinois Law Review, and New Scientist magazine. His\nwork was selected for the Yale/Stanford/Harvard Junior Faculty\nForum in 2013.\nEric\xe2\x80\x99s practice experience includes a wide array of business torts,\nintellectual property, and contract matters. As a litigation associate at\nIrell & Manella in Los Angeles, his clients included Paramount,\nMTV, CBS, Touchstone, and the bankruptcy estate of eToys.com.\nAs in-house counsel at Fox Cable Networks, he drafted and\nnegotiated deals for the Fox Sports cable networks.\nEric received his J.D. cum laude from Harvard Law School in 2000,\nwhere he was an instructor of the first-year course in legal reasoning\nand argument. He received his B.A. with Highest and Special\nHonors from the Plan II program at the University of Texas at\nAustin.\nOutside of his legal career, Eric performed as a stand-up comic and\nwas a top-40 radio disc jockey. Eric archives teaching materials on\nhis website at ericejohnson.com. His online exam archive includes\nmore than a dozen torts essay exams and a bank of multiple-choice\nquestions.\n\ni\n\n\x0cFor Joe and Zane\n\nii\n\n\x0cNotices\nThis is the first edition of this casebook, updated December 2015.\nVisit http://elangdell.cali.org/ for the latest version and for revision\nhistory.\n\nThis work (but not including the cover art, CALI logo, and eLangdell\nlogo) is authored by Eric E. Johnson, published by CALI eLangdell\nPress, and licensed under a Creative Commons AttributionShareAlike 4.0 International License (CC BY-SA 4.0). \xc2\xa9 2015 CALI.\nAll rights not expressly granted by this Creative Commons license are\nreserved. No copyright is asserted in U.S. Government works or\nother public domain material included herein.\nIn brief, the terms of the license are that you may copy, distribute,\nand display this work, or make derivative works, so long as\n\xef\x82\xb7\n\nyou give CALI eLangdell Press and the author credit; and\n\n\xef\x82\xb7\n\nyou distribute any works derived from this one under the\nsame licensing terms as this.\n\nSuggested attribution format for original work:\nEric E. Johnson, Torts: Cases and Context, Volume 1, 2015, published\nby CALI eLangdell Press. Available under a Creative Commons BYSA 4.0 License.\n\nThis book is konomarked \xe2\x80\x93 requests for gratis permissions beyond\nthe scope of the Creative Commons license are welcomed. Contact\nfeedback@cali.org.\nCALI\xc2\xae and eLangdell\xc2\xae are United States federally registered\ntrademarks owned by the Center for Computer-Assisted Legal\nInstruction. 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However, CALI does not\nwarrant that the information provided is complete and accurate.\nCALI disclaims all liability to any person for any loss caused by errors\nor omissions in this collection of information.\n\niv\n\n\x0cAbout eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is a\nnonprofit organization with over 200 member US law schools, an\ninnovative force pushing legal education toward change for the\nbetter. There are benefits to CALI membership for your school, firm,\nor organization. eLangdell\xc2\xae is our electronic press with a mission to\npublish more open books for legal education.\nHow do we define \xe2\x80\x9copen?\xe2\x80\x9d\n\xef\x82\xb7\n\nCompatibility with devices like smartphones, tablets, and ereaders; as well as print.\n\n\xef\x82\xb7\n\nThe right for educators to remix the materials through more\nlenient copyright policies.\n\n\xef\x82\xb7\n\nThe ability for educators and students to adopt the materials\nfor free.\n\nFind available and upcoming eLangdell titles at elangdell.cali.org.\nShow support for CALI by following us on Facebook and Twitter,\nand by telling your friends and colleagues where you received your\nfree book.\n\nv\n\n\x0cTable of Contents\nTorts, Volume One................................................................................................. 2\nAbout the Author ................................................................................................ i\nNotices ................................................................................................................ iii\nAbout eLangdell Press ....................................................................................... v\nPreface ................................................................................................................ 14\nAcknowledgements ..................................................................................... 20\nPart I: Preliminaries.......................................................................................... 22\n1. Basic Concepts ......................................................................................... 23\nWhat is Torts? .......................................................................................... 23\nHow Torts Fits In ................................................................................... 24\nThe Elemental Concepts of Private Law ...................................... 26\nWhere Tort Law Comes From.............................................................. 27\nThe Structure of a Tort Case................................................................. 31\nThe Parties ......................................................................................... 31\nCauses of Action, Elements, Affirmative Defenses, and Burdens\nof Proof .............................................................................................. 31\n2. An Overview of Tort Law ..................................................................... 35\nThe Lineal Torts \xe2\x80\x93 Direct Harm to Persons or Physical Property . 36\nCauses of Action for Accidents ...................................................... 36\nStrict Liability ..................................................................................... 38\nIntentional Torts ............................................................................... 39\nThe Oblique Torts \xe2\x80\x93 Economic or Dignitary Harm ......................... 44\nThe Whole Torts Landscape Considered Together .......................... 46\nPart II: Negligence ........................................................................................... 47\n3. Introduction to Negligence .................................................................... 48\nIntroduction ............................................................................................. 48\nThe Central Idea: Shifting the Burden of Loss .................................. 48\nThe Elements and Defenses for Negligence ...................................... 49\n4. An Example of a Negligence Case ....................................................... 55\n\n6\n\n\x0cCheck-Your-Understanding Questions About Georgetown v. Wheeler72\n5. When and to Whom is a Duty of Care Owed .................................... 73\nIntroduction ............................................................................................. 73\nThe Essential Concept: Foreseeability ................................................. 74\nCase: Weirum v. RKO ..................................................................... 74\nQuestions to Ponder About Weirum v. RKO................................. 80\nSome Historical Notes About Weirum v. RKO ............................. 80\nDoctrinal Wiggle Room ................................................................... 81\nDuty of Care in Entertainment Industry Cases ........................... 82\nProblem: WZX Cash Patrol ............................................................ 82\nCase: Kubert v. Colonna.................................................................. 83\nThe Duty of Care and Criminal Acts ................................................... 95\nCase: Boyd v. Racine Currency Exchange .................................... 95\nQuestions to Ponder About Boyd ................................................. 100\nThe Use of Boyd to Decide Duty in Orrico v. Beverly Bank ......... 100\nAffirmative Duties ................................................................................ 101\nThe General Rule: No Affirmative Duty to Help ..................... 102\nCase: Yania v. Bigan ....................................................................... 102\nQuestions to Ponder about Yania ................................................ 105\nCase: Theobald v. Dolcimascola................................................... 105\nQuestions to Ponder About Theobald ........................................... 110\nThe Exception of Defendant-Created Peril ............................... 110\nCase: South v. Amtrak.................................................................... 111\nQuestions to Ponder About South v. Amtrak .............................. 119\nWeather and \xe2\x80\x9cAtmospherics\xe2\x80\x9d ....................................................... 119\nEvidence Law and Procedural Posture........................................ 120\nNote About the Interpretation of Statutes ................................. 120\n\xe2\x80\x9cGood Samaritan\xe2\x80\x9d Laws ................................................................ 121\nThe Exception for Special Relationships .................................... 122\nThe Exception for Assumption of Duty..................................... 123\nThe Tarasoff Exception ................................................................... 124\nCase: Tarasoff v. UC Regents ....................................................... 124\n\n7\n\n\x0cQuestions to Ponder About Tarasoff ............................................ 136\n6. Breach of the Duty of Care.................................................................. 137\nDetermining Breach, in General ......................................................... 137\nTerminology Note: Negligence vs. Negligence .......................... 137\nThe Essential Question: Was the Risk Unreasonable? ............. 138\nDistinguishing Breach from the Other Elements ...................... 139\nCase: Rogers v. Retrum .................................................................. 139\nIntentional Conduct as a Breach of Duty ................................... 147\nThe Reasonable Person Standard of Care ......................................... 150\nBasics................................................................................................. 150\nAn Objective Standard ................................................................... 152\nCase: Vaughn v. Menlove .............................................................. 152\nAccounting for Differences Among People ..................................... 156\nBasics................................................................................................. 156\nMental and Physical Capacity and Disability .............................. 157\nCase: Breunig v. American Family Insurance Co. ..................... 157\nExperience and Level of Skill ....................................................... 162\nChildren ............................................................................................ 163\nGender .............................................................................................. 165\nSome Questions to Ponder About the Reasonable Person\nStandard ............................................................................................ 166\nNegligence Per Se.................................................................................. 167\nBasics................................................................................................. 167\nWhat Makes a Statute or Regulation Amenable......................... 168\nCase: Gorris v. Scott ....................................................................... 170\nNegligence Per Se and Contributory/Comparative Negligence\n............................................................................................................ 173\nNegligence Per Se and Causation ................................................. 173\nCase: Martin v. Herzog .................................................................. 174\nExcuse for Complying with a Statute or Regulation ................. 186\nComplying with Statutes or Regulations as a Defense.............. 187\nSome Problems on Negligence Per Se ........................................ 188\nThe Role of Custom or Standard Practices....................................... 190\n\n8\n\n\x0cCase: The T.J. Hooper ................................................................... 191\nThe Negligence Calculus ...................................................................... 196\nIntroduction ..................................................................................... 196\nCase: U.S. v. Carroll Towing ......................................................... 197\nThe BPL Formula\xe2\x80\x99s Place in Torts .............................................. 202\nHow the BPL Formula Works...................................................... 203\nSome Simple Problems Using the Hand Formula..................... 207\nSome Not-So-Simple Problems Using the Hand Formula ...... 208\nRes Ipsa Loquitor .................................................................................. 209\nThe Usual Necessity of Specific Evidence of Breach ............... 209\nThe Place for Res Ipsa Loquitor .................................................. 210\nCase: Byrne v. Boadle ..................................................................... 210\nThe Requirements for Res Ipsa Loquitor ................................... 213\nThe Effect of Res Ipsa Loquitor .................................................. 213\nRecurrent Situations for Res Ipsa Loquitor ................................ 214\nCase: Fowler v. Seaton ................................................................... 215\nPostscript on Fowler v. Seaton ......................................................... 219\nThe Similarity of Res Ipsa Loquitor to Strict Liability .............. 220\nSpecial Rules for Land Owners and Occupiers................................ 221\nUndiscovered/Unanticipated Trespassers .................................. 222\nDiscovered/Anticipated Trespassers ........................................... 222\nDiscovered/Anticipated Child Trespassers ................................ 223\nLicensees........................................................................................... 225\nInvitees.............................................................................................. 225\nCase: Campbell v. Weathers .......................................................... 226\nQuestions to Ponder About Campbell v. Weathers ....................... 233\nSome Problems About Duties of Land Owners/Occupiers ... 234\nCase: Rowland v. Christian............................................................ 235\nSome Questions to Ponder About Rowland v. Christian............. 245\nStatute: California Civil Code \xc2\xa7 847 ............................................. 245\nSome Questions to Ponder About California Civil Code \xc2\xa7 847\n............................................................................................................ 248\n7. Actual Causation .................................................................................... 250\n\n9\n\n\x0cIntroduction ........................................................................................... 250\nThe But-For Test .................................................................................. 251\nActual Causation vs. Proximate Causation ....................................... 252\nSome Notes on the Terminology of Causation................................ 253\nActual Causation\xe2\x80\x99s Other Labels: Causation-in-Fact, Factual\nCausation, and More....................................................................... 253\nThink \xe2\x80\x9cA\xe2\x80\x9d Not \xe2\x80\x9cThe\xe2\x80\x9d .................................................................... 255\nProof and Preponderance .................................................................... 257\nCase: Beswick v. CareStat .............................................................. 257\nSome Historical Notes on Beswick ................................................ 267\nNote on Loss of a Chance and Some Questions to Ponder .... 268\nNote on \xe2\x80\x9cSubstantial Factor\xe2\x80\x9d ....................................................... 269\nMultiplicity Issues .................................................................................. 270\nMultiple Necessary Causes ............................................................ 271\nCase: Jarvis v. J.I. Case Co. ............................................................ 272\nMultiple Sufficient Causes ............................................................. 275\nCase: Kingston v. Chicago & Northwestern Railway ............... 276\nTwin-Fires Cases and the \xe2\x80\x9cSubstantial Factor Test\xe2\x80\x9d in the\nMultiplicity Context ........................................................................ 279\nThe Summers v. Tice Doctrine .................................................... 280\nCase: Summers v. Tice ................................................................... 281\nMarket-Share Liability .................................................................... 284\nCase: Sindell v. Abbott Labs ......................................................... 285\nProblem: Nighttime Hit and Run ................................................. 300\n8. Proximate Causation ............................................................................. 301\nIntroduction ........................................................................................... 301\nThe Place of Proximate Causation ..................................................... 302\nThe Label for Proximate Causation ................................................... 303\nThe Relationship Between Proximate Causation and Duty of Care305\nCase: Palsgraf v. Long Island Railroad ........................................ 307\nQuestions to Ponder About Palsgraf ................................................... 321\nA Different Version of the Palsgraf Case ..................................... 321\n\n10\n\n\x0cMore Questions to Ponder About Palsgraf ........................................ 322\nVarious Tests for Proximate Causation ............................................. 323\nThe Direct Test and Intervening Causes .................................... 323\nForeseeability and Harm-Within-the-Risk .................................. 325\nObjects of Foreseeability ............................................................... 329\nUnforeseeable Plaintiffs ................................................................. 329\nUnforeseeable Type of Harm ....................................................... 329\nUnforeseeable Manner of Harm................................................... 330\nUnforeseeable Extent of Harm .................................................... 331\nSuperseding Causes......................................................................... 331\nCase: Ryan v. New York Central Railroad .................................. 333\nThoughts About Ryan in Historical Context .................................... 336\n9. Existence of an Injury ........................................................................... 337\nIn General............................................................................................... 337\nLoss-of-a-Chance Situations................................................................ 339\nCase: Herskovits v. Group Health ............................................... 339\nQuestions to Ponder About Herskovits ........................................ 345\nThe Thorny Question of Calibrating Damages in Herskovits, and\nSome More Questions to Ponder................................................. 345\nPure Economic Loss ............................................................................ 348\nMental Anguish and Emotional Distress .......................................... 349\n10. Affirmative Defenses to Negligence ................................................ 353\nIn General............................................................................................... 353\nPlaintiff\xe2\x80\x99s Negligence ............................................................................ 354\nContributory Negligence ............................................................... 355\nCase: Coleman v. Soccer Association .......................................... 356\nQuestions to Ponder About Coleman v. Soccer Association .......... 366\nLast Clear Chance Doctrine .......................................................... 366\nOther Subversions of Contributory Negligence ........................ 367\nComparative Negligence ................................................................ 368\nStatutes: Comparative Negligence ................................................ 371\n\n11\n\n\x0cSome Problems on Applying Comparative Negligence Statutes\n............................................................................................................ 375\nAssumption of the Risk........................................................................ 376\nImplied vs. Express Assumption of the Risk ............................. 376\nThe Elements of Assumption of the Risk .................................. 377\nRelationship with Contributory and Comparative Negligence 378\nCase: Murphy v. Steeplechase Amusement Co. ......................... 378\nQuestions to Ponder About Murphy v. Steeplechase...................... 382\nCase: Hulsey v. Elsinore Parachute Center................................. 382\nCase: Hiett v. Lake Barcroft Community Association .............. 392\nQuestions to Ponder About Hiett v. LABARCA ...................... 396\nPublic Policy Exceptions to Express Agreements to Assume\nRisk .................................................................................................... 397\nPart III: Liability Relating to Healthcare ................................................... 400\n11. Common Law Liability in the Healthcare Context ........................ 401\nIn General............................................................................................... 401\nThe Standard of Care for Healthcare Professionals in Negligence\nActions .................................................................................................... 402\nBasics................................................................................................. 402\nMedical Battery ...................................................................................... 407\nCase: Mohr v. Williams .................................................................. 409\nCheck-Your-Understanding Questions About Mohr ................ 414\nQuestions to Ponder About Mohr ................................................ 414\nInformed Consent ................................................................................. 414\nCase: Largey v. Rothman ............................................................... 417\nQuestions to Ponder About Largey .............................................. 428\n12. ERISA Preemption ............................................................................. 429\nBasics ....................................................................................................... 429\nCase: Corcoran v. United Healthcare ........................................................ 431\nQuestions to Ponder About Corcoran ................................................. 449\nAftermatter.................................................................................................. 450\nUnmarked Edits Generally .................................................................. 450\n\n12\n\n\x0cIdiosyncratic Unmarked Edits in this Volume ................................. 451\n\n13\n\n\x0cPreface\n(For both volumes)\nWhat Makes this Casebook Different\nThis book is different from other casebooks in at least three key\nways.\nFirst, this book departs from the traditional style of most casebooks.\nRather than just presenting a series of readings, notes, and questions,\nthis book makes a deliberate and systematic effort to explain\nthe law. It\xe2\x80\x99s an implementation of an approach I argued for in an\narticle, A Populist Manifesto for Learning the Law, 60 JOURNAL OF LEGAL\nEDUCATION 41 (2010). In keeping with that approach, this book\naims to be easy to read and to make it easy for students to learn\ndifficult concepts.\nThere\xe2\x80\x99s something to be said for challenging students to figure out\nthings for themselves. But, in my view, traditional casebooks err too\nmuch on the side of providing students with opportunities to get\nbefuddled. This casebook strives for a balance. There are many\nformidable primary sources in these pages, but they are presented\nwithin a treatise-like narrative that will, I hope, help students get\nmore of a return from their investment in reading.\nKey to the explanatory mission of this book is an emphasis on\ncontext. I want students to understand why they are learning what\nthey are learning, and where it fits into the bigger picture of tort law\nand the legal system as a whole. You will find evidence of that\ncommitment in the first sentence of the first chapter, and it carries\nthrough to the end. This book also aims for real-world context,\nputting doctrine in the context of litigation strategy and trial tactics.\nSecond, this casebook is free. It is free in both senses of the word.\nIn one sense, it is free in that it does not cost the reader any money.\nThat is, the price is zero. You can get an electronic copy for free, or\nyou can buy a printed copy for whatever the paper and ink costs. You\ncan also print it out yourself.\n\n14\n\n\x0cThe no-money sense of free is great, but this casebook is also free in\na deeper sense: It is unfettered by proprietary legal claims so that\nyou have the freedom to abridge, expand, repurpose, or adapt it\nas you wish. That is to say, this book is \xe2\x80\x9copen source.\xe2\x80\x9d Consistent\nwith the terms of the Creative Commons license that this book is\npublished under, generations of instructors and students will be able\nto rip and remix this book to suit their needs.\nThe license \xe2\x80\x93 which is simple to deal with \xe2\x80\x93 is CC BY-SA 4.0. It lets\nyou change up and redistribute the book so long as you share it\nforward \xe2\x80\x93 that is, so long as you make it available to others under the\nsame license. The CC license is, in essence, a legal trick to keep\ndownstream users from locking the book up with their own\nproprietary copyright claims.\nThe open-source nature of the book provides considerable\nadvantages. For one, it means instructors can create their own\ncustomized version of this book at no cost. Cut out the parts you\ndon\xe2\x80\x99t want, and fill-in anything you think is missing.\nThe CC license also means instructors will never be compelled to\nuse newer editions, since older versions will stay available, and\nanyone can always keep re-distributing any version.\nIt\xe2\x80\x99s helpful for learners, too. The open-source licensing means\nstudents can cut-and-paste from this book to create their own\nstudy materials.\nCALI\xe2\x80\x99s eLangdell Press, by the way, has a whole fleet of casebooks\nwith open-source/share-it-forward licensing arrangements.\nThird, this casebook is offered not merely as a one-way\ncommunication. Instead, this book constitutes an invitation to\nyou. If you are an instructor, please get in touch with me. I would be\nhappy to provide you with notes, slides, advice, and anything else I\ncan offer. And as the semester moves forward, I\xe2\x80\x99d very much like to\nhear how your class is going. If you are a student, I would love to\nhear your comments about how this casebook is working and how it\ncould be improved. One the things I like best about teaching live in a\nclassroom is that I can see from the reactions of students whether\n\n15\n\n\x0cI\xe2\x80\x99m doing a good job of explaining something. Since, in writing this\nbook, I can\xe2\x80\x99t see any faces, I am relying on you and other readers to\nnot be shy about telling me what I am doing well and what I could be\ndoing better. You can find me at ericejohnson.com.\nLet me go on to explain a little about the format of the book.\nQuestions and Problems\nThere are two types of questions in this book, and they are separately\nlabeled as such. In addition, there are problems for you to work.\nQuestions to Ponder: These questions are intended to be interesting\nand helpful to think about after reading the preceding material. You\nshould not, however, attempt to figure out \xe2\x80\x9cthe answer\xe2\x80\x9d to these\nquestions. They are not meant to have clearly correct answers.\nInstead, the idea is to prompt you to think more deeply about one or\nmore facets of the case.\nCheck-Your-Understanding Questions: These questions are\nintended to help you see if you absorbed the preceding material.\nUnlike \xe2\x80\x9cQuestions to Ponder,\xe2\x80\x9d the questions labeled as \xe2\x80\x9cCheckYour-Understanding Questions\xe2\x80\x9d are intended to have right answers.\nProblems: The problems in this casebook are much more involved\nthan the questions. Rather than asking for you to ponder ideas or\ncome up with simple answers, the problems call upon you to do\nanalysis. That is, you are expected to apply what you have learned.\nWith the problems, you mirror to some extent the task of the\npracticing lawyer. As you will learn by working through them, some\nof the problems in this book have well-defined solutions. Others are\nmore open-ended and invite creativity. But all are meant to get you to\nutilize doctrine and concepts to generate fresh insights in view of\nnew facts.\nEditing of Cases\nIn editing the cases for inclusion in this book, I have strived primarily\nfor readability and brevity. Thus, I have been quite liberal in cutting\ndown courts\xe2\x80\x99 text, and, in some cases, re-arranging it.\n\n16\n\n\x0cI have left a record of my editing either in the cases themselves, in\nthe annotations below, or in the aftermatter at the end of the book. I\nrealize most casebooks do not provide this level of detail about the\nediting, but by thoroughly cataloging my edits, I hope to facilitate the\nrevision and adaptation of this book by others.\nFootnotes\nI have handled footnotes in a slightly unconventional manner. The\nreason why is that this book is being written to work in multiple\nformats, including print, the print-like PDF format, and various ebook formats with variable pagination. Achieving compatibility\nacross formats presents a problem with regard to footnotes.\nFootnotes are no problem in print. But footnotes are often rendered\nawkwardly in e-book formats.\nThis is a particular problem for a casebook. Courts love footnotes.\nGather together a collection of judicial opinions, and footnotes are\neverywhere. In truth, footnotes are a wonderful structural tool for\nwriting, since they give the reader choices. Less essential matter is\nkept out of the text, allowing a time-pressed reader to forge ahead.\nYet if a more probing reader wants to read the footnote material, the\neyes do not have to go far to find it. Unfortunately, standards\ndevelopers have not provided a way of dealing with digital footnotes\nthat preserves all the functionality they exhibit on paper.\nOne way around the problem posed by continuous pagination in\nelectronic formats would be to convert the footnotes to endnotes.\nHyperlinking can then facilitate a reader\xe2\x80\x99s movement from the text to\nthe endnotes and back again. But that does not work in this casebook\nfor two reasons. First, even though clicking links back and forth is\neasier than finding your way through a document with a scroll wheel\nor slide knob, clicking links is still time consuming. And with a lot of\nfootnotes, the clicking time adds up. Second, this book is intended\nalso to work well in a print distribution, and you can\xe2\x80\x99t use hyperlinks\nto avoid page turning in a physical book.\nBecause of these concerns, I have adopted a zero-footnote/zeroendnote policy for this book.\n\n17\n\n\x0cYet there is nonetheless footnote material in many cases that\ndeserves to be read. So, where I felt footnote material was important,\nI have incorporated it into the inline text. I have adopted this\nconvention for marking footnote material:\n\xef\x81\x81\n\nThe superscript right-pointing descending arrow indicates\nthe beginning of footnote material.\n\xef\x81\x80\n\nThe superscript left-pointing descending arrow indicates the\nend of a passage of footnote material.\nWhile this system works well, there is one wrinkle: Sometimes courts\nput footnote references in the middle of a sentence. Where this has\nhappened, I have had to depart from the exact linear order of the\ntext, usually by inserting the footnote material after the end of the\nsentence.\nEditing Marks\nBecause I think it is good for the reader to be able to get a sense of\nthe relative fidelity of the edited version of a reading compared to the\noriginal, I have left editing marks in many places.\nEditing a casebook presents a special challenge in indicating what\nedits you have made. Courts themselves, when writing opinions,\ninclude an enormous amount of quoted material. Thus, unedited\ncourt opinions are filled with ellipses to show where the quoted\nversion differs from the original. If I used ellipses in editing the\nopinions themselves, how could the reader of this casebook tell my\nedits from the court\xe2\x80\x99s?\nTo avoid such ambiguity, I have used a special mark in lieu of an\nellipsis where the chopping was mine:\n~\n\nThe superscript tilda denotes matter omitted.\n\nThe superscript tilda also has the advantage of being less obtrusive\nthan an ellipsis.\nAbout brackets:\n[] Brackets indicate an insertion. The insertion may be mine\nor the court\xe2\x80\x99s.\n\n18\n\n\x0cThe insertion is generally mine if the brackets are not in a quote,\nalthough you\xe2\x80\x99ll notice that some courts use brackets in and around\ncitations as part of their adopted citation style.\nAny other editing marks you see are the court\xe2\x80\x99s, not mine.\nUnmarked Edits\nWhile I have sought to indicate significant edits in the text, as I\xe2\x80\x99ve\njust described, I also have made unmarked changes. In such cases, I\nleft them unmarked because I felt marking them would have been\nunduly distracting. In particular, I have liberally omitted citation\nmatter from cases, including parallel cites, portions of cites, and\nwhole cites. (Note that I didn\xe2\x80\x99t remove all citation; in many places I\nthought it was helpful or even essential.) Other unmarked edits are\ncataloged in the aftermatter at the end of this book.\n\n19\n\n\x0cAcknowledgements\n(For both volumes)\nFirst and foremost, I want to acknowledge and thank my students,\nparticularly my torts students over the years at the University of\nNorth Dakota. They helped me immeasurably to grow as a teacher,\nand they provided invaluable feedback for the early forms of material\nthat evolved into this casebook. A particular note of thanks is due my\n2014-2015 and 2015-2016 torts students. Many of them went aboveand-beyond-the-call in helping me ferret out typos and rework\nunclear passages. Since they are current students, I won\xe2\x80\x99t list names,\nbut I am truly indebted to them. I also owe thanks to the faculty,\nstaff, and administration at the University of North Dakota School of\nLaw for their considerable support.\nMany other people lent me their time and advice to help with this\nbook. In particular, I grateful to Michael L. Corrado, Murray Tabb,\nPatti Alleva, Paul LeBel, Keith Richotte, Adam Gutride, Jim\nDedman, Brian Schmidt, Devin Rogers, Pete Boll, Susan Carlson,\nKaren Martin, Jan Stone, and, especially, my wife, Kit Johnson. I also\nwant to thank the anonymous reviewers who, through the CALI\nediting process, provided excellent counsel.\nIn addition, I want to thank many people who have helped me in\nindirect but important ways by having illuminating discussions with\nme about torts \xe2\x80\x93 discussions that ultimately helped me frame the\nexplanations that appear in this book. Those people include Paul\nGowder, Sanne Knudsen, Sandra Sperino, John L. Watts, Bruce L.\nHay, Guido Calabresi, and, most especially, my own torts teacher,\nJon Hanson.\nI am also grateful to Justice Raymond D. Austin who suggested\nBenally v. Navajo Nation to me as a good teaching case, as well as\nJennifer L. Schulz for making the same suggestion with regard to\nDobson v. Dobson.\nFinally, I want to warmly thank Deb Quentel and everyone at CALI\nfor supporting me in this endeavor. I am grateful to them not only\n\n20\n\n\x0cfor their work with regard to this particular project, but also more\nbroadly for their efforts to make legal education more efficient,\neffective, affordable, and accessible.\n\n21\n\n\x0cPart I: Preliminaries\n\n22\n\n\x0c1. Basic Concepts\nTo start, it\xe2\x80\x99s helpful to get some context for what you will be\nstudying: what torts is, where it comes from, and how it fits into the\ngeneral scheme of law and the law-school curriculum.\n\nWhat is Torts?\nTorts is traditionally one of the core, basic, required courses in law\nschool. The subject of torts is civil lawsuits in which one person\nalleges that another person perpetrated some harm. Personal injury,\nmedical malpractice, and defamation are all subjects of torts.\nThe subject matter of torts is broad and fundamental. If you wrote\nout a list of 10 things someone could sue over, most of them would\nprobably be torts. Breach of contract is a matter for your contracts\ncourse. Questions of who owns what are questions for your property\ncourse. And many modern claims, such as copyright infringement or\nantitrust violation, are based in specific federal statutes. But\notherwise, most of the traditional, frequently invoked claims that can\nserve as a basis for a lawsuit can be categorized as torts. Someone\npunches you? That\xe2\x80\x99s a tort \xe2\x80\x93 it\xe2\x80\x99s called battery. A careless driver loses\ncontrol and drives over your lovingly hewn shrubbery? That\xe2\x80\x99s a tort \xe2\x80\x93\nit\xe2\x80\x99s called negligence. An enraged neighbor intentionally drives over\nyour shrubbery? That\xe2\x80\x99s the tort of trespass to land. The neighbor does\nit over and over? Well, depending on how lovingly hewn the\nshrubbery was, that could be the tort of intentional infliction of emotional\ndistress. Other torts include slander, invasion of privacy, products liability,\nand fraud.\nThe word \xe2\x80\x9ctort\xe2\x80\x9d dates back to Middle English, where it meant a wrong\nor an injury. The word, with its meaning, came to Middle English, by\nway of Old French, from the medieval Latin \xe2\x80\x9ctortum.\xe2\x80\x9d That word\nwas produced as the past participle of \xe2\x80\x9ctorquere,\xe2\x80\x9d which means to\n\n23\n\n\x0ctwist. Etymologically, the word \xe2\x80\x9ctort\xe2\x80\x9d is related to \xe2\x80\x9ctorque,\xe2\x80\x9d\n\xe2\x80\x9ctortuous,\xe2\x80\x9d and \xe2\x80\x9ctorture.\xe2\x80\x9d\n\nHow Torts Fits In\nLet\xe2\x80\x99s take a look at law school as a whole and see where torts fits in.\nTypically, law schools have at least these six courses in the first year:\nTorts, Contracts, Property, Civil Procedure, Criminal Law, and a\ncourse in basic lawyering skills, which goes by different names at\ndifferent schools.\nTorts is a doctrinal course teaching substantive private law.\nExplaining what that means will help you see how Torts relates to\nand is distinguished from your other courses.\nDoctrine vs. Skills\nRoughly speaking, there are two sets of subject matter taught in law\nschool \xe2\x80\x93 skills and doctrine. Sometimes both are taught in the same\ncourse, but often a course tends to be either a skills course or a\ndoctrinal course. Generally, 1Ls will have one introductory course to\nteach you how to do the things a lawyer does. This may be called\n\xe2\x80\x9cLegal Methods,\xe2\x80\x9d \xe2\x80\x9cLawyering Skills,\xe2\x80\x9d \xe2\x80\x9cLegal Reasoning and\nArgument,\xe2\x80\x9d or something similar. You are taught how to do legal\nresearch, how to write a brief, and maybe how to present an oral\nargument in court. Advanced skills coursework may include trial\ntechniques, negotiation techniques, drafting for business transactions,\nestate planning, and more. In contrast with skills courses, courses\nthat teach the law itself are called doctrinal courses. Torts is a\ndoctrinal course. Although a torts course might include some relevant\nskills training, the primary mission is to teach you what tort law is.\nSubstantive vs. Procedural\nDoctrinal subject matter can be divided into two camps: procedural\nand substantive. Procedural law is law that governs the function of\nlegal institutions. Most first-year law students take a course called\nCivil Procedure in which they learn the law that governs civil\nlawsuits. This includes how to start a lawsuit by serving a summons\nand a copy of the complaint on the defendant, which court to file the\nlawsuit in, and other essentials. Other procedural courses include\n\n24\n\n\x0cEvidence, which largely concerns when you can say \xe2\x80\x9cObjection!\xe2\x80\x9d at\ntrial, and Federal Courts, which covers some fascinating questions\nabout the power of the federal courts in relation to Congress, the\npresident, and the states. Substantive law, by contrast, directly\ngoverns what people can and cannot do, or to whom they will be\nliable if they do certain things. In many schools, a course called\n\xe2\x80\x9cCriminal Law\xe2\x80\x9d is about half procedural law (such as what constitutes\nprobable cause) and half substantive law (such as the difference\nbetween murder and manslaughter). Torts is a body of substantive\nlaw. Contracts and Property are substantive courses as well.\nPrivate Law vs. Public Law\nLaw can also be divided into \xe2\x80\x9cprivate law\xe2\x80\x9d and \xe2\x80\x9cpublic law.\xe2\x80\x9d\n\xe2\x80\x9cPublic law\xe2\x80\x9d refers to direct regulation by the government of\nindividual conduct. If you run afoul of public law, then you are in\ntrouble with the government. Substantive criminal law fits within this\ncategory, as does constitutional law, immigration law, environmental\nregulation, zoning ordinances, and the motor vehicle code.\n\xe2\x80\x9cPrivate law,\xe2\x80\x9d on the other hand, refers to substantive law that gives\none private party a claim on which to sue another private party. Torts\nis this kind of law. If you commit a tort, you are not in trouble with\nthe government, but you might get sued by some private person.\nAnother way to refer to private law is \xe2\x80\x9cthe law of obligations,\xe2\x80\x9d\nmeaning that it is the law that recognizes obligations between private\nparties that are enforceable in court.\nIt is of course possible for the same action to create liability under\nboth private and public law. Many actions that constitute a tort will\nalso constitute a crime. If you intentionally kill someone, that\xe2\x80\x99s\nactionable in tort as wrongful death, and it is prosecutable under\ncriminal law as murder.\nTechnically speaking, the government could \xe2\x80\x93 if they really wanted to\n\xe2\x80\x93 sue you as a private party in tort. But that almost never happens. If\nthe government comes after you, they have more potent means in the\npublic law than they have under private law. If you break into a secret\nAir Force installation, for instance, the federal government is not\n\n25\n\n\x0cgoing to noodle around with a tort suit for trespass. The U.S.\nAttorney will go to a grand jury and cook up an indictment with\nsome heavy federal criminal statutes. Getting sued would seem\ndreamy by comparison.\nThe Elemental Concepts of Private Law\nIn most law schools there are three foundational first-year doctrinal\ncourses that each revolve around an elemental concept in private law.\nThose courses are Torts, Contracts, and Property. Each of these\nrepresents an essential idea that can give one person a claim against\nanother person in court. If one person injures another, that\xe2\x80\x99s\nactionable under tort law. If one person breaches a binding promise\nto another, that\xe2\x80\x99s actionable under contract law. If two people both\nclaim to own the same thing, a court can resolve the dispute using\nproperty law.\nThese concepts are not just important as themes for first-year\ncourses. They are fundamental ideas that that animate law as a whole,\nand thus the concepts from them will reappear over and over again\nthroughout law school.\nTake misappropriation of trade secrets, for instance. If an employee\ntakes a secret recipe from a baker and sells it to a competitor, that is\nactionable under trade secret law. Trade secret law is usually thought\nof as a separate body of law, not as a species of torts, contracts, or\nproperty. But at a fundamental conceptual level, when we ask why we\nhave trade secret law, we find ourselves using the basic theories of\ntort, contract, and property to explain it. For instance, you could say\ntrade secret misappropriation should be actionable because it\nconstitutes a harm suffered by the originator of the secret. That\xe2\x80\x99s a\ntort way of thinking about it. Or, you could say the misappropriation\nshould be actionable because it represents a broken promise made by\nthe misappropriator to safeguard the secret. That\xe2\x80\x99s a contract way of\nthinking about it. Or you could say that the misappropriation is\nwrong because the trade secret was owned by the originating party\nand thus the misappropriator had no right to transfer or dispose of it.\nThat\xe2\x80\x99s a property way of thinking about it.\n\n26\n\n\x0cYou can think of torts, contracts, and property as the great commonlaw triumvirate in the first-year curriculum.\nThere is a fourth elemental concept, although it does not get its own\ncourse in the core curriculum. That fourth concept can be called\nunjust enrichment. The same concept also goes by labels such as\n\xe2\x80\x9cquantum meruit,\xe2\x80\x9d and \xe2\x80\x9crestitution.\xe2\x80\x9d The idea here is that a court\nshould transfer some wealth from one person to another because the\nother person deserves it more. This is a very broad idea, but it usually\nis only applied in rare situations where no other theory would reach a\njust result. For instance, when an unconscious person \xe2\x80\x93 incapable of\nassenting to a contract \xe2\x80\x93 receives emergency treatment in a hospital, a\ntheory of unjust enrichment gives the hospital a legal right to get\npaid. You might cover this doctrine in your contracts course.\nSo, that\xe2\x80\x99s about it \xe2\x80\x93 four fundamental theories of the common law:\ntort, contract, property, and unjust enrichment. Most of the private\nlaw is built out of these four elements. So keep in mind that torts has\na conceptual importance well beyond this single course. You can\nexpect tort theories to come up in courses concerning constitutional\nlaw, intellectual property, civil rights, federal courts, securities\nregulation, and many others.\n\nWhere Tort Law Comes From\nStates vs. the Federal Government\nIn the United States, for reasons having to do with federalism and the\ndictates of the U.S. Constitution, tort law is almost entirely a creature\nof state law. Contracts, property, and unjust enrichment are, similarly,\nmatters of state law.\nThis has a very important implication for this course: You are going\nto learn a generalized conception of tort law, not the law of any\nparticular state. There are many different versions of tort law in the\nUnited States \xe2\x80\x93 including each state, plus the District of Columbia\nand various territories. Happily, tort law is mostly the same\neverywhere. But, unfortunately, you never know for sure what a\nparticular doctrine of tort law is in any given jurisdiction until you\n\n27\n\n\x0ccheck it out. And what may be a minor difference in the grand\nscheme of things could make all the difference in a particular lawsuit.\nFor you, as a law student, this is both annoying and liberating. It is\nannoying for obvious reasons: You could learn tort law extremely\nwell, but yet not be able to answer any particularized question about\nit with certainty. It is liberating for the same reason \xe2\x80\x93 you are off the\nhook from knowing with certainty how the law will apply to any\ngiven situation. (This can make it a lot easier to dodge legal questions\nposed to you by members of your extended family when you are\nhome for the holidays.)\nBy the way, when it is time for you to take the bar exam, you will find\nthat most state bars require you to know the generalized conception\nof tort law, rather than your state\xe2\x80\x99s particular law. When it comes to\ntorts, you could even get a multiple-choice question on the bar exam\nmarked wrong by answering it accurately based on your state\xe2\x80\x99s\nidiosyncratic law.\nEvery once in a while, federal law has a say in a torts lawsuit, but\nsuch circumstances are rare. One example, covered in the part of this\nbook on healthcare liability, is how the federal Employee Retirement\nIncome Security Act \xe2\x80\x93 better known as \xe2\x80\x9cERISA\xe2\x80\x9d \xe2\x80\x93 preempts tort\nlawsuits against health insurers. Two other examples, subjects for\nVolume Two, concern the Federal Tort Claims Act and\nconstitutional due-process limitations on punitive damages.\nCommon Law vs. Civil Law\nIn American elementary schools, maybe even in middle schools and\nhigh schools, it is common to teach that the three branches of\ngovernment \xe2\x80\x93 the legislative, the executive, and the judicial \xe2\x80\x93 each\nhave three separate, distinct jobs: The legislative branch makes the\nlaw; the executive branch enforces the law; and the judicial branch\ninterprets the law. Unfortunately, this is wrong. It is not just slightly\ninaccurate \xe2\x80\x93 it is fundamentally wrong. Most of the private,\nsubstantive law that is on the books in the United States has been\ncreated by the courts, not legislatures. This kind of court-created law\nis called the \xe2\x80\x9ccommon law.\xe2\x80\x9d\n\n28\n\n\x0cFor the most part, what you will study in torts, contracts, and\nproperty are doctrines of common law. In creating, fine-tuning, and\nrevising these doctrines, the courts are not being \xe2\x80\x9cjudicially activist.\xe2\x80\x9d\nUnder the common-law system, it is the job of the courts to do this.\nThis is the way it has been for centuries.\nThe tort of battery, for instance, allows one person to sue another for\na harmful or offensive touching. If someone kicks you, that\xe2\x80\x99s a\nbattery. Battery is actionable as a tort not because a legislature passed\na statute, but because long ago, a court said it was. And later courts\nfollowed that court. If you want to find the \xe2\x80\x9claw of battery,\xe2\x80\x9d you will\nhave to look in the reported opinions of the courts \xe2\x80\x93 not in the\nenactments of the legislature. This makes looking up the law\ncomplicated. And this is a large part of what people pay lawyers for:\nReading through lots of cases to figure out what the law is on any\ngiven matter.\nYou could criticize the common-law method as abstruse, wasteful,\narcane, and undemocratic. And these criticisms would not be\ngroundless. Regardless, as a general matter, this is how the law works\nin the \xe2\x80\x9ccommon-law countries,\xe2\x80\x9d a group which includes the United\nStates, the United Kingdom, Canada, Jamaica, Ireland, Tanzania,\nAustralia, and New Zealand, among others. Looking at this list of\ncommon-law countries, you probably will not be surprised to learn\nthat the common-law way of doing things derives ultimately from\nEngland.\nThere is another way of creating a system of private law that is much\ncloser to the government/law model you may have learned in\nelementary school \xe2\x80\x93 that is, where the legislature makes the law and\nthe courts interpret the law. In this other way of doing things, the\nlegislature passes statutes that govern private legal causes of action.\nThis method is sometimes called a \xe2\x80\x9ccode system,\xe2\x80\x9d since the essential\ndoctrines are arranged in the form of a written code \xe2\x80\x93 an organized\nset of laws. This system is also called a \xe2\x80\x9ccivil-law system.\xe2\x80\x9d Countries\nthat follow such a system are often referred to as \xe2\x80\x9ccivil-law\ncountries.\xe2\x80\x9d Examples include France, Mexico, Germany, Japan,\nGuatemala, Switzerland, Thailand, China, Brazil, and many others.\nThe phrase \xe2\x80\x9ccivil law\xe2\x80\x9d can be confusing, because in the United States,\n\n29\n\n\x0cthe word \xe2\x80\x9ccivil\xe2\x80\x9d is often used in contradistinction to \xe2\x80\x9ccriminal.\xe2\x80\x9d For\ninstance your \xe2\x80\x9cCivil Procedure\xe2\x80\x9d course will cover the procedural law\nof \xe2\x80\x9ccivil\xe2\x80\x9d lawsuits \xe2\x80\x93 meaning litigation that is not criminal litigation.\nIn this sense, a tort lawsuit is a civil lawsuit, even though torts is a\ncommon-law subject. But to say that a country is a civil-law\njurisdiction is to say that it follows a code system, in which the\nlegislature creates the law of private obligations.\nFrance is an archetypal civil-law jurisdiction. In France, the law that\nallows one person to sue another comes from the Napoleonic Code.\nThe French civil-law heritage actually gives rise to two important\nexceptions to the common-law nature of torts in the United States\nand Canada. One state and one province have a code-based \xe2\x80\x9claw of\nobligations\xe2\x80\x9d rather than a common-law of torts. Those two\njurisdictions are, naturally, Louisiana and Quebec. Owing to their\nFrench colonial history, each has a legal system that is a descendant\nof the Napoleonic Code.\nWhile the code system has advantages, many of which are\nimmediately apparent \xe2\x80\x93 including organization and accessibility \xe2\x80\x93 you\nwill find that the common law has a wealth of subtly attractive\nfeatures. In fact, both the common-law and civil-law systems have\nmuch to admire, which is perhaps why many countries \xe2\x80\x93 including\nBotswana, South Korea, Cameroon, Kuwait, and Norway \xe2\x80\x93 have\nadopted a mix of the two.\nThe Place of Statutes\nEven in a common-law jurisdiction, the legislature has a role to play\nin shaping tort law. While, for the most part, legislatures do not\ncreate tort law, they can if they want to. And when a legislature\npasses a statute on a point of tort law, it trumps any contrary judgemade common law.\nFor instance, the courts decided long ago that killing another person\nis not actionable as a tort. If this sounds ridiculous to you, you are in\ngood company. Legislatures have found it ridiculous too. That\xe2\x80\x99s why\nstate legislatures everywhere have passed statutes that create a\n\xe2\x80\x9cwrongful death\xe2\x80\x9d cause of action and allow \xe2\x80\x9csurvivorship\xe2\x80\x9d claims.\n\n30\n\n\x0cSo, some aspects of tort law are statutory in origin. Nonetheless, tort\nlaw is, overwhelmingly, a body of judge-made common law. This\nmeans that most of what you will study in a course on torts are cases\nin which judges have announced and sharpened common-law\ndoctrines.\n\nThe Structure of a Tort Case\nTo proceed methodically through tort law, we will follow what\nmight call the internal structure of a tort. Understanding\nstructure requires separating out the roles of the plaintiff\ndefendant, and then distilling causes of action, elements,\naffirmative defenses.\n\nyou\nthis\nand\nand\n\nThe Parties\nA plaintiff is someone who sues. A defendant is a person whom the\nplaintiff sues. In the torts context, this typically means that the\nplaintiff got hurt and the defendant is the one who is alleged to be\nresponsible.\nCauses of Action, Elements, Affirmative Defenses, and\nBurdens of Proof\nA cause of action, also called a \xe2\x80\x9cclaim,\xe2\x80\x9d is a basis upon which a\nplaintiff can sue. Torts has several causes of action. Some examples\nare battery, negligence, false imprisonment, fraud, and assault. In\norder to have a meritorious lawsuit, a plaintiff will need to properly\nallege at least one cause of action. Plaintiffs can, and frequently do,\nsue on multiple causes of action in the same lawsuit.\nEach cause of action can be broken down into a number of\nelements. For instance, the cause of action for battery can be divided\ninto the following four elements: (1) an action, that is (2) intentional,\nand which results in a (3) harmful or offensive (4) touching of the\nplaintiff. It is the plaintiff\xe2\x80\x99s burden of proof to establish each of\nthese elements. The plaintiff must establish all of the elements of the\ncause of action in order to win. It is not enough for the plaintiff to\nestablish one or even most of the elements. The plaintiff must\nestablish every single one in order to win.\n\n31\n\n\x0cIf the plaintiff establishes each of these elements, then the plaintiff is\nsaid to have made out a prima facie case. \xe2\x80\x9cPrima facie\xe2\x80\x9d is Latin for\n\xe2\x80\x9cfirst face.\xe2\x80\x9d If a plaintiff has established a prima facie case, then the\nplaintiff has presumptively won.\nYou can understand the requirement that a plaintiff establish every\nsingle element just by thinking about it. Suppose you tap a stranger\non the shoulder and ask her what time it is \xe2\x80\x93 after which she\npromptly sues you for battery. She can prove you undertook an (1)\naction, which was (2) intentional, and which resulted in (4) a\ntouching. But the lawsuit must fail because there is nothing harmful or\noffensive about tapping someone on the shoulder. Because that\nelement has not been established, the prima facie case for battery has\nnot been made out. If you change the facts to replace the tap on the\nshoulder with a shove, then you have something harmful or\noffensive. And in that case there would then be a prima facie case for\nbattery.\nWhat does the defendant need to do to win a tort lawsuit? Absolutely\nnothing. At trial, the defendant can just sit back and see how things\ngo, and if the plaintiff comes up short, failing to establish every\nelement, then the defendant will win.\nNow, even if the plaintiff establishes all the elements, and therefore\nhas a prima facie case, the defendant still has two more ways to win.\nFirst, the defendant can undermine the plaintiff\xe2\x80\x99s prima facie case by\nputting on additional evidence to refute the proof offered by the\nplaintiff on at least one of the elements of the cause of action. This is\ncalled a rebuttal defense. If the defendant can disprove just one\nelement, the defendant wins on that cause of action.\nThere is a second way for the defendant to win as well: an\naffirmative defense. If the defendant can establish an affirmative\ndefense, then the defendant can actually stipulate to the plaintiff\xe2\x80\x99s\nentire case and yet still win. An affirmative defense defeats the\nentirety of the plaintiff\xe2\x80\x99s successful prima facie case.\nDifferent tort causes of action have different defenses. For the tort\nof battery, two principle defenses are consent and self-defense. Let\xe2\x80\x99s\nsay you punch someone in the face. That\xe2\x80\x99s a battery. But suppose you\n\n32\n\n\x0cpunch the person in the face in the context of a boxing match. In\nthat case, you can establish the affirmative defense of consent.\nConsent is a complete defense to battery. Alternatively, if the punch\nin the face was in the context of defending yourself against someone\nphysically attacking you, then you can establish the affirmative\ndefense of self-defense.\nIt\xe2\x80\x99s a little strange how this works: If you punch someone in the\ncontext of a boxing match, you have committed a battery. That\nmeans that a prima facie case can be established against you. It does\nnot mean the plaintiff will win when all is said and done, but it does\nmean the burden is on you, as the defendant, to establish that the\npunch was consented to in order to avoid liability. That\xe2\x80\x99s not to say\nthat this will be difficult: Just provide credible testimony that the\nplaintiff stepped into a boxing ring and took a fighting stance while\nwearing boxing gloves \xe2\x80\x93 that will suffice to show implied consent.\nThe general standard of proof in a torts lawsuit is preponderance of\nthe evidence. This means that it counts as \xe2\x80\x9cproof\xe2\x80\x9d to show that\nsomething is more likely than not. If a jury, after hearing conflicting\nevidence, determines it was 50.000000000000001% likely that a\ndefendant acted with consent when punching someone, then that\ncounts as proof. The preponderance standard works for whomever\nhas the burden of proof in a torts case on a given issue. That is, the\npreponderance standard is the standard by which plaintiff must prove\nevery element of a cause of action, and it is the standard applied to\ndefendants seeking to establish an affirmative defense.\nOne way of thinking about the burden of proof and the\npreponderance standard together is that it constitutes a tie-breaker. If\nthe question is whether a prima facie case has been established for a\ngiven cause of action, then the burden is on the plaintiff \xe2\x80\x93 that means\nthat any tie will go to the defendant. If the issue is whether an\naffirmative defense is established, the burden is the defendant\xe2\x80\x99s \xe2\x80\x93 so a\ntie on that issue will go the plaintiff. (Just remember, a defendant is\nnot required to prove an affirmative defense to win. If the plaintiff\nfails to prove any element of a given cause of action, then the\ndefendant wins without doing anything.)\n\n33\n\n\x0cThe preponderance standard can be compared to the well-known\nstandard for criminal prosecutions: proof beyond a reasonable doubt.\nThe reasonable-doubt standard in criminal law is a high bar. By\ncomparison, the preponderance of the evidence standard in a tort suit\nis easy to meet. Suppose, after a trial, a jury collectively thought, \xe2\x80\x9cWe\naren\xe2\x80\x99t very sure about it, but we think it\xe2\x80\x99s slightly more likely than not\nthat the defendant intentionally killed the victim.\xe2\x80\x9d That\xe2\x80\x99s enough for\na wrongful-death verdict, but it would lead to an acquittal for a\nmurder charge.\nOne more note about causes of actions and affirmative defenses:\nRemember that it is possible for a plaintiff to allege more than one\ncause of action in a lawsuit. In fact, it\xe2\x80\x99s typical. Similarly, a defendant\nmay raise multiple affirmative defenses. A single altercation between\ntwo people could give rise to claims for battery, negligence, false\nimprisonment, fraud, defamation, and more. Each of those claims\ncould give rise to multiple affirmative defenses, and all would\nordinarily be dealt with in the same lawsuit.\nWhy allege more than one cause of action? Well, some causes of\naction entitle a plaintiff to more in monetary damages than others.\nSome are easier to prove than others. Bottom line, however, to get\nsome relief, a plaintiff needs only to prevail with one cause of action.\nSimilarly, for any given cause of action, a defendant can raise multiple\naffirmative defenses. But the defendant needs only to prove one\naffirmative defense to prevail with regard to any given cause of\naction.\n\n34\n\n\x0c2. An Overview of Tort Law\nNow that you understand the fundamentals of causes of action,\nelements, and affirmative defenses, we can start to sketch an\noverview of the subject of tort law.\nBefore delving into the details of particular tort causes of action, it is\nextremely helpful to take the time to learn the broad outlines of the\nentire subject matter. Why? Having a framework of any subject\nmakes it easier for you understand and absorb details. Moreover,\nwhen it comes to torts, you will find that there are many points of\nconnection among disparate aspects of the subject matter. For\ninstance, an aspect of negligence doctrine \xe2\x80\x93 called res ipsa loquitor \xe2\x80\x93\nis similar in important ways to the cause of action for strict liability. If\nyou take the time at the outset to study the overview, you will be able\nto understand these linkages much more readily when they come up\nlater on.\nAs a common-law subject, torts has no official organization scheme.\nIt exists as a disconnected mass of judicial opinions spanning a\nmultitude of jurisdictions. The opinions are put into reporter\nvolumes in chronological order \xe2\x80\x93 not grouped by topic. In fact, you\nwould have a hard time grouping cases by topic if you tried, because\nany given case often deals with multiple topics.\nYet to tackle the subject of torts methodically, it is necessary to adopt\nsome organizational scheme. There is some unavoidable artificiality\nin doing this, but imposing some form of order is needed to make\nthe subject comprehensible to the uninitiated.\nThe most straightforward way to organize the study of torts seems to\nbe to group together causes of action, and then explore one cause of\naction at a time, running through the elements and relevant defenses\nfor each. That is how this book is organized. Unfortunately, some\ntopics do not fit into this structure, since they are relevant to all or\nmany tort causes of action. Such topics include immunities, remedies,\nspecial issues regarding who can sue, and generically applicable\n\n35\n\n\x0caffirmative defenses. Such topics will be treated separately (and they\nwill appear in Volume Two).\nTo take a first cut at dividing up all the tort causes of action for\nstudy, we\xe2\x80\x99ll separate them into two large piles, to which we will give\nthe labels \xe2\x80\x9clineal\xe2\x80\x9d and \xe2\x80\x9coblique.\xe2\x80\x9d\n\nThe Lineal Torts \xe2\x80\x93 Direct Harm to Persons or\nPhysical Property\nWhat we are calling the lineal torts are the ones that involve some\nkind of direct injury to a person\xe2\x80\x99s body or physical property. (And\nrarely, the harm can be to a person\xe2\x80\x99s mental well-being.) In this\ncategory of lineal torts, the harm to person or property is a direct\none. Bar brawls, car crashes, and exploding soda-pop bottles are all\nexamples.\nLineal-tort causes of action can be divided into two categories: those\nthat will accrue from accidents, and those that only apply to\nintentional actions.\nCauses of Action for Accidents\nNegligence\nThe most general cause of action that is available for accidents is\nnegligence. Motor-vehicle accidents, slip-and-falls, and most kinds of\nmedical malpractice are negligence cases. There are five elements to\nthe cause of action for negligence.\n(In plain English:)\nA plaintiff can win a negligence case by showing\nthat (1) the defendant had an obligation to be\ncareful, (2) the defendant wasn\xe2\x80\x99t careful, and\nthat carelessness was (3) an actual cause and (4)\na not-too-indirect and not-too-far-fetched cause\nof (5) a bodily injury or damage to physical\nproperty.\n\nThose are the elements of negligence. But those are not the words\ncourts actually use to talk about negligence. We will have to translate\nour plain English into legal terms of art \xe2\x80\x93 \xe2\x80\x9clegalese,\xe2\x80\x9d if you want to\ncall it that.\n\n36\n\n\x0c(Restated in legal terms of art:)\nA plaintiff can establish a prima facie case for\nnegligence by showing: (1) the defendant owed\nthe plaintiff a duty of due care, (2) the\ndefendant breached that duty, and that breach\nwas (3) an actual cause and (4) a proximate\ncause of (5) an injury to the plaintiff\xe2\x80\x99s person or\nphysical property.\n\nThe duty of care concept simply means that, under the\ncircumstances, the defendant had an obligation to be careful. A\ndefendant is said to owe a duty of care (i.e., have an obligation to be\ncareful) with regard to all \xe2\x80\x9cforeseeable\xe2\x80\x9d plaintiffs. This means that if\nyou should have known you could hurt someone by being careless,\nthen you had an obligation to be careful.\nThe breach element is established if the defendant was not, in fact,\nbeing careful.\nThe element of actual causation means that there is a logical causeand-effect relationship between the defendant\xe2\x80\x99s carelessness and the\nplaintiff\xe2\x80\x99s injury. That is to say, if the defendant had actually been\ncareful, then the plaintiff never would have gotten hurt. Generally\nspeaking, if the plaintiff would have gotten hurt anyway, then the\nelement of actual causation is not met.\nThe element of proximate causation means that the cause-andeffect relationship between the defendant\xe2\x80\x99s conduct and the\nplaintiff\xe2\x80\x99s injury cannot be too bizarre. If newlyweds driving back\nfrom their wedding reception are paying more attention to one\nanother than the road, and because of this, their car rear-ends yours,\nyou can sue the driver, and maybe the distracting passenger, but you\ncannot sue the matchmaker who got the two lovebirds together. Why\nnot? A court would say that the matchmaker\xe2\x80\x99s actions were not a\n\xe2\x80\x9cproximate cause\xe2\x80\x9d of the collision.\nThe injury element requires that the plaintiff actually got hurt. You\ncannot sue someone in negligence just because you are mad at them\nfor almost getting you killed. If you come away without a scratch, then\nthere is no negligence case.\n\n37\n\n\x0cThere are three affirmative defenses that are particularly relevant to\nnegligence. The first two are comparative negligence and\ncontributory negligence. These are really two different versions of\nthe same idea \xe2\x80\x93 relieving the defendant from liability when the\nplaintiff\xe2\x80\x99s own negligence contributed to the plaintiff\xe2\x80\x99s injury. This\nkind of defense may either be complete, absolving the defendant of\nall liability, or partial, allowing the defendant to pay no more than\nsome percentage of the total damages. An additional affirmative\ndefense is assumption of the risk, based on the idea that where the\nplaintiff knowingly and voluntarily assumed the risk of something\nbad happening, the defendant should not be liable.\nStrict Liability\nThe cause of action for strict liability, like negligence, is also available\nfor a plaintiff who has suffered a bodily injury or property damage\nbecause of an accident. But while negligence is available broadly for\njust about any kind of accident, strict liability is available only in a few\nlimited circumstances in which the law imposes an absolute\nresponsibility for safety. Those circumstances are:\n\xef\x82\xb7\n\nwild animals\n\n\xef\x82\xb7\n\ntrespassing livestock\n\n\xef\x82\xb7\n\ndomestic animals with known vicious propensities\n\n\xef\x82\xb7\n\ndefective products\n\n\xef\x82\xb7\n\nultrahazardous activities\n\nThe elements for strict liability are the same as those for negligence\nwith one powerful exception: The duty-of-care and breach-of-duty\nelements are removed. This means that if the cause of an injury falls\ninto one of the five categories for strict liability, then it doesn\xe2\x80\x99t matter\nhow careful a defendant was being.\nA plaintiff can establish a prima facie case for\nstrict liability by showing: (1) the defendant\xe2\x80\x99s\nconduct falls into one of the categories for\nwhich there is an absolute responsibility for\nsafety, and the defendant\xe2\x80\x99s conduct was the (2)\n\n38\n\n\x0cactual cause and (3) proximate cause of (4) an\ninjury to the plaintiff\xe2\x80\x99s person or physical\nproperty.\n\nThe key question in strict liability is when it may be invoked; that is:\nHow do we define the categories giving rise to absolute responsibility\nfor safety?\nUltrahazardous activities trigger the absolute responsibility for safety.\nThat much is clear. But there is considerable room for argument as to\nwhat qualifies as ultrahazardous. Some examples of activities the\ncourts have said qualify as ultrahazardous are fireworks, blasting,\ncrop dusting, fumigation, oil drilling, and just about anything nuclear.\nOn the other hand, jurisdictions are split on whether transporting\ngasoline by tanker truck qualifies.\nWith regard to defective products liability, the key question is what\ncounts as a defect. The law recognizes three kinds of defects: a\nmanufacturing defect, whereby some product failed to be made to\nspecification; a design defect, where the product was designed in\nsuch a way that it was unreasonably dangerous; and a warning\ndefect, in which the lack of a clear warning causes an otherwise safe\nproduct to be dangerous. An interesting aspect of strict products\nliability is that anyone in the distribution chain can be held liable,\nfrom the retailer, to the distributor, to the manufacturer.\nWe will save elaborations, complications, and exceptions for later,\nbut for now it may give some readers peace of mind to know that\nselling items at a garage sale does not make you a retailer for\npurposes of strict products liability.\nIntentional Torts\nThe next broad category is that of intentional torts. You will see that\nwhere the defendant acted with intent in harming the plaintiff, the\nlaw allows many more options for recovery.\nThere are seven traditional intentional torts. Four are personal, three\nare property-related. The intentional personal torts are battery,\nassault, false imprisonment, and outrage (also known as intentional\ninfliction of emotional distress, or \xe2\x80\x9cIIED\xe2\x80\x9d). The intentional property\n\n39\n\n\x0ctorts are trespass to land, trespass to chattels, and conversion. For\nthese torts, we will sum up each in a sentence, saving a formal\nbreakdown into elements for later.\nBattery\nThe tort of battery requires an intentional infliction of a harmful or\noffensive touching of a person.\nThe touching does not need to be direct. Touching someone\xe2\x80\x99s\nclothing, or even an object the person is holding, can qualify. Setting\nin motion some process that eventually results in a touching qualifies\nas well. Setting up a bucket of water to pour on someone\xe2\x80\x99s head\nwhen they walk into a room weeks later will count as a touching. The\ntouching also does not need to be on the outside of the body. Giving\nsomeone a beverage adulterated with a disgusting substance or a\nnarcotic would count as a touching.\nThe intent requirement is more relaxed than you might think, as well.\nKnowing with substantial certainty that a person would be harmfully\nor offensively touched, for instance, suffices for the purposes of\nbattery. Intent is also satisfied where the defendant intended only a\nnear miss.\nThe most important aspect of battery, when compared to negligence\nand strict liability, is that there is no injury requirement. Spitting on\nsomeone, for instance, rarely causes an injury. But it will constitute a\nbattery. In a case without an injury, it might not be possible to win\nany appreciable monetary award, but a claim can nonetheless be\nmade and vindicated. And since some harmless touchings are quite\nreprehensible (e.g., spitting), a large award of punitive damages might\nwell be justified.\nBattery covers an enormous range of conduct, from the\ninappropriate to the catastrophic. Pulling hair is a battery. So is a\nbombing.\nThe affirmative defense of consent is extremely important to battery.\nConsent can be expressed in words or implied by the circumstances\nor a past course of interaction. The defense of consent is what keeps\ncontact sports out of the courtroom.\n\n40\n\n\x0cAssault\nThe tort of assault is similar to battery, but it does not require a\ntouching. Assault is defined as the intentional creation of an\nimmediate apprehension of a harmful or offensive touching. In\nother words, making someone think they are about be the recipient\nof a battery constitutes an assault. Like battery, assault does not\nrequire an injury as part of the prima facie case.\nAlso like battery, the intent requirement is nonspecific. Intending to\nhit someone, but actually missing, qualifies as intent for the purpose\nof establishing battery.\nFalse Imprisonment\nThe tort of false imprisonment is established by proof of intentional\nconfinement \xe2\x80\x93 experienced or harmful \xe2\x80\x93 of a person to a\nbounded area. Kidnapping counts as false imprisonment. But a very\nbrief period of locking someone in a room is false imprisonment as\nwell. An actionable confinement can be accomplished by physical\nforce, threat of physical force, or improper claim of legal authority.\nFor instance, overzealous store security guards can accrue liability for\nfalse imprisonment by making improper assertions of legal authority\nin detaining persons suspected of shoplifting.\nNo harm needs to be done, nor any injury inflicted, for a claim of\nfalse imprisonment.\nA key affirmative defense is consent, which, for instance, keeps\nairlines from incurring liability for making passengers wait for the\nding before getting out of their seats. Another key affirmative defense\nis the lawful arrest privilege, which allows the police and sometimes\ncitizens to effect the arrest of a criminal suspect.\nOutrage (or\nDistress)\n\nIntentional\n\nInflection\n\nof\n\nEmotional\n\nThe tort of outrage is commonly called intentional infliction of\nemotional distress, a name unwieldy enough that it is usually\nshortened to \xe2\x80\x9cIIED.\xe2\x80\x9d Liability for the tort is triggered by the\nintentional or reckless infliction, by extreme and outrageous\nconduct, of severe emotional distress.\n\n41\n\n\x0cThe key to remember with outrage is that merely insulting or treating\nsomeone badly will not suffice. The conduct has to be extreme and\noutrageous. Teasing and name-calling does not qualify. Falsely telling\nsomeone that a loved one is dead, however, certainly would.\nSometimes an outrage claim can be successfully pursued in\nemployment situations where a worker\xe2\x80\x99s boss engaged in a prolonged\ncampaign of harassment.\nAlso important, the emotional distress experienced by the plaintiff\nmust be severe. Making someone cry is not enough. Reducing\nsomeone to uncontrolled screaming or prolonged hysterical sobbing,\nhowever, would likely qualify as severe. Over the longer term,\nseverity could be established by proving recurring night sweats, heart\npalpitations, panic attacks, or the wearing down of teeth through\nchronic grinding.\nTrespass to Land\nThe intentional tort of trespass to land requires an intentional\nphysical invasion of a person\xe2\x80\x99s real property. Real property is land\nalong with anything built on or affixed to the land, as well as the\nsubsurface below and the airspace above to a reasonable distance.\nFailing to remove something from the plaintiff\xe2\x80\x99s land that the\ndefendant is obligated to remove also counts as trespass to land.\nTo have a valid claim for trespass to land, no injury is necessary.\nTouching a physical portion of the land is not even necessary. A\ndisgruntled homeowner could theoretically sue neighborhood kids\nfor playing a game of catch in which a ball is thrown over a corner of\nthe homeowner\xe2\x80\x99s lot. Of course, in such a case, no compensatory\ndamages would be awarded, since there is no harm needing\ncompensation. Punitive damages would be unavailable as well, since\nthe kids\xe2\x80\x99 behavior would not warrant it. In such a case a court would\nlikely award only nominal damages of $1. So, such a case would, as a\npractical matter, be pointless to pursue. But the fact that bringing\nsuch a claim is possible serves to illustrate the incredible sweep of the\ntort of trespass to land.\n\n42\n\n\x0cAlso important for trespass to land is how the intent requirement is\nconstrued. The defendant does not need to have the specific intent to\ntrespass. If the defendant intends only to walk upon a public right-ofway, but nonetheless strays onto private property, the intent of\nputting one foot in front the other is sufficient intent to establish the\ncause of action.\nOf course, consent is a defense, as it is to intentional torts generally.\nSo when the neighborhood kids come trick-or-treating, they will have\na defense of implied consent.\nTrespass to Chattels\nChattels are items of tangible property that do not qualify as real\nproperty. Motor vehicles, paper clips, jewelry, horses, and helium\nballoons are all chattels. An action for trespass to chattels will lie\nwhen there is an intentional interference with plaintiff\'s chattel\nby use, intermeddling, or dispossession.\nThe requirement for trespass to chattels is stricter than for trespass to\nland. Merely touching or waving a limb over real property counts as\ntrespass to land. But for trespass to chattels, a mere touch will not\nqualify, nor will merely picking the item up. There has to be\nsomething more \xe2\x80\x93 not damage, but something that amounts to an\ninterference with the plaintiff\xe2\x80\x99s rights in the chattel. Stealing the item,\ndamaging it, or destroying it would be more than enough.\nConversion\nThe intentional tort of conversion is an alternative cause of action for\nchattels. A conversion is effected by an intentional exercise of\ndominion or control over a chattel that so substantially\ninterferes with the plaintiff\'s rights as to require the defendant\nto be forced to purchase it.\nIf the plaintiff wants to pursue conversion, the plaintiff will need to\nmake a heighted showing compared to trespass to chattels, proving\nthat the defendant so substantially interfered with the chattel that a\nforced sale is warranted.\nThe main difference between trespass to chattels and conversion is\nthe remedy. For conversion, the court will order the defendant to pay\n\n43\n\n\x0cthe plaintiff for the value of the chattel before the defendant\ninterfered with it. It is an example of what is called a \xe2\x80\x9cforced sale.\xe2\x80\x9d\nAfterwards, the plaintiff must deliver the chattel to the defendant \xe2\x80\x93\nor whatever is left of it.\nIf the plaintiff wants to keep the chattel, regardless of its condition,\nthen the plaintiff should pursue an action for trespass to chattels. The\nmonetary recovery might be lower, but the plaintiff does not have to\npart company with the object.\n\nThe Oblique Torts \xe2\x80\x93 Economic or Dignitary Harm\nThe other major group of tort causes of action applies where the\nharm is not a direct one to person or property. The harm may by\nfinancial, or it may be to one\xe2\x80\x99s sense of dignity or reputation. We will\nonly discuss these very briefly, just enough to demonstrate the range\nof situations in which tort law provides a mode of redress for oblique\nharms.\nMany oblique torts concern a purely financial loss.\nThe tort of fraud allows a cause of action in certain circumstances we\nwould call, in the ordinary vernacular, \xe2\x80\x9cgetting ripped off.\xe2\x80\x9d A fraud\nclaim requires that the defendant made a misrepresentation to the\nplaintiff, that the plaintiff relied on it, and that this ended up making\nthe plaintiff worse off. A typical situation is where the defendant lies\nin order to get the plaintiff to purchase worthless goods or put\nmoney into a shady investment.\nThe tort of intentional economic interference allows a plaintiff to\nsue when someone does something to prevent the plaintiff from\nclosing a business deal or getting the benefits of a valid contract. In\nthe prototypical case, the defendant is an intermeddler, who for some\nreason, possibly out of spite, wants to make someone flounder in\ntheir career or line of business. The most important thing to\nunderstand about the intentional economic interference tort is that it\ncannot be brought against a party to a contract for failing to live up\nto the terms of a deal. The action available in such a situation is one\nfor breach of contract. The intentional economic interference tort\n\n44\n\n\x0ccan only be brought against third parties who have no business\ninvolving themselves in the matter.\nOther oblique torts are more concerned the plaintiff\xe2\x80\x99s sense of\ndignity and integrity.\nThe tort of defamation can be brought against a person who\ncommunicates false, reputation-harming statements about the\nplaintiff. Defamation in writing is called libel, while the defamation\nthat is spoken is slander. Libel is easier to allege. For slander, a\nplaintiff will only be able to make out a prima facie case under certain\ncircumstances, such as if the false statement is about certain sensitive\ntopics or if the plaintiff can prove a direct financial loss resulting\nfrom the statement. The largest limitation on defamation comes in\nthe form of the First Amendment, which can make it nearly\nimpossible for public officials and public figures to sue their critics in\nmost circumstances.\nThere are multiple torts that fit under the banner of invasion of\nprivacy. One, false light, is similar to defamation in that it allows a\ncause of action for certain false statements, but it does not require the\nkind of harm to reputation that defamation requires. The tort of\nintrusion upon seclusion allows lawsuits against peeping toms and\nothers engaged in eavesdropping, surveillance, or various other sorts\nof creepiness. Meanwhile, the cause of action for public disclosure\nallows suits against people who communicate embarrassing, private\ninformation about the plaintiff to the public at large. And finally, the\ntort cause of action called the right of publicity creates liability for\ncertain commercial uses of a person name, voice, or likeness. It is\nprincipally useful to celebrities suing makers of unauthorized\nmerchandise \xe2\x80\x93 like t-shirts, stickers, and coffee mugs \xe2\x80\x93 as well as for\nanyone whose name is unwittingly used in an advertisement. Consent\nis a defense \xe2\x80\x93 one, in fact, that you will find buried in the terms of\nservice for Facebook and Google.\nThere yet more common-law tort causes of action, some of them\nquite exotic. Examples are some relics of a different age that allow\nlawsuits to be brought by cuckolds and jilted bridegrooms. These\nmay be more interesting for their historical value than anything else.\n\n45\n\n\x0cOther torts \xe2\x80\x93 many with considerable present-day relevance \xe2\x80\x93 are\nstatutory in origin. These include claims against government officials\nfor civil rights violations.\n\nThe Whole Torts Landscape Considered Together\nAs you can see, there are a variety of torts, each with its own tangle\nof convoluted doctrine prescribing when persons are entitled to\nredress. Ultimately, the range of tort claims and defenses reflects\nsociety\xe2\x80\x99s ideas about what counts as hurtful and wrong and what we\nowe to one another as citizens of the same complicated, crowded\nsociety. Our views on these subjects, of course, are complicated, so it\nis probably inevitable that tort law is complex as well. But as a\nstudent, take heart, because as complicated as it might be, tort law\ntakes its current form from having been hammered over the lumps\nand bumps of human concern \xe2\x80\x93 and that is a subject that you, just by\nliving on this planet, have already become intimately familiar with.\n\n46\n\n\x0cPart II: Negligence\n\n47\n\n\x0c3. Introduction to Negligence\nIntroduction\nThe center-stage cause of action in torts is negligence. In terms of its\neconomic impact and social importance, negligence predominates.\nIn its briefest form, the doctrine of negligence holds that if you are to\nblame, through your carelessness, for an injury to the person or\nproperty of another, you will be liable for the damage.\nAttorneys who practice \xe2\x80\x9cpersonal injury law\xe2\x80\x9d are, for the most part,\nworking with the negligence cause of action. Bus-stop ads and\nbillboards offering legal representation for \xe2\x80\x9cACCIDENTS\xe2\x80\x9d are\nmostly aimed at negligence claims. On the other side of the coin,\ndefending against negligence suits is a major preoccupation of\ninsurance companies.\n\nThe Central Idea: Shifting the Burden of Loss\nNegligence is all about who should bear the burden of the loss that\nresults from an injury-producing incident. It takes as a given that\nsomething bad has happened. Often it is something tragic.\nNegligence tries to make the best out of a bad situation by allowing\nthe burden of the loss to be shifted from one party to another where\nappropriate.\nFundamentally, the negligence cause of action is about compensation.\nIt is not about punishment. It is possible to get punitive damages as\nan added remedy in a negligence lawsuit, but doing so requires\nproving more than negligence. In particular a punitives damages\naward requires showing that the defendant\xe2\x80\x99s conduct was reckless,\nwanton or willful. But at its most basic level, the cause of action for\nnegligence is about trying to allow a less blameworthy party to shift\nthe burden of misfortune on to a more blameworthy party.\n\n48\n\n\x0cThere are many stories of runaway jury verdicts in negligence cases\nthat give plaintiffs a huge windfall of cash. Some of these stories are\napocryphal. Most omit important context that would make the\nverdict seem less shocking. Jackpot verdicts happen, but they are\noutliers, and even those are usually cut down to size on a post-trial\nmotion or appeal.\nReal-life jury verdicts that run to the millions of dollars often include\nlarge punitive damage components, meaning more than negligence\nwas at work. If a huge verdict is handed down merely on the basis of\nnegligence alone, and thus comprises only what are called\n\xe2\x80\x9ccompensatory damages,\xe2\x80\x9d then it is usually because the plaintiff will\nsuffer lifelong chronic pain, has permanent injuries that will make\nnormal life impossible, or will be unable to pursue what had been a\nvery lucrative career. Or it might be a combination of these factors.\nFor example, a multi-million-dollar verdict consisting of only\ncompensatory damages could well be possible \xe2\x80\x93 and might even be\nexpected \xe2\x80\x93 for a young Wall Street financial whiz whose brilliant\ncareer was cut short by a massive brain injury that has left her in\nconstant, severe pain and unable to eat, drink, or use the toilet\nwithout assistance. In other words, a person with a huge\ncompensatory damages verdict is probably someone you wouldn\xe2\x80\x99t\nwant to switch places with.\n\nThe Elements and Defenses for Negligence\nThe law of negligence is both complicated and simple. Negligence is\nsimple in terms of its central idea. That idea is that a party injured in\nan accident should be able to recover the loss from whoever is at\nfault for causing the accident. The core notion is one of responsibility.\nA good way to think about the law of negligence is that it is a\nformalized system for assigning blame. The elements of the prima\nfacie case for negligence, and the defenses that are allowed, form a\nhighly structured way for the courts to \xe2\x80\x9cthink\xe2\x80\x9d about issues of\nresponsibility and blame, and thereby hold a party accountable. This\nis where negligence law gets complicated. Exactly what does it mean\nto say that someone is \xe2\x80\x9cto blame\xe2\x80\x9d for an injury?\n\n49\n\n\x0cTry to imagine that you are shipwrecked on a remote island with a\nlarge group of castaways. None are lawyers or judges. There are no\nbooks and no internet. You are appointed as a judge in this cleavedoff society. A dispute comes before you, and you are asked to\ndetermine whether someone is to blame for an accident. \xe2\x80\x9cBlame\xe2\x80\x9d is a\nbroad and vague word. How could you subdivide the question for\nanalysis? In other words, what things would have to be true for you\nto confidently say that a given person to be \xe2\x80\x9cto blame\xe2\x80\x9d for the\ninjuries of another? Essentially, these were questions that have been\nput to the common law over the past centuries. And the answer the\ncommon law has come up with is the modern cause of action for\nnegligence. The prime facie elements and affirmative defenses of\nnegligence reflect a way of dividing up the blame question into many\nsubsidiary issues.\nHere are the elements of a prima facie case for negligence:\n(1) The defendant owed a duty of care to the plaintiff. (That\nis, the defendant had a reason to be careful.)\n(2) The defendant\xe2\x80\x99s conduct constituted a breach of that\nduty of care. (In other words, the defendant was not careful.)\n(3) The defendant\xe2\x80\x99s conduct was an actual cause of the\nplaintiff\xe2\x80\x99s injury. (Without the defendant\xe2\x80\x99s conduct, there\nwould not have been an injury.)\n(4) The defendant\xe2\x80\x99s conduct was a proximate cause of the\nplaintiff\xe2\x80\x99s injury. (This concept is complicated, but it means\nsomething like the plaintiff\xe2\x80\x99s injury isn\xe2\x80\x99t so indirectly\nconnected to the defendant\xe2\x80\x99s actions that it isn\xe2\x80\x99t fair to hold\nthe defendant responsible.)\n(5) There was an injury to the plaintiff\xe2\x80\x99s person or property.\n(An injury \xe2\x80\x9cto the person\xe2\x80\x9d here generally means the person\xe2\x80\x99s\nbody, and \xe2\x80\x9cproperty\xe2\x80\x9d means something tangible.)\nThis way of dividing up the question of blame in the case of\naccidents is not a logical necessity. Other people could have come up\nwith other systems. In fact, it\xe2\x80\x99s not hard to argue that other systems\nwould be better. Regardless, this is the system we have.\n\n50\n\n\x0cIn talking about a different body of American law, legal scholar Sarah\nBurstein said, \xe2\x80\x9cIt\xe2\x80\x99s a weedy garden, but it\xe2\x80\x99s out garden.\xe2\x80\x9d The exact\nsame sentiment could be expressed about American negligence law.\nThis is a good point at which to pause and note that some other\npeople writing about torts \xe2\x80\x93 such as lawyers, commentators, or\njudges \xe2\x80\x93 might tell you that the negligence cause of action only has\nfour elements. Others might say the number is six. Accountings of\nthe elements vary. But if you look closely at the content of what\nother sources say, you will find that it is, in essence, the same as the\nfive elements laid out above.\nPlausibly, a court could say that the negligence cause of action\nconsists of just two elements: (1) a breach of a duty of care owed to\nthe plaintiff, (2) an injury that was caused thereby. While this\nformulation looks different \xe2\x80\x93 since it is two elements instead of five \xe2\x80\x93\nlook closely and you will see that it is actually the same thing, just\nwith various parts lumped together.\nYou may be tempted to ask about the \xe2\x80\x9cofficial\xe2\x80\x9d list of elements of\nthe cause of action for negligence. Well, there is no official list. As a\ncommon-law subject, negligence is the product of many, many\ndifferent courts, all reading each other\xe2\x80\x99s work, but with no one really\nin charge. Add to that the fact that the doctrine evolves over time.\nThe bottom line is that in learning torts, you will have to pay\nattention to concepts more than labels.\nNow, going back to the list of the five elements above, you might\nthink, right off the bat, that the concept of \xe2\x80\x9cduty of care\xe2\x80\x9d seems\nstrange and unnecessary. Once we get into it, however, you will see\nthat this element helps to filter out a lot of cases where it would seem\nunfair for the plaintiff to be able to recover.\nIn particular, the duty-of-care concept helps filter out many cases\nwhere the plaintiff\xe2\x80\x99s injury seems too indirectly connected with the\ndefendant\xe2\x80\x99s conduct. That the duty-of-care element would do this is\nstrange, since the proximate-cause element also helps filter out cases\nwhere there is an indirect connection between the plaintiff\xe2\x80\x99s injury\nand the defendant\xe2\x80\x99s conduct.\n\n51\n\n\x0cThe fact is, the elements of negligence contain considerable room for\noverlap. In fact, the conceptual overlap between the duty of care\nelement and the proximate causation element is at the heart of what\nis likely the most famous torts case of all time: Palsgraf v. Long Island\nRailroad. We will get to that in a later chapter.\nAn alternative to the prima facie elements would be for every case to\nbe decided on its own, with a judge listening to both sides and simply\ndetermining what is fair. And that is a very plausible way things could\nbe done. But it\xe2\x80\x99s an anathema to the common law. The project of the\ncommon law is to build a body of doctrine that helps to ensure that\nlike cases will be decide alike, no matter who the judge is and who the\nparties are. By setting out a formal system, rather than depending on\nintuition and a rough sense of justice, then the courts can avoid\narbitrary decisions, achieving a \xe2\x80\x9crule of law\xe2\x80\x9d rather than a \xe2\x80\x9crule of\npersons.\xe2\x80\x9d That\xe2\x80\x99s the idea, anyway. Throughout your study of torts,\nyou can constantly ask yourself whether negligence law, through its\nstructure of elements, is achieving that goal. At times you may find\nthat the determination with regard to any individual element in any\ngiven case seems to be decided arbitrarily \xe2\x80\x93 not according to any\nsystem, but just according to the judge\xe2\x80\x99s \xe2\x80\x9crough sense of justice.\xe2\x80\x9d In\nfact, one way of defining the proximate causation element, as we will\nsee in the Palsgraf case, is that it is a placeholder for \xe2\x80\x9ca rough sense of\njustice.\xe2\x80\x9d\nAt the end of the day, the use of individual elements within the prima\nfacie case for negligence reflects the common law\xe2\x80\x99s incomplete\nproject of striving to avoid arbitrariness. The elements give us a\nhelpful structure to organize our thinking about negligence.\nAlongside the prima facie elements of the negligence case are the\nprinciple defenses to negligence, which include:\nComparative negligence \xe2\x80\x93 With the defense of comparative\nnegligence, if the plaintiff\xe2\x80\x99s injury is at least partly attributable\nto the plaintiff\xe2\x80\x99s own negligence, then the defendant will not\nbe liable to the plaintiff for the full amount of the plaintiff\xe2\x80\x99s\ndamages. If the plaintiff\xe2\x80\x99s relative fault is very large in\ncomparison to the defendant, then, depending on the\n\n52\n\n\x0cjurisdiction, the plaintiff may be barred from any recovery\nwhatsoever.\nContributory negligence \xe2\x80\x93 The defense of contributory\nnegligence is a more defendant-friendly version of\ncomparative negligence. It is used in a minority of\njurisdictions in lieu of comparative negligence. Under\ncontributory negligence, if the plaintiff\xe2\x80\x99s own negligence\ncontributed even slightly to the injuries sued upon, the\nplaintiff is completely barred from any recovery.\nAssumption of the risk \xe2\x80\x93 Despite the existence of a prima\nfacie case for negligence, the plaintiff will not be able to\nrecover if the plaintiff willingly assumed the potential burden\nthat something bad might happen. Such an assumption of the\nrisk can implied by the circumstances or expressed in words,\nwritten or oral.\nIn addition to these defenses, there are generic defenses available \xe2\x80\x93\ndefenses that are available in all torts cases. These include the statute\nof limitations, which causes you to lose your claim if you wait too\nlong to file. There are also some unique defenses that are only\napplicable to certain kinds of defendants, such as charities and\ngovernmental entities. But we will wait to study those until after we\nhave explored the elements of negligence and the general defenses.\nCheck-Your-Understanding Questions About Elements\nand Defenses\nA. A plaintiff is able to establish a preponderance of the elements,\nincluding duty of care, actual causation, and injury. Based on this\nshowing, will the plaintiff be able to prevail?\nB. A defendant\xe2\x80\x99s negligence played a large part in the plaintiff\xe2\x80\x99s\ninjury, but the plaintiff\xe2\x80\x99s own negligence played a role, too. Because\nof the law applicable in this jurisdiction, the plaintiff will entitled to\nonly a partial recovery. Why?\nC. If a defendant undertook the utmost care in trying to prevent the\nplaintiff\xe2\x80\x99s injury, but the plaintiff was injured anyway, which element\nof the prima facie case will fail?\n\n53\n\n\x0cD. Must a plaintiff prove reckless, wanton, or willful conduct on the\npart of the defendant to establish a prima facie case for negligence?\n\n54\n\n\x0c4. An Example of a Negligence\nCase\nIn the following case, you will be able to see how tort law works\nwithin a structure made of causes of action, elements, and affirmative\ndefenses. The case does a great job, as well, of showing the different\nroles of the judge and the jury. It also shows the common-law\nmethod at work \xe2\x80\x93 past decisions being applied as precedent to help\ndecide a new case presenting different facts.\n\nGeorgetown v. Wheeler\nDistrict of Columbia Court of Appeals\nSeptember 19, 2013\n__ A.3d __, 2013 WL 5271567. PRESIDENT and\nDIRECTORS OF GEORGETOWN COLLEGE, et al.,\nAppellants, v. Crystal WHEELER, Appellee. Nos. 12\xe2\x80\x93CV\xe2\x80\x93671,\n12\xe2\x80\x93CV\xe2\x80\x93672. Before WASHINGTON, Chief Judge,\nBLACKBURNE\xe2\x80\x93RISGBY, Associate Judge, and BELSON,\nSenior Judge.\nSenior Judge JAMES BELSON:\nThis is an appeal by a hospital and a physician from a large\njudgment against them in a medical malpractice case. Appellee\nCrystal Wheeler suffered various medical complications as the\nresult of a Rathke\xe2\x80\x99s cleft cyst behind her left eye, which went\nundetected for nearly ten years despite its appearance on a 1996\nMRI report. Wheeler brought a medical-malpractice suit against\nthe appellants, Marilyn McPherson-Corder, M.D., and the\nPresident\nand\nDirectors\nof\nGeorgetown\nCollege\n(\xe2\x80\x9cGeorgetown\xe2\x80\x9d), claiming that their negligence caused the cyst\nto go undiscovered. Following a lengthy trial in Superior Court,\na jury awarded Wheeler more than $2.5 million in damages. Dr.\nMcPherson-Corder and Georgetown now appeal, making four\narguments: (1) the jury\xe2\x80\x99s verdict was irreconcilably inconsistent,\nin that it found that the appellants\xe2\x80\x99 negligent failure to detect the\ncyst was a proximate cause of Wheeler\xe2\x80\x99s injuries, but also found\n\n55\n\n\x0cthat Wheeler\xe2\x80\x99s own failure to follow up on the 1996 MRI report,\nwhile negligent, was not a proximate cause; (2) the trial court\nerred by admitting Wheeler\xe2\x80\x99s proffered expert testimony, as her\nexperts\xe2\x80\x99 conclusion that her cyst caused certain gastrointestinal\nproblems has not been generally accepted in the medical\nscientific community; (3) Wheeler\xe2\x80\x99s counsel made improper and\nprejudicial statements during her closing argument; and (4) the\njury\xe2\x80\x99s verdict was against the weight of the evidence.\nWe reject the appellants\xe2\x80\x99 first argument because they waived\ntheir objection to any alleged inconsistency by failing to raise the\nissue before the jury\xe2\x80\x99s dismissal. We find their second argument\nlacking, as it misstates our standard for the admission of expert\ntestimony. We likewise find their third argument unpersuasive,\nas we see no impropriety in Wheeler\xe2\x80\x99s counsel\xe2\x80\x99s remarks. We do,\nhowever, find merit in one aspect of appellant\xe2\x80\x99s argument on\nthe weight of the evidence, i.e., insofar as it relates to the jury\xe2\x80\x99s\naward of greater future medical costs than the evidence\nestablished. Because the jury awarded $19,450 more than the\nrecord supports, we remand with instructions that the trial court\namend its order to reduce the award in that amount. In all other\nrespects, we affirm.\nI.\nWheeler has long suffered from a litany of health problems,\nincluding serious gastrointestinal difficulties. At several times in\nher youth, she was hospitalized due to extreme nausea and\nvomiting. These problems persisted throughout her adolescence,\nand have lasted well into her adult life.\nIn 1996, Wheeler began attending college in southern Virginia.\nWhen she returned home to Washington, D.C., the following\nsummer, she complained of severe headaches to her thenpediatrician, Dr. Marilyn McPherson-Corder. Accordingly, Dr.\nMcPherson-Corder referred her to a Georgetown University\nHospital pediatric neurologist, Dr. Yuval Shafrir.\nDr. Shafrir saw Wheeler twice that summer, once on July 8, and\nagain on August 5. During the first visit, Wheeler was also\nexperiencing leg and ear pain. Because of these other maladies,\n\n56\n\n\x0cDr. Shafrir was unable to fully diagnose her headaches. He\nprescribed medication for her ear pain, which he concluded was\nthe result of an ear infection, and asked her to come back in a\nfew weeks when her symptoms cleared. When she returned, Dr.\nShafrir diagnosed her headaches as migraines. Accordingly, he\ninstructed her on migraine management, prescribed medication,\nand asked her to keep a headache diary. He also noticed \xe2\x80\x9ca new\ncomplete blurring of [Wheeler\xe2\x80\x99s] right optic disk,\xe2\x80\x9d which\nprompted him to give her a prescription and tell her to arrange\nan EKG and an MRI through her primary-care physician.\nThe parties dispute exactly what Dr. Shafrir told Wheeler about\nthese tests. At trial, Wheeler testified that Dr. Shafrir told her\nthat both procedures were merely \xe2\x80\x9cprecautionary,\xe2\x80\x9d and that he\nwould contact her if there were \xe2\x80\x9cany concerns with the MRI.\xe2\x80\x9d\nDr. Shafrir, however, testified that while he does not have any\nindependent memory of Wheeler\xe2\x80\x99s visits, he \xe2\x80\x9calways\xe2\x80\x9d told\npatients to contact him within three days of having an MRI if\nthey did not hear from him. He also testified that whenever he\nordered an MRI he would instruct the patient to come back for\na follow-up visit. He said that this system, which placed the\nonus on the patient to follow up on test results, had \xe2\x80\x9cnever\xe2\x80\x9d\nfailed him. He testified that it would be \xe2\x80\x9cimpossible\xe2\x80\x9d for him to\ntrack down every result independently, in light of the system he\nused for having patients get an MRI.\nAfter Wheeler\xe2\x80\x99s second visit, Dr. Shafrir wrote to Dr.\nMcPherson-Corder, informing her that he asked Wheeler to\nundergo an MRI and EKG. Although he indicated that he had\nalready received the EKG results, which came back \xe2\x80\x9cnormal,\xe2\x80\x9d\nhe did not mention any MRI results. He also wrote that he\nwould \xe2\x80\x9clike to see [Wheeler] again in my office during her next\ncollege vacation.\xe2\x80\x9d\nWheeler obtained a referral for the MRI from Dr. McPhersonCorder\xe2\x80\x99s office. She then had the MRI performed at\nGeorgetown Hospital on August 16. This MRI revealed a 3\xe2\x80\x935\nmm supersellar cyst behind her left eye \xe2\x80\x93 likely a Rathke\xe2\x80\x99s pouch\ncyst. At the time, the cyst was not pressuring her pituitary gland,\nhypothalamus, or her optic chiasm. Neither Dr. McPherson-\n\n57\n\n\x0cCorder nor Dr. Shafrir ever saw the results of this MRI during\nthe time relevant to this proceeding.\nWheeler\xe2\x80\x99s gastrointestinal issues troubled her throughout\ncollege. She continued to struggle with nausea, vomiting, and\nlow appetite. After her graduation in 2000, her symptoms only\nworsened. She began losing weight, required at least four gastricemptying procedures, and on several occasions had to be\nhospitalized. Eventually, her condition deteriorated to the point\nthat her doctors were forced to insert a feeding tube. In 2003,\nshe was diagnosed with gastroparesis: a condition that makes it\nmore difficult for the stomach to empty properly.\nWheeler\xe2\x80\x99s physical decline correlated with her deteriorating\nmental health. In 2002, she reported increasing depression and\nstress, which she attributed to her physical maladies. In 2003,\nher depression worsened, and she began to suffer from panic\nattacks. She was diagnosed with depressive disorder in 2004 and\nmajor depression in 2005. She was also diagnosed with a mood\ndisorder.\nHer medical problems came to a head when, in December 2005,\nshe checked into George Washington University Hospital\n(\xe2\x80\x9cGWU\xe2\x80\x9d) complaining of vertigo and double vision. At that\ntime, GWU doctors ordered an MRI. Like the 1996 MRI, this\nnew test showed a cyst-like mass behind Wheeler\xe2\x80\x99s left eye. The\ncyst had visibly grown, now measuring approximately 11 x 8.5 x\n10 mm, and was causing \xe2\x80\x9cmass effects\xe2\x80\x9d on Wheeler\xe2\x80\x99s optic\nchiasm. Also at this time, GWU doctors diagnosed Wheeler\nwith thyroid and adrenal deficiencies, as well as abnormally low\nlevels of human growth hormone.\nAfter her discharge from GWU Hospital, Wheeler saw Dr.\nWalter Jean, a neurosurgeon at Georgetown University Hospital.\nDr. Jean asked Wheeler to undergo another MRI. While\nexamining the results of this MRI in March 2006, Dr. Jean\ndiscovered the 1996 MRI. Comparing the two MRIs, he noted\nthat Wheeler\xe2\x80\x99s cyst had \xe2\x80\x9cprogress[ed]\xe2\x80\x9d during the intervening\ndecade, becoming \xe2\x80\x9cbigger.\xe2\x80\x9d Dr. Jean then performed surgery to\nremove the cyst, without complication.\n\n58\n\n\x0cWheeler brought suit against Georgetown and Dr. McPhersonCorder on November 24, 2008. Over the course of a thirteenday trial, both sides called several competing medical experts.\nThrough her experts, Wheeler sought to establish that the cyst\ncaused or contributed to her hormone deficiencies,\ngastroparesis, and mental-health issues. Her experts testified\nthat, had the cyst been detected and removed earlier, she would\nhave avoided these problems. The appellants\xe2\x80\x99 experts vigorously\ndisputed any such causal connection. The appellants also\ndisputed Wheeler\xe2\x80\x99s claim that Drs. McPherson-Corder and\nShafrir breached their respective duties of care, argued that the\ndoctors\xe2\x80\x99 actions did not cause Wheeler\xe2\x80\x99s injuries, and contested\nthe extent of her damages. In addition, they maintained that,\nbecause Wheeler failed to follow up on the MRI results herself,\nshe was contributorily negligent.\nThe jury ultimately returned a verdict in Wheeler\xe2\x80\x99s favor. It\nfound that the doctors breached their respective standards of\ncare and that their breaches proximately caused Wheeler\xe2\x80\x99s\ninjuries. It also found that Wheeler was \xe2\x80\x9ccontributorily\nnegligent\xe2\x80\x9d for not \xe2\x80\x9cfollowing Dr. Shafrir\xe2\x80\x99s instructions to follow\nup with him after obtaining the MRI.\xe2\x80\x9d However, it concluded\nthat her negligence was not a proximate cause of her injuries. It\nawarded her $505,450.37 in past medical expenses, $800,000 in\nfuture medical expenses, and $1,200,000 in noneconomic\ndamages, for a total of $2,505,450.37.\nThe verdict form\xe2\x80\x99s first three questions, and the jury\xe2\x80\x99s answers\nto them, read:\n\nVERDICT FORM\n1(a). Did Yuval Shafrir, M.D., as agent and\nemployee of Georgetown University Hospital,\nbreach the standard of care in his care and\ntreatment of Crystal Wheeler? Yes x; No____.\n1(b). Did Marilyn McPherson-Corder, M.D.\nbreach the standard of care in her care and\ntreatment of Crystal Wheeler? Yes x; No____.\nIf you answered \xe2\x80\x9cNO\xe2\x80\x9d to BOTH Questions\n# 1(a) and # 1(b), STOP ANSWERING\n\n59\n\n\x0cQUESTIONS\n\nHERE.\nTHE\nFOREPERSON SHOULD SIGN AND\nDATE THIS FORM, AND NOTIFY THE\nJUDGE.\nIf you answered \xe2\x80\x9cYES\xe2\x80\x9d to Question # 1(a),\nplease answer Question # 2(a).\nIf you answered \xe2\x80\x9cYES\xe2\x80\x9d to Question # 1(b),\nplease answer Question # 2(b).\n2(a). Was the breach of the standard of care by\nYuval Shafrir, M.D., as agent and employee of\ndefendant Georgetown University Hospital, a\nproximate cause of injuries and damages to\nCrystal Wheeler? Yes x; No____.\n2(b). Was the breach of the standard of care by\nMarilyn McPherson-Corder, M.D. a proximate\ncause of injuries and damages to Crystal\nWheeler? Yes x; No____.\nIf you answered \xe2\x80\x9cNO\xe2\x80\x9d to Questions # 2(a)\nand # 2(b), STOP ANSWERING\nQUESTIONS\nHERE.\nTHE\nFOREPERSON SHOULD SIGN AND\nDATE THIS FORM, AND NOTIFY THE\nJUDGE.\nIf you answered \xe2\x80\x9cYES\xe2\x80\x9d to Question # 2(a)\nor # 2(b), please proceed to Question # 3.\n3(a). Was Crystal Wheeler contributorily\nnegligent in not following Dr. Shafrir\xe2\x80\x99s\ninstructions to follow up with him after\nobtaining the MRI? Yes x; No____.\n****\n3(b). Was Crystal Wheeler\'s negligence a\nproximate cause of her injuries and damages?\nYes____; No x.\nFollowing trial, Georgetown and Dr. McPherson-Corder moved\njointly for judgment notwithstanding the verdict, or in the\nalternative for a new trial. In support of this motion, they\n\n60\n\n\x0cpresented four arguments. First, they claimed that the jury could\nnot rationally have concluded that the negligence of each of the\nphysicians was a proximate cause of Wheeler\xe2\x80\x99s injuries, but that\nher own negligent failure to follow up with Dr. Shafrir was not.\nTherefore, they argued, the jury\xe2\x80\x99s verdict was irreconcilably\ninconsistent. Second, they asserted that there was no general\nacceptance in the medical scientific community of a causal\nconnection between Rathke\xe2\x80\x99s cleft cysts and gastroparesis.\nAccordingly, Wheeler\xe2\x80\x99s expert testimony on that point had been\ninadmissible under Dyas v. United States, 376 A.2d 827\n(D.C.1977), and Frye v. United States, 54 App.D.C. 46, 293 F.\n1013 (1923). Third, they claimed that the jury\xe2\x80\x99s verdict was\nagainst the weight of the evidence. Fourth and finally, they\nargued that Wheelers\xe2\x80\x99 attorney improperly appealed to the jury\xe2\x80\x99s\npassions during her closing argument.\nThe trial court denied their motion on April 27, 2012. This\nappeal followed.\nII.\nOn appeal, Georgetown and Dr. McPherson-Corder reiterate\nthe arguments they presented in their post-trial motion. We\naddress these arguments in turn, beginning with their claim that\nthe verdict was irreconcilably inconsistent.\n(a)\nGeorgetown and Dr. McPherson-Corder\xe2\x80\x99s first argument on\nappeal is essentially the same one they made to the trial court:\nthat the jury could not rationally have concluded that their\nnegligent conduct was a proximate cause of Wheeler\xe2\x80\x99s injuries,\nbut that the contributory negligence it found Wheeler had\ncommitted was not a proximate cause. The trial court rejected\nthis argument, finding that the verdict was not irreconcilable.\nWe now affirm, but on alternate grounds. We do not reach the\nquestion of whether the verdict was irreconcilably inconsistent.\nRather, we conclude that the appellants waived their objection\nby failing to raise the issue before the jury\xe2\x80\x99s discharge.\nIn general, a civil jury will return one of three types of verdicts.\nIn many cases, this will be a standard general verdict. A general\n\n61\n\n\x0cverdict is \xe2\x80\x9c\xe2\x80\x98[a] verdict by which the jury finds in favor of one\nparty or the other, as opposed to resolving specific fact\nquestions.\xe2\x80\x99\xe2\x80\x9d Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1201\n(11th Cir.2004) (quoting Mason v. Ford Motor Co., 307 F.3d 1271,\n1274 (11th Cir.2002)); accord BLACK\xe2\x80\x99S LAW DICTIONARY\n1696 (9th ed. 2009). The jury will also set damages, where\nappropriate. See Mason, supra, 307 F.3d at 1273. When the jury\nreturns such a verdict, the basis for its decision is usually not\nstated explicitly; the jury simply announces a decision for one\nside or the other. See Robinson v. Washington Internal Med. Assocs.,\nP.C., 647 A.2d 1140, 1144 (D.C.1994) (\xe2\x80\x9cBecause the jury\nreturned a general verdict in favor of the defendants, we do not\nknow whether the jury found that the defendants were not\nnegligent (or that proximate causation was not proven) or that\nthe plaintiff was contributorily negligent.\xe2\x80\x9d); see also Sinai v.\nPolinger Co., 498 A.2d 520, 523 n. 1 (D.C.1985).\nIn addition, Superior Court Civil Rule 49 authorizes trial courts\nto use two alternate verdict types. First, subsection (a) permits\nthe trial court to submit to the jury \xe2\x80\x9ca special verdict in the form\nof a special written finding upon each issue of fact.\xe2\x80\x9d When\nreturning such a \xe2\x80\x9cspecial verdict,\xe2\x80\x9d the jury answers only the\nspecific factual questions posed by the court. Trull v. Volkswagen\nof Am., Inc., 320 F.3d 1, 4 (1st Cir.2002) (describing special\nverdicts under the corresponding Fed.R.Civ.P. 49(a) as setting\nforth \xe2\x80\x9cwritten finding[s] upon each issue of fact\xe2\x80\x9d); Portage II v.\nBryant Petroleum Corp., 899 F.2d 1514, 1519 (6th Cir.1990) (\xe2\x80\x9cA\nspecial verdict is one in which the jury finds all the facts and\nthen refers the case to the court for a decision on those facts.\xe2\x80\x9d\n(citation omitted)). Indeed, \xe2\x80\x9c[w]ith a special verdict, the jury\xe2\x80\x99s\nsole function is to determine the facts; the jury needs no\ninstruction on the law because the court applies the law to the\nfacts as found by the jury.\xe2\x80\x9d Mason, supra, 307 F.3d at 1274.\nSecond, subsection (b) authorizes the court to \xe2\x80\x9csubmit to the\njury, together with appropriate forms for a general verdict,\nwritten interrogatories upon [one] or more issues of fact the\ndecision of which is necessary to a verdict.\xe2\x80\x9d Verdicts submitted\nunder this section are \xe2\x80\x9chybrid[s]\xe2\x80\x9d between standard general\nverdicts and special verdicts. Mason, supra, 307 F.3d at 1274; see\n\n62\n\n\x0calso Portage II, supra, 899 F.2d at 1520 (\xe2\x80\x9cThe general verdict with\ninterrogatories may be viewed as a middle ground between the\nspecial verdict and the general verdict....\xe2\x80\x9d). They \xe2\x80\x9cpermit[ ] a jury\nto make written findings of fact and to enter a general verdict,\xe2\x80\x9d\nLavoie v. Pacific Press & Shear Co., 975 F.2d 48, 53 (2d Cir.1992),\nand are useful when it is necessary to determine \xe2\x80\x9cspecifically\nwhat the jury found.\xe2\x80\x9d Sinai, supra, 498 A.2d at 533 (Nebeker, J.,\nconcurring).\nThe distinction between these verdict types is crucial in this\ncase, because a party waives its objection to any alleged\ninconsistency in a general verdict, with or without\ninterrogatories, if it fails to object before the jury\xe2\x80\x99s discharge. See\nDistrict of Columbia Hous. Auth., v. Pinkney, 970 A.2d 854, 868\n(D.C.2009) (\xe2\x80\x9cDCHA did not raise an objection based on\ninconsistent verdicts before the jury was excused, [after\nreturning general verdict with special interrogatory,] and it\ntherefore has waived this argument.\xe2\x80\x9d); Estate of Underwood v. Nat\xe2\x80\x99l\nCredit Union Admin., 665 A.2d 621, 645 (D.C.1995) (explaining\nthat Rule 49, \xe2\x80\x9cparticularly section (b), countenances a waiver of\nobjections to inconsistencies in the verdict that are not pointed\nout before the jury is discharged\xe2\x80\x9d). That rule, however, may not\napply to special verdicts. See Mason, supra, 307 F.3d at 1274 (\xe2\x80\x9c[I]f\nthe jury rendered inconsistent general verdicts, failure to object\ntimely waives that inconsistency as a basis for seeking retrial;\ninconsistent special verdicts, on the other hand, may support a\nmotion for a new trial even if no objection was made before the\njury was discharged.\xe2\x80\x9d).\nIn this case, the verdict form itself did not specify the type of\nverdict to be rendered. That form, labeled simply \xe2\x80\x9cVerdict,\xe2\x80\x9d first\ndirected the jurors to determine whether Dr. Shafrir or Dr.\nMcPherson-Corder breached the applicable standards of care in\nhis or her care of and treatment of Wheeler. If the jurors\nanswered either question with a \xe2\x80\x9cyes,\xe2\x80\x9d the form instructed them\nto determine whether the breach by either or both doctors was a\nproximate cause of injuries and damages to Wheeler. If the\njurors answered \xe2\x80\x9cyes\xe2\x80\x9d again, the form instructed them to then\ndetermine whether Wheeler was \xe2\x80\x9ccontributorily negligent in not\nfollowing Dr. Shafrir\xe2\x80\x99s instructions to follow up with him after\n\n63\n\n\x0cobtaining the MRI.\xe2\x80\x9d Then, if the jurors found that she was, the\nform required them to determine whether Wheeler\xe2\x80\x99s \xe2\x80\x9cnegligence\n[was] a proximate cause of her injuries and damages.\xe2\x80\x9d\nThe appellants do not argue that the verdict form was facially\ninconsistent because it allowed the jury to reach different\nconclusions as to Wheeler\'s \xe2\x80\x9ccontributory negligence,\xe2\x80\x9d a\nconcept which ordinarily encompasses negligence and proximate\ncause. Indeed, it is not clear they could do so, given that\nappellants\' counsel took primary responsibility for drafting the\nverdict form. See Preacher v. United States, 934 A.2d 363, 368\n(D.C.2007) (\xe2\x80\x9cGenerally, the invited error doctrine precludes a\nparty from asserting as error on appeal a course that he or she\nhas induced the trial court to take.\xe2\x80\x9d).\nAppellants could have avoided any potential confusion on this\npoint by simply phrasing the verdict form to ask only whether\nWheeler had been negligent by failing to follow Dr. Shafrir\'s\ninstructions (as opposed to contributorily negligent), and whether\nher negligence was a proximate cause of her injuries. Such\nphrasing would have tracked the language of the applicable\nStandardized Instructions. See Standardized Civil Jury\nInstructions for the District of Columbia, No. 5\xe2\x80\x9315 (2013 rev.\ned.) (\xe2\x80\x9cThe defendant alleges that the plaintiff was negligent. The\ndefendant is not liable for the plaintiff\'s injuries if the plaintiff\'s\nown negligence is a proximate cause of [his] [her] injuries.\xe2\x80\x9d).\nThe form also called on the jurors to consider the appellants\xe2\x80\x99\nassumption-of-the-risk defense. Finally, if the jurors ultimately\nfound in Wheeler\xe2\x80\x99s favor, the form required them to award\ndamages.\nThe verdict form used in this case did not call for a general\nverdict of the most basic type. In the past, however, we have at\ntimes referred to similar verdicts as general. See Nimetz v.\nCappadona, 596 A.2d 603, 606 (D.C.1991) (describing as\n\xe2\x80\x9cgeneral\xe2\x80\x9d a verdict form that \xe2\x80\x9crequire[ed] the jury to make\nseparate findings only on negligence, proximate cause, and the\naward of damages for each plaintiff\xe2\x80\x9d). Accord Portage II, supra, 899\nF.2d at 1518, 1522 (construing as \xe2\x80\x9cgeneral\xe2\x80\x9d a verdict form that\nasked the jury whether the defendant was negligent and whether\n\n64\n\n\x0cthe plaintiff was contributorily negligent); Pinkney, supra, 970\nA.2d at 868\xe2\x80\x9369 (holding that appellant waived its objection to\ninconsistency in remarkably similar verdict by failing to raise it\nbefore jury\xe2\x80\x99s discharge). Nevertheless, this verdict does not\ncomfortably fit the accepted definition of a \xe2\x80\x9cgeneral\xe2\x80\x9d verdict,\nbecause it required the jurors to expressly resolve at least one\ndiscrete factual issue: whether Wheeler \xe2\x80\x9cfollow[ed] Dr. Shafrir\xe2\x80\x99s\ninstructions to follow up with him after obtaining the MRI.\xe2\x80\x9d See,\ne.g., Wilbur, supra, 393 F.3d at 1201. Thus, although this verdict\nform was similar to others we have called \xe2\x80\x9cgeneral,\xe2\x80\x9d it was not a\ngeneral verdict in its most basic form.\nBut it is likewise unclear that the form called for a Rule 49(b)\ngeneral verdict with interrogatories. True, one portion of the\nform suggests such a verdict, because, as noted above, the jury\nanswered at least one question regarding a discrete factual issue\n(i.e., whether Wheeler failed to follow Dr. Shafrir\xe2\x80\x99s instructions),\nwhile still deciding the ultimate issue of liability. See Portage II,\nsupra, 899 F.2d at 1521 (holding that verdict form that asked jury\nseveral factual questions, but also required it to determine\nultimate liability, called for a general verdict with\ninterrogatories). But the trial court here did not indicate that it\nwas exercising its authority under Rule 49(b). Rather, it used a\nform simply labeled \xe2\x80\x9cVerdict.\xe2\x80\x9d And that form did not pose any\npurely factual questions. Instead, each question required the jury\nto resolve both factual questions and legal issues. But cf. Lavoie,\nsupra, 975 F.2d at 54 (finding verdict form was a general verdict\nwith interrogatories despite the \xe2\x80\x9cunusual nature\xe2\x80\x9d of the form\nused).\nThe issues before us, however, do not require us to choose\nbetween labeling this verdict a general verdict or a Rule 49(b)\ngeneral verdict with interrogatories, because we can clearly\ndetermine that it was not a special verdict \xe2\x80\x93 the only type of\nverdict to which a party might be permitted to raise an\ninconsistency objection after the jury\xe2\x80\x99s discharge. Special\nverdicts do not require the jury to determine ultimate liability, or\nindeed reach any legal conclusions whatsoever. Mason, supra, 307\nF.3d at 1274 (\xe2\x80\x9c[A] Rule 49(a) special verdict is a verdict by\nwhich the jury finds the facts particularly, and then submits to\n\n65\n\n\x0cthe court the questions of law arising on them.\xe2\x80\x9d (internal\nquotation marks omitted)). Indeed, when a trial court uses a\nspecial-verdict form, it generally will not instruct the jury on the\nlaw at all, because the jury will not be called upon to apply the\nlaw. See Bills v. Aseltine, 52 F.3d 596, 605 (6th Cir.1995) (holding\nthat verdict was general where the jury instructions \xe2\x80\x9cdiscussed\nlegal matters in detail\xe2\x80\x9d); Portage II, supra, 899 F.2d at 1521. In\nother words, when rendering a special verdict, the jury only finds\nspecific facts. BLACK\xe2\x80\x99S LAW DICTIONARY 1697 (9th ed.\n2009) (defining \xe2\x80\x9cspecial verdict\xe2\x80\x9d as \xe2\x80\x9c[a] verdict in which the jury\nmakes findings only on factual issues submitted to them by the\njudge\xe2\x80\x9d (emphasis added)).\nBut here, the jury did much more. Not only did the jury\ndetermine ultimate liability, it explicitly resolved several mixed\nlegal and factual issues along the way, including negligence,\nproximate cause, and assumption of the risk. Cf. Jarvis v. Ford\nMotor Co., 283 F.3d 33, 56 (2d Cir.2002) (holding that Federal\nRule 49(a), governing special verdicts, does not apply when \xe2\x80\x9cthe\njury is required to make determinations not only of issues of fact\nbut of ultimate liability\xe2\x80\x9d). Recognizing that the jury would be\napplying law to facts, the trial court thoroughly instructed it on\nthe applicable legal principles. Cf. Portage II, supra, 899 F.2d at\n1521 (\xe2\x80\x9cIf the written questions submitted to the jury were truly\nspecial verdicts, no instruction on the law, and certainly not one\nas detailed would have been given to the jury.\xe2\x80\x9d). With these facts\nin mind, we can comfortably conclude that, whatever type of\nverdict this was, it was not a special verdict.\nAccordingly, because the verdict was not special, it was either a\nstandard general verdict or a Rule 49(b) general verdict with\ninterrogatories. To preserve an objection to an alleged\ninconsistency in either of these types, a party must raise the\nargument before the jury is discharged. Here, appellants failed to\ndo so. Accordingly, they waived their objection to any\ninconsistency in the verdict. See, e.g., Underwood, supra, 665 A.2d\nat 645; Pinkney, supra, 970 A.2d at 868.\nIII.\n\n66\n\n\x0cThe appellants next argue that the trial court erred by permitting\nWheeler\xe2\x80\x99s expert witnesses to testify that there was a causal link\nbetween her Rathke\xe2\x80\x99s cleft cyst and her gastroparesis. They\nassert that Wheeler failed to demonstrate that such a causal\nrelationship is generally accepted in the medical scientific\ncommunity.\nIn general, \xe2\x80\x9c[t]he trial court has broad discretion to admit or\nexclude expert testimony.\xe2\x80\x9d Russell v. United States, 17 A.3d 581,\n585 (D.C.2011). But this discretion is not unlimited. Before\npermitting expert testimony, the trial court must determine that\nthe proffered testimony meets three threshold requirements:\n(1) the subject matter must be so distinctively\nrelated to some science, profession, business or\noccupation as to be beyond the ken of the\naverage layman; (2) the witness must have\nsufficient skill, knowledge, or experience in that\nfield or calling as to make it appear that his\nopinion or inference will probably aid the trier\nin his search for truth; and (3) expert testimony\nis inadmissible if the state of the pertinent art or\nscientific knowledge does not permit a\nreasonable opinion to be asserted even by an\nexpert.\nId. at 586 (quoting Dyas v. United States, 376 A.2d 827, 832\n(D.C.1977)) (original emphasis omitted) (internal quotation\nmarks omitted). Here, appellants acknowledge that Wheeler\xe2\x80\x99s\nexperts satisfied the first two requirements. They argue only that\nthe experts\xe2\x80\x99 testimony failed to meet the third requirement: that\nthe \xe2\x80\x9cstate of the pertinent art or scientific knowledge\xe2\x80\x9d permits\nthe expert to state \xe2\x80\x9ca reasonable opinion.\xe2\x80\x9d Specifically, they\nclaim that \xe2\x80\x9cWheeler\xe2\x80\x99s experts were required to demonstrate that\nthe medical community recognizes and supports their\nconclusion that there is a causal link between a Rathke\xe2\x80\x99s cleft\ncyst and gastroparesis or hormonal insufficiency and\ngastroparesis.\xe2\x80\x9d\nThis argument misstates our admissibility standard. The third\nDyas requirement focuses not on \xe2\x80\x9c\xe2\x80\x98the acceptance of a particular\n... conclusion derived from [the] methodology,\xe2\x80\x99\xe2\x80\x9d but rather on\n\n67\n\n\x0c\xe2\x80\x9cthe acceptance of the methodology itself.\xe2\x80\x9d Minor v. United States,\n57 A.3d 406, 420\xe2\x80\x9321 (D.C.2012) (quoting United States v. Jenkins,\n887 A.2d 1013, 1022 (D.C.2005)). In other words, \xe2\x80\x9csatisfaction\nof the third Dyas criterion begins \xe2\x80\x93 and ends \xe2\x80\x93 with a\ndetermination of whether there is general acceptance of a\nparticular scientific methodology, not an acceptance, beyond\nthat, of particular study results based on that methodology.\xe2\x80\x9d\nBurgess v. United States, 953 A.2d 1055, 1063 n. 12 (D.C.2008)\n(quoting Ibn\xe2\x80\x93Tamas v. United States, 407 A.2d 626, 638\n(D.C.1979)).\nHere, the appellants challenge Wheeler\xe2\x80\x99s experts\xe2\x80\x99\n\xe2\x80\x9cconclusion[s],\xe2\x80\x9d not their methodology. This challenge fails,\nbecause it \xe2\x80\x9cfocuse[s] on the wrong question.\xe2\x80\x9d Minor, supra, 57\nA.3d at 420. At trial, Wheeler\xe2\x80\x99s experts testified that they based\ntheir conclusions on case studies and medical literature, which\nlisted endocrine conditions like hypothyroidism as a cause of\ngastroparesis. The appellants contested these conclusions during\ntrial, and do so again on appeal. But they have offered no\nargument that reliance on relevant medical literature, which\naccording to at least one expert dates back to the 1970s, as well\nas case studies appearing in that literature, is not a \xe2\x80\x9cgenerally\naccepted\xe2\x80\x9d method for forming an opinion regarding medical\ncausation. Accordingly, we find the appellants\xe2\x80\x99 challenge\nunpersuasive.\nIV.\nNext, the appellants argue that the trial court should have\nordered a new trial based on certain comments Wheeler\xe2\x80\x99s\ncounsel made during closing arguments. Specifically, they point\nto counsel\xe2\x80\x99s statements regarding the applicable standard of\ncare, which they characterize as an improper send-a-message\nargument:\nYou know, the jury system in our country exists\nto protect the community. And in this medical\nmalpractice case, you will decide what standards\ndoctors must meet in the community when they\nprovide care and treatment to patients. You will\ndecide what standards doctors must meet to\n\n68\n\n\x0cprotect patient health and safety.... Remember,\nthe standards ... in the medical community exist\nfor a reason. They have been developed by\ndoctors for doctors. They exist to promote\npatient safety. They exist to protect patient\nhealth. They\xe2\x80\x99re to provide a medical care system\nthat above all prevents harm that\xe2\x80\x99s avoidable.\nAnd what these standards are in this community\nis what you will be deciding when you go back\nto the jury room.\nThis court will reverse on the basis of improper comments by\ncounsel only when it is likely that the comments left \xe2\x80\x9c\xe2\x80\x98the jurors\nwith wrong or erroneous impressions, which were likely to\nmislead, improperly influence, or prejudice them to the\ndisadvantage of the [defendant].\xe2\x80\x99\xe2\x80\x9d Psychiatric Inst. of Wash. v.\nAllen, 509 A.2d 619, 629 (D.C.1986) (quoting Simpson v. Stein, 52\nApp.D.C. 137, 139, 284 F. 731, 733 (1922)). Because it has the\nadvantage of observing the arguments as they occurred, the trial\ncourt is in a better position than this court to determine whether\ncounsel\xe2\x80\x99s statements were prejudicial. Scott v. Crestar Fin. Corp.,\n928 A.2d 680, 690 (D.C.2007). Accordingly, we afford the trial\ncourt\xe2\x80\x99s conclusions on that count broad deference, and will\nsustain its ruling so long as it is \xe2\x80\x9crational.\xe2\x80\x9d Id.\nHere, the trial court concluded that counsel\xe2\x80\x99s statements\n\xe2\x80\x9crelated to the determination the jury was being asked to make\nregarding the standard of care,\xe2\x80\x9d and found \xe2\x80\x9cno impropriety in\nthe closing argument.\xe2\x80\x9d Based on our own reading of counsel\xe2\x80\x99s\ncomments, we conclude that the trial court\xe2\x80\x99s conclusion was\n\xe2\x80\x9crational.\xe2\x80\x9d Id. Counsel merely explained the jury\xe2\x80\x99s role in\ndetermining the applicable standard of care. She did not urge the\njury to penalize the appellants based on irrelevant considerations\nor to return a verdict that would \xe2\x80\x9csend a message.\xe2\x80\x9d Accordingly,\nwe will defer to the trial court\xe2\x80\x99s judgment.\nV.\nFinally, the appellants argue that the verdict was against the\nweight of the evidence. Although their argument is multifaceted,* we focus in particular on their claim that the evidence\ndid not support the jury\xe2\x80\x99s award of $800,000 in future medical\n\n69\n\n\x0ccosts. Specifically, the appellants argue that the jury awarded\n$19,450 more than Wheeler\xe2\x80\x99s damages expert testified was\nnecessary, and that this additional award was based on pure\nspeculation. We agree.\n* The appellants also make a broader weight-ofthe-evidence argument, contending that the jury\ncould not rationally have credited Wheeler\xe2\x80\x99s\nexperts over their own. We do not think it\nnecessary to restate the particulars of that\nargument here. We note only that it would not\nbe proper for this court to usurp the jury\'s\nfactfinding role by reweighing the evidence in a\nmanner more to the appellants\' liking. \xe2\x80\x9cWhen\nthe case turns on disputed factual issues and\ncredibility determinations, the case is for the\njury to decide.\xe2\x80\x9d Durphy v. Kaiser Found. Health\nPlan of Mid\xe2\x80\x93Atlantic States, Inc., 698 A.2d 459,\n465 (D.C.1997); see also Burke v. Scaggs, 867 A.2d\n213, 217 (D.C.2005) (holding that judgment as a\nmatter of law is permissible \xe2\x80\x9conly if it is clear\nthat the plaintiff has not established a prima facie\ncase\xe2\x80\x9d (quoting Haynesworth v. D.H. Stevens Co.,\n645 A.2d 1095, 1097 (D.C.1994))).\nIn general, we do not require plaintiffs to prove their damages\n\xe2\x80\x9c\xe2\x80\x98precisely\xe2\x80\x99\xe2\x80\x9d or \xe2\x80\x9c\xe2\x80\x98with mathematical certainty.\xe2\x80\x99\xe2\x80\x9d District of\nColumbia v. Howell, 607 A.2d 501, 506 (D.C.1992) (quoting Garcia\nv. Llerena, 599 A.2d 1138, 1142 (D.C.1991)). Nevertheless,\nplaintiffs must provide \xe2\x80\x9c\xe2\x80\x98some reasonable basis upon which to\nestimate damages.\xe2\x80\x99\xe2\x80\x9d Id. The jury may not award damages based\nsolely on speculation. Zoerb v. Barton Protective Servs., 851 A.2d\n465, 470 (D.C.2004). Specifically in the context of futuremedical-expenses awards, we have held that where there is \xe2\x80\x9cno\nbasis upon which the jury could have reasonably calculated or\ninferred the cost of [the plaintiff\xe2\x80\x99s] future medical expenses,\xe2\x80\x9d the\ntrial court may not \xe2\x80\x9callow the jury to speculate in this area of\ndamages.\xe2\x80\x9d Romer v. District of Columbia, 449 A.2d 1097, 1100\n(D.C.1982).\nHere, Wheeler\xe2\x80\x99s damages expert, economist Dr. Richard Lurito,\ntestified that a lump-sum payment of $780,550 would fully\n\n70\n\n\x0ccompensate Wheeler for her future medical costs. He reached\nthis figure by looking at historical trends, projected treatment\ncosts, and estimated inflation in the general economy. He\ntestified that he used a 3.75% after-tax discount rate, which he\ndescribed as \xe2\x80\x9creasonable and conservative.\xe2\x80\x9d He adopted this\nrate based on current market conditions, accounting for current\nreturns on short-and long-term government bonds, and\nadjusting for relatively low present interest rates. Then, during\nclosing arguments, Wheeler\xe2\x80\x99s counsel urged the jury to award\nWheeler $780,550 \xe2\x80\x93 the full amount Dr. Lurito recommended.\nBut the jury was ultimately more generous, rounding Dr.\nLurito\xe2\x80\x99s figure up and awarding Wheeler $800,000 for future\nmedical expenses \xe2\x80\x93 a sum $19,450 in excess of the amount Dr.\nLurito indicated was necessary.\nWheeler points us to no record evidence upon which the jury\ncould have reasonably awarded this additional $19,450, nor can\nwe discern any. Wheeler argues that the jury could have inferred\nthat a larger sum would be necessary based on Dr. Lurito\xe2\x80\x99s\ndescription of his estimate as \xe2\x80\x9cconservative.\xe2\x80\x9d But there was no\nbasis in the evidence for the jury to make such an inference.\nAlthough Dr. Lurito described in detail the factors he\nconsidered in his calculations, he did not testify what a more\npessimistic forecast would have entailed, nor did he indicate\nhow much additional money would be necessary under lessfavorable circumstances. Accordingly, the jury could only\nspeculate that Wheeler might require an extra $19,450 to cover\nher medical costs. Cf. Zoerb, supra, 851 A.2d at 471 (\xe2\x80\x9c[E]ven if we\nwere to conclude \xe2\x80\x93 which we do not \xe2\x80\x93 that generalizations such\nas \xe2\x80\x98the sooner the better,\xe2\x80\x99 without evidence as to how much\nsooner was how much better, were sufficient to preclude the\ndirection of a verdict as to liability, the jury would face an\nimpossible task in attempting to make a rational award of\ndamages.\xe2\x80\x9d).\nThe jury is not permitted to award damages based on such\nspeculation. See Romer, supra, 449 A.2d at 1100. Because the\naward of an additional $19,450 was not supported by the\nevidence, the trial court should have granted a remittitur in that\namount. See Duff v. Werner Enters., Inc., 489 F.3d 727, 730\xe2\x80\x9331 (5th\n\n71\n\n\x0cCir.2007) (ordering trial court to grant remittitur where futuremedical-costs award exceeded \xe2\x80\x9cthe \xe2\x80\x98maximum amount\ncalculable from the evidence\xe2\x80\x99\xe2\x80\x9d (quoting Carlton v. H.C. Price Co.,\n640 F.2d 573, 578 (5th Cir.1981))). Accordingly, we remand with\ninstructions for the trial court to amend its order, reducing the\nfuture-medical-expenses award by $19,450 to accord with the\nevidence.\nSo ordered.\n\nCheck-Your-Understanding Questions About\n\nGeorgetown v. Wheeler\nA. What is the difference between the verdict and the judgment?\nB. What is the procedural posture of the case?\nC. The trial court\xe2\x80\x99s rulings on what motions are being reviewed?\nD. What is an example of a common-law doctrine that is applied?\nE. What is an example of a rule of procedure that is applied?\nF. What is an example of a standard of review that is applied?\n\n72\n\n\x0c5. When and to Whom is a Duty\nof Care Owed\n\xe2\x80\x9cA danger foreseen is half-avoided.\xe2\x80\x9d\n\xe2\x80\x93 Cheyenne Proverb\n\nIntroduction\nThe first element that must be established by a plaintiff in proving a\nnegligence case is that the defendant owed the plaintiff a duty of care.\nIf the defendant did not owe the plaintiff a duty of care, then even if\nthe defendant was careless and caused injury to the plaintiff, there\nwill be no recovery in negligence.\nSuppose someone asks you for one of your kidneys, explaining that\notherwise they will die. In terms of negligence doctrine, you do not\nowe this person a duty to hand over a kidney. And even if the person\ndies as a result of not getting one of your kidneys, there is no prima\nfacie case against you for negligence. You can probably intuit that\nthere is not a good cause of action here, but it is instructive to\nconsider the explicit reason. Check off the elements: There is an\ninjury. There is causation. Those are not lacking. What is lacking is\nthe duty of care.\nNow, suppose you are carelessly operating a rocket-powered tricycle\nand, thanks to your lack of care, you careen out of control, hitting\nand injuring a pedestrian who was walking on a sidewalk. You owed\nthe pedestrian a duty of care, and you breached that duty. And that\nbreach caused an injury. Thus, the pedestrian will be able to establish\na prima facie case for negligence. All the elements are in place.\nIn this chapter, the key question is when and to whom is a duty of\ncare owed. In other words: Is there a duty? The question of what is\nrequired by a duty of care \xe2\x80\x93 in other words, just how careful do you\nhave to be \xe2\x80\x93 is a question for the next chapter, in which we will talk\nabout breach of duty.\n\n73\n\n\x0cWhether or not there is a duty of care is generally considered a\nquestion of law, meaning it is a matter for the judge to decide. Thus, the\ndoctrine of duty of care can be used to prevent a jury from hearing a\ncase that might otherwise result in a substantial award of damages.\n\nThe Essential Concept: Foreseeability\nThe essential concept in defining the duty of care in negligence is\nforeseeability. A defendant is said to owe a duty of care to all\nforeseeable plaintiffs for all foreseeable harm.\nCase: Weirum v. RKO\nIn this case there is carelessness, injury, actual and proximate\ncausation. The only open question is whether a duty of care is owed.\n\nWeirum v. RKO General, Inc.\nSupreme Court of California\nAugust 21, 1975\n15 Cal.3d 40. RONALD A. WEIRUM et al., Plaintiffs and\nAppellants, v. RKO GENERAL, INC., Defendant and\nAppellant; MARSHA L. BAIME, Defendant and Respondent.\nL.A. No. 30452. In Bank. Opinion by Mosk, J., expressing the\nunanimous view of the court. Wright, C. J., McComb, J.,\nTobriner, J., Sullivan, J., Clark, J., and Richardson, J., concurred.\nJustice STANLEY MOSK:\nA rock radio station with an extensive teenage audience\nconducted a contest which rewarded the first contestant to\nlocate a peripatetic disc jockey. Two minors driving in separate\nautomobiles attempted to follow the disc jockey\xe2\x80\x99s automobile to\nits next stop. In the course of their pursuit, one of the minors\nnegligently forced a car off the highway, killing its sole occupant.\nIn a suit filed by the surviving wife and children of the decedent,\nthe jury rendered a verdict against the radio station. We now\nmust determine whether the station owed decedent a duty of\ndue care.\nThe facts are not disputed. Radio station KHJ is a successful\nLos Angeles broadcaster with a large teenage following. At the\ntime of the accident, KHJ commanded a 48 percent plurality of\n\n74\n\n\x0cthe teenage audience in the Los Angeles area. In contrast, its\nnearest rival during the same period was able to capture only 13\npercent of the teenage listeners. In order to attract an even\nlarger portion of the available audience and thus increase\nadvertising revenue, KHJ inaugurated in July of 1970 a\npromotion entitled \xe2\x80\x9cThe Super Summer Spectacular.\xe2\x80\x9d The\n\xe2\x80\x9cspectacular,\xe2\x80\x9d with a budget of approximately $40,000 for the\nmonth, was specifically designed to make the radio station\n\xe2\x80\x9cmore exciting.\xe2\x80\x9d Among the programs included in the\n\xe2\x80\x9cspectacular\xe2\x80\x9d was a contest broadcast on July 16, 1970, the date\nof the accident.\nOn that day, Donald Steele Revert, known professionally as\n\xe2\x80\x9cThe Real Don Steele,\xe2\x80\x9d a KHJ disc jockey and television\npersonality, traveled in a conspicuous red automobile to a\nnumber of locations in the Los Angeles metropolitan area.\nPeriodically, he apprised KHJ of his whereabouts and his\nintended destination, and the station broadcast the information\nto its listeners. The first person to physically locate Steele and\nfulfill a specified condition received a cash prize. \xef\x81\x81The\nconditions varied from the giving of a correct response to a\nquestion to the possession of particular items of clothing.\xef\x81\x80 In\naddition, the winning contestant participated in a brief interview\non the air with \xe2\x80\x9cThe Real Don Steele.\xe2\x80\x9d The following excerpts\nfrom the July 16 broadcast illustrate the tenor of the contest\nannouncements:\n9:30 and The Real Don Steele is back on his feet\nagain with some money and he is headed for the\nValley. Thought I would give you a warning so\nthat you can get your kids out of the street.\nThe Real Don Steele is out driving on \xe2\x80\x93 could\nbe in your neighborhood at any time and he\xe2\x80\x99s\ngot bread to spread, so be on the lookout for\nhim.\nThe Real Don Steele is moving into Canoga\nPark \xe2\x80\x93 so be on the lookout for him. I\xe2\x80\x99ll tell you\nwhat will happen if you get to The Real Don\nSteele. He\xe2\x80\x99s got twenty-five dollars to give away\n\n75\n\n\x0cif you can get it ... and baby, all signed and\nsealed and delivered and wrapped up.\n10:54 \xe2\x80\x93 The Real Don Steele is in the Valley\nnear the intersection of Topanga and Roscoe\nBoulevard, right by the Loew\xe2\x80\x99s Holiday Theater\n\xe2\x80\x93 you know where that is at, and he\xe2\x80\x99s standing\nthere with a little money he would like to give\naway to the first person to arrive and tell him\nwhat type car I helped Robert W. Morgan give\naway yesterday morning at KHJ. What was the\nmake of the car. If you know that, split.\nIntersection of Topanga and Roscoe Boulevard\n\xe2\x80\x93 right nearby the Loew\xe2\x80\x99s Holiday Theater \xe2\x80\x93\nyou will find The Real Don Steele. Tell him and\npick up the bread.\nIn Van Nuys, 17-year-old Robert Sentner was listening to KHJ\nin his car while searching for \xe2\x80\x9cThe Real Don Steele.\xe2\x80\x9d Upon\nhearing that \xe2\x80\x9cThe Real Don Steele\xe2\x80\x9d was proceeding to Canoga\nPark, he immediately drove to that vicinity. Meanwhile, in\nNorthridge, 19-year-old Marsha Baime heard and responded to\nthe same information. Both of them arrived at the Holiday\nTheater in Canoga Park to find that someone had already\nclaimed the prize. Without knowledge of the other, each decided\nto follow the Steele vehicle to its next stop and thus be the first\nto arrive when the next contest question or condition was\nannounced.\nFor the next few miles the Sentner and Baime cars jockeyed for\nposition closest to the Steele vehicle, reaching speeds up to 80\nmiles an hour. \xef\x81\x81It is not contended that the Steele vehicle at any\ntime exceeded the speed limit.\xef\x81\x80 About a mile and a half from\nthe Westlake offramp the two teenagers heard the following\nbroadcast: \xe2\x80\x9c11:13 \xe2\x80\x93 The Real Don Steele with bread is heading\nfor Thousand Oaks to give it away. Keep listening to KHJ ....\nThe Real Don Steele out on the highway \xe2\x80\x93 with bread to give\naway \xe2\x80\x93 be on the lookout, he may stop in Thousand Oaks and\nmay stop along the way .... Looks like it may be a good stop\nSteele \xe2\x80\x93 drop some bread to those folks.\xe2\x80\x9d\n\n76\n\n\x0cThe Steele vehicle left the freeway at the Westlake offramp.\nEither Baime or Sentner, in attempting to follow, forced\ndecedent\xe2\x80\x99s car onto the center divider, where it overturned.\nBaime stopped to report the accident. Sentner, after pausing\nmomentarily to relate the tragedy to a passing peace officer,\ncontinued to pursue Steele, successfully located him and\ncollected a cash prize.\nDecedent\xe2\x80\x99s wife and children brought an action for wrongful\ndeath against Sentner, Baime, RKO General, Inc. as owner of\nKHJ, and the maker of decedent\xe2\x80\x99s car. Sentner settled prior to\nthe commencement of trial for the limits of his insurance policy.\nThe jury returned a verdict against Baime and KHJ in the\namount of $300,000 and found in favor of the manufacturer of\ndecedent\xe2\x80\x99s car. KHJ appeals from the ensuing judgment and\nfrom an order denying its motion for judgment notwithstanding\nthe verdict. Baime did not appeal.\nThe primary question for our determination is whether\ndefendant owed a duty to decedent arising out of its broadcast\nof the giveaway contest. The determination of duty is primarily a\nquestion of law. It is the court\xe2\x80\x99s \xe2\x80\x9cexpression of the sum total of\nthose considerations of policy which lead the law to say that the\nparticular plaintiff is entitled to protection.\xe2\x80\x9d (Prosser, Law of\nTorts (4th ed. 1971) pp. 325-326.) Any number of considerations\nmay justify the imposition of duty in particular circumstances,\nincluding the guidance of history, our continually refined\nconcepts of morals and justice, the convenience of the rule, and\nsocial judgment as to where the loss should fall. (Prosser, Palsgraf\nRevisited (1953) 52 MICH. L. REV. 1, 15.) While the question\nwhether one owes a duty to another must be decided on a caseby-case basis, every case is governed by the rule of general\napplication that all persons are required to use ordinary care to\nprevent others from being injured as the result of their conduct.\nHowever, foreseeability of the risk is a primary consideration in\nestablishing the element of duty. Defendant asserts that the\nrecord here does not support a conclusion that a risk of harm to\ndecedent was foreseeable.\n\n77\n\n\x0cWhile duty is a question of law, foreseeability is a question of\nfact for the jury. The verdict in plaintiffs\xe2\x80\x99 favor here necessarily\nembraced a finding that decedent was exposed to a foreseeable\nrisk of harm. It is elementary that our review of this finding is\nlimited to the determination whether there is any substantial\nevidence, contradicted or uncontradicted, which will support the\nconclusion reached by the jury.\nWe conclude that the record amply supports the finding of\nforeseeability. These tragic events unfolded in the middle of a\nLos Angeles summer, a time when young people were free from\nthe constraints of school and responsive to relief from vacation\ntedium. Seeking to attract new listeners, KHJ devised an\n\xe2\x80\x9cexciting\xe2\x80\x9d promotion. Money and a small measure of\nmomentary notoriety awaited the swiftest response. It was\nforeseeable that defendant\xe2\x80\x99s youthful listeners, finding the prize\nhad eluded them at one location, would race to arrive first at the\nnext site and in their haste would disregard the demands of\nhighway safety.\nIndeed, \xe2\x80\x9cThe Real Don Steele\xe2\x80\x9d testified that he had in the past\nnoticed vehicles following him from location to location. He\nwas further aware that the same contestants sometimes\nappeared at consecutive stops. This knowledge is not rendered\nirrelevant, as defendant suggests, by the absence of any prior\ninjury. Such an argument confuses foreseeability with hindsight,\nand amounts to a contention that the injuries of the first victim\nare not compensable. \xe2\x80\x9cThe mere fact that a particular kind of an\naccident has not happened before does not ... show that such\naccident is one which might not reasonably have been\nanticipated.\xe2\x80\x9d (Ridley v. Grifall Trucking Co. (1955) 136 Cal.App.2d\n682, 686.) Thus, the fortuitous absence of prior injury does not\njustify relieving defendant from responsibility for the\nforeseeable consequences of its acts.\nIt is of no consequence that the harm to decedent was inflicted\nby third parties acting negligently. Defendant invokes the maxim\nthat an actor is entitled to assume that others will not act\nnegligently. This concept is valid, however, only to the extent\nthe intervening conduct was not to be anticipated. If the\n\n78\n\n\x0clikelihood that a third person may react in a particular manner is\na hazard which makes the actor negligent, such reaction whether\ninnocent or negligent does not prevent the actor from being\nliable for the harm caused thereby. Here, reckless conduct by\nyouthful contestants, stimulated by defendant\xe2\x80\x99s broadcast,\nconstituted the hazard to which decedent was exposed.\nIt is true, of course, that virtually every act involves some\nconceivable danger. Liability is imposed only if the risk of harm\nresulting from the act is deemed unreasonable \xe2\x80\x93 i.e., if the\ngravity and likelihood of the danger outweigh the utility of the\nconduct involved.\nWe need not belabor the grave danger inherent in the contest\nbroadcast by defendant. The risk of a high speed automobile\nchase is the risk of death or serious injury. Obviously, neither\nthe entertainment afforded by the contest nor its commercial\nrewards can justify the creation of such a grave risk. Defendant\ncould have accomplished its objectives of entertaining its\nlisteners and increasing advertising revenues by adopting a\ncontest format which would have avoided danger to the\nmotoring public.\nDefendant\xe2\x80\x99s contention that the giveaway contest must be\nafforded the deference due society\xe2\x80\x99s interest in the First\nAmendment is clearly without merit. The issue here is civil\naccountability for the foreseeable results of a broadcast which\ncreated an undue risk of harm to decedent. The First\nAmendment does not sanction the infliction of physical injury\nmerely because achieved by word, rather than act.\nWe are not persuaded that the imposition of a duty here will\nlead to unwarranted extensions of liability. Defendant is fearful\nthat entrepreneurs will henceforth be burdened with an\navalanche of obligations: an athletic department will owe a duty\nto an ardent sports fan injured while hastening to purchase one\nof a limited number of tickets; a department store will be liable\nfor injuries incurred in response to a \xe2\x80\x9cwhile-they-last\xe2\x80\x9d sale. This\nargument, however, suffers from a myopic view of the facts\npresented here. The giveaway contest was no commonplace\ninvitation to an attraction available on a limited basis. It was a\n\n79\n\n\x0ccompetitive scramble in which the thrill of the chase to be the\none and only victor was intensified by the live broadcasts which\naccompanied the pursuit. In the assertedly analogous situations\ndescribed by defendant, any haste involved in the purchase of\nthe commodity is an incidental and unavoidable result of the\nscarcity of the commodity itself. In such situations there is no\nattempt, as here, to generate a competitive pursuit on public\nstreets, accelerated by repeated importuning by radio to be the\nvery first to arrive at a particular destination. Manifestly the\n\xe2\x80\x9cspectacular\xe2\x80\x9d bears little resemblance to daily commercial\nactivities.~\nThe judgment and the orders appealed from are affirmed.~\n\nQuestions to Ponder About Weirum v. RKO\nA. Does the duty-of-care concept work well to provide an outer\nboundary for what is recoverable in negligence? What might you\nreplace it with?\nB. The court held that the accident was foreseeable. If it was\nforeseeable, why do you think the radio station personnel staged the\ncontest? Were they greedy? Were they ignorant? Were they in denial?\nOr does \xe2\x80\x9cforeseeable\xe2\x80\x9d mean something different for the court than it\ndoes for an individual? If so, should it?\nC. How could KHJ have changed the contest to avoid liability?\n\nSome Historical Notes About Weirum v. RKO\nA. Mosk\xe2\x80\x99s legacy: Justice Mosk is the namesake of the Stanley M.\nMosk Courthouse, the main courthouse of the Los Angeles County\nSuperior Court for civil litigation. (The Clara Shortridge Foltz\ncourthouse, site of many famous celebrity criminal trials, is a couple\nof blocks to the east.)\nB. Boss radio: KHJ was a legendary AM radio station of the Top-40\nformat. Most notably, KHJ was the progenitor of the \xe2\x80\x9cBoss Radio\xe2\x80\x9d\nstyle that spread throughout the nation in the early 1970s. The\nEverclear song \xe2\x80\x9cAM Radio,\xe2\x80\x9d released in 2000, pays homage to KHJ\nand even includes a KHJ jingle at the beginning. KHJ was a\n\n80\n\n\x0claunching pad for many present-day personalities, including Rick\nDees, Shadoe Stevens, and Charlie Tuna.\nDon Steele was one of the most important personalities behind the\nboss sound, and he is considered to have been one of the greatest\npersonalities in the history of L.A. radio. To really understand Steele\xe2\x80\x99s\nboss-jock style, you need to listen to tapes of his radio shows from\nthe early 70s. To say that he was extremely energetic is putting it\nmildly. His patter commonly included rapid-fire nonsensical rhymes\nand frequent outbursts of \xe2\x80\x9cYeah, baby!\xe2\x80\x9d Steele died in 1997 at age 61\nof lung cancer.\nDoctrinal Wiggle Room\nOne way to think about the elements of a negligence case is that they\nare the law\xe2\x80\x99s way of providing an analytical structure that will pare\ndown the universe of possible negligence matters into a subset of\ncases where awarding compensation is in tune with our basic\nintuitions of fairness. But when you try to construct simply stated\nrules that will both correspond with a sense of justice and work in\nany context, you run into the inevitable need for wiggle room. In tort\nlaw, the elements of duty of care and proximate causation do the\nmost to provide that wiggle room, with duty of care being primarily\nthe domain of judge, and proximate causation being generally the\nprovince of the jury.\nThe duty of care can be defined as an obligation for people to\nexercise reasonable care to avoid foreseeable harm to others. It is a\nfrustratingly fuzzy definition. So, if you feel like you are having a hard\ntime understanding the concept of duty, do not worry. It probably\njust means that you are reading closely and thinking deeply. The dutyof-care standard is vague out of necessity.\nThe definition of the duty of care is probably less important than the\nway it is employed by courts. Justice Mosk describes the role of the\nduty of care with considerable candor when he says, \xe2\x80\x9cIt is the court\xe2\x80\x99s\n\xe2\x80\x98expression of the sum total of those considerations of policy which\nlead the law to say that the particular plaintiff is entitled to\nprotection.\xe2\x80\x99\xe2\x80\x9d\n\n81\n\n\x0cDuty of Care in Entertainment Industry Cases\nWeirum v. RKO is frequently cited in negligence cases where the\nentertainment media is blamed for death or injury. In other cases,\nhowever, plaintiffs have not tended to fare as well as the Weirum\nfamily. For example, in McCollum v. CBS, Inc., 202 Cal.App.3d 989\n(1988), a 19-year-old killed himself with a gun after listening to the\nOzzy Osbourne song, \xe2\x80\x9cSuicide Solution.\xe2\x80\x9d The song includes the\nlyrics \xe2\x80\x9cSuicide is the only way out\xe2\x80\x9d and \xe2\x80\x9cGet the gun and try it.\nShoot, shoot, shoot \xe2\x80\xa6 \xe2\x80\x9d The California Court of Appeals rejected\nthe plaintiffs\xe2\x80\x99 attempt to use Weirum v. RKO to show a duty of care.\nWhile acknowledging Weirum\xe2\x80\x99s broad language, the court found the\ncase to be of limited applicability, concluding that while the accident\nin Weirum was foreseeable, the Osbourne fan\xe2\x80\x99s suicide was not.\nThe court also noted the separation in time involved in recorded\nmusic versus live radio: \xe2\x80\x9cOsbourne\xe2\x80\x99s music and lyrics had been\nrecorded and produced years before. There was not a \xe2\x80\x98real time\xe2\x80\x99\nurging of listeners to act in a particular manner. There was no\ndynamic interaction with, or live importuning of, particular listeners.\xe2\x80\x9d\nEmphasizing the policy implications of their decision, the court\nadded, \xe2\x80\x9c[I]t is simply not acceptable to a free and democratic society\nto impose a duty upon performing artists to limit and restrict their\ncreativity in order to avoid the dissemination of ideas in artistic\nspeech which may adversely affect emotionally troubled individuals.\nSuch a burden would quickly have the effect of reducing and limiting\nartistic expression to only the broadest standard of taste and\nacceptance and the lowest level of offense, provocation and\ncontroversy.\xe2\x80\x9d\n\nProblem: WZX Cash Patrol\nSuppose you are an attorney for radio station WZX. The station is\nconsidering staging a \xe2\x80\x9cCash Patrol\xe2\x80\x9d contest in which a disc jockey\nwill drive around the city in an unmarked vehicle looking for cars\nwith a WZX bumper sticker. When the disc jockey has found such a\ncar, the disc jockey will go on the air via a remote hookup, describe\nthe car she or he is following, and ask that car to pull over to receive\na $1,000 cash prize. How would you advise WZX on its liability risk?\n\n82\n\n\x0cShould they do the contest or pull the plug? Does it matter that\nWZX\xe2\x80\x99s sister station in another city tried the promotion and it\nresulted in a ratings spike that substantially increased station\nrevenues?\nCase: Kubert v. Colonna\nThis case explores the duty of care in the context of texting while\ndriving, a leading-edge area in negligence law.\n\nKubert v. Colonna\nSuperior Court of New Jersey, Appellate Division\nAugust 27, 2013\n__ A.3d __, 2013 WL 4512313 Linda KUBERT and David\nKubert, Plaintiffs\xe2\x80\x93Appellants, v. Kyle BEST, Susan R. Best,\nExecutrix of the Estate of Nickolas J. Best, Deceased,\nDefendants, and Shannon Colonna, Defendant\xe2\x80\x93Respondent.\nBefore Judges ASHRAFI, ESPINOSA and GUADAGNO.\nEspinosa, J.A.D., filed a concurring opinion, not reproduced\nhere.\nJudge VICTOR ASHRAFI:\nPlaintiffs Linda and David Kubert were grievously injured by an\neighteen-year-old driver who was texting while driving and\ncrossed the center-line of the road. Their claims for\ncompensation from the young driver have been settled and are\nno longer part of this lawsuit. Plaintiffs appeal the trial court\xe2\x80\x99s\ndismissal of their claims against the driver\xe2\x80\x99s seventeen-year-old\nfriend who was texting the driver much of the day and sent a\ntext message to him immediately before the accident.~\nWe must determine as a matter of civil common law whether\none who is texting from a location remote from the driver of a\nmotor vehicle can be liable to persons injured because the driver\nwas distracted by the text. We hold that the sender of a text\nmessage can potentially be liable if an accident is caused by\ntexting, but only if the sender knew or had special reason to\nknow that the recipient would view the text while driving and\nthus be distracted.\n\n83\n\n\x0cIn this appeal, we must also decide whether plaintiffs have\nshown sufficient evidence to defeat summary judgment in favor\nof the remote texter. We conclude they have not. We affirm the\ntrial court\xe2\x80\x99s order dismissing plaintiffs\xe2\x80\x99 complaint against the\nsender of the text messages, but we do not adopt the trial\ncourt\xe2\x80\x99s reasoning that a remote texter does not have a legal duty\nto avoid sending text messages to one who is driving.\nI.\nThe Kuberts\xe2\x80\x99 claims against defendant Shannon Colonna, the\nteenage sender of the texts, were never heard by a jury. Since\nthis appeal comes to us from summary judgment in favor of\nColonna, we view all the evidence and reasonable inferences\nthat can be drawn from the evidence favorably to plaintiffs, the\nKuberts.\nOn the afternoon of September 21, 2009, David Kubert was\nriding his motorcycle, with his wife, Linda Kubert, riding as a\npassenger. As they came south around a curve on Hurd Street in\nMine Hill Township, a pick-up truck being driven north by\neighteen-year-old Kyle Best crossed the double center line of the\nroadway into their lane of travel. David Kubert attempted to\nevade the pick-up truck but could not. The front driver\xe2\x80\x99s side of\nthe truck struck the Kuberts and their motorcycle. The collision\nsevered, or nearly severed, David\xe2\x80\x99s left leg. It shattered Linda\xe2\x80\x99s\nleft leg, leaving her fractured thighbone protruding out of the\nskin as she lay injured in the road.\nBest stopped his truck, saw the severity of the injuries, and\ncalled 911. The time of the 911 call was 17:49:15, that is, fifteen\nseconds after 5:49 p.m. Best, a volunteer fireman, aided the\nKuberts to the best of his ability until the police and emergency\nmedical responders arrived. Medical treatment could not save\neither victim\xe2\x80\x99s leg. Both lost their left legs as a result of the\naccident.\nAfter the Kuberts filed this lawsuit, their attorney developed\nevidence to prove Best\xe2\x80\x99s activities on the day of the accident. In\nSeptember 2009, Best and Colonna were seeing each other\nsocially but not exclusively; they were not boyfriend and\n\n84\n\n\x0cgirlfriend. Nevertheless, they texted each other many times each\nday. Best\xe2\x80\x99s cell phone record showed that he and Colonna\ntexted each other sixty-two times on the day of the accident,\nabout an equal number of texts originating from each. They\naveraged almost fourteen texts per hour for the four-and-a-halfhour, non-consecutive time-span they were in telephone contact\non the day of the accident.\nThe telephone record also showed that, in a period of less than\ntwelve hours on that day, Best had sent or received 180 text\nmessages. In her deposition, Colonna acknowledged that it was\nher habit also to text more than 100 times per day. She said:\n\xe2\x80\x9cI\xe2\x80\x99m a young teenager. That\xe2\x80\x99s what we do.\xe2\x80\x9d She also testified\nthat she generally did not pay attention to whether the recipient\nof her texts was driving a car at the time or not. She thought it\nwas \xe2\x80\x9cweird\xe2\x80\x9d that plaintiffs\xe2\x80\x99 attorney was trying to pin her down\non whether she knew that Best was driving when she texted\nhim.\nDuring the day of the accident, a Monday, Best and Colonna\nexchanged many text messages in the morning, had lunch\ntogether at his house, and watched television until he had to go\nto his part-time job at a YMCA in Randolph Township. \xef\x81\x81Our\nrecord does not indicate why Colonna was not in school that\nday. Best was a student at a community college and also worked\npart-time.\xef\x81\x80 The time record from the YMCA showed that Best\npunched in on a time clock at 3:35 p.m. At 3:49 p.m., Colonna\ntexted him, but he did not respond at that time. He punched out\nof work at 5:41. A minute later, at 5:42, Best sent a text to\nColonna. He then exchanged three text messages with his\nfather, testifying at his deposition that he did so while in the\nparking lot of the YMCA and that the purpose was to notify his\nparents he was coming home to eat dinner with them.\nThe accident occurred about four or five minutes after Best\nbegan driving home from the YMCA. At his deposition, Best\ntestified that he did not text while driving\xe2\x80\x94meaning that it was\nnot his habit to text when he was driving. He testified falsely at\nfirst that he did not text when he began his drive home from the\nYMCA on the day of the accident. But he was soon confronted\n\n85\n\n\x0cwith the telephone records, which he had seen earlier, and then\nhe admitted that he and Colonna exchanged text messages\nwithin minutes of his beginning to drive.\nThe sequence of texts between Best and Colonna in the minutes\nbefore and after the accident is shown on the following chart.~\nSent\n\nSender\n\nReceived Recipient\n\n5:42:03\n\nBest\n\n5:42:12\n\nColonna\n\n5:47:49\n\nBest\n\n5:47:56\n\nColonna\n\n5:48:14\n\nColonna 5:48:23\n\nBest\n\n5:48:58\n\nBest\n\nColonna\n\n(5:49:15\n\n911 Call)\n\n5:49:20\n\nColonna 5:55:30\n\nBest\n\n5:54:08\n\nColonna 5:55:33\n\nBest\n\n5:49:07\n\nThis sequence indicates the precise time of the accident \xe2\x80\x93 within\nseconds of 5:48:58. Seventeen seconds elapsed from Best\xe2\x80\x99s\nsending a text to Colonna and the time of the 911 call after the\naccident. Those seconds had to include Best\xe2\x80\x99s stopping his\nvehicle, observing the injuries to the Kuberts, and dialing 911. It\nappears, therefore, that Best collided with the Kuberts\xe2\x80\x99\nmotorcycle immediately after sending a text at 5:48:58. It can be\ninferred that he sent that text in response to Colonna\xe2\x80\x99s text to\nhim that he received twenty-five seconds earlier. Finally, it\nappears that Best initiated the texting with Colonna as he was\nabout to and after he began to drive home.\nMissing from the evidence is the content of the text messages.\nPlaintiffs were not able to obtain the messages Best and\nColonna actually exchanged, and Best and Colonna did not\nprovide that information in their depositions. The excerpts of\nBest\xe2\x80\x99s deposition that have been provided to us for this appeal\ndo not include questions and answers about the content of his\ntext messages with Colonna late that afternoon. When\nColonna\xe2\x80\x99s deposition was taken sixteen months after the\naccident, she testified she did not remember her texts that day.\nDespite the fact that Best did not respond to her last two texts\n\n86\n\n\x0cat 5:55 p.m., and despite her learning on the same evening that\nhe had been involved in a serious accident minutes before he\nfailed to respond to her, Colonna testified that she had \xe2\x80\x9cno\nidea\xe2\x80\x9d what the contents of her text messages with Best were that\nafternoon.\nAfter plaintiffs learned of Colonna\xe2\x80\x99s involvement and added her\nto their lawsuit, she moved for summary judgment. Her attorney\nargued to the trial court that Colonna had no liability for the\naccident because she was not present at the scene, had no legal\nduty to avoid sending a text to Best when he was driving, and\nfurther, that she did not know he was driving. The trial judge\nreviewed the evidence and the arguments of the attorneys,\nconducted independent research on the law, and ultimately\nconcluded that Colonna did not have a legal duty to avoid\nsending a text message to Best, even if she knew he was driving.\nThe judge dismissed plaintiffs\xe2\x80\x99 claims against Colonna.\nII.\nOn appeal before us, plaintiffs argue that Colonna is potentially\nliable to them if a jury finds that her texting was a proximate\ncause of the accident. They argue that she can be found liable\nbecause she aided and abetted Best\xe2\x80\x99s unlawful texting while he\nwas driving, and also because she had an independent duty to\navoid texting to a person who was driving a motor vehicle. They\nclaim that a jury can infer from the evidence that Colonna knew\nBest was driving home from his YMCA job when she texted\nhim at 5:48:14, less than a minute before the accident.\nWe are not persuaded by plaintiffs\xe2\x80\x99 arguments as stated, but we\nalso reject defendant\xe2\x80\x99s argument that a sender of text messages\nnever has a duty to avoid texting to a person driving a vehicle.\nWe conclude that a person sending text messages has a duty not\nto text someone who is driving if the texter knows, or has\nspecial reason to know, the recipient will view the text while\ndriving. But we also conclude that plaintiffs have not presented\nsufficient evidence to prove that Colonna had such knowledge\nwhen she texted Best immediately before the accident.~\n\n87\n\n\x0cWe first address generally the nature of a duty imposed by the\ncommon law.\nIn a lawsuit alleging that a defendant is liable to a plaintiff\nbecause of the defendant\xe2\x80\x99s negligent conduct, the plaintiff must\nprove four things: (1) that the defendant owed a duty of care to\nthe plaintiff, (2) that the defendant breached that duty, (3) that\nthe breach was a proximate cause of the plaintiff\xe2\x80\x99s injuries, and\n(4) that the plaintiff suffered actual compensable injuries as a\nresult. The plaintiff bears the burden of proving each of these\nfour \xe2\x80\x9ccore elements\xe2\x80\x9d of a negligence claim.\nBecause plaintiffs in this case sued Best and eventually settled\ntheir claims against him, it is important to note that the law\nrecognizes that more than one defendant can be the proximate\ncause of and therefore liable for causing injury. Whether a duty\nexists to prevent harm is not controlled by whether another\nperson also has a duty, even a greater duty, to prevent the same\nharm.~\n\xe2\x80\x9cA duty is an obligation imposed by law requiring one party \xe2\x80\x98to\nconform to a particular standard of conduct toward another.\xe2\x80\x99\xe2\x80\x9d\nAcuna v. Turkish, 192 N.J. 399, 413 (2007) (quoting Prosser &\nKeeton on Torts: Lawyer\xe2\x80\x99s Edition \xc2\xa7 53, at 356 (5th ed.1984)); see\nalso Restatement (Second) of Torts \xc2\xa7 4 (1965) (\xe2\x80\x9cThe word \xe2\x80\x98duty\xe2\x80\x99 ...\ndenote[s] the fact that the actor is required to conduct himself in\na particular manner at the risk that if he does not do so he\nbecomes subject to liability to another to whom the duty is\nowed for any injury sustained by such other, of which that\nactor\xe2\x80\x99s conduct is a legal cause.\xe2\x80\x9d).\nWhether a duty of care exists \xe2\x80\x9cis generally a matter for a court to\ndecide,\xe2\x80\x9d not a jury. The \xe2\x80\x9cfundamental question [is] whether the\nplaintiff\xe2\x80\x99s interests are entitled to legal protection against the\ndefendant\xe2\x80\x99s conduct.\xe2\x80\x9d J.S. v. R.T.H., 155 N.J. 330, 338 (1998).\nThe New Jersey Supreme Court recently analyzed the common\nlaw process by which a court decides whether a legal duty of\ncare exists to prevent injury to another. Estate of Desir ex. rel.\nEstiverne v. Vertus, \xe2\x80\x93\xe2\x80\x93\xe2\x80\x93 N.J. \xe2\x80\x93\xe2\x80\x93\xe2\x80\x93\xe2\x80\x93 (2013). The Court reviewed\nprecedents developed over the years in our courts and restated\n\n88\n\n\x0cthe \xe2\x80\x9cmost cogent explanation of the principles that guide [the\ncourts] in determining whether to recognize the existence of a\nduty of care\xe2\x80\x9d:\n\xe2\x80\x9c[w]hether a person owes a duty of reasonable\ncare toward another turns on whether the\nimposition of such a duty satisfies an abiding\nsense of basic fairness under all of the\ncircumstances in light of considerations of\npublic policy. That inquiry involves identifying,\nweighing, and balancing several factors\xe2\x80\x94the\nrelationship of the parties, the nature of the\nattendant risk, the opportunity and ability to\nexercise care, and the public interest in the\nproposed solution.... The analysis is both very\nfact-specific and principled; it must lead to\nsolutions that properly and fairly resolve the\nspecific case and generate intelligible and\nsensible rules to govern future conduct.\xe2\x80\x9d\nThe Court emphasized that the law must take into account\n\xe2\x80\x9cgenerally applicable rules to govern societal behaviors,\xe2\x80\x9d not just\nan \xe2\x80\x9coutcome that reaches only the particular circumstances and\nparties before the Court today[.]\xe2\x80\x9d The Court described all of\nthese considerations as \xe2\x80\x9ca full duty analysis\xe2\x80\x9d to determine\nwhether the law recognizes a duty of care in the particular\ncircumstances of a negligence case.~\nPlaintiffs argue~ that Colonna independently had a duty not to\nsend texts to a person who she knew was driving a vehicle. They\nhave not cited a case in New Jersey or any other jurisdiction that\nso holds, and we have not found one in our own research.\nThe trial court cited one case that involved distraction of the\ndriver by text messages, Durkee v. C.H. Robinson Worldwide,\nInc., 765 F.Supp.2d 742 (W.D.N.C.2011). In Durkee, the plaintiffs\nwere injured when a tractor-trailer rear-ended their car. In\naddition to the truck driver and other defendants, they sued the\nmanufacturer of a text-messaging device that was installed in the\ntractor-trailer. They claimed the device was designed defectively\nbecause it could be viewed while the truck driver was driving\nand it distracted the driver immediately before the accident that\n\n89\n\n\x0cinjured them. The federal court dismissed the plaintiffs\xe2\x80\x99 claims\nagainst the manufacturer of the device, holding that it was the\ndriver\xe2\x80\x99s duty to avoid distraction. Since other normal devices in\na motor vehicle could distract the driver, such as a radio or GPS\ndevice, attributing a design defect to the product would have too\nfar-reaching an effect. It would allow product liability lawsuits\nagainst manufacturers of ordinary devices found in many motor\nvehicles and hold them liable for a driver\xe2\x80\x99s careless use of the\nproduct.\nSimilarly, at least two state courts have declined to hold\nmanufacturers of cell phones liable for failing to design their\nproducts to prevent harm caused when drivers are distracted by\nuse of the phones.\nWe view Durkee and these state cases as appropriately leading to\nthe conclusion that one should not be held liable for sending a\nwireless transmission simply because some recipient might use\nhis cell phone unlawfully and become distracted while driving.\nWhether by text, email, Twitter, or other means, the mere\nsending of a wireless transmission that unidentified drivers may\nreceive and view is not enough to impose liability.\nHaving considered the competing arguments of the parties, we\nalso conclude that liability is not established by showing only\nthat the sender directed the message to a specific identified\nrecipient, even if the sender knew the recipient was then driving.\nWe conclude that additional proofs are necessary to establish\nthe sender\xe2\x80\x99s liability, namely, that the sender also knew or had\nspecial reason to know that the driver would read the message\nwhile driving and would thus be distracted from attending to the\nroad and the operation of the vehicle. We reach these\nconclusions by examining the law in analogous circumstances\nand applying \xe2\x80\x9ca full duty analysis\xe2\x80\x9d as discussed in Desir,\nsupra, slip op. at 24.\nA section of the Restatement that the parties have not referenced\nprovides:\nAn act is negligent if the actor intends it to\naffect, or realizes or should realize that it is\nlikely to affect, the conduct of another, a third\n\n90\n\n\x0cperson, or an animal in such a manner as to\ncreate an unreasonable risk of harm to the\nother.\n[Restatement \xc2\xa7 303.]\nTo illustrate this concept, the Restatement provides the\nfollowing hypothetical example:\nA is driving through heavy traffic. B, a\npassenger in the back seat, suddenly and\nunnecessarily calls out to A, diverting his\nattention, thus causing him to run into the car\nof C. B is negligent toward C.\n[Restatement \xc2\xa7 303, comment d, illustration 3.]\nWe have recognized that a passenger who distracts a driver can\nbe held liable for the passenger\xe2\x80\x99s own negligence in causing an\naccident. In other words, a passenger in a motor vehicle has a\nduty \xe2\x80\x9cnot to interfere with the driver\xe2\x80\x99s operations.\xe2\x80\x9d\nOne form of interference with a driver might be obstructing his\nview or otherwise diverting his attention from the tasks of\ndriving. It would be reasonable to hold a passenger liable for\ncausing an accident if the passenger obstructed the driver\xe2\x80\x99s view\nof the road, for example, by suddenly holding a piece of paper\nin front of the driver\xe2\x80\x99s face and urging the driver to look at what\nis written or depicted on the paper. The same can be said if a\npassenger were to hold a cell phone with a text message or a\npicture in front of the driver\xe2\x80\x99s eyes. Such distracting conduct\nwould be direct, independent negligence of the passenger~.\nHere, of course, Colonna did not hold Best\xe2\x80\x99s cell phone in front\nof his eyes and physically distract his view of the road.\nThe more relevant question is whether a passenger can be liable\nnot for actually obstructing the driver\xe2\x80\x99s view but only for urging\nthe driver to take his eyes off the road and to look at a\ndistracting object. We think the answer is yes, but only if the\npassenger\xe2\x80\x99s conduct is unreasonably risky because the passenger\nknows, or has special reason to know, that the driver will in fact\nbe distracted and drive negligently as a result of the passenger\xe2\x80\x99s\nactions.\n\n91\n\n\x0cIt is the primary responsibility of the driver to obey the law and\nto avoid distractions. Imposing a duty on a passenger to avoid\nany conduct that might theoretically distract the driver would\nopen too broad a swath of potential liability in ordinary and\ninnocent circumstances. As the Supreme Court stated in Desir,\ncourts must be careful not to \xe2\x80\x9ccreate a broadly worded duty and\n... run the risk of unintentionally imposing liability in situations\nfar beyond the parameters we now face.\xe2\x80\x9d \xe2\x80\x9cThe scope of a duty\nis determined under \xe2\x80\x98the totality of the circumstances,\xe2\x80\x99 and must\nbe \xe2\x80\x98reasonable\xe2\x80\x99 under those circumstances.\xe2\x80\x9d J.S., 155 N.J. at 339.\n\xe2\x80\x9cForeseeability of the risk of harm is the foundational element\nin the determination of whether a duty exists.\xe2\x80\x9d Id. at 337.\n\xe2\x80\x9cForeseeability, in turn, is based on the defendant\xe2\x80\x99s knowledge\nof the risk of injury.\xe2\x80\x9d\nIt is foreseeable that a driver who is actually distracted by a text\nmessage might cause an accident and serious injuries or death,\nbut it is not generally foreseeable that every recipient of a text\nmessage who is driving will neglect his obligation to obey the\nlaw and will be distracted by the text. Like a call to voicemail or\nan answering machine, the sending of a text message by itself\ndoes not demand that the recipient take any action. The sender\nshould be able to assume that the recipient will read a text\nmessage only when it is safe and legal to do so, that is, when not\noperating a vehicle. However, if the sender knows that the\nrecipient is both driving and will read the text immediately, then\nthe sender has taken a foreseeable risk in sending a text at that\ntime. The sender has knowingly engaged in distracting conduct,\nand it is not unfair also to hold the sender responsible for the\ndistraction.\n\xe2\x80\x9cWhen the risk of harm is that posed by third persons, a\nplaintiff may be required to prove that defendant was in a\nposition to \xe2\x80\x98know or have reason to know, from past\nexperience, that there [was] a likelihood of conduct on the part\nof [a] third person[]\xe2\x80\x99 that was \xe2\x80\x98likely to endanger the safety\xe2\x80\x99 of\nanother.\xe2\x80\x9d J.S., 155 N.J. at 338. In J.S., the Court used the phrase\n\xe2\x80\x9cspecial reason to know\xe2\x80\x9d in reference to a personal relationship\nor prior experience that put a defendant \xe2\x80\x9cin a position\xe2\x80\x9d to\n\n92\n\n\x0c\xe2\x80\x9cdiscover the risk of harm.\xe2\x80\x9d Consequently, when the sender\n\xe2\x80\x9chas actual knowledge or special reason to know,\xe2\x80\x9d from prior\ntexting experience or otherwise, that the recipient will view the\ntext while driving, the sender has breached a duty of care to the\npublic by distracting the driver.~\nWhen the sender knows that the text will reach the driver while\noperating a vehicle, the sender has a relationship to the public\nwho use the roadways similar to that of a passenger physically\npresent in the vehicle. As we have stated, a passenger must\navoid distracting the driver. The remote sender of a text who\nknows the recipient is then driving must do the same.\nWhen the sender texts a person who is then driving, knowing\nthat the driver will immediately view the text, the sender has\ndisregarded the attendant and foreseeable risk of harm to the\npublic. The risk is substantial, as evidenced by the dire\nconsequences in this and similar cases where texting drivers\nhave caused severe injuries or death.\nWith respect to the sender\'s opportunity to exercise care, \xe2\x80\x9c[a]\ncorresponding consideration is the practicality of preventing [the\nrisk].\xe2\x80\x9d We must take into account \xe2\x80\x9chow establishing this duty\nwill work in practice.\xe2\x80\x9d In imposing an independent duty of the\npassengers in Podias, we noted the \xe2\x80\x9crelative ease\xe2\x80\x9d with which\nthey could have used their cell phones to summon help for the\ninjured motorcyclist. It is just as easy for the sender of a text\nmessage to avoid texting to a driver who the sender knows will\nimmediately view the text and thus be distracted from driving\nsafely. \xe2\x80\x9cWhen the defendant\xe2\x80\x99s actions are \xe2\x80\x98relatively easily\ncorrected\xe2\x80\x99 and the harm sought to be presented is \xe2\x80\x98serious,\xe2\x80\x99 it is\nfair to impose a duty.\xe2\x80\x9d.\nAt the same time, \xe2\x80\x9c[c]onsiderations of fairness implicate the\nscope as well as the existence of a duty.\xe2\x80\x9d. Limiting the duty to\npersons who have such knowledge will not require that the\nsender of a text predict in every instance how a recipient will act.\nIt will not interfere with use of text messaging to a driver that\none expects will obey the law. The limited duty we impose will\nnot hold texters liable for the unlawful conduct of others, but it\nwill hold them liable for their own negligence when they have\n\n93\n\n\x0cknowingly disregarded a foreseeable risk of serious injury to\nothers.\nFinally, the public interest requires fair measures to deter\ndangerous texting while driving. Just as the public has learned\nthe dangers of drinking and driving through a sustained\ncampaign and enhanced criminal penalties and civil liability, the\nhazards of texting when on the road, or to someone who is on\nthe road, may become part of the public consciousness when\nthe liability of those involved matches the seriousness of the\nharm.~\nTo summarize our conclusions, we do not hold that someone\nwho texts to a person driving is liable for that person\xe2\x80\x99s negligent\nactions; the driver bears responsibility for obeying the law and\nmaintaining safe control of the vehicle. We hold that, when a\ntexter knows or has special reason to know that the intended\nrecipient is driving and is likely to read the text message while\ndriving, the texter has a duty to users of the public roads to\nrefrain from sending the driver a text at that time.~\nIn this case, plaintiffs developed evidence pertaining to the\nhabits of Best and Colonna in texting each other repeatedly.\nThey also established that the day of the accident was not an\nunusual texting day for the two. But they failed to develop\nevidence tending to prove that Colonna not only knew that Best\nwas driving when she texted him at 5:48:14 p.m. but that she\nknew he would violate the law and immediately view and\nrespond to her text.\nAs our recitation of the facts shows, Colonna sent only one text\nwhile Best was driving. The contents of that text are unknown.\nNo testimony established that she was aware Best would violate\nthe law and read her text as he was driving, or that he would\nrespond immediately. The evidence of multiple texting at other\ntimes when Best was not driving did not prove that Colonna\nbreached the limited duty we have described.\nBecause the necessary evidence to prove breach of the remote\ntexter\xe2\x80\x99s duty is absent on this record, summary judgment was\nproperly granted dismissing plaintiffs\xe2\x80\x99 claims against Colonna.\n\n94\n\n\x0cAffirmed.\n\nThe Duty of Care and Criminal Acts\nOne thorny question regarding the duty of care is whether a duty of\ncare will be present in the circumstance in which a person is\npressured to accede to the demands of a criminal in order to prevent\nharm to an innocent person. Few courts have considered this\nquestion, but a majority have concluded that there is no duty.\nCase: Boyd v. Racine Currency Exchange\nThe following case considers whether there is a duty to accede to\ncriminal demands. While you read, ask yourself whether you find the\ncourt\xe2\x80\x99s use of precedent persuasive.\n\nBoyd v. Racine Currency Exchange, Inc.\nSupreme Court of Illinois\nNovember 30, 1973\n56 Ill.2d 95. Piney BOYD, Appellee, v. RACINE CURRENCY\nEXCHANGE, INC., et al., Appellants. No. 45557.\nJustice HOWARD C. RYAN:\nThe plaintiff\xe2\x80\x99s husband, John Boyd, was present in the Racine\nCurrency Exchange on April 27, 1970, for the purpose of\ntransacting business. While he was there, an armed robber\nentered and placed a pistol to his head and told Blanche\nMurphy, the teller, to give him the money or open the door or\nhe would kill Boyd. Blanche Murphy was at that time located\nbehind a bulletproof glass window and partition. She did not\ncomply with the demand but instead fell to the floor. The\nrobber then shot Boyd in the head and killed him.\nThis is a wrongful death action against Racine Currency\nExchange and Blanche Murphy to recover damages for the\ndeath of plaintiff\xe2\x80\x99s decedent~. Plaintiff\xe2\x80\x99s complaint was\ndismissed on motion of the defendants by the circuit court of\nCook County for failure to state a cause of action. The appellate\ncourt reversed and remanded the cause to the circuit court.~\n\n95\n\n\x0cPlaintiff alleges several acts of negligence by the Racine\nCurrency Exchange and Blanche Murphy. Count I alleges that\nthe defendants owed Boyd, a business invitee, the duty to\nexercise reasonable care for his safety and that they breached\nthis duty when they refused to accede to the robber\xe2\x80\x99s demands.\nCount I also alleges that defendants acted negligently in\nadopting a policy, knowledge of which was deliberately withheld\nfrom their customers, according to which their money was to be\nprotected at all costs, including the safety and the lives of the\ncustomers.\nIn count II the plaintiff alleges that the Currency Exchange was\nnegligent in failing to instruct its employees regarding the course\nof conduct which would be necessary under the circumstances\nof this case to prevent exposing customers to unreasonable risks\nof harm. Count II further alleges that the Currency Exchange\nwas negligent in employing a person who was incompetent to\nfulfill the responsibilities of her position. Negligence is also\nalleged in the failure to furnish guidelines of how to act in case\nof armed robbery, and alternatively that it was negligent in\nfailing to disclose to its customers its policy of preserving its\nmonies at all costs.\nIt is fundamental that there can be no recovery in tort for\nnegligence unless the defendant has breached a duty owed to the\nplaintiff. The plaintiff contends that a business proprietor has a\nduty to his invitees to honor criminal demands when failure to\ndo so would subject the invitees to an unreasonable risk. It is\nclaimed that this duty arises from the relationship between a\nlandowner and a business invitee.\nIt is the general rule in Illinois and other jurisdictions that a\nperson has no duty to anticipate the criminal acts of third\nparties. An exception to this rule exists, however, when criminal\nacts should reasonably have been foreseen. (Neering v. Illinois\nCentral R.R. Co., 383 Ill. 366.) Neering, and many of the other\ncases cited by the parties, involved the question of whether facts\nexisted which should have alerted the defendant to a risk of\nharm to his invitees by criminals. These cases are of little help\nhere since our case presents a question of whether the defendant\n\n96\n\n\x0cwho is faced with an imminent criminal demand incurs liability\nby resisting, not whether he is negligent in failing to take\nprecautions against a possible future crime.\nAlso of little assistance in Sinn v. Farmers Deposit Savings Bank,\n300 Pa. 85, 150 A. 163. In that case recovery for the plaintiff,\nwho was injured when a bank robber detonated dynamite within\nthe bank, was upheld. The plaintiff alleged that had the bank\nwarned him that a bank robbery was in progress, as they had the\nopportunity to do, he could have escaped unharmed. The\nplaintiff\xe2\x80\x99s intestate in our case, however, was obviously on\nnotice that a robbery was in progress, and plaintiff does not\npredicate her claim on the absence of warning.\nThe Restatement of Torts does not consider the specific issue\nbefore us. The Restatement does set forth the principle that a\nperson defending himself or his property may be liable for harm\nto third persons if his acts create an unreasonable risk of harm\nto such persons. (Restatement (Second) of Torts, secs. 75 and 83.)\nHowever, these sections refer to situations in which the harm is\ncaused directly by a person resisting, not by the criminal such as\nwhere a shot fired at a criminal hits a third person.\nWe are aware of only two cases which have discussed issues\nsimilar to the one with which we are faced here \xe2\x80\x93 whether a\nperson injured during the resistance to a crime is entitled to\nrecover from the person who offered the resistance. In Genovay\nv. Fox, 50 N.J.Super. 538, a plaintiff who was shot and wounded\nduring the robbery of a bowling alley bar claimed that the\nproprietor was liable because instead of complying with the\ncriminal demand he stalled the robber and induced resistance by\nthose patrons present. The plaintiff was shot when several\npatrons attempted to disarm the bandit. The court there\nbalanced the interest of the proprietor in resisting the robbery\nagainst the interest of the patrons in not being exposed to bodily\nharm and held that the complaint stated a cause of action. The\ncourt stated: \xe2\x80\x98The value of human life and of the interest of the\nindividual in freedom from serious bodily injury weigh\nsufficiently heavily in the judicial scales to preclude a\ndetermination as a matter of law that they may be disregarded\n\n97\n\n\x0csimply because the defendant\xe2\x80\x99s activity serves to frustrate the\nsuccessful accomplishment of a felonious act and to save his\nproperty from loss.\xe2\x80\x99 The court held that under the\ncircumstances it was for the jury to determine whether\ndefendant\xe2\x80\x99s conduct was reasonable.\nIn Noll v. Marian, 347 Pa. 213, the court held that no cause of\naction existed. The plaintiff was present in a bank when an\narmed robber entered and announced \xe2\x80\x9cIt\xe2\x80\x99s a holdup. Nobody\nshould move.\xe2\x80\x9d The bank teller, instead of obeying this order,\ndropped down out of sight. The gunman then opened fire and\nwounded the plaintiff. The court held that even though the\nplaintiff might not have been injured if the teller had stood still,\nthe teller did not act negligently in attempting to save himself\nand his employer\xe2\x80\x99s property.\nIn Lance v. Senior, 36 Ill.2d 516, this court noted that\nforeseeability alone does not result in the imposition of a duty.\n\xe2\x80\x98The likelihood of injury, the magnitude of the burden of\nguarding against it and the consequences of placing the burden\nupon the defendant, must also be taken into account.\xe2\x80\x99\nIn the present case an analysis of those factors leads to the\nconclusion that no duty to accede to criminal demands should\nbe imposed. The presence of guards and protective devices do\nnot prevent armed robberies. The presence of armed guards\nwould not have prevented the criminal in this case from either\nseizing the deceased and using him as a hostage or putting the\ngun to his head. Apparently nothing would have prevented the\ninjury to the decedent except a complete acquiescence in the\nrobber\xe2\x80\x99s demand, and whether acquiescence would have spared\nthe decedent is, at best, speculative. We must also note that the\ndemand of the criminal in this case was to give him the money\nor open the door. A compliance with this alternate demand\nwould have, in turn, exposed the defendant Murphy to danger\nof bodily harm.\nIf a duty is imposed on the Currency Exchange to comply with\nsuch a demand the same would only inure to the benefit of the\ncriminal without affording the desired degree of assurance that\ncompliance with the demand will reduce the risk to the invitee.\n\n98\n\n\x0cIn fact, the consequence of such a holding may well be to\nencourage the use of hostages for such purposes, thereby\ngenerally increasing the risk to invitees upon business premises.\nIf a duty to comply exists, the occupier of the premises would\nhave little choice in determining whether to comply with the\ncriminal demand and surrender the money or to refuse the\ndemand and be held liable in a civil action for damages brought\nby or on behalf of the hostage. The existence of this dilemma\nand knowledge of it by those who are disposed to commit such\ncrimes will only grant to them additional leverage to enforce\ntheir criminal demands. The only persons who will clearly\nbenefit from the imposition of such a duty are the criminals. In\nthis particular case the result may appear to be harsh and unjust,\nbut, for the protection of future business invitees, we cannot\nafford to extend to the criminal another weapon in his arsenal.\nFor these reasons we hold that the defendants did not owe to\nthe invitee Boyd a duty to comply with the demand of the\ncriminal.\nAccordingly, the judgment of the appellate court will be\nreversed, and the judgment of the circuit court of Cook County\nwill be affirmed.\nAppellate court reversed; circuit court affirmed.\nJustice JOSEPH H. GOLDENHERSH, dissenting:\nI dissent. The majority opinion fails to take into account the\nprinciples of law clearly enunciated in Restatement (Second) of\nTorts~ and on the basis of pure conjecture concludes that\nnothing that defendant\xe2\x80\x99s employee could have done would have\nsaved the deceased from death or injury. The majority\xe2\x80\x99s polemic\non the subject of the hazards which would be created by an\napplication of established legal principles to this case finds little\nsupport in logic and none whatsoever in the legal authorities.\nThis case comes to us only on the pleadings and I agree with the\nappellate court that \xe2\x80\x9cWhether what defendants did or did not do\nproximately caused the injury that befell plaintiff\xe2\x80\x99s decedent,\nwhether Blanche Murphy had the time so she could, under the\ncircumstances alleged, exercise the kind of judgment expected of\n\n99\n\n\x0ca person of ordinary prudence, were questions of fact which,\nfrom all the evidence, must be decided by a trier of the facts,\njudge or jury.\xe2\x80\x9d I would affirm the judgment of the appellate\ncourt.\n\nQuestions to Ponder About Boyd\nA. Professor James Grimmelmann of New York Law School\ndescribed Boyd this way: \xe2\x80\x9cNot the most tragic case of all time, but\nperhaps the most concisely tragic.\xe2\x80\x9d Do you agree that there is\nsomething briskly heartbreaking about these facts? What role does\nemotion play in your view of the case? How about in the view of the\nmajority and the dissent?\nB. The majority believes that imposing a duty in this situation might\n\xe2\x80\x9cencourage the use of hostages.\xe2\x80\x9d The court reasons as follows: \xe2\x80\x9cIf a\nduty to comply exists, the occupier of the premises would have little\nchoice in determining whether to comply with the criminal demand\nand surrender the money or to refuse the demand and be held liable\nin a civil action for damages brought by or on behalf of the hostage.\nThe existence of this dilemma and knowledge of it by those who are\ndisposed to commit such crimes will only grant to them additional\nleverage to enforce their criminal demands.\xe2\x80\x9d Do you think this is\ntrue? Is it realistic that robbers will learn finer points of tort doctrine\nand then apply that knowledge strategically?\nC. The dissent does not argue that the Racine Currency Exchange\nshould be liable. Note the procedural posture of the case. The\nquestion is whether the complaint should be dismissed for failure to\nstate a cause of action. The dissent argues that the complaint should\nsurvive and that the issue of the bank employee\xe2\x80\x99s responsibility in\nsuch a situation should be put to a jury. If the dissent prevailed and\nthis case had been heard by a jury, what would be your prediction\nabout the verdict?\n\nThe Use of Boyd to Decide Duty in Orrico v. Beverly Bank\nSeveral years later, the Boyd case was cited by a different bank in\nanother wrongful death case. In Orrico v. Beverly Bank, 109 Ill.App.3d\n102 (1982), a mentally disabled man was allowed to withdraw $2,100\n\n100\n\n\x0cfrom his bank account in one-hundred dollar bills, despite the fact\nthat the man\xe2\x80\x99s mother repeatedly expressed to the bank her concern\nfor her son\xe2\x80\x99s safety should he be given such a large amount of cash.\nThe bank at the time was also in receipt of a court order regarding\nthe man\xe2\x80\x99s incompetency, a circumstance under which the bank would\nordinarily freeze the man\xe2\x80\x99s account. After the man was given the cash\nand left the bank, he went to a park where he flashed the stack of\nmoney to people at a softball game. That night, the man was found\ndead, shot in the back of the head, all the money gone from his body.\nA jury in the case awarded $9,500 to be paid by the bank to the\nmother. The bank appealed the verdict, citing Boyd to argue it owed\nno duty to the decedent. The Illinois Court of Appeals held for the\nplaintiff, saying that the bank did indeed owe a duty to the decedent\nbecause of its relationship to him. Boyd, the court said, reflected \xe2\x80\x9ca\nstrong societal interest in not inducing criminal activity by acceding\nto criminal demands, even at the cost of harm to an individual.\xe2\x80\x9d But\nthe court held there was no such interest at stake in the later case.\nThus, the court held that the bank owed the decedent \xe2\x80\x9ca duty not to\nutilize his funds in a manner which would increase the risk of danger\nto him.\xe2\x80\x9d\n\nAffirmative Duties\nIt is well accepted that the general duty of care requires would-be\ndefendants to refrain from actions that unreasonably subject\nforeseeable plaintiffs to a risk of harm. There is, however, no general\nduty to affirmatively engage in actions to prevent harm to plaintiffs.\nStated more plainly, you only have to try to not hurt people. You do\nnot have to try to help them.\nThe distinction is sometimes said to be between \xe2\x80\x9cnonfeasance\xe2\x80\x9d on\nthe one hand and \xe2\x80\x9cmalfeasance\xe2\x80\x9d (a/k/a \xe2\x80\x9cmisfeasance\xe2\x80\x9d) on the other.\nIn this terminology, nonfeasance is doing nothing, while malfeasance\nor misfeasance is doing something harmful. Ordinarily, no legal duty\nis implicated in cases of nonfeasance \xe2\x80\x93 where the would-be defendant\njust stands by and watches harmful events unfold. This is true even,\nfor instance, if there is an easy opportunity to step in and prevent\nmassive loss of life or suffering. On the other the hand, any activity a\n\n101\n\n\x0cperson undertakes must be undertaken in a reasonably careful\nmanner. Thus, malfeasance implicates the duty of care.\nThere are some important exceptions, which are discussed below.\nThese include circumstances where there is a pre-existing special\nrelationship between the plaintiff and defendant, and where the\ndefendant\xe2\x80\x99s own conduct created put the plaintiff in peril.\nThe General Rule: No Affirmative Duty to Help\nThe overarching rule is that the law does not require persons to be\ngood Samaritans and step up to help people in distress. This rule is\noften hard for students to accept. The next two cases demonstrate\nthat even cruel indifference to another\xe2\x80\x99s suffering does not make for\na cause of action.\nCase: Yania v. Bigan\nThis case is a vivid example of the no-affirmative-duty to act rule.\n\nYania v. Bigan\nSupreme Court of Pennsylvania\nNovember 9, 1959\n397 Pa. 316. Widow of Joseph F. Yania, Appellant, v. John E.\nBigan, Appellee. Before JONES, C.J., BELL, JONES, COHEN,\nBOK and McBRIDE, JJ.\nJustice BENJAMIN R. JONES:\nA bizarre and most unusual circumstance provides the\nbackground of this appeal.\nOn September 25, 1957 John E. Bigan was engaged in a coal\nstrip-mining operation in Shade Township, Somerset County.\nOn the property being stripped were large cuts or trenches\ncreated by Bigan when he removed the earthen overburden for\nthe purpose of removing the coal underneath. One cut\ncontained water 8 to 10 feet in depth with side walls or\nembankments 16 to 18 feet in height; at this cut Bigan had\ninstalled a pump to remove the water.\nAt approximately 4 p.m. on that date, Joseph F. Yania, the\noperator of another coal strip-mining operation, and one Boyd\n\n102\n\n\x0cM. Ross went upon Bigan\xe2\x80\x99s property for the purpose of\ndiscussing a business matter with Bigan, and, while there, were\nasked by Bigan to aid him in starting the pump. Ross and Bigan\nentered the cut and stood at the point where the pump was\nlocated. Yania stood at the top of one of the cut\xe2\x80\x99s side walls and\nthen jumped from the side wall \xe2\x80\x93 a height of 16 to 18 feet \xe2\x80\x93 into\nthe water and was drowned.\nYania\xe2\x80\x99s widow, in her own right and on behalf of her three\nchildren, instituted wrongful death and survival actions against\nBigan contending Bigan was responsible for Yania\xe2\x80\x99s death.~\nSince Bigan has chosen to file preliminary objections, in the\nnature of demurrers, every material and relevant fact well\npleaded in the complaint and every inference fairly deducible\ntherefrom are to be taken as true.\nThe complaint avers negligence in the following manner: (1)\n\xe2\x80\x9cThe death by drowning of \xe2\x80\xa6 [Yania] was caused entirely by\nthe acts of [Bigan] \xe2\x80\xa6 in urging, enticing taunting and inveigling\n[Yania] to jump into the water, which [Bigan] knew or ought to\nhave known was of a depth of 8 to 10 feet and dangerous to the\nlife of anyone who would jump therein\xe2\x80\x9d (Emphasis supplied);\n(2) \xe2\x80\xa6 [Bigan] violated his obligations to a business invitee in not\nhaving his premises reasonably safe, and not warning his\nbusiness invitee of a dangerous condition and to the contrary\nurged, induced and inveigled [Yania] into a dangerous position\nand a dangerous act, whereby [Yania] came to his death\xe2\x80\x9d; (3)\n\xe2\x80\x9cAfter [Yania] was in the water, a highly dangerous position,\nhaving been induced and inveigled therein by [Bigan], [Bigan]\nfailed and neglected to take reasonable steps and action to\nprotect or assist [Yania], or extradite [Yania] from the dangerous\nposition in which [Bigan] had placed him\xe2\x80\x9d. Summarized, Bigan\nstands charged with three-fold negligence: (1) by urging,\nenticing, taunting and inveigling Yania to jump into the water;\n(2) by failing to warn Yania of a dangerous condition on the\nland, i.e., the cut wherein lay 8 to 10 feet of water; (3) by failing\nto go to Yania\xe2\x80\x99s rescue after he had jumped into the water.\n\n103\n\n\x0cOur inquiry must be to ascertain whether the well-pleaded facts\nin the complaint, assumedly true, would, if shown, suffice to\nprove negligent conduct on the part of Bigan.~\n[I]t is urged that Bigan failed to take the necessary steps to\nrescue Yania from the water. The mere fact that Bigan saw\nYania in a position of peril in the water imposed upon him no\nlegal, although a moral, obligation or duty to go to his rescue\nunless Bigan was legally responsible, in whole or in part, for\nplacing Yania in the perilous position. The language of this\nCourt in Brown v. French is apt: \xe2\x80\x9cIf it appeared that the deceased,\nby his own carelessness, contributed in any degree to the\naccident which caused the loss of his life, the defendants ought\nnot to have been held to answer for the consequences resulting\nfrom that accident. \xe2\x80\xa6 He voluntarily placed himself in the way\nof danger, and his death was the result of his own act. \xe2\x80\xa6 That\nhis undertaking was an exceedingly reckless and dangerous one,\nthe event proves, but there was no one to blame for it but\nhimself. He had the right to try the experiment, obviously\ndangerous as it was, but then also upon him rested the\nconsequences of that experiment, and upon no one else; he may\nhave been, and probably was, ignorant of the risk which he was\ntaking upon himself, or knowing it, and trusting to his own skill,\nhe may have regarded it as easily superable. But in either case,\nthe result of his ignorance, or of his mistake, must rest with\nhimself \xe2\x80\x93 and cannot be charged to the defendants\xe2\x80\x9d. The\ncomplaint does not aver any facts which impose upon Bigan\nlegal responsibility for placing Yania in the dangerous position\nin the water and, absent such legal responsibility, the law\nimposes on Bigan no duty of rescue.\n[W]e can reach but one conclusion: that Yania, a reasonable and\nprudent adult in full possession of all his mental faculties,\nundertook to perform an act which he knew or should have\nknown was attended with more or less peril and it was the\nperformance of that act and not any conduct upon Bigan\xe2\x80\x99s part\nwhich caused his unfortunate death.\nOrder affirmed.\n\n104\n\n\x0cQuestions to Ponder about Yania\nA. Jury denied: This case was decided on a demurrer, a common-law\npleading device analogous to Rule 12(b)(6) in the Federal Rules of\nCivil Procedure and the motion used in Boyd, allowing for the\ndismissal of a complaint for failure to state a claim for which relief\ncan be granted. In sustaining a demurrer or granting a 12(b)(6)\nmotion, the court is saying that even assuming the facts stated in the\ncomplaint are true, the law does not allow an award of damages.\nThus, this case is a good one to illustrate how the duty-of-care\nelement allows judges to exercise a gatekeeping function on what\ncases reach a jury. Do you think the duty of care plays an important\nlimiting function in this sense? Or would you be inclined to let more\ncases go to trial where a jury can dispense justice according to\nintuitions of fairness and a sense of indignancy?\nB. The wrong side of the law: Just because there is no legal duty to\nact doesn\xe2\x80\x99t mean there is no moral duty to act. Most people would\nagree that, as a moral matter, John E. Bigan should have helped the\ndrowning man. Does that mean, as a moral matter, the law should\nhold him responsible when he doesn\xe2\x80\x99t? If not, why not?\nCase: Theobald v. Dolcimascola\nThis next case is a more contemporary example of the general rule of\nthat there is no affirmative duty to act.\n\nTheobald v. Dolcimascola\nSuperior Court of New Jersey, Appellate Division\nApril 2, 1997\n299 N.J. Super 299. Colleen Theobald, as administrator ad\nprosequendum for the heirs at law of Sean Theobald, deceased\nas administrator of the Estate of Sean Theobald, and Colleen\nTheobald, Harold Theobald, individually, plaintiffs-appellants, v.\nMichael Dolcimascola, Amy Flanagan and Robert Bruck,\ndefendants-respondents. Charles Henn, Jr., Charles Henn, Joan\nHenn, Katherine Gresser and Jackson Sporting Goods,\ndefendants-third-party plaintiffs, v. Chris Smidt, third-party\n\n105\n\n\x0cdefendant. A-2863-95T3. Judges DREIER, D\xe2\x80\x99ANNUNZIO\nand NEWMAN.\nPresiding Judge WILLIAM A. DREIER:\nPlaintiffs, Colleen Theobald as Administrator Ad\nProsequendum for the heirs of Sean Theobald and as\nadministrator of his estate, and Colleen Theobald and Harold\nTheobald (the parents of the late Sean Theobald), individually,\nappeal from summary judgments dismissing their complaint\nagainst the three remaining defendants, Michael Dolcimascola,\nRobert Bruck, and Amy Flanagan. Settlements or unappealed\nsummary judgments have removed the remaining defendants\nfrom this case.\nOn January 20, 1991, plaintiffs\xe2\x80\x99 decedent, Sean Theobald, was in\nthe second floor bedroom of his house with five of his friends.\nHis father was downstairs watching television. The friends had\ngathered at 6:00 p.m. for a birthday party for one of the friends,\nRobert Bruck. The other teenagers present were Charles Henn,\nMichael Dolcimascola, Amy Flanagan and Katherine Gresser.\nAt some time during the evening, the decedent produced an\nunloaded revolver and ammunition, both of which were\nexamined by all of the teenagers. The discussion turned toward\nanother friend of theirs who had died playing Russian Roulette,\nand the decedent indicated that he also would try the \xe2\x80\x9cgame.\xe2\x80\x9d\nAccording to the predominant version of the varying testimony,\nSean put a bullet into the gun, pointed it at his head and pulled\nthe trigger several times. He then put the gun down, checked the\ncylinder, and tried again three or four more times. The gun then\nwent off, killing him. Other versions had the gun going off on\nthe first occasion he tried, or the gun firing by accident without\nhis putting the barrel to his head.~ There was, however, ample\ntestimony that there were several attempts made while the five\nother teenagers merely sat around and watched. The trial judge\ndetermined that if none of the teenagers actively participated,\nthey had no duty to stop the decedent, and therefore summary\njudgment was entered.~\nThe first question before us is whether any of the defendants, if\nthey were mere observers to this tragic event, can be held civilly\n\n106\n\n\x0cliable to plaintiffs. We are at a loss for a viable theory. Had this\nbeen a joint endeavor in which all were participating in the\n\xe2\x80\x9cgame\xe2\x80\x9d of Russian Roulette, there is some authority that each of\nthe participants in the enterprise might be held responsible,\nalthough the only cases we have been able to retrieve involve\nthe criminal responsibility of participants. See e.g., Commonwealth\nv. Atencio, 345 Mass. 627 (1963) (where the participants were\nfound guilty of manslaughter). There is no reason to suppose\nthat if the participants could be found criminally responsible,\nthey could not also be held civilly liable. A line, however, has\nbeen drawn by the courts between being an active participant\nand merely being one who had instructed a decedent how to\n\xe2\x80\x9cplay\xe2\x80\x9d Russian Roulette. In the latter case, a defendant was\ndetermined to be free of any potential criminal liability. Lewis v.\nState, 474 So. 2d 766, 771 (Ala.Crim.App. 1985). Another court,\nin dictum, stated that inducing an individual to engage in Russian\nRoulette creates a sufficiently foreseeable harm to engender\npotential civil liability. Great Central Ins. Co. v. Tobias 37 Ohio\nSt.3d 127 (Ohio.Ct.App. 1987).\nThe most comprehensive New Jersey statement of the existence\nof a duty to another was expressed in Wytupeck v. City of Camden,\n25 N.J. 450 (1957). Although the case involved the question of\nliability for the use of a dangerous instrumentality on\ndefendant\xe2\x80\x99s land, the case explored when a duty to act arises in\ninter-personal relationships:\n\xe2\x80\x9cDuty\xe2\x80\x9d is not an abstract conception; and the\nstandard of conduct is not an absolute. Duty\narises out of a relation between the particular\nparties that in right[,] reason and essential justice\nenjoins the protection of the one by the other\nagainst what the law by common consent deems\nan unreasonable risk of harm, such as is\nreasonably foreseeable. In the field of\nnegligence, duty signifies conformance \xe2\x80\x9cto the\nlegal standard of reasonable conduct in the light\nof the apparent risk;\xe2\x80\x9d the essential question is\nwhether \xe2\x80\x9cthe plaintiff\xe2\x80\x99s interests are entitled to\nlegal protection against the defendant\xe2\x80\x99s\nconduct.\xe2\x80\x9d Prosser on Torts, (2d ed., section 36).\n\n107\n\n\x0cDuty is largely grounded in the natural\nresponsibilities of social living and human\nrelations, such as have the recognition of\nreasonable men; and fulfillment is had by a\ncorrelative standard of conduct.\nIf defendants had either been participants or had induced\ndecedent to play Russian Roulette, or even if there had been\nsome other factor by which we could find a common enterprise,\nthen defendants may have had a duty to act to protect Sean\nfrom the consequences of his foolhardy actions. Such a duty\nwould nevertheless invoke the usual principles of comparative\nnegligence.~ The problem with such potential liability, however,\nis the significant factor of a decedent\xe2\x80\x99s own negligence which,\nwhen measured against any participant\xe2\x80\x99s breach of a duty of\ncare, would probably preclude recovery in most cases.\nWhat we are left with in the case before us, positing that there\nwas no proof of encouragement or participation, is a claim\nwhich is grounded in a common law duty to rescue. As has been\nexplained in texts and reiterated in case law, there is no such\nduty, except if the law imposes it based upon some special\nrelationship between the parties. See W. Page Keeton, et al.,\nProsser and Keaton on Torts, \xc2\xa7 56, at 375 (5th ed. 1984) (\xe2\x80\x9c[T]he law\nhas persistently refused to impose on a stranger the moral\nobligation of common humanity to go to the aid of another\nhuman being who is in danger, even if the other is in danger of\nlosing his life.\xe2\x80\x9d); J.D. Lee and Barry A. Lindahl, Modern Tort Law,\n\xc2\xa7 3.07, at 36 (1994 and Supp.1996) (\xe2\x80\x9cWith regard to rescues, it\nhas been stated that the general rule is that there is no liability\nfor one who stands idly by and fails to rescue a stranger. \xe2\x80\xa6 \xe2\x80\x9d);\nRestatement (Second) of Torts, \xc2\xa7 314 (1965) (\xe2\x80\x9cThe fact that the actor\nrealizes or should realize that action on his part is necessary for\nanother\xe2\x80\x99s aid or protection does not of itself impose upon him a\nduty to take such action.\xe2\x80\x9d). The Restatement\xe2\x80\x99s Illustration 1 is\ninstructive. It posits the actor, A, viewing a blind man, B,\nstepping into the street in the path of an approaching\nautomobile, where a word or touch by A would prevent the\nanticipated harm. The Restatement concludes that \xe2\x80\x9cA is under\n\n108\n\n\x0cno duty to prevent B from stepping into the street, and is not\nliable to B.\xe2\x80\x9d\nRecent New Jersey decisions have focused upon the exceptions\nto this general rule and involve situations where a duty to act\nexists as a result of the relationship between the parties, namely,\npolice-arrestee (Del Tufo v. Township of Old Bridge, 147 N.J. 90\n(1996); Hake v. Manchester Township, 98 N.J. 302 (1985)) and\nphysician-patient (Olah v. Slobodian, 119 N.J. 119 (1990)). These\ncases also address the liability of a ship\xe2\x80\x99s captain for failing to\nattempt to rescue a drowning seaman.\nAll of these cases are distinguishable from the situation before\nus, assuming the five observers were mere bystanders upon\nwhom the law places no duty to have protected the decedent.\nWhile we may deplore their inaction, we, as did the trial judge,\nfind no legal authority to impose liability. We note the ease with\nwhich defendants could have reached out and taken away the\nrevolver when Sean put it down between his two series of\nattempted firings, or the simple act of one of the five walking to\nthe door and summoning Sean\xe2\x80\x99s father, or even remonstrating\nwith Sean concerning his actions. But such acts would have\nbeen no more or less than the simple preventatives given in the\nRestatement Illustration of a word or touch necessary to save a\nblind pedestrian. Where there is no duty, there is no liability.\nWe recognize that the Supreme Court in Wytupeck v. City of\nCamden, supra, has defined duty as a flexible concept:\n\xe2\x80\x9cDuty\xe2\x80\x9d is not a rigid formalism according to the\nstandards of a simpler society, immune to the\nequally compelling needs of the present order;\nduty must of necessity adjust to the changing\nsocial relations and exigencies and man\xe2\x80\x99s\nrelation to his fellows; and accordingly the\nstandard of conduct is care commensurate with\nthe reasonably foreseeable danger, such as\nwould be reasonable in the light of the\nrecognizable risk, for negligence is essentially \xe2\x80\x9ca\nmatter of risk * * * that is to say of recognizable\ndanger of injury.\xe2\x80\x9d\n\n109\n\n\x0cBut, if a legally actionable duty is to be found in a situation such\nas the one before us, it must be declared by the Supreme\nCourt.~ In sum, we determine that there was no common law\nduty owed by defendants to the decedent if defendants were\nmere observers of his shooting. If, however, there is admissible\nevidence against one or more of the defendants that they\nparticipated in deceiving the decedent into assuming the weapon\nwas not loaded when in fact one of them had placed a bullet in\nthe cylinder, then liability may be imposed against such\ndefendant or defendants for such conduct.~\n\nQuestions to Ponder About Theobald\nA. This case reaches the same result as Yania v. Bigan, but seems to do\nso apologetically. Are you inclined to think that a concept of duty\nthat \xe2\x80\x9cadjust[s] to the changing social relations and exigencies and\nman\xe2\x80\x99s relation to his fellows\xe2\x80\x9d requires recognizing an affirmative duty\nin a case such as this?\nB. Does the doctrine barring a general affirmative duty to act reflect\nantiquated attitudes? If common-law tort doctrine were being written\ntoday on a blank slate, do you think the courts would recognize a\ngeneral affirmative duty?\nC. If courts were to recognize a general affirmative duty to act, what\nwould be the limiting principle? Consider that most people have\nspent money on luxury items that they could have spent that money\nto feed starving children overseas. Should a failure to send to charity\nall money a person doesn\xe2\x80\x99t strictly need expose one to liability? If\ntrauma surgeons refrained from taking vacations and days off,\narguably they could save more lives. Should their leisure hours expose\nthem to tort liability? If your answer to those to questions is no, how\ndo you draw the line between those sorts of cases on the one hand\nand Yania and Theobald on the other?\nThe Exception of Defendant-Created Peril\nA generally recognized exception to the no-affirmative-duty rule is\nthe situation in which the defendant\xe2\x80\x99s own negligence conduct\ncreated the plaintiff\xe2\x80\x99s peril. If the defendant has left a banana peel in\nthe road, and the plaintiff slips on it and falls, the defendant has a\n\n110\n\n\x0cduty of care to help the plaintiff out of the roadway before a truck\ncomes along and strikes the plaintiff. If the plaintiff is hurt badly\nenough, the defendant also has an affirmative duty to call emergency\nservices, etc.\nNote that this exception applies when it is the defendant\xe2\x80\x99s negligence\nthat has produced the perilous situation. If the defendant\xe2\x80\x99s innocent\nconduct somehow creates the peril, traditional doctrine holds that no\naffirmative duty is incurred.\nCase: South v. Amtrak\nThis case shows how one jurisdiction decided to broaden the\ndefendant-created peril rule to include not just those situations\noccasioned by the defendant\xe2\x80\x99s negligence, but also those situations\nthat were created by the defendant\xe2\x80\x99s innocent conduct.\n\nSouth v. Amtrak\nSupreme Court of North Dakota\nMarch 20, 1980\n290 N.W.2d 819. Civil No. 9664. Billy Lee South and Delores\nSouth, husband and wife, Plaintiffs and Appellees v. National\nRailroad Passenger Corporation (AMTRAK), Burlington\nNorthern Railroad, Inc., Leslie Roy Strom and S. M. Burdick as\nPublic Special Administrator of the Estate of Howard W.\nDecker, Deceased, Defendants and Appellants. Paulson,\nPederson, VandeWalle, Sand, JJ., Erickstad, C.J.\nJustice WILLIAM L. PAULSON:\nThis is an appeal by the defendants, National Railroad Passenger\nCorporation (Amtrak) [and others] (herein collectively referred\nto as the \xe2\x80\x9cRailroad\xe2\x80\x9d), from the judgment of the Grand Forks\nDistrict Court, entered March 21, 1978, and amended May 12,\n1978, in which the court, upon jury verdicts, awarded the\nplaintiff Billy Lee South (herein referred to as \xe2\x80\x9cSouth\xe2\x80\x9d)\n$948,552, including costs, and awarded the plaintiff Delores\nSouth $126,000, including costs. The Railroad also appeals from\nthe order of the district court, entered May 16, 1979, in which\n\n111\n\n\x0cthe court denied its motion for judgment notwithstanding the\nverdict or in the alternative for a new trial. We affirm.\nAn action was commenced by South for damages sustained as a\nresult of a collision between a pickup truck, owned and driven\nby South, and the Railroad\xe2\x80\x99s train at the Barrett Avenue crossing\nin Larimore, North Dakota, on January 17, 1976, at\napproximately 6:20 a.m. South sustained serious injuries in the\ncollision. He sued the Railroad for damages on a theory of\nnegligence, and his wife, Delores, also sued the Railroad for\ndamages allegedly incurred by the loss of her husband\xe2\x80\x99s\nconsortium.~\nPrior to the collision South was employed as a missile site\nsuperintendent. South lived in Larimore, and on the morning of\nthe collision he, for the first time, was driving to work at a new\nmissile site location to which he had been assigned. To drive to\nthe old work site South crossed the railroad tracks in Larimore\nat the Towner Avenue crossing, but in order to drive to the new\nwork site South took a route which crossed the tracks at the\nBarrett Avenue crossing.\nAs South approached the Barrett Avenue crossing traveling\nsouth at approximately 20 miles per hour, a westbound Amtrak\npassenger train was also approaching the Barrett Avenue\ncrossing traveling at approximately 68 miles per hour. Both the\ntrain and South\xe2\x80\x99s pickup reached the crossing at approximately\nthe same instant and the front of the train engine collided with\nthe left front portion of South\xe2\x80\x99s vehicle.~\nThe Railroad asserts that it was not negligent in the operation of\nits train and that the maintenance of the crossbuck sign was not\na material issue because South was aware of the location of the\nrailroad tracks running through Larimore. Several witnesses\ntestified, on behalf of the Railroad, that the train whistle did\nblow a warning on the morning of the collision. The Railroad\nalso attempted to prove that South was negligent in failing to\nascertain the presence of the train and in failing to safely stop\nhis vehicle prior to reaching the railroad tracks.\n\n112\n\n\x0cAt the conclusion of the trial the jury returned a verdict in favor\nof South and his wife, Delores, against the Railroad. The jury,\nupon finding that the Railroad was 100 percent negligent and\nthat South was not negligent, awarded general and special\ndamages of $935,000 to South and $125,000 to Delores South.~\nPrior to opening argument the Railroad made a motion in limine\nto exclude all evidence referring to the train engineer\xe2\x80\x99s failure to\ncover South with his parka or to otherwise assist South at the\nscene of the accident, on the ground that such evidence was\nprejudicial. The engineer who was operating the train at the time\nof the accident died prior to the commencement of the trial in\nthis case. Prior to his death, the Souths\xe2\x80\x99 counsel had taken the\nengineer\xe2\x80\x99s deposition, and it was part of this deposition\ntestimony that the Railroad sought to exclude in its motion in\nlimine. The motion was denied, and during opening argument the\nSouths\xe2\x80\x99 counsel made the following statement:\nThe evidence will show that as he was lying\nthere, and I\xe2\x80\x99m taking the deposition of Mr.\nDecker, the engineer, I says to Mr. Decker, \xe2\x80\x98Did\nyou have anything to cover him up with?\xe2\x80\x99 \xe2\x80\x98No, I\ntold the police,\xe2\x80\x99 he says. \xe2\x80\x98Was it cold out? What\ndid you do?\xe2\x80\x99 \xe2\x80\x98I went to the cab.\xe2\x80\x99 I said, \xe2\x80\x98Did you\nhave anything to cover him up with?\xe2\x80\x99 He said,\n\xe2\x80\x98My new jacket.\xe2\x80\x99 I says, \xe2\x80\x98Why didn\xe2\x80\x99t you go and\ncover him up?\xe2\x80\x99 He says, \xe2\x80\x98That was a brand-new\njacket. It cost $55. I wasn\xe2\x80\x99t going to get it\nbloody. The hood cost me $7 alone and I was\ngoing to be in Devils Lake the next day and I\ndidn\xe2\x80\x99t want to get cold. I wasn\xe2\x80\x99t going to get a\njacket bloody for anybody.\xe2\x80\x99 I said, \xe2\x80\x98If you\xe2\x80\x99d have\nknown he was alive, would you have covered\nhim up?\xe2\x80\x99 He said, \xe2\x80\x98No, I wouldn\xe2\x80\x99t ruin that\njacket.\xe2\x80\x99\nSubsequent to opening arguments, the trial court ruled in\nchambers that he would not allow certain parts of the engineer\xe2\x80\x99s\ndeposition testimony regarding the parka incident to be read to\nthe jury because its prejudicial effect outweighed its probative\nvalue. The trial court allowed the following portion of the\nengineer\xe2\x80\x99s deposition on this matter to be read to the jury:\n\n113\n\n\x0cQ. [Plaintiff\xe2\x80\x99s counsel]: And did you know\nwhere Billy South was laying during this time?\nA. [Decker]: Yes. I saw a hump on the right-ofway there. But I didn\xe2\x80\x99t go over.\nQ. Did you have anything in the cab to cover\nhim up with, blanket or anything like that?\nA. No, no.\n****\nA. \xe2\x80\xa6 I tried to do my best to get the Highway\nPatrolman and police to get some covering for\nhim.\nQ. Sure. They are the ones who are supposed to\ndo things like that. What kind of \xe2\x80\x93 what day of\nthe week was this?\nA. I think it was on a Saturday morning.\n****\nQ. Okay. And if you had \xe2\x80\x93\nA. In the first place, when he was layin\xe2\x80\x99 there I\nhonest to God thought he was dead. Wouldn\xe2\x80\x99t\ndo any good to cover him up.\n****\nA. No, I just went out there with my coveralls.\nQ. I see.\nA. All the time my coat was hanging in the cab.\nQ. And before the police came how close did\nyou walk over to Billy South to see whether or\nnot \xe2\x80\x93\n****\nA. I couldn\xe2\x80\x99t do anything anyway. They tell you\nnot to move an injured person, the ambulance\ncrew.\nQ. You have heard about shock, haven\xe2\x80\x99t you?\nA. Yes. I never go over.\n\n114\n\n\x0cQ. Did you ever take any courses in first aid?\nA. No.\nQ. Never?\nA. (Indicating no.)\nDuring closing argument, the Souths\xe2\x80\x99 counsel commented on\nthe foregoing testimony.\nIn its instructions to the jury the trial court stated that if the jury\nfound by a fair preponderance of the evidence that the Railroad\nfailed to provide any necessary care for South after the accident\nhe could recover for damages proximately resulting from such\nfailure.\nThe Railroad asserts that counsel\xe2\x80\x99s opening statement was highly\nprejudicial and constitutes grounds for a new trial. The Railroad\nalso asserts that it was improper for the Souths\xe2\x80\x99 counsel to\ncomment on the parka incident during closing argument after\nthe court had ruled to exclude such matters. The Railroad\xe2\x80\x99s\nlatter assertion is based on an inaccurate premise of the trial\ncourt\xe2\x80\x99s ruling. The foregoing quoted portions of the deposition\nwhich were read to the jury demonstrate that the trial court did\nnot exclude all testimony regarding the parka incident. Only\ncertain statements made by the engineer which the court\nconcluded were highly prejudicial and of little or no probative\nvalue were deleted from the deposition testimony. Provided the\ntrial court did not err in admitting this evidence of the engineer\xe2\x80\x99s\nfailure to assist South, then plaintiff counsel\xe2\x80\x99s comments during\nclosing argument were not improper.\nIn order to determine whether it was error for the trial court to\nadmit evidence of the engineer\xe2\x80\x99s failure to render assistance after\nthe accident this Court must resolve, as a matter of first\nimpression, whether there is an affirmative duty to render\nassistance to an injured person, and, if so, under what\ncircumstances. Unless the engineer in this case had such an\naffirmative duty to assist South, all testimony regarding his\nfailure to cover South with his parka or to otherwise assist was\nimproperly admitted evidence \xe2\x80\x93 irrelevant and immaterial to any\nissue in the case.\n\n115\n\n\x0cDuring trial the Souths contended that the engineer had an\naffirmative duty to assist South by virtue of \xc2\xa7 39-08-06,\nN.D.C.C., which imposes upon \xe2\x80\x9cthe driver of any vehicle\ninvolved in an accident\xe2\x80\x9d a duty to render reasonable assistance\nto any person injured in such accident. We disagree that the\nengineer incurred a duty to assist under \xc2\xa7 39-08-06, N.D.C.C.\nTrains are excluded from the definition of \xe2\x80\x9cvehicle\xe2\x80\x9d under Title\n39, N.D.C.C, as follows:\n39-01-01.Definitions. In this title, unless the\ncontext or subject matter otherwise requires: ...\n72. \xe2\x80\x98Vehicle\xe2\x80\x99 shall include every device in, upon,\nor by which any person or property may be\ntransported or drawn upon a public highway,\nexcept devices moved by human power or used\nexclusively upon stationary rails or tracks.\nWe conclude that the requirements of \xc2\xa7 39-08-06, N.D.C.C., do\nnot pertain to trains, and no duty was imposed upon the\nengineer of the train in the instant case by virtue of that section.\nOn the subject of whether there is a common law duty to assist\none in peril Prosser comments as follows in his treatise, Prosser,\nLaw of Torts, Section 56 (4th Ed. 1971):\nBecause of this reluctance to countenance\n\xe2\x80\x98nonfeasance\xe2\x80\x99 as a basis of liability, the law has\npersistently refused to recognize the moral\nobligation of common decency and common\nhumanity, to come to the aid of another human\nbeing who is in danger, even though the\noutcome is to cost him his life. ...\nThus far the difficulties of setting any standards\nof unselfish service to fellow men, and of\nmaking any workable rule to cover possible\nsituations where fifty people might fail to rescue\none, has limited any tendency to depart from\nthe rule to cases where some special relation\nbetween the parties has afforded a justification\nfor the creation of a duty, without any question\nof setting up a rule of universal application.\xe2\x80\x9d\n\n116\n\n\x0cIt also is recognized that if the defendant\xe2\x80\x99s own\nnegligence has been responsible for the\nplaintiff\xe2\x80\x99s situation, a relation has arisen which\nimposes a duty to make a reasonable effort to\ngive assistance, and avoid any further harm.\nWhere the original danger is created by innocent\nconduct, involving no fault on the part of the\ndefendant, it was formerly the rule that no such\nduty arose; but this appears to have given way,\nin recent decisions, to a recognition of the duty\nto take action, both where the prior innocent\nconduct has created an unreasonable risk of\nharm to the plaintiff, and where it has already\ninjured him.\nThe Restatement (Second) of Torts S 322 (1965) takes the\nfollowing position:\n\xc2\xa7 322. Duty to Aid Another Harmed by Actor\xe2\x80\x99s\nConduct\nIf the actor knows or has reason to know that\nby his conduct, whether tortious or innocent, he\nhas caused such bodily harm to another as to\nmake him helpless and in danger of further\nharm, the actor is under a duty to exercise\nreasonable care to prevent such further harm.\nThus, the Restatement view is that one who harms another has\nan affirmative duty to exercise reasonable care to prevent further\nharm.\nAlthough there is a paucity of case decisions involving this\nmatter a few jurisdictions have discussed the issue. The Supreme\nCourt of North Carolina held in Parrish v. Atlantic Coast Line R.R.\nCo., 221 N.C. 292 (1942), that one who negligently harms\nanother must take all steps necessary to mitigate the harm. See,\nalso, Whitesides v. Southern Railway Co., 128 N.C. 229 (1901). The\nAppellate Court of Indiana in Tubbs v. Argus, 140 Ind. App. 695\n(1967), after quoting approvingly from \xc2\xa7 322 of the Restatement\n(Second) of Torts, held that \xe2\x80\x9c... an affirmative duty arises to\nrender reasonable aid and assistance to one who is helpless and\n\n117\n\n\x0cin a situation of peril, when the injury resulted from the use of\nan instrumentality under the control of the defendant.\xe2\x80\x9d\nWe believe that the position expressed by \xc2\xa7 322, Restatement\n(Second) of Torts (1965), reflects the type of basic decency and\nhuman thoughtfulness which is generally characteristic of our\npeople, and we therefore, adopt the standard imposed by that\nsection. Accordingly, we hold that a person who knows or has\nreason to know that his conduct, whether tortious or innocent,\nhas caused harm to another has an affirmative duty to render\nassistance to prevent further harm. One who breaches such duty\nis subject to liability for damages incurred as a result of the\nadditional harm proximately caused by such breach. We further\nhold that, in the instant case, the trial court did not err in the\nadmission of the engineer\xe2\x80\x99s testimony regarding the assistance,\nor lack thereof, to South at the scene of the accident, nor did the\ncourt abuse its discretion in refusing to admit those portions of\nthe testimony which the court determined were highly\nprejudicial and irrelevant.\nDuring opening argument to the jury, the Souths\xe2\x80\x99 counsel\nreferred to statements made by the engineer as to why he did\nnot cover South with his jacket. As noted previously, some of\nthose statements were never admitted into evidence because of\nthe court\xe2\x80\x99s ruling that they were highly prejudicial. As part of its\ninstruction to the jury the trial court gave a standard instruction\nthat the arguments or other remarks of the attorneys were not to\nbe considered as evidence in the case and that any comments by\ncounsel concerning the evidence which were not warranted by\nthe evidence actually admitted were to be wholly disregarded.\nWe recognize the reality of a situation such as this wherein\ninflammatory comments made by counsel during opening\nargument, once impressed upon the minds of the jurors, can\nperhaps never be totally erased or their effect completely\nnegated by an instruction that such comments are not evidence\nand should be wholly disregarded. Nevertheless, in view of the\ninstruction as given and in view of the proper limited admission\ninto evidence of the engineer\xe2\x80\x99s testimony regarding his failure to\nassist South after the accident we hold that the disputed\n\n118\n\n\x0ccomments of the Souths\xe2\x80\x99 counsel in opening argument did not\nconstitute prejudicial error entitling the Railroad to a new trial.\n\nQuestions to Ponder About South v. Amtrak\nA. Recall from Weirum v. RKO Justice Mosk\xe2\x80\x99s explanation of the legal\ndoctrine of duty as being informed by \xe2\x80\x9cour continually refined\nconcepts of morals and justice.\xe2\x80\x9d The North Dakota Supreme Court\nappears to be working in this vein when it announces that it is\nfollowing \xc2\xa7 322 of the Restatement (Second) of Torts, saying the\naffirmative duty to render aid \xe2\x80\x9creflects the type of basic decency and\nhuman thoughtfulness which is generally characteristic of our\npeople.\xe2\x80\x9d Does this mean that North Dakota sees itself as a nicer state\nthan jurisdictions that have kept the old common-law rule that there\nis no affirmative duty to render aid?\nB. To get at the same sort of question from a different angle, does\nthe American Law Institute\xe2\x80\x99s adoption of \xc2\xa7 322 in 1965 indicate that\nmodern American society is nicer, more thoughtful, and more caring\nthan the society that adopted the old rule \xe2\x80\x93 or at least sees itself as\nsuch?\n\nWeather and \xe2\x80\x9cAtmospherics\xe2\x80\x9d\nLawyers use the word \xe2\x80\x9catmospherics\xe2\x80\x9d to refer to facts that, while not\ndirectly legally relevant, set a case\xe2\x80\x99s overall mood. Legal irrelevance\nnotwithstanding, atmospherics can be important in valuing a case and\nassessing a plaintiff\xe2\x80\x99s likelihood of success. South v. Amtrak happens\nto have literal atmospherics. Northeastern North Dakota, where\nLarimore is, has the coldest winters in the lower 49 states. And the\nmiddle of January is the coldest time of the year. The case doesn\xe2\x80\x99t say\nhow cold it was on the morning of January 17, 1976, but according to\narchival weather data, it was approximately \xe2\x80\x939\xc2\xbaF with a wind-chill\ntemperature of \xe2\x80\x9324\xc2\xbaF. That\xe2\x80\x99s not just uncomfortably cold \xe2\x80\x93 for\nsomeone not properly dressed, that\xe2\x80\x99s lethally cold. Another aspect of\nthis case\xe2\x80\x99s atmospherics is the Cold War. The facts say that Billy\nSouth was on his way to a missile site. At the time, Grand Forks Air\nForce Base was home to home to the 321st Strategic Missile Wing,\nwhich controlled scores of nuclear-tipped Minuteman II\nintercontinental ballistic missiles loaded in underground silos spread\n\n119\n\n\x0cout all over eastern North Dakota. The air base is about 20 minutes\nfrom where the accident occurred. So not only is it terrifically cold,\nwe have a plaintiff who is serving his country. It would seem that\nneither America\xe2\x80\x99s Cold War struggles nor North Dakota\xe2\x80\x99s frigid\nwinters were, strictly speaking, reasons to adopt a particular\nnegligence doctrine suggested by the Restatement. But no lawyer for\nthe plaintiff in such a case would fail to put them before the court.\n\nEvidence Law and Procedural Posture\nThe South v. Amtrak case helps to show why procedural context is so\nimportant to understanding an opinion. The court needed to reach\nthe substantive question of whether there is an affirmative duty to\nrender aid in order to decide whether it was proper to admit\ntestimony of the parka incident. Once that question of substantive\ntort-law question was answered, the admissibility of the testimony\nbecame a matter of the rules of evidence. Of course, what was really\nat stake in this case was the ability of the plaintiff\xe2\x80\x99s lawyer to put\nbefore the jury the emotionally charged vignette of the Amtrak\nengineer\xe2\x80\x99s refusal to use his jacket to keep the plaintiff warm.\nTechnically, the importance of this testimony was slight. Lawyers on\nboth sides, however, clearly understood the enormous potential of\nthe testimony to make an impression on the jury.\n\nNote About the Interpretation of Statutes\nSouth v. Amtrak illustrates how courts interpret statutes and how\nstatutes are potentially useful in negligence cases. North Dakota\nCentury Code \xc2\xa7 39-08-06, imposes a duty on \xe2\x80\x9cthe driver of any\nvehicle involved in an accident\xe2\x80\x9d to render reasonable assistance. The\nplaintiff hoped to use this statute to impose such a duty on the\nAmtrak engineer. The ordinary meaning of the word \xe2\x80\x9cvehicle\xe2\x80\x9d would\ncertainly include a train, and imposing a duty of assistance on train\nengineers seems to be well within the spirit of the statute. Yet the\ncourt declined to apply the statute, hewing to a somewhat\nidiosyncratic and technical definition found elsewhere in Title 39.\nThe mystery of why trains are excluded from the definition is\nresolved when you find out that Title 39 of the North Dakota\nCentury Code is the state\xe2\x80\x99s comprehensive scheme for regulating the\n\n120\n\n\x0cdriving of cars and trucks on public roads. Without the definition\xe2\x80\x99s\nexclusion of trains from \xe2\x80\x9cvehicle,\xe2\x80\x9d trains in North Dakota would be\nsubject to all the provisions of Title 39, including requirements to use\nturn signals, display license plates, and even stop at railroad crossings\nwhen red lights were flashing. In this case, the plaintiff\xe2\x80\x99s lawyers were\nhoping the court might stretch the meaning of \xe2\x80\x9cvehicle\xe2\x80\x9d in the\ncontext of \xc2\xa7 39-08-06 to include trains. But to do so would have\nrequired ignoring the statute\xe2\x80\x99s text. The court was, however, well\nwithin its mandate to uphold the spirit of the statute by announcing a\nnew common-law doctrine.\n\xe2\x80\x9cGood Samaritan\xe2\x80\x9d Laws\nMany people, when they first hear about the common law\xe2\x80\x99s lack of a\nduty to rescue, ask, \xe2\x80\x9cWhat about Good Samaritan laws?\xe2\x80\x9d\nAll states have so-called \xe2\x80\x9cGood Samaritan\xe2\x80\x9d laws on the books \xe2\x80\x93 but\nthey don\xe2\x80\x99t work the way most people think. Instead of requiring\npeople to come to one another\xe2\x80\x99s rescue, these laws mostly function\nto provide a liability shield for the \xe2\x80\x9cclumsy rescuer,\xe2\x80\x9d who\nmunificently decides to come to a person\xe2\x80\x99s aid, but then ends up\ndoing more harm than good. The idea of these statutes is to waylay\nthe fears of someone who, at the scene of an accident, thinks, \xe2\x80\x9cGosh,\nI know CPR, but if I try to help out, I might end up getting sued.\xe2\x80\x9d\nReferring to the biblical parable that gives Good Samaritan laws their\nname, Dean William L. Prosser wrote, \xe2\x80\x9c[T]he Good Samaritan who\ntries to help may find himself mulcted in damages, while the priest\nand the Levite who pass by on the other side go on their cheerful way\nrejoicing.\xe2\x80\x9d\nAn example is Swenson v. Waseca Mutual Insurance Co., 653 N.W.2d 794\n(Minn. Ct. App. 2002). In that case, a group of friends were\nsnowmobiling when one of them, 13-year-old Kelly Swenson,\nsuffered what appeared to be a dislocated knee. The friends tried to\nflag down a passing motorist for help. A woman named Lillian Tiegs\nwas nice enough to stop. After trying unsuccessfully to call 911 on\nher cell phone, Tiegs offered to take Swenson to the hospital. When\nTiegs tried to make a U-turn on the highway to go the direction\nSwenson needed, a speeding tractor-trailer rig struck Tiegs\xe2\x80\x99s vehicle\n\n121\n\n\x0cand killed Swenson. Swenson\xe2\x80\x99s family sued Tiegs, alleging she was\nnegligent in making the turn. Tiegs\xe2\x80\x99s insurance company was able to\nuse the state\xe2\x80\x99s Good Samaritan law as a liability shield.\nGood Samaritan laws vary state by state in coverage. Typically, the\nlaws provide immunity from ordinary negligence, but not from gross\nnegligence or recklessness. Who is protected by the laws varies as\nwell. Some laws extend immunity to any well-meaning stranger. Some\nonly apply to persons with training or persons who are licensed\nprofessionals, such as nurses, EMTs, and physicians.\nOn balance, scholars think Good Samaritan laws do little to actually\nencourage people to render help. Professor Dov Waisman, however,\nargues that Good Samaritan laws are justified in at least some\nsituations on the basis of fairness. See Waisman, Negligence,\nResponsibility, and the Clumsy Samaritan: Is There a Fairness Rationale for the\nGood Samaritan Immunity?, 29 GA. ST. U. L. REV. 609 (2013).\nAlthough in the ordinary case, Good Samaritan laws do not require\npeople to render aid, there are four states that have laws that impose\nsome kind of a duty to stop and render aid. Maybe these statutes\nwould be better called \xe2\x80\x9cCompelled Samaritan laws.\xe2\x80\x9d Minnesota,\nRhode Island, and Vermont make it an offense to fail to render\nreasonable assistance at the scene of an emergency to someone who\nis exposed to or has suffered grave physical harm if it is possible to\nsafely do so. In Minnesota and Rhode Island, such failure to render\naid is a low-level misdemeanor; in Vermont it carries a maximum\n$100 fine. See Minn. Stat. \xc2\xa7 604A.01, R.I. Gen. Laws \xc2\xa7 11-56-1, & 12\nVt. Stat. \xc2\xa7 519. Wisconsin has a narrower duty that attaches when\nsomeone is the victim of a crime. See Wis. Stat. \xc2\xa7 940.34.\nThe Exception for Special Relationships\nDespite the general no-affirmative-duty rule, there is an affirmative\nduty to render aid or take other affirmative actions in situations\ninvolving certain pre-existing relationships. Examples of duties owed\non account of special relationships are:\n\xef\x82\xb7\n\ncommon carriers, to passengers\n\n\xef\x82\xb7\n\ninnkeepers, to guests\n\n122\n\n\x0c\xef\x82\xb7\n\nlandlords, to tenants\n\n\xef\x82\xb7\n\nstores, to customers\n\n\xef\x82\xb7\n\npossessors of land open to the public, to members of the\npublic lawfully present\n\n\xef\x82\xb7\n\nschools, to students\n\n\xef\x82\xb7\n\nemployers, to employees\n\n\xef\x82\xb7\n\njailers, to prisoner\n\n\xef\x82\xb7\n\nday-care providers, to the children or adults being cared for\n\nSo, for instance, if a hotel fire breaks out for reasons having nothing\nto do with negligence on the part of the hotel, the hoteliers are\nnonetheless under a duty to help patrons to safety. Similarly, if a\ncustomer in a store has a heart attack and falls to the floor, the\nstorekeepers have an obligation to dial 911, clear a space, etc.\nThe Exception for Assumption of Duty\nAnother exception to the no-affirmative-duty rule is when a\ndefendant assumes the duty. A motorist is driving along the highway\nwhen comes upon the scene of a car crash. In this instance, he is\nunder no duty to stop. This is true even if no other help has yet\narrived. But if the motorist does stop to render aid, then he has\nassumed a duty. This means that the driver is liable for any additional\nharm caused by his failure to take whatever affirmative steps are\nreasonable under the circumstances. Certainly such a duty would\ninclude calling 911, assuming there is cell phone service. Moreover,\nonce the motorist has stopped, the he cannot \xe2\x80\x9cunassume\xe2\x80\x9d the duty\nby getting back in his car and driving away. Of course, once\nemergency responders have arrived, he could leave, since reasonable\ncare would not require him to stick around.\nOne rationale the courts have articulated for the assumption-of-duty\nrule is that once a bystander voluntarily intercedes to render aid, this\nmakes it less likely that other people will do so. So if a would-be\nrescuer comes to the aid of someone, but then acts carelessly or fails\nto follow through, the plaintiff will be left in a worse position than if\nthe defendant had never stopped in the first place.\n\n123\n\n\x0cThe Tarasoff Exception\nOne particular exception to the no-affirmative-duty rule is unique\nenough that it is largely associated with the case that announced it:\nTarasoff v. UC Regents. The case held that a psychotherapist has a duty\nto warn third persons of potential dangers that have been revealed in\nthe course of psychotherapy. Thus, if a patient tells a therapist about\ndifficult-to-control urges to do harm to a third person, then a duty\nrunning from the therapist to the third party may be triggered. This\nrule is distinguished from the special-relationship exception discussed\nabove. Under the special-relationship rule, the psychotherapist has\naffirmative duties to a patient. The Tarasoff rule, by contrast, creates\nan affirmative duty on the part of the psychotherapist to a person\nwith whom the psychotherapist has no relationship at all.\nCase: Tarasoff v. UC Regents\nThe following case led a seachange in the law of liability for\npsychotherapists. And like Boyd, it is a good case to ask whether you\nfind the court\xe2\x80\x99s use of precedent persuasive.\n\nTarasoff v. Regents of the University of California\nSupreme Court of California\nJuly 1, 1976\n17 Cal. 3d 425. VITALY TARASOFF et al., Plaintiffs and\nAppellants, v. THE REGENTS OF THE UNIVERSITY OF\nCALIFORNIA et al., Defendants and Respondents. S.F. No.\n23042. Judges: Opinion by Tobriner, J., with Wright, C. J.,\nSullivan and Richardson, JJ., concurring. Separate concurring\nand dissenting opinion by Mosk, J. Separate dissenting opinion\nby Clark, J., with McComb, J., concurring.\nJustice MATHEW O. TOBRINER:\nOn October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff.\nPlaintiffs, Tatiana\xe2\x80\x99s parents, allege that two months earlier\nPoddar confided his intention to kill Tatiana to Dr. Lawrence\nMoore, a psychologist employed by the Cowell Memorial\nHospital at the University of California at Berkeley. They allege\nthat on Moore\xe2\x80\x99s request, the campus police briefly detained\n\n124\n\n\x0cPoddar, but released him when he appeared rational. They\nfurther claim that Dr. Harvey Powelson, Moore\xe2\x80\x99s superior, then\ndirected that no further action be taken to detain Poddar. No\none warned plaintiffs of Tatiana\xe2\x80\x99s peril.\nConcluding that these facts set forth causes of action against\nneither therapists and policemen involved, nor against the\nRegents of the University of California as their employer, the\nsuperior court sustained defendants\xe2\x80\x99 demurrers to plaintiffs\xe2\x80\x99\nsecond amended complaints without leave to amend. \xef\x81\x81The\ntherapist defendants include Dr. Moore, the psychologist who\nexamined Poddar and decided that Poddar should be\ncommitted; Dr. Gold and Dr. Yandell, psychiatrists at Cowell\nMemorial Hospital who concurred in Moore\xe2\x80\x99s decision; and Dr.\nPowelson, chief of the department of psychiatry, who\ncountermanded Moore\xe2\x80\x99s decision and directed that the staff take\nno action to confine Poddar. The police defendants include\nOfficers Atkinson, Brownrigg and Halleran, who detained\nPoddar briefly but released him; Chief Beall, who received\nMoore\xe2\x80\x99s letter recommending that Poddar be confined; and\nOfficer Teel, who, along with Officer Atkinson, received\nMoore\xe2\x80\x99s oral communication requesting detention of Poddar.\xef\x81\x80\nThis appeal ensued.\nPlaintiffs\xe2\x80\x99 complaints predicate liability on two grounds:\ndefendants\xe2\x80\x99 failure to warn plaintiffs of the impending danger\nand their failure to bring about Poddar\xe2\x80\x99s confinement pursuant\nto the Lanterman-Petris-Short Act (Welf. & Inst. Code, \xc2\xa7 5000\nff.) Defendants, in turn, assert that they owed no duty of\nreasonable care to Tatiana and that they are immune from suit\nunder the California Tort Claims Act of 1963 (Gov. Code, \xc2\xa7 810\nff.).\nWe shall explain that defendant therapists cannot escape liability\nmerely because Tatiana herself was not their patient. When a\ntherapist determines, or pursuant to the standards of his\nprofession should determine, that his patient presents a serious\ndanger of violence to another, he incurs an obligation to use\nreasonable care to protect the intended victim against such\ndanger. The discharge of this duty may require the therapist to\n\n125\n\n\x0ctake one or more of various steps, depending upon the nature of\nthe case. Thus it may call for him to warn the intended victim or\nothers likely to apprise the victim of the danger, to notify the\npolice, or to take whatever other steps are reasonably necessary\nunder the circumstances.\nIn the case at bar, plaintiffs admit that defendant therapists\nnotified the police, but argue on appeal that the therapists failed\nto exercise reasonable care to protect Tatiana in that they did\nnot confine Poddar and did not warn Tatiana or others likely to\napprise her of the danger. Defendant therapists, however, are\npublic employees. Consequently, to the extent that plaintiffs\nseek to predicate liability upon the therapists\xe2\x80\x99 failure to bring\nabout Poddar\xe2\x80\x99s confinement, the therapists can claim immunity\nunder Government Code section 856. No specific statutory\nprovision, however, shields them from liability based upon\nfailure to warn Tatiana or others likely to apprise her of the\ndanger, and Government Code section 820.2 does not protect\nsuch failure as an exercise of discretion.\nPlaintiffs therefore can amend their complaints to allege that,\nregardless of the therapists\xe2\x80\x99 unsuccessful attempt to confine\nPoddar, since they knew that Poddar was at large and\ndangerous, their failure to warn Tatiana or others likely to\napprise her of the danger constituted a breach of the therapists\xe2\x80\x99\nduty to exercise reasonable care to protect Tatiana.\nPlaintiffs, however, plead no relationship between Poddar and\nthe police defendants which would impose upon them any duty\nto Tatiana, and plaintiffs suggest no other basis for such a duty.\nPlaintiffs have, therefore, failed to show that the trial court erred\nin sustaining the demurrer of the police defendants without\nleave to amend.\n1. Plaintiffs\xe2\x80\x99 complaints\nPlaintiffs, Tatiana\xe2\x80\x99s mother and father, filed separate but\nvirtually identical second amended complaints. The issue before\nus on this appeal is whether those complaints now state, or can\nbe amended to state, causes of action against defendants. We\n\n126\n\n\x0ctherefore begin by setting forth the pertinent allegations of the\ncomplaints.\nPlaintiffs\xe2\x80\x99 first cause of action, entitled \xe2\x80\x9cFailure to Detain a\nDangerous Patient,\xe2\x80\x9d alleges that on August 20, 1969, Poddar\nwas a voluntary outpatient receiving therapy at Cowell Memorial\nHospital. Poddar informed Moore, his therapist, that he was\ngoing to kill an unnamed girl, readily identifiable as Tatiana,\nwhen she returned home from spending the summer in Brazil.\nMoore, with the concurrence of Dr. Gold, who had initially\nexamined Poddar, and Dr. Yandell, assistant to the director of\nthe department of psychiatry, decided that Poddar should be\ncommitted for observation in a mental hospital. Moore orally\nnotified Officers Atkinson and Teel of the campus police that\nhe would request commitment. He then sent a letter to Police\nChief William Beall requesting the assistance of the police\ndepartment in securing Poddar\xe2\x80\x99s confinement.\nOfficers Atkinson, Brownrigg, and Halleran took Poddar into\ncustody, but, satisfied that Poddar was rational, released him on\nhis promise to stay away from Tatiana. Powelson, director of the\ndepartment of psychiatry at Cowell Memorial Hospital, then\nasked the police to return Moore\xe2\x80\x99s letter, directed that all copies\nof the letter and notes that Moore had taken as therapist be\ndestroyed, and \xe2\x80\x9cordered no action to place Prosenjit Poddar in\n72-hour treatment and evaluation facility.\xe2\x80\x9d\nPlaintiffs\xe2\x80\x99 second cause of action, entitled \xe2\x80\x9cFailure to Warn On\na Dangerous Patient,\xe2\x80\x9d incorporates the allegations of the first\ncause of action, but adds the assertion that defendants\nnegligently permitted Poddar to be released from police custody\nwithout \xe2\x80\x9cnotifying the parents of Tatiana Tarasoff that their\ndaughter was in grave danger from Posenjit Poddar.\xe2\x80\x9d Poddar\npersuaded Tatiana\xe2\x80\x99s brother to share an apartment with him\nnear Tatiana\xe2\x80\x99s residence; shortly after her return from Brazil,\nPoddar went to her residence and killed her.~\n2. Plaintiffs can state a cause of action against defendant\ntherapists for negligent failure to protect Tatiana.\n\n127\n\n\x0cThe second cause of action can be amended to allege that\nTatiana\xe2\x80\x99s death proximately resulted from defendants\xe2\x80\x99 negligent\nfailure to warn Tatiana or others likely to apprise her of her\ndanger. Plaintiffs contend that as amended, such allegations of\nnegligence and proximate causation, with resulting damages,\nestablish a cause of action. Defendants, however, contend that\nin the circumstances of the present case they owed no duty of\ncare to Tatiana or her parents and that, in the absence of such\nduty, they were free to act in careless disregard of Tatiana\xe2\x80\x99s life\nand safety.\nIn analyzing this issue, we bear in mind that legal duties are not\ndiscoverable facts of nature, but merely conclusory expressions\nthat, in cases of a particular type, liability should be imposed for\ndamage done. As stated in Dillon v. Legg (1968) 68 Cal.2d 728,\n734: \xe2\x80\x9cThe assertion that liability must \xe2\x80\xa6 be denied because\ndefendant bears no \xe2\x80\x98duty\xe2\x80\x99 to plaintiff \xe2\x80\x98begs the essential question\n\xe2\x80\x93 whether the plaintiff\xe2\x80\x99s interests are entitled to legal protection\nagainst the defendant\xe2\x80\x99s conduct. \xe2\x80\xa6 [Duty] is not sacrosanct in\nitself, but only an expression of the sum total of those\nconsiderations of policy which lead the law to say that the\nparticular plaintiff is entitled to protection.\xe2\x80\x99 (Prosser, Law of\nTorts [3d ed. 1964] at pp. 332-333.)\xe2\x80\x9d\nIn the landmark case of Rowland v. Christian (1968) 69 Cal.2d\n108, Justice Peters recognized that liability should be imposed\n\xe2\x80\x9cfor injury occasioned to another by his want of ordinary care or\nskill\xe2\x80\x9d as expressed in section 1714 of the Civil Code. (3) Thus,\nJustice Peters, quoting from Heaven v. Pender (1883) 11 Q.B.D.\n503, 509 stated: \xe2\x80\x9c\xe2\x80\x98whenever one person is by circumstances\nplaced in such a position with regard to another \xe2\x80\xa6 that if he\ndid not use ordinary care and skill in his own conduct \xe2\x80\xa6 he\nwould cause danger of injury to the person or property of the\nother, a duty arises to use ordinary care and skill to avoid such\ndanger.\xe2\x80\x99\xe2\x80\x9d\nWe depart from \xe2\x80\x9cthis fundamental principle\xe2\x80\x9d only upon the\n\xe2\x80\x9cbalancing of a number of considerations\xe2\x80\x9d; major ones \xe2\x80\x9care the\nforeseeability of harm to the plaintiff, the degree of certainty\nthat the plaintiff suffered injury, the closeness of the connection\n\n128\n\n\x0cbetween the defendant\xe2\x80\x99s conduct and the injury suffered, the\nmoral blame attached to the defendant\xe2\x80\x99s conduct, the policy of\npreventing future harm, the extent of the burden to the\ndefendant and consequences to the community of imposing a\nduty to exercise care with resulting liability for breach, and the\navailability, cost and prevalence of insurance for the risk\ninvolved.\xe2\x80\x9d\nThe most important of these considerations in establishing duty\nis foreseeability. As a general principle, a \xe2\x80\x9cdefendant owes a duty\nof care to all persons who are foreseeably endangered by his\nconduct, with respect to all risks which make the conduct\nunreasonably dangerous.\xe2\x80\x9d As we shall explain, however, when\nthe avoidance of foreseeable harm requires a defendant to\ncontrol the conduct of another person, or to warn of such\nconduct, the common law has traditionally imposed liability only\nif the defendant bears some special relationship to the\ndangerous person or to the potential victim. Since the\nrelationship between a therapist and his patient satisfies this\nrequirement, we need not here decide whether foreseeability\nalone is sufficient to create a duty to exercise reasonable care to\nprotect a potential victim of another\xe2\x80\x99s conduct.\nAlthough, as we have stated above, under the common law, as a\ngeneral rule, one person owed no duty to control the conduct of\nanother, the courts have carved out an exception to this rule in\ncases in which the defendant stands in some special relationship\nto either the person whose conduct needs to be controlled or in\na relationship to the foreseeable victim of that conduct.\nApplying this exception to the present case, we note that a\nrelationship of defendant therapists to either Tatiana or Poddar\nwill suffice to establish a duty of care; as explained in section\n315 of the Restatement Second of Torts, a duty of care may\narise from either \xe2\x80\x9c(a) a special relation \xe2\x80\xa6 between the actor and\nthe third person which imposes a duty upon the actor to control\nthe third person\xe2\x80\x99s conduct, or (b) a special relation \xe2\x80\xa6 between\nthe actor and the other which gives to the other a right of\nprotection.\xe2\x80\x9d\n\n129\n\n\x0cAlthough plaintiffs\xe2\x80\x99 pleadings assert no special relation between\nTatiana and defendant therapists, they establish as between\nPoddar and defendant therapists the special relation that arises\nbetween a patient and his doctor or psychotherapist. Such a\nrelationship may support affirmative duties for the benefit of\nthird persons. Thus, for example, a hospital must exercise\nreasonable care to control the behavior of a patient which may\nendanger other persons. A doctor must also warn a patient if the\npatient\xe2\x80\x99s condition or medication renders certain conduct, such\nas driving a car, dangerous to others.\nAlthough the California decisions that recognize this duty have\ninvolved cases in which the defendant stood in a special\nrelationship both to the victim and to the person whose conduct\ncreated the danger, we do not think that the duty should\nlogically be constricted to such situations. \xef\x81\x81[For example,] Ellis\nv. D\xe2\x80\x99Angelo (1953) 116 Cal.App.2d 310, upheld a cause of action\nagainst parents who failed to warn a babysitter of the violent\nproclivities of their child; Johnson v. State of California (1968) 69\nCal.2d 782, upheld a suit against the state for failure to warn\nfoster parents of the dangerous tendencies of their ward; Morgan\nv. County of Yuba (1964) 230 Cal.App.2d 938, sustained a cause of\naction against a sheriff who had promised to warn decedent\nbefore releasing a dangerous prisoner, but failed to do so.\xef\x81\x80\nDecisions of other jurisdictions hold that the single relationship\nof a doctor to his patient is sufficient to support the duty to\nexercise reasonable care to protect others against dangers\nemanating from the patient\xe2\x80\x99s illness. The courts hold that a\ndoctor is liable to persons infected by his patient if he\nnegligently fails to diagnose a contagious disease, or, having\ndiagnosed the illness, fails to warn members of the patient\xe2\x80\x99s\nfamily.\nSince it involved a dangerous mental patient, the decision in\nMerchants Nat. Bank & Trust Co. of Fargo v. United States (D.N.D.\n1967) 272 F.Supp. 409 comes closer to the issue. The Veterans\nAdministration arranged for the patient to work on a local farm,\nbut did not inform the farmer of the man\xe2\x80\x99s background. The\nfarmer consequently permitted the patient to come and go freely\n\n130\n\n\x0cduring nonworking hours; the patient borrowed a car, drove to\nhis wife\xe2\x80\x99s residence and killed her. Notwithstanding the lack of\nany \xe2\x80\x9cspecial relationship\xe2\x80\x9d between the Veterans Administration\nand the wife, the court found the Veterans Administration liable\nfor the wrongful death of the wife.\nIn their summary of the relevant rulings Fleming and Maximov\nconclude that the \xe2\x80\x9ccase law should dispel any notion that to\nimpose on the therapists a duty to take precautions for the\nsafety of persons threatened by a patient, where due care so\nrequires, is in any way opposed to contemporary ground rules\non the duty relationship. On the contrary, there now seems to\nbe sufficient authority to support the conclusion that by\nentering into a doctor-patient relationship the therapist becomes\nsufficiently involved to assume some responsibility for the\nsafety, not only of the patient himself, but also of any third\nperson whom the doctor knows to be threatened by the\npatient.\xe2\x80\x9d (Fleming & Maximov, The Patient or His Victim: The\nTherapist\xe2\x80\x99s Dilemma (1974) 62 CAL. L. REV. 1025, 1030.)\nDefendants contend, however, that imposition of a duty to\nexercise reasonable care to protect third persons is unworkable\nbecause therapists cannot accurately predict whether or not a\npatient will resort to violence. In support of this argument\namicus representing the American Psychiatric Association and\nother professional societies cites numerous articles which\nindicate that therapists, in the present state of the art, are unable\nreliably to predict violent acts; their forecasts, amicus claims,\ntend consistently to overpredict violence, and indeed are more\noften wrong than right. Since predictions of violence are often\nerroneous, amicus concludes, the courts should not render\nrulings that predicate the liability of therapists upon the validity\nof such predictions.\nThe role of the psychiatrist, who is indeed a practitioner of\nmedicine, and that of the psychologist who performs an allied\nfunction, are like that of the physician who must conform to the\nstandards of the profession and who must often make diagnoses\nand predictions based upon such evaluations. Thus the\njudgment of the therapist in diagnosing emotional disorders and\n\n131\n\n\x0cin predicting whether a patient presents a serious danger of\nviolence is comparable to the judgment which doctors and\nprofessionals must regularly render under accepted rules of\nresponsibility.\nWe recognize the difficulty that a therapist encounters in\nattempting to forecast whether a patient presents a serious\ndanger of violence. Obviously, we do not require that the\ntherapist, in making that determination, render a perfect\nperformance; the therapist need only exercise \xe2\x80\x9cthat reasonable\ndegree of skill, knowledge, and care ordinarily possessed and\nexercised by members of [that professional specialty] under\nsimilar circumstances.\xe2\x80\x9d Within the broad range of reasonable\npractice and treatment in which professional opinion and\njudgment may differ, the therapist is free to exercise his or her\nown best judgment without liability; proof, aided by hindsight,\nthat he or she judged wrongly is insufficient to establish\nnegligence.\nIn the instant case, however, the pleadings do not raise any\nquestion as to failure of defendant therapists to predict that\nPoddar presented a serious danger of violence. On the contrary,\nthe present complaints allege that defendant therapists did in\nfact predict that Poddar would kill, but were negligent in failing\nto warn.\nAmicus contends, however, that even when a therapist does in\nfact predict that a patient poses a serious danger of violence to\nothers, the therapist should be absolved of any responsibility for\nfailing to act to protect the potential victim. In our view,\nhowever, once a therapist does in fact determine, or under\napplicable professional standards reasonably should have\ndetermined, that a patient poses a serious danger of violence to\nothers, he bears a duty to exercise reasonable care to protect the\nforeseeable victim of that danger. While the discharge of this\nduty of due care will necessarily vary with the facts of each case,\nin each instance the adequacy of the therapist\xe2\x80\x99s conduct must be\nmeasured against the traditional negligence standard of the\nrendition of reasonable care under the circumstances. As\nexplained in Fleming and Maximov, The Patient or His Victim: The\n\n132\n\n\x0cTherapist\xe2\x80\x99s Dilemma (1974) 62 CAL. L. REV. 1025, 1067: \xe2\x80\x9c\xe2\x80\xa6 the\nultimate question of resolving the tension between the\nconflicting interests of patient and potential victim is one of\nsocial policy, not professional expertise. \xe2\x80\xa6 In sum, the therapist\nowes a legal duty not only to his patient, but also to his patient\xe2\x80\x99s\nwould-be victim and is subject in both respects to scrutiny by\njudge and jury.\xe2\x80\x9d~\nThe risk that unnecessary warnings may be given is a reasonable\nprice to pay for the lives of possible victims that may be saved.\nWe would hesitate to hold that the therapist who is aware that\nhis patient expects to attempt to assassinate the President of the\nUnited States would not be obligated to warn the authorities\nbecause the therapist cannot predict with accuracy that his\npatient will commit the crime.\nDefendants further argue that free and open communication is\nessential to psychotherapy; that \xe2\x80\x9cUnless a patient \xe2\x80\xa6 is assured\nthat \xe2\x80\xa6 information [revealed by him] can and will be held in\nutmost confidence, he will be reluctant to make the full\ndisclosure upon which diagnosis and treatment \xe2\x80\xa6 depends.\xe2\x80\x9d\n(Sen. Com. on Judiciary, comment on Evid. Code, \xc2\xa7 1014.) The\ngiving of a warning, defendants contend, constitutes a breach of\ntrust which entails the revelation of confidential\ncommunications.\n\xef\x81\x81\n\nCounsel for defendant Regents and amicus American\nPsychiatric Association predict that a decision of this court\nholding that a therapist may bear a duty to warn a potential\nvictim will deter violence-prone persons from seeking therapy,\nand hamper the treatment of other patients.~ In In re Lifschutz,\ncounsel for the psychiatrist argued that if the state could compel\ndisclosure of some psychotherapeutic communications,\npsychotherapy could no longer be practiced successfully. We\nrejected that argument, and it does not appear that our decision\nin fact adversely affected the practice of psychotherapy in\nCalifornia. Counsels\xe2\x80\x99 forecast of harm in the present case strikes\nus as equally dubious.~\xef\x81\x80\nWe recognize the public interest in supporting effective\ntreatment of mental illness and in protecting the rights of\n\n133\n\n\x0cpatients to privacy, and the consequent public importance of\nsafeguarding the confidential character of psychotherapeutic\ncommunication. Against this interest, however, we must weigh\nthe public interest in safety from violent assault. The Legislature\nhas undertaken the difficult task of balancing the countervailing\nconcerns. In Evidence Code section 1014, it established a broad\nrule of privilege to protect confidential communications\nbetween patient and psychotherapist. In Evidence Code section\n1024, the Legislature created a specific and limited exception to\nthe psychotherapist-patient privilege: \xe2\x80\x9cThere is no privilege \xe2\x80\xa6\nif the psychotherapist has reasonable cause to believe that the\npatient is in such mental or emotional condition as to be\ndangerous to himself or to the person or property of another\nand that disclosure of the communication is necessary to\nprevent the threatened danger.\xe2\x80\x9d~\nOur current crowded and computerized society compels the\ninterdependence of its members. In this risk-infested society we\ncan hardly tolerate the further exposure to danger that would\nresult from a concealed knowledge of the therapist that his\npatient was lethal. If the exercise of reasonable care to protect\nthe threatened victim requires the therapist to warn the\nendangered party or those who can reasonably be expected to\nnotify him, we see no sufficient societal interest that would\nprotect and justify concealment. The containment of such risks\nlies in the public interest. For the foregoing reasons, we find that\nplaintiffs\xe2\x80\x99 complaints can be amended to state a cause of action\nagainst defendants Moore, Powelson, Gold, and Yandell and\nagainst the Regents as their employer, for breach of a duty to\nexercise reasonable care to protect Tatiana.~\nJustice STANLEY MOSK, concurring and dissenting:\nI concur in the result in this instance only because the\ncomplaints allege that defendant therapists did in fact predict\nthat Poddar would kill and were therefore negligent in failing to\nwarn of that danger. Thus the issue here is very narrow: we are\nnot concerned with whether the therapists, pursuant to the\nstandards of their profession, \xe2\x80\x9cshould have\xe2\x80\x9d predicted potential\n\n134\n\n\x0cviolence; they allegedly did so in actuality. Under these limited\ncircumstances I agree that a cause of action can be stated.\nWhether plaintiffs can ultimately prevail is problematical at best.\nAs the complaints admit, the therapists did notify the police that\nPoddar was planning to kill a girl identifiable as Tatiana. While I\ndoubt that more should be required, this issue may be raised in\ndefense and its determination is a question of fact.\nI cannot concur, however, in the majority\xe2\x80\x99s rule that a therapist\nmay be held liable for failing to predict his patient\xe2\x80\x99s tendency to\nviolence if other practitioners, pursuant to the \xe2\x80\x9cstandards of the\nprofession,\xe2\x80\x9d would have done so. The question is, what\nstandards? Defendants and a responsible amicus curiae,\nsupported by an impressive body of literature discussed at\nlength in our recent opinion in People v. Burnick (1975) 14 Cal.3d\n306, demonstrate that psychiatric predictions of violence are\ninherently unreliable.\nIn Burnick, at pages 325-326, we observed: \xe2\x80\x9cIn the light of recent\nstudies it is no longer heresy to question the reliability of\npsychiatric predictions. Psychiatrists themselves would be the\nfirst to admit that however desirable an infallible crystal ball\nmight be, it is not among the tools of their profession. It must\nbe conceded that psychiatrists still experience considerable\ndifficulty in confidently and accurately diagnosing mental illness.\nYet those difficulties are multiplied manyfold when psychiatrists\nventure from diagnosis to prognosis and undertake to predict\nthe consequences of such illness~.\nI would restructure the rule designed by the majority to\neliminate all reference to conformity to standards of the\nprofession in predicting violence. If a psychiatrist does in fact\npredict violence, then a duty to warn arises. The majority\xe2\x80\x99s\nexpansion of that rule will take us from the world of reality into\nthe wonderland of clairvoyance.\nJustice WILLIAM PATRICK CLARK, JR., dissenting:\nUntil today\xe2\x80\x99s majority opinion, both legal and medical\nauthorities have agreed that confidentiality is essential to\neffectively treat the mentally ill, and that imposing a duty on\n\n135\n\n\x0cdoctors to disclose patient threats to potential victims would\ngreatly impair treatment. Further, recognizing that effective\ntreatment and society\xe2\x80\x99s safety are necessarily intertwined, the\nLegislature has already decided effective and confidential\ntreatment is preferred over imposition of a duty to warn.\nThe issue whether effective treatment for the mentally ill should\nbe sacrificed to a system of warnings is, in my opinion, properly\none for the Legislature, and we are bound by its judgment.\nMoreover, even in the absence of clear legislative direction, we\nmust reach the same conclusion because imposing the majority\xe2\x80\x99s\nnew duty is certain to result in a net increase in violence.~\nThe tragedy of Tatiana Tarasoff has led the majority to disregard\nthe clear legislative mandate of the Lanterman-Petris-Short Act.\nWorse, the majority impedes medical treatment, resulting in\nincreased violence from \xe2\x80\x93 and deprivation of liberty to \xe2\x80\x93 the\nmentally ill.\nWe should accept legislative and medical judgment, relying upon\neffective treatment rather than on indiscriminate warning.~\n\nQuestions to Ponder About Tarasoff\nA. Both Tarasoff and Boyd implicate questions about the effect that\nthe court\xe2\x80\x99s decision may have on future behavior. For instance, in\nBoyd there was a concern that finding a duty would encourage the\nuse of hostages in future hold-ups. In Tarasoff, there is a concern\nthat finding a duty will cause future psychotherapy patients to be less\nrevelatory in therapy sessions, thereby making therapy less effective,\nwhich ultimately will cause society greater harm than the occasional\nharm done to third parties that might have been prevented with a\nwarning. What do you think of that concern? Is there a difference\nbetween Boyd and Tarasoff on this score?\nB. This case, like many, raises the question of whether the courts or\nlegislatures are better equipped to deal with the competing concerns\nraised in considering a change to tort law. In what ways might\nlegislatures be better than courts in making such changes? In what\nways might courts be better than legislatures?\n\n136\n\n\x0c6. Breach of the Duty of Care\n\xe2\x80\x9cWhat\'s called for here is not paranoia but its uptown cousin,\nreasonable caution.\xe2\x80\x9d\n\xe2\x80\x93 Brendan I. Koerner, Wired Magazine, 2010\n\xe2\x80\x9cI did my best, but I guess my best wasn\xe2\x80\x99t good enough.\xe2\x80\x9d\n\xe2\x80\x93 James Ingram, in a song written by Cynthia Weil, 1981\n\nDetermining Breach, in General\nThe next element in the negligence case is breach of the duty of care.\nVery roughly, this gets at the question of whether the defendant was\n\xe2\x80\x9cbeing careless.\xe2\x80\x9d In this sense, the breach element is really at the\nheart of negligence cause of action.\nTerminology Note: Negligence vs. Negligence\nThis is a good point at which to pause to note some potentially\nconfusing issues regarding terminology.\nThe term \xe2\x80\x9cnegligence\xe2\x80\x9d is used for two different concepts. One use of\nthe word \xe2\x80\x9cnegligence\xe2\x80\x9d is to denote a legal cause of action, a basis\nupon which one person can sue another. This is the sense in which\nwe have been using the word up to now. The other use of the word\n\xe2\x80\x9cnegligence\xe2\x80\x9d is as a synonym for \xe2\x80\x9ccarelessness.\xe2\x80\x9d And in this sense,\n\xe2\x80\x9cnegligence\xe2\x80\x9d is sometimes used to refer to the breach of the duty of\ncare. In this vein, a person might say \xe2\x80\x9cthe defendant was negligent\xe2\x80\x9d\nor \xe2\x80\x9cthe defendant\xe2\x80\x99s actions constituted negligence\xe2\x80\x9d as a way of saying\nthat \xe2\x80\x9cthe defendant breached his or her duty of care.\xe2\x80\x9d Of course it\nseems circular to speak of \xe2\x80\x9cnegligence\xe2\x80\x9d as being just one of the\nseveral elements of \xe2\x80\x9cnegligence.\xe2\x80\x9d But the apparent circularity is\nresolved when you understand the separate senses in which the word\nmay be used.\n\n\x0cMore often than not the noun \xe2\x80\x9cnegligence\xe2\x80\x9d refers to the cause of\naction, while the adjective \xe2\x80\x9cnegligent\xe2\x80\x9d refers to the breach element.\nBut you cannot count on the noun/adjective distinction to tell the\nconcepts apart, because they often go the other way as well. To be\nliterate in reading cases, briefs, and other documents, you will need to\nlearn to look past the word to the concept it represents. It may sound\nconfusing now, but if you keep reading, this is something that will\nsoon come to you naturally, without conscious thought.\nThe Essential Question: Was the Risk Unreasonable?\nTo speak in very broad terms, the breach question essentially comes\ndown to the question of whether the risk was reasonable. Certainly\nthere is much more the law has to say about the matter \xe2\x80\x93 and this\nchapter will cover that. But in terms of the basic idea, breach is\ndefined by what can reasonably be expected of people living in civil\nsociety who do not wish to cause harm.\nAn example will help show reasonableness in action.\n\nExample: Banana Peels and Lasers \xe2\x80\x93 Suppose a woman\nslips and falls on a banana peel in the produce aisle of the\ngrocery store, causing her to suffer a broken wrist. Suppose\nalso that the banana peel had only been there for a couple of\nminutes before the woman slipped. On these facts, can the\nwoman establish a prima facie case for negligence against the\ngrocery story? No, she cannot. But why not? It is certainly\ntrue that the grocery store could have prevented the accident\nif it had really wanted to. The store could have installed a\nsophisticated laser-tripwire alarm system to detect the\npresence of any foreign object on the floor. Or the grocery\nstore could have hired a large number of employees to act as\nsentries, guarding every aisle to provide constant monitoring\nof all floors for hazards. Those things would have prevented\nthe accident. But it is not reasonable to expect stores to do\nthese sorts of things. The law only requires people to be\nreasonably careful, not triple-extra-super-duper careful.\n\n138\n\n\x0cDistinguishing Breach from the Other Elements\nRemember that each element in the negligence cause of action is\nessential to presenting a prima facie case. If a plaintiff can prove that\na defendant owed the plaintiff a duty of care and undertook an action\nthat actually and proximately caused an injury to the plaintiff\xe2\x80\x99s person\nor property, there can still be no recovery if there is no breach.\nConsider again the banana case. Notice that in that case, absolutely\nevery other element of the negligence case is there. There is a duty of\ncare: That is easy, because stores owe their customers a duty of care.\nThere is also actual causation: But for the banana peel being in the\naisle, there would be no injury. Proximate causation is satisfied as\nwell: There is a very direct connection between the presence of the\nbanana peel and the broken wrist, and a slip-and-fall is a foreseeable\nconsequence of an abandoned banana peel in a walkway. The\nexistence-of-damages element is satisfied also: There is a broken\nwrist. What is missing is the breach element. It is the breach element\n\xe2\x80\x93 and it alone \xe2\x80\x93 that prevents the unlucky shopper from recovering\nfrom the grocery store.\nCase: Rogers v. Retrum\nThe following case is an example of a situation in which all the\nelements of a negligence cause of action are present except for\nbreach of the duty of care. The court takes pains to explain why it all\ncomes down to breach, and because of this, the case provides an\nexcellent introduction to the breach element.\nOne thing to note about the terminology in the case: What the court\ncalls \xe2\x80\x9clegal cause\xe2\x80\x9d is a lumping together of what this casebook treats\nas two separate elements: actual causation and proximate causation.\nMoreover, instead of using the term \xe2\x80\x9cactual causation,\xe2\x80\x9d the case uses\nthe terms \xe2\x80\x9cbut-for causation\xe2\x80\x9d and \xe2\x80\x9ccausation-in-fact.\xe2\x80\x9d\n\nRogers v. Retrum\nCourt of Appeals of Arizona, Division One, Department E\nJuly 18, 1991\n170 Ariz. 399. Kevin C. ROGERS, a minor, by and through his\nnext best friend and natural mother, Sheila E. STANDLEY,\n\n139\n\n\x0cPlaintiffs-Appellants, v. Randolph RETRUM and Jane Doe\nRetrum, husband and wife; Prescott Unified School District,\nDefendants-Appellees. No. 1 CA-CV 89-356.\nJudge NOEL FIDEL:\nPlaintiff Kevin C. Rogers appeals from summary judgment\nentered for defendants Randolph Retrum and Prescott Unified\nSchool District on plaintiff\xe2\x80\x99s negligence claim. We affirm\nsummary judgment because plaintiff\xe2\x80\x99s injury did not result from\nan unreasonable risk that may be charged to the conduct of\nthese defendants.\nFACTUAL AND PROCEDURAL HISTORY\nWe state the facts, as always, in the light most favorable to the\nparty appealing from summary judgment.\nOn the morning of February 5, 1989, Kevin C. Rogers, a\nsixteen-year-old junior at Prescott High School, completed an\nadvanced electronics test. Although Rogers anticipated a good\ngrade, the teacher, Randolph Retrum, publicly gave him a failing\ngrade. When Rogers asked why, Retrum threw the test in his\ndirection and answered, \xe2\x80\x9cBecause I don\xe2\x80\x99t like you.\xe2\x80\x9d\nAlthough class was not over, Retrum permitted students to\nleave class as they pleased, and Prescott High School permitted\nstudents to enter and leave the campus freely. (The defendants\ndispute these allegations, but also acknowledge that we must\naccept them as truthful for the purpose of reviewing summary\njudgment.)\nHumiliated and upset, Rogers left class with a friend named\nNatalo Russo, punching a wall and kicking some trash cans on\nhis way to Russo\xe2\x80\x99s car. As Russo tried to calm him, the friends\nleft campus in Russo\xe2\x80\x99s car by a meandering route that eventually\nled them eastward on Iron Springs Road. There Russo, the\ndriver, accelerated and lost control, passing in a curve at a speed\nexceeding 90 miles per hour. When the car struck an\nembankment, landed on its nose, and slid several hundred feet,\nRogers was ejected and sustained the injuries for which he sues.\n\n140\n\n\x0cAfter the accident, Retrum admitted that Rogers had actually\npassed the test. Retrum had falsely given Rogers a failing grade\nbecause Rogers had always done well in the class and Retrum\n\xe2\x80\x9cwanted [Rogers] to know what it felt like to fail.\xe2\x80\x9d\nRogers settled negligence claims against Natalo Russo and his\nparents, and the trial court granted summary judgment rejecting\nRogers\xe2\x80\x99s negligence claims against Retrum and the district. From\nthis judgment, Rogers appeals.\nPLAINTIFF\xe2\x80\x99S CLAIM OF NEGLIGENCE\nWe first point out that Retrum\xe2\x80\x99s alleged conduct, however\negregious, is not the causal focus of plaintiff\xe2\x80\x99s claim. If, in the\nflush of first reaction, plaintiff had blindly run into harm\xe2\x80\x99s way,\nwe would examine the range of foreseeable, unreasonable risks\nthat might be attributed to a teacher\xe2\x80\x99s false and deliberate\nhumiliation of an impressionable teenager entrusted to his class.\nPlaintiff, however, stepped into his friend Natalo Russo\xe2\x80\x99s car.\nAnd plaintiff\xe2\x80\x99s counsel has conceded at oral argument that there\nis no evidence that Retrum\xe2\x80\x99s words to Rogers affected Russo\xe2\x80\x99s\noperation of his car.\nCounsel instead targets Retrum\xe2\x80\x99s \xe2\x80\x9copen class\xe2\x80\x9d and the district\xe2\x80\x99s\n\xe2\x80\x9copen campus\xe2\x80\x9d policies as the causal negligence in this case. By\nthese policies, according to counsel, defendants breached their\nsupervisory duty to plaintiff and exposed him to the risk of\nhighway injury when he should have been in class. We confine\nour analysis to this claim.\nDUTY\nThe first question in a negligence case is whether the defendants\nowed a duty to the plaintiff. We find that defendants had a\nrelationship with plaintiff that entailed a duty of reasonable care.\nOur supreme court has distilled, as the essence of duty, the\nobligation to act reasonably in the light of foreseeable and\nunreasonable risks.\nClearly, school teachers and administrators are \xe2\x80\x9cunder [an]\nobligation for the benefit of\xe2\x80\x9d the students within their charge.\nThis obligation includes the duty not to subject those students,\n\n141\n\n\x0cthrough acts, omissions, or school policy, to a foreseeable and\nunreasonable risk of harm.\nLEGAL CAUSE\nWe next take up defendants\xe2\x80\x99 argument that summary judgment\nmay be affirmed on the ground that Russo\xe2\x80\x99s driving was an\nintervening, superseding cause. We do so before reaching the\ndispositive question of breach of duty because questions of\nbreach and cause are too often confused and this case may serve\nto delineate them. We are guided by the comment of Professors\nProsser and Keeton that\n[i]n [certain] cases the standard of reasonable\nconduct does not require the defendant to\nrecognize the risk, or to take precautions against\nit. \xe2\x80\xa6 In these cases the defendant is simply not\nnegligent. When the courts say that his conduct\nis not \xe2\x80\x9cthe proximate cause\xe2\x80\x9d of the harm, they\nnot only obscure the real issue, but suggest\nartificial distinctions of causation which have no\nsound basis, and can only arise to plague them\nin the future.\nProsser and Keeton, supra \xc2\xa7 42, at 275; see also Tucker v. Collar, 79\nAriz. 141, 145 (1955) (\xe2\x80\x9cMuch confusion has resulted from many\ncourts disposing of cases upon the ground defendant\xe2\x80\x99s act was\nnot the proximate cause of an injury when the proper basis was\nthat there was no negligence.\xe2\x80\x9d).\nOne element of legal cause is \xe2\x80\x9cbut-for causation\xe2\x80\x9d or causationin-fact. See Ontiveros v. Borak, 136 Ariz. 500, 505 (1983) (\xe2\x80\x9c[A]s far\nas causation-in-fact is concerned, the general rule is that a\ndefendant may be held liable if his conduct contributed to the\nresult and if that result would not have occurred \xe2\x80\x98but for\xe2\x80\x99\ndefendant\xe2\x80\x99s conduct.\xe2\x80\x9d). This element is adequately established; a\njury might reasonably find that, but for the open campus and\nclassroom policies plaintiff complains of, Rogers and Russo\nwould have been at school at 9:10 a.m. on February 5, 1989, and\nnot in a car on Iron Springs Road.\nThe more elusive element of legal cause is foreseeability, and\nthis, according to defendants, is lacking in this case. They argue:\n\n142\n\n\x0c[N]o reasonable person could or should have\nrealized Russo would drive in a criminally\nreckless manner at 100 miles an hour so as to\ncause an accident. Thus it is the intervening\nsuperseding act of fellow student Russo, not the\nact of Retrum or Prescott Schools[,] which was\nthe proximate cause of plaintiff\xe2\x80\x99s injury.\nWe decline to affirm the trial court\xe2\x80\x99s judgment on this ground.\nFirst, \xe2\x80\x9cwe must take a broad view of the class of risks and\nvictims that are foreseeable, and the particular manner in which\nthe injury is brought about need not be foreseeable.\xe2\x80\x9d Schnyder v.\nEmpire Metals, Inc., 136 Ariz. 428, 431 (App.1983). It is not\nunforeseeable that mobile high school students, permitted to\nleave campus during classroom hours, will be exposed to the\nrisk of roadway accidents.\nSecond, the reckless or criminal nature of an intervenor\xe2\x80\x99s\nconduct does not place it beyond the scope of a duty of\nreasonable care if that duty entails foresight and prevention of\nprecisely such a risk.~\nThe condition created by defendants\xe2\x80\x99 negligent conduct,\naccording to plaintiff, was exposure to a preventable risk of\nvehicular injury off school grounds. Inherent in the risk of\nvehicular injury is the prospect of an intervenor\xe2\x80\x99s negligent or\nreckless driving of a car; to foresee the injurious end is to\nforesee that a careless intervenor, one way or another, may be\nthe means. For this reason, it does not advance analysis in this\ncase to focus on the details of the intervenor\xe2\x80\x99s conduct. The\nessential question is not whether the district might have\nforeseen the risk of vehicular injury but whether the district,\ngiven its supervisory responsibilities, was obliged to take\nprecautionary measures. This question, we conclude, is neither\none of duty nor causation; it is one of breach.\nA useful contrast is provided by Williams v. Stewart, 145 Ariz. 602\n(App.1985). When a maintenance worker entered a swimming\npool to unclog the drain, the dirty water allegedly caused his\npreexisting sinus infection to spread to his brain. Division Two\nof this court affirmed summary judgment, stating:\n\n143\n\n\x0cEven assuming that [a persistent failure to clean\nthe pool] created an unreasonable risk of some\nkinds of harm, Williams\xe2\x80\x99 injury was well outside\nthe scope of foreseeable risk, was unrelated to\nwhat made the conduct negligent, and no\nliability resulted. This is not a case \xe2\x80\x9cwhere the\nduty breached was one imposed to prevent the\ntype of harm which plaintiff ultimately\nsustained.\xe2\x80\x9d\nThe same cannot be said in this case. Here, to paraphrase\n[Williams by Williams], assuming that the school\xe2\x80\x99s failure to\nrestrict egress from campus created an unreasonable risk of\nvehicular injury off campus, plaintiff\xe2\x80\x99s injury was within the\nscope of foreseeable risk. Analysis thus shifts from the causal\nquestion whether the risk was foreseeable to the negligence\nquestion whether the risk was unreasonable.\nUNREASONABLE RISK\nNot every foreseeable risk is an unreasonable risk. It does not\nsuffice to establish liability to prove (a) that defendant owed\nplaintiff a duty of reasonable care; (b) that an act or omission of\ndefendant was a contributing cause of injury to plaintiff; and (c)\nthat the risk of injury should have been foreseeable to\ndefendant. The question whether the risk was unreasonable\nremains. This last question merges with foreseeability to set the\nscope of the duty of reasonable care. Cf. 3 F. Harper, F. James &\nO. Gray, The Law of Torts \xc2\xa7 18.2, at 656-57 (2d ed. 1986) (\xe2\x80\x9c[T]he\ninquiry into the scope of duty is concerned with exactly the\nsame factors as is the inquiry into whether conduct is\nunreasonably dangerous (i.e., negligent).\xe2\x80\x9d ).\nTo decide whether a risk was unreasonable requires an\nevaluative judgment ordinarily left to the jury. \xe2\x80\x9cSummary\njudgment is generally not appropriate in negligence actions.\xe2\x80\x9d\nTribe v. Shell Oil Co., Inc., 133 Ariz. 517, 518 (1982). However, in\napproaching the question of negligence or unreasonable risk,\nthe courts set outer limits. A jury will not be\npermitted to require a party to take a precaution\nthat is clearly unreasonable. \xe2\x80\xa6 Thus, for\n\n144\n\n\x0cexample, the jury may not require a train to stop\nbefore passing over each grade crossing in the\ncountry.\n3 F. Harper, F. James & O. Gray, supra \xc2\xa7 15.3, at 355-57.\nIn describing the question whether a risk was unreasonable as\nrequiring evaluative judgment, we acknowledge that the question\ndoes not fall neatly into the category of question of fact or the\ncategory of question of law. These categories serve less as guides\nto analysis than as labels that attach after the court has decided\nwhether to leave evaluation to the jury or preempt it for the\ncourt. See James, Functions of Judge and Jury in Negligence Cases, 58\nYale L.J. 667, 667-68 (1949) (The common generality that\nquestions of law are for the court and questions of fact for the\njury \xe2\x80\x9chas never been fully true in either of its branches and tells\nus little or nothing that is helpful.\xe2\x80\x9d)~.\nCoburn v. City of Tucson is a recent example of the court\xe2\x80\x99s\npreemption of the question of unreasonable risk. There, a child\neastbound on a bicycle was struck and killed by a southbound\ndriver in an intersection collision. 143 Ariz. at 51. The child had\nignored a stop sign and entered the intersection in the lane of\nwestbound (oncoming) traffic. The child could not see the\ndriver approaching because a bush at the northwest corner\nobscured his view. The child\xe2\x80\x99s parents sued the city for failure to\nremove the bush; the city both controlled the street and owned\nthe lot where the bush grew. Id. The evidence established,\nhowever, that the bush would not have obstructed the view of\nsouth- or northbound traffic for any eastbound cyclist or driver\nwho had stayed in the eastbound lane and stopped at the stop\nsign. Id. at 54. The supreme court affirmed summary judgment\nfor the city, finding that the city had not breached its duty to\nprovide intersections that are reasonably safe.\nThe lack of liability may be framed in terms of\nduty, but we prefer that duty be recognized as a\ndistinct element involving the obligation of the\nactor to protect the other from harm. Here,\nthere was a duty, but no negligence; therefore,\nthere is no liability.\n\n145\n\n\x0cId. (citations omitted).\nWe make the same determination in this case. Members of our\nmobile society face the risk of collision whenever they are in\ncars. This risk is arguably higher for teenage passengers of\nteenage drivers. The school in this case, however, did nothing to\nincrease this general risk. It did not, for example, leave students\ninadequately supervised or instructed in a driver\xe2\x80\x99s education\nclass. It did not tolerate drinking at a school affair. It simply\nchose not to restrict students to campus during the school day\nand thereby shield them from the ordinary risk of vehicular\nharm that they would face when out of school. We conclude\nthat \xe2\x80\x9cthe standard of reasonable conduct [did] not require the\ndefendant[s] to \xe2\x80\xa6 take precautions against\xe2\x80\x9d that risk. Prosser\nand Keeton, supra \xc2\xa7 42, at 275. More simply stated, the\ndefendants\xe2\x80\x99 omission did not create an unreasonable risk of\nharm.\nAlthough, in taking this issue from the jury, we find that\nreasonable persons could not differ, we do not mask the\nelement of policy in our choice. First, the question of the legal\nconsequence of an open campus high school policy is not a\nrandom judgment best left to case-by-case assessment, but a\nquestion likely to recur and one on which school boards need\nsome guidance. Second, policy considerations appropriate to\nlocal school boards \xe2\x80\x93 local transportation options, inter-school\ntransfer arrangements, and extracurricular activity locations, for\nexample \xe2\x80\x93 are pertinent to the decision whether restrictions\nshould be placed on high school students coming and going\nfrom the campus during ordinary hours. Finally, and most\nsignificantly, we decline to make high school districts that adopt\nan open campus policy insurers against the ordinary risks of\nvehicular injury that students face in driving off school grounds.\nThis is not to suggest that a school\xe2\x80\x99s supervisory omissions can\nnever give rise to liability for an accident off campus. We do not\npretend that the range of foreseeable and unreasonable risks\nfrom supervisory omissions is automatically circumscribed by\nthe school fence.\n\n146\n\n\x0cNor do we suggest that a calculus of unreasonable risk will yield\nequivalent results at every level of the schools. We leave for\nresolution in other unsupervised egress cases such questions as\nwhether parents\xe2\x80\x99 supervisory expectations may reasonably differ\nat differing levels of the schools and whether the risks that may\nbe deemed unreasonable may likewise differ with the age of the\nstudent involved.\nIn a prior elementary school case, our court held that the\nabduction and slaying of a ten-year-old child who left campus\nwithout permission were unforeseeable consequences of the\nschool\xe2\x80\x99s alleged supervisory lapse. However, because cases after\nChavez have stressed that \xe2\x80\x9cwe must take a broad view of the\nclass of risks and victims that are foreseeable,\xe2\x80\x9d we have\nrecognized the question of unreasonable risk \xe2\x80\x93 not the question\nof foreseeable risk \xe2\x80\x93 as dispositive in this case.\nOur limited holding in this case is that the defendant high\nschool and its teacher did not subject the plaintiff high school\nstudent to an unreasonable risk of vehicular injury by permitting\nunsupervised egress from class and campus during the school\nday.\nCONCLUSION\nBecause plaintiff\xe2\x80\x99s injury was not a result within an unreasonable\nrisk created by defendants, we hold that defendants were not\nnegligent. The trial court\xe2\x80\x99s summary judgment in favor of\ndefendants is affirmed.\n\nIntentional Conduct as a Breach of Duty\nCan intentional conduct count as a breach of the duty of due care?\nThe logical answer would seem to be yes. To act with the intent to\nharm or with the substantial certainty of causing harm is one way of\nfailing to act with due care for persons around you.\nNevertheless, several courts have held that intentional conduct\ncannot count as a breach of the duty of due care. These cases seem to\nfocus on the everyday meaning of the word \xe2\x80\x9cnegligence\xe2\x80\x9d as meaning\n\xe2\x80\x9ccarelessness,\xe2\x80\x9d rather than looking at the tort of negligence as series\n\n147\n\n\x0cof elements, which, if proved by the plaintiff, make out a prima facie\ncase for liability.\nAn example of this approach is found in American National Fire\nInsurance Co. v. Schuss, 221 Conn. 768 (Conn. 1992), in which the\nConnecticut Supreme Court held that the perpetrator of intentional\nconduct could not be held liable in negligence. The complaint alleged\nthat the defendant set fire to a synagogue, and a jury found the\ndefendant liable in negligence. Yet the trial court set aside the verdict\nand the Connecticut Supreme Court affirmed, seeing the evidence\nthat the defendant set the fire intentionally as a kind of defense to the\nnegligence claim:\nIt is axiomatic, in the tort lexicon, that\nintentional conduct and negligent conduct,\nalthough differing only by a matter of degree[,]\nare separate and mutually exclusive.~ It is true,\nof course, that intentional tortious conduct will\nordinarily also involve one aspect of negligent\nconduct, namely, that it falls below the objective\nstandard established by law for the protection of\nothers against unreasonable risk of harm. That\ndoes not mean, however, as the plaintiff\xe2\x80\x99s\nargument suggests, that the same conduct can\nreasonably be determined to have been both\nintentionally and negligently tortious. The\ndistinguishing factor between the two is what\nthe negligent actor does not have in mind: either\nthe desire to bring about the consequences that\nfollow or the substantial certainty that they will\noccur. If he acted without either that desire or\nthat certainty, he was negligent; if he acted with\neither that desire or that certainty, he acted\nintentionally.~ Application of these principles to\nthe evidence in this case compels the conclusion\nthat the defendant acted intentionally, and not\nmerely negligently.\n\nId. at 775, 777-778 (internal citations omitted).\n\n148\n\n\x0cThe Hawaii Supreme Court explained what it saw as wrong with this\nline of thinking in the case of Dairy Road Partners v. Island Insurance Co.,\nLtd., 992 P.2d 93 (Haw. 2000):\nWe recognize that a number of jurisdictions\nhave held that evidence of intentional conduct\nmay not support a claim for negligence. These\ndecisions are grounded in the proposition that\nthe words \xe2\x80\x9cnegligence\xe2\x80\x9d and \xe2\x80\x9cintentional\xe2\x80\x9d are\ncontradictory, inasmuch as negligence connotes\ncarelessness,\nwhereas\nintent\nconnotes\npurposefulness. However, in this jurisdiction,\nwe have never restricted claims sounding in\nnegligence to unintentional or \xe2\x80\x9ccareless\xe2\x80\x9d\nconduct.~ [A] cause of action sounding in\nnegligence will lie if the defendant breaches a\nduty owed to the plaintiff, thereby legally\ncausing the plaintiff injury. So long as such a\nrelation exists between the parties that the\ncommunity will impose a legal obligation upon\none for the benefit of the other, i.e., so long as\nthe defendant owes the plaintiff a duty, the\nthoughts passing through the defendant\xe2\x80\x99s mind\nas he or she breaches that duty are immaterial.\nIn a tort action, the defendant\xe2\x80\x99s state of mind is\nrelevant only when the plaintiff alleges that the\ndefendant\xe2\x80\x99s conduct was intentionally tortious\nand/or the plaintiff is seeking to recover\npunitive \xe2\x80\x93 as opposed to merely compensatory\n\xe2\x80\x93 damages from the defendant. A showing that\nthe defendant\xe2\x80\x99s actions were intentional may\nallow the plaintiff to obtain punitive as well as\ncompensatory damages. A plaintiff who fails to\nallege such wilful, wanton, malicious, or\nintentional conduct \xe2\x80\x93 notwithstanding that it\nmay have occurred \xe2\x80\x93 and who, instead, merely\nalleges that the defendant breached a duty of\ncare, waives the opportunity to recover punitive\ndamages. In effect, such a plaintiff has\n\xe2\x80\x9cundercharged\xe2\x80\x9d his or her case against the\ndefendant, just as a prosecutor may undercharge\na criminal defendant and successfully convict\n\n149\n\n\x0chim or her of an offense requiring a lesser state\nof mind than that demonstrated by the evidence\nof the case. The contrary rule, embraced by\n[other] jurisdictions~, leads to the absurdity of\nallowing the defendant to raise, as an\nexonerating defense to a claim of negligence,\nthat he or she purposefully injured the plaintiff.~\nIt is illogical and inequitable to reward a\ndefendant for morally reprehensible conduct.\nTherefore, we respectfully disagree with Schuss\nand the other decisions[.]\n\nId. at 114-16 (internal citations and quotes omitted).\n\nThe Reasonable Person Standard of Care\nBasics\nIt is amazing how much of the law comes down to the word\n\xe2\x80\x9creasonable.\xe2\x80\x9d Just from watching television or reading books, you are\nprobably already familiar with the concept of \xe2\x80\x9creasonable doubt\xe2\x80\x9d in\ncriminal law. But you will find that much of the law in contracts,\nproperty, and torts \xe2\x80\x93 not to mention antitrust, family law, disability\nlaw, and many other fields \xe2\x80\x93 also ultimately funnels down to a\nquestion of whether something is reasonable. Certainly not all legal\nquestions turn on reasonability. But many do. And, as you will see in\nthis chapter, the breach element of negligence is one of those.\nIf a defendant owes a plaintiff a duty of care, then the default\nstandard of care is what the reasonable person would do under the\nsame circumstances. If the defendant is less careful than the\nreasonable person would be, then the duty of care has been breached.\nSo, for example, if the defendant in a negligence case is alleged to\nhave caused an accident by texting and driving 10 miles an hour over\nthe speed limit while applying makeup, then the breach-of-duty\nquestion is: Would the reasonable person have done that while\ndriving along that freeway at that time under those circumstances? If\nnot, then the duty of care has been breached.\nA classic statement invoking the reasonable person as the way of\ndetermining whether the duty of care has been breached comes from\n\n150\n\n\x0cBaron Alderson in Blyth v Birmingham Waterworks Co., 11 Ex. Ch. 781\n(1856):\n\xe2\x80\x9cNegligence is the omission to do something\nwhich a reasonable man, guided upon those\nconsiderations which ordinarily regulate the\nconduct of human affairs, would do, or doing\nsomething which a prudent and reasonable man\nwould not do. The defendants might be liable\nfor negligence, if, unintentionally, they omitted\nto do that which a prudent and reasonable\nperson would have done, or did that which a\nperson taking reasonable care would not have\ndone.\xe2\x80\x9d\n\n(Note that in this quote, the first time Baron Alderson uses the word\n\xe2\x80\x9cnegligence,\xe2\x80\x9d it is in the sense of breach of the duty of care; the second\ninstance of the word refers to the cause of action as a whole.)\nThe reasonable person is a mental construct that is used as a\nbenchmark for analysis. As such, \xe2\x80\x9creasonable person\xe2\x80\x9d is a term of art\nin tort law.\nIt is important that you understand that the reasonable person is not\na real person. She or he does actually exist. When you are in your\ntorts classroom, look around. No one you see is the reasonable\nperson. You can search the whole world and never find the\nreasonable person. Thus, at the trial of a negligence case, you can\nnever put \xe2\x80\x9ca reasonable person\xe2\x80\x9d on the stand as an expert witness\nand ask what that person would have done. If such a thing could be\ndone, it would create the most sought after expert witness in\nAmerica. Imagine the plaintiff\xe2\x80\x99s attorney asking, \xe2\x80\x9cReasonable Person,\nwould you have been driving along the freeway at 85 miles per hour\nwhile applying lipstick and texting?\xe2\x80\x9d Personal injury litigation would\nbe a whole lot simpler if you could do that, but you cannot.\nThe reasonable person is not merely a person who is reasonable. In\nthe real world, reasonable people are occasionally careless. But the\nreasonable person of negligence law is always careful \xe2\x80\x93 24 hours a\nday, every day of her or his hypothetical life.\n\n151\n\n\x0cIt follows that the breach-of-duty question in a negligence case is not\nanswered by asking whether the defendant is a reasonable person.\nThe defendant is not the hypothetical reasonable person, and, since\nthe defendant is a real person, the defendant could never aspire to be\nthe reasonable person. The relevant question is whether the\ndefendant was behaving as the reasonable person would have\nbehaved at the moment of the occurrence being sued over. So a\ndefendant might be a very careful driver \xe2\x80\x93 one who has driven for 40\nyears without ever having caused an accident or been ticketed for a\nmoving violation. But that is irrelevant to the breach-of-duty\nquestion. All that matters is whether the defendant\xe2\x80\x99s conduct met the\nreasonable person standard at the critical moment when the calamity\nstarted to unfold.\nYou may think that it is not fair to expect everyone to behave as the\nreasonable person at all times. Most people would agree with that.\nAnd negligence law does not imply that everyone should behave as\nthe reasonable person at all times. The issue in negligence law is\nwhether, given that someone has suffered a injury or property damage, it is\nmore fair for the plaintiff or the defendant to bear the burden of the\nloss. The answer from negligence law is that it is more fair for the\nburden to fall on the defendant if the defendant\xe2\x80\x99s level of care fell\nbelow that of the hypothetical reasonable person.\nAn Objective Standard\nThe reasonable person standard is an objective one. It requires\nevaluating the situation as if viewing it from above. By contrast, a\nsubjective standard would go to what a person\xe2\x80\x99s own thoughts were.\nIf the reasonable person standard were a subjective standard, you\ncould successfully defend a negligence lawsuit by convincing the jury\nthat you genuinely thought you were being reasonable \xe2\x80\x93 that you\nwere \xe2\x80\x9ctrying your best.\xe2\x80\x9d Yet under the objective reasonable person\nstandard, if your best isn\xe2\x80\x99t as good as the reasonable person, then\nyour best isn\xe2\x80\x99t good enough.\nCase: Vaughn v. Menlove\nThis case is the classic example illustrating the reasonable person standard\nand its objective nature.\n\n152\n\n\x0cVaughan v. Menlove\nEnglish Court of Common Pleas\nJanuary 23, 1837\n3 Bing. (N.C.) 467, 132 Eng. Rep. 490. Judges on appeal:\nTINDAL, C.J., PARK, GASELEE, and VAUGHAN, JJ.\nConcurring opinions were delivered by Park, and Vaughan, JJ.\nGaselee, J. concurred in the result.\nThe FACTS as set forth by the REPORTER:\nThe declaration alleged, in substance, that plaintiff was the\nowner of two cottages; that defendant owned land near to the\nsaid cottages; that defendant had a rick or stack of hay near the\nboundary of his land which was liable and likely to ignite, and\nthereby was dangerous to the plaintiff\xe2\x80\x99s cottages; that the\ndefendant, well knowing the premises, wrongfully and\nnegligently kept and continued the rick in the aforesaid\ndangerous condition; that the rick did ignite, and that plaintiff\xe2\x80\x99s\ncottages were burned by fire communicated from the rick or\nfrom certain buildings of defendant\xe2\x80\x99s which were set on fire by\nflames from the rick.\nDefendant pleaded the general issue; and also several special\npleas, denying negligence.\nAt the trial it appeared that the rick in question had been made\nby the defendant near the boundary of his own premises; that\nthe hay was in such a state when put together, as to give rise to\ndiscussions on the probability of fire; that though there were\nconflicting opinions on the subject, yet during a period of five\nweeks the defendant was repeatedly warned of his peril; that his\nstock was insured; and that upon one occasion, being advised to\ntake the rick down to avoid all danger, he said \xe2\x80\x9c he would\nchance it.\xe2\x80\x9d He made an aperture or chimney through the rick;\nbut in spite, or perhaps in consequence of this precaution, the\nrick at length burst into flames from the spontaneous heating of\nits materials; the flames communicated to the defendant\xe2\x80\x99s barn\nand stables, and thence to the plaintiff\xe2\x80\x99s cottages, which were\nentirely destroyed.\n\n153\n\n\x0cPatteson, J., before whom the cause was tried, told the jury that\nthe question for them to consider was, whether the fire had\nbeen occasioned by gross negligence on the part of the\ndefendant; adding, that he was bound to proceed with such\nreasonable caution as a prudent man would have exercised\nunder such circumstances.\nA verdict having been found for the plaintiff, a rule nisi for a\nnew trial was obtained, on the ground that the jury should have\nbeen directed to consider, not whether the defendant had been\nguilty of a gross negligence with reference to the standard of\nordinary prudence, a standard too uncertain to afford any\ncriterion, but whether he had acted bond fide to the best of his\njudgment; if he had, he ought not to be responsible for the\nmisfortune of not possessing the highest order of intelligence.\nThe action under such circumstances was of the first\nimpression.\nTalfourd, Serjt., and Whately, showed cause:\nThe pleas having expressly raised issues on the negligence of the\ndefendant, the learned judge could not do otherwise than leave\nthat question to the jury.~ On the same circuit a defendant was\nsued a few years ago for burning weeds so near the extremity of\nhis own land as to set fire to and destroy his neighbors wood.\nThe plaintiff recovered damages, and no motion was made to\nset aside the verdict. Then, there were no means of estimating\nthe defendant\xe2\x80\x99s negligence, except by taking as a standard the\nconduct of a man of ordinary prudence: that has been the rule\nalways laid down, and there is no other that would not be open\nto much greater uncertainties.\nR.V. Richards, in support of the rule:\nFirst, there was no duty imposed on the defendant, as there is\non carriers or other bailees, under an implied contract, to be\nresponsible for the exercise of any given degree of prudence: the\ndefendant had a right to place his stack as near to the extremity\nof his own land as he pleased, under that right, and subject to no\ncontract, he can only be called on to act bond fide to the best of\nhis judgment; if he has done that, it is a contradiction in terms,\n\n154\n\n\x0cto inquire whether or not he has been guilty of gross negligence.\nAt all events what would have been gross negligence ought to be\nestimated by the faculties of the individual, and not by those of\nother men. The measure of prudence varies so with the varying\nfaculties of men, that it is impossible to say what is gross\nnegligence with reference to the standard of what is called\nordinary prudence. In Crook v. Jadis, 5 B. & Adol. 910, Patteson,\nJ., says, \xe2\x80\x9cI never could understand what is meant by parties\ntaking a bill under circumstances which ought to have excited\nthe suspicion of a prudent man; \xe2\x80\x9c and Taunton, J., \xe2\x80\x9cI cannot\nestimate the degree of care which a prudent man should take.\xe2\x80\x9d~\nChief Justice NICHOLAS CONYNGHAM TINDAL:\nI agree that this is a case primce impressionis; but I feel no\ndifficulty in applying to it the principles of law as laid down in\nother cases of a similar kind. Undoubtedly this is not a case of\ncontract, such as a bailment or the like, where the bailee is\nresponsible in consequence of the remuneration he is to receive:\nbut there is a rule of law which says you must so enjoy your own\nproperty as not to injure that of another; and according to that\nrule the defendant is liable for the consequence of his own\nneglect: and though the defendant did not himself light the fire,\nyet mediately he is as much the cause of it as if he had himself\nput a candle to the rick; for it is well known that hay will\nferment and take fire if it be not carefully stacked. It has been\ndecided that if an occupier burns weeds so near the boundary of\nhis own land that damage ensues to the property of his\nneighbor, he is liable to an action for the amount of injury done,\nunless the accident were occasioned by a sudden blast which he\ncould not foresee. Turberville v. Stamp, 1 Salk. 13. But put the case\nof a chemist making experiments with ingredients, singly\ninnocent, but when combined liable to ignite; if he leaves them\ntogether, and injury is thereby occasioned to the property of his\nneighbor, can any one doubt that an action on the case would\nlie?\nIt is contended, however, that the learned judge was wrong in\nleaving this to the jury as a case of gross negligence, and that the\nquestion of negligence was so mixed up with reference to what\n\n155\n\n\x0cwould be the conduct of a man of ordinary prudence that the\njury might have thought the latter the rule by which they were to\ndecide; that such a rule would be too uncertain to act upon; and\nthat the question ought to have been whether the defendant had\nacted honestly and bona fide to the best of his own judgment.\nThat, however, would leave so vague a line as to afford no rule\nat all, the degree of judgment belonging to each individual being\ninfinitely various~.\nInstead, therefore, of saying that the liability for negligence\nshould be coextensive with the judgment of each individual,\nwhich would be as variable as the length of the foot of each\nindividual, we ought rather to adhere to the rule, which requires\nin all cases a regard to caution such as a man of ordinary\nprudence would observe. That was in substance the criterion\npresented to the jury in this case, and therefore the present rule\nmust be discharged.\n\nAccounting for Differences Among People\nBasics\nFor the most part, the reasonable person standard does not make\nallowances for differences among defendants. That goes with the\nterritory of an objective standard.\nThe point made is made in an expressive way by Oliver Wendell\nHolmes, Jr. in The Common Law:\n\xe2\x80\x9c[W]hen men live in society, a certain average of\nconduct, a sacrifice of individual peculiarities\ngoing beyond a certain point, is necessary to the\ngeneral welfare. If, for instance, a man is born\nhasty and awkward, is always having accidents\nand hurting himself or his neighbors, no doubt\nhis congenital defects will be allowed for in the\ncourts of Heaven, but his slips are no less\ntroublesome to his neighbors than if they\nsprang from guilty neglect. His neighbors\naccordingly require him, at his proper peril, to\ncome up to their standard, and the courts which\nthey establish decline to take his personal\nequation into account.\xe2\x80\x9d\n\n156\n\n\x0cThe general rule notwithstanding, there are some circumstances\nunder which the reasonable person standard is adjusted to the\nparticular characteristics of the defendant, including for physical\nlimitations, childhood, and superior skills and knowledge.\nMental and Physical Capacity and Disability\nIn general, the courts will take the physical characteristics of the\ndefendant into account in applying the reasonable person standard,\nbut not mental or cognitive limitations or disabilities. So, for\nexample, if a defendant has impaired vision, impaired hearing,\namputated limbs, or does not have the ability to walk, then these\ndifferences are tailored into the reasonable person standard. If a blind\nperson runs into someone, causing an injury, the question is what a\nreasonable blind person would do under those circumstances. On the\nother hand, adjustments are generally not made for mental or\ncognitive differences. The hypothetical reasonable person is\nconsidered sane and cognitively normal. So if a person with\nAlzheimer\xe2\x80\x99s dementia were to become disoriented and knock\nsomeone over in a restaurant, the reasonable person standard would\nask whether someone without Alzheimer\xe2\x80\x99s would have knocked\nsomeone over under the same circumstances.\nThe rule of adjusting the standard for persons with physical\ndifferences, but not for persons with mental/cognitive limitations,\nhas been sharply criticized, and some jurisdictions have retreated\nfrom the rule in its full harshness.\nCase: Breunig v. American Family Insurance Co.\nHere, Wisconsin\xe2\x80\x99s high court confronts the question of whether the\nreasonable person standard should take into account a driver\xe2\x80\x99s\nsudden bout of insanity.\n\nBreunig v. American Family Insurance Co.\nSupreme Court of Wisconsin\nFebruary 3, 1970\n45 Wis. 2d 536. Phillip A. Breunig, Respondent, v. American\nFamily Insurance Company, Appellant. No. 43.\n\n157\n\n\x0cThe FACTS in the OFFICIAL REPORTER:\nThis is an action by Phillip A. Breunig to recover damages for\npersonal injuries which he received when his truck was struck by\nan automobile driven by Erma Veith and insured by the\ndefendant American Family Insurance Company (insurance\ncompany). The accident happened about 7 o\xe2\x80\x99clock in the\nmorning of January 28, 1966, on Highway 19 a mile west of Sun\nPrairie, while Mrs. Veith was returning home from taking her\nhusband to work. Mrs. Veith\xe2\x80\x99s car was proceeding west in the\neastbound lane and struck the left side of the plaintiff\xe2\x80\x99s car near\nits rear end while Breunig was attempting to get off the road to\nhis right and avoid a head-on collision.\nThe insurance company alleged Erma Veith was not negligent\nbecause just prior to the collision she suddenly and without\nwarning was seized with a mental aberration or delusion which\nrendered her unable to operate the automobile with her\nconscious mind.\nThe jury returned a verdict finding her causally negligent on the\ntheory she had knowledge or forewarning of her mental\ndelusions or disability. The jury also found Breunig\xe2\x80\x99s damages to\nbe $10,000. The court, on motions after verdict, reduced the\namount of damages to $7,000, approved the verdict\xe2\x80\x99s finding of\nnegligence, and gave Breunig the option of a new trial or the\nlower amount of damages. Breunig elected to accept the lower\namount and judgment was accordingly entered. The defendant\ninsurance company appeals.\nChief Justice E. HAROLD HALLOWS:\nThere is no question that Erma Veith was subject at the time of\nthe accident to an insane delusion which directly affected her\nability to operate her car in an ordinarily prudent manner and\ncaused the accident. The specific question considered by the jury\nunder the negligence inquiry was whether she had such\nforeknowledge of her susceptibility to such a mental aberration,\ndelusion or hallucination as to make her negligent in driving a\ncar at all under such conditions.\n\n158\n\n\x0cAt the trial Erma Veith testified she could not remember all the\ncircumstances of the accident and this was confirmed by her\npsychiatrist who testified this loss of memory was due to his\ntreatment of Erma Veith for her mental illness. This expert also\ntestified to what Erma Veith had told him but could no longer\nrecall. The evidence established that Mrs. Veith, while returning\nhome after taking her husband to work, saw a white light on the\nback of a car ahead of her. She followed this light for three or\nfour blocks. Mrs. Veith did not remember anything else except\nlanding in a field, lying on the side of the road and people\ntalking. She recalled awaking in the hospital.\nThe psychiatrist testified Mrs. Veith told him she was driving on\na road when she believed that God was taking ahold of the\nsteering wheel and was directing her car. She saw the truck\ncoming and stepped on the gas in order to become airborne\nbecause she knew she could fly because Batman does it. To her\nsurprise she was not airborne before striking the truck but after\nthe impact she was flying.\nActually, Mrs. Veith\xe2\x80\x99s car continued west on Highway 19 for\nabout a mile. The road was straight for this distance and then\nmade a gradual turn to the right. At this turn her car left the\nroad in a straight line, negotiated a deep ditch and came to rest\nin a cornfield. When a traffic officer came to the car to\ninvestigate the accident, he found Mrs. Veith sitting behind the\nwheel looking off into space. He could not get a statement of\nany kind from her. She was taken to the Methodist Hospital and\nlater transferred to the psychiatric ward of the Madison General\nHospital.\nThe psychiatrist testified Erma Veith was suffering from\n\xe2\x80\x9cschizophrenic reaction, paranoid type, acute.\xe2\x80\x9d He stated that\nfrom the time Mrs. Veith commenced following the car with the\nwhite light and ending with the stopping of her vehicle in the\ncornfield, she was not able to operate the vehicle with her\nconscious mind and that she had no knowledge or forewarning\nthat such illness or disability would likely occur.\nIn layman\xe2\x80\x99s language, the doctor explained: \xe2\x80\x9cThe schizophrenic\nreaction is a thinking disorder of a severe type usually implying\n\n159\n\n\x0cdisorientation with the world. Usually implying a break with\nreality. The paranoid type is a subdivision of the thinking\ndisorder in which one perceives oneself either as a very powerful\nor being persecuted or being attacked by other people. And\nacute implies that the rapidity of the onset of the illness, the\nspeed of onset is meant by acute.\xe2\x80\x9d\nThe insurance company argues Erma Veith was not negligent as\na matter of law because there is no evidence upon which the\njury could find that she had knowledge or warning or should\nhave reasonably foreseen that she might be subject to a mental\ndelusion which would suddenly cause her to lose control of the\ncar. Plaintiff argues there was such evidence of forewarning and\nalso suggests Erma Veith should be liable because insanity\nshould not be a defense in negligence cases.\nThe case was tried on the theory that some forms of insanity are\na defense to and preclude liability for negligence under the\ndoctrine of Theisen v. Milwaukee Automobile Mut. Ins. Co. (1962),\n18 Wis. 2d 91. We agree. Not all types of insanity vitiate\nresponsibility for a negligent tort. The question of liability in\nevery case must depend upon the kind and nature of the\ninsanity. The effect of the mental illness or mental hallucinations\nor disorder must be such as to affect the person\xe2\x80\x99s ability to\nunderstand and appreciate the duty which rests upon him to\ndrive his car with ordinary care, or if the insanity does not affect\nsuch understanding and appreciation, it must affect his ability to\ncontrol his car in an ordinarily prudent manner. And in addition,\nthere must be an absence of notice or forewarning to the person\nthat he may be suddenly subject to such a type of insanity or\nmental illness.\nIn Theisen we recognized one was not negligent if he was unable\nto conform his conduct through no fault of his own but held a\nsleeping driver negligent as a matter of law because one is always\ngiven conscious warnings of drowsiness and if a person does\nnot heed such warnings and continues to drive his car, he is\nnegligent for continuing to drive under such conditions. But we\ndistinguished those exceptional cases of loss of consciousness\nresulting from injury inflicted by an outside force, or fainting, or\n\n160\n\n\x0cheart attack, or epileptic seizure, or other illness which suddenly\nincapacitates the driver of an automobile when the occurrence\nof such disability is not attended with sufficient warning or\nshould not have been reasonably foreseen.\nTheisen followed Eleason v. Western Casualty & Surety Co. (1948),\n254 Wis. 134 and Wisconsin Natural Gas Co. v. Employers Mut.\nLiability Ins. Co. (1953), 263 Wis. 633. In Eleason we held the\ndriver, an epileptic, possessed knowledge that he was likely to\nhave a seizure and therefore was negligent in driving a car and\nresponsible for the accident occurring while he had an epileptic\nseizure. In Wisconsin Natural Gas Co. v. Employers Mut. Liability\nIns. Co., supra, the sleeping driver possessed knowledge that he\nwas likely to fall asleep and his attempts to stay awake were not\nsufficient to relieve him of negligence because it was within his\ncontrol to take effective means to stay awake or cease driving.\nThere are authorities which generally hold insanity is not a\ndefense in tort cases except for intentional torts. These cases\nrest on the historical view of strict liability without regard to the\nfault of the individual. Prosser, in his Law of Torts (3d ed.), p.\n1028, states this view is a historical survival which originated in\nthe dictum in Weaver v. Ward (1616), Hob. 134, 80 English\nReports 284, when the action of trespass still rested upon strict\nliability. He points out that when the modern law developed to\nthe point of holding the defendant liable for negligence, the\ndictum was repeated in some cases.\nThe policy basis of holding a permanently insane person liable\nfor his tort is: (1) Where one of two innocent persons must\nsuffer a loss it should be borne by the one who occasioned it;\n(2) to induce those interested in the estate of the insane person\n(if he has one) to restrain and control him; and (3) the fear an\ninsanity defense would lead to false claims of insanity to avoid\nliability. These three grounds were mentioned in the Guardianship\nof Meyer (1935), 218 Wis. 381 where a farm hand who was insane\nset fire to his employer\xe2\x80\x99s barn. The insurance company paid the\nloss and filed a claim against the estate of the insane person and\nwas allowed to recover.~\n\n161\n\n\x0cWe think the statement that insanity is no defense is too broad\nwhen it is applied to a negligence case where the driver is\nsuddenly overcome without forewarning by a mental disability\nor disorder which incapacitates him from conforming his\nconduct to the standards of a reasonable man under like\ncircumstances. These are rare cases indeed, but their rarity is no\nreason for overlooking their existence and the justification\nwhich is the basis of the whole doctrine of liability for\nnegligence, i.e., that it is unjust to hold a man responsible for his\nconduct which he is incapable of avoiding and which\nincapability was unknown to him prior to the accident.~\nWe~ hold is that a sudden mental incapacity equivalent in its\neffect to such physical causes as a sudden heart attack, epileptic\nseizure, stroke, or fainting should be treated alike and not under\nthe general rule of insanity.~\nBy the Court. \xe2\x80\x93 Judgment affirmed.\n\nExperience and Level of Skill\nAs the Vaughn v. Menlove case illustrates, differences in experience and\nknowledge are not taken into account in favor of the person accused\nof negligence. So, for instance, someone who has just learned to drive\na car will be held to the same standard as the average, experienced\ndriver.\nOn the other hand, if a person has superior skills or knowledge, then\nthose ratchet up the standard of care. So if a champion NASCAR\ndriver crashes into the plaintiff\xe2\x80\x99s car, the plaintiff is free to argue that\nthe racecar driver should have used those race-honed superior skills\nto swerve, break, or otherwise avoid the crash.\nHere are some examples to help you keep straight what we have\nlearned so far:\n\nExample: The Unknown Dangers of Haystacks \xe2\x80\x93 Go\nback to the case of Vaughn v. Menlove, but suppose it evolved\nin an alternative universe where the propensity of piles of\ndamp hay to catch fire was unknown in the community. In\nsuch a case, Menlove would win \xe2\x80\x93 his actions would not have\n\n162\n\n\x0cbreached the duty of care because the reasonable person in\nthat community would not have known of the danger.\n\nExample: The Leading Edge of Haystack Design \xe2\x80\x93\nLet\xe2\x80\x99s tweak the facts of Vaughn v. Menlove once more. We are\nstill in our alternative universe the dangers of wet haystacks\nare generally unknown. But suppose the evidence at trial\nuncovered the fact that Menlove subscribed to publications\nsuch as The Journal of Hayrick Research and also that he\nfrequently attended academic conferences on haystack design.\nSuppose as well that pretrial discovery uncovers the fact that\nthrough his reading and conference-going, Menlove in fact\nknew that leading-edge research had determined that stacks\nof wet hay will tend to catch fire. Now Menlove will lose. In\nthis case, however, Menlove loses not because of the\nreasonable-person standard, but in spite of it. Once he has\nthe superior knowledge about the danger and how to avoid it,\nMenlove must use it to avoid the harm, or else he is liable.\nChildren\nAn exception to the reasonable person standard is made for children.\nThe rule, as stated in Hardsaw v. Courtney, 665 N.E.2d 603, 606-07\n(Ind. Ct. App. 1996), is:\n\xe2\x80\x9cThe standard of care expected of a child is\nmeasured by that degree of care which would\nordinarily be exercised by a child of like age,\nknowledge, judgment and experience under like\nconditions and circumstances.\xe2\x80\x9d\n\nNotice that the standard is not only lowered for children and\ncalibrated by age, but allowances are also made for differences in\nknowledge, judgment, and experience. So this standard is quite unlike\nthe stalwart and unyielding objective standard for adults. The\nstandard for children leans away from a purely objective standard, so\nmuch so that it arguably becomes quite subjective. In fact, one could\nsay that the reasonable person standard is not just adjusted for\nchildren, but that it is thrown out entirely. Note that in the statement\n\n163\n\n\x0cof doctrine from the Indiana court, there is no use of the word\n\xe2\x80\x9creasonable\xe2\x80\x9d at all.\nThere is an important exception to the child standard of care, and\nthat is when the activity that the child is engaged in is an adult\nactivity. This is often applied to when a child is operating a motor\nvehicle, such as a car, motorboat, airplane, or snowmobile. But it has\nbeen applied in other contexts as well, including golf. In Neumann v.\nShlansky, 58 Misc. 2d 128 (N.Y. County Ct. 1968), an 11-year-old\ngolfer teeing off drove a ball into the plaintiff\xe2\x80\x99s knee. The court\nwrote:\n\xe2\x80\x9cAs applied to the instant case, one of the\ncritical elements in the opinion of the court is\nthe risk involved when a dangerous missile is hit\nby a golfer. Just as a motor vehicle or other\npower-driven vehicle is dangerous, so is a golf\nball hit with a club. Driving a car, an airplane or\npowerboat has been referred to as adult activity\neven though actively engaged in by infants.\nLikewise, golf can easily be determined to be an\nadult activity engaged in by infants. Both\ninvolve dangerous instruments. No matter what\nthe age of a driver of a car or a driver of a golf\nball, if he fails to exercise due care serious injury\nmay result.\xe2\x80\x9d\n\nIn many of these cases, the courts have rejected the argument that\nbecause children frequently engage in the activity, it should not be\nconsidered an adult activity. These courts tend to look at the level of\ndanger associated with the activity, rather than its adultness.\nOther courts take a different view, however, and will allow a lowering\nof the standard of care for children even when the activity is\ninherently dangerous, so long as it is often engaged in by children. In\nPurtle v. Shelton, 474 SW 2d 123 (Ark. 1971), the adult standard was\nheld not to be applicable to a 17-year-old engaged in deer hunting.\nThe defendant, in a deer stand, shot at what he thought was a deer.\nIn fact, the defendant shot in the vicinity of his 16-year-old friend.\nThe bullet broke into shrapnel, hitting the friend in both eyes. The\ncourt said:\n\n164\n\n\x0c\xe2\x80\x9cWe are unable to find any authority holding\nthat a minor should be held to an adult standard\nof care merely because he engages in a\ndangerous activity. There is always the parallel\nrequirement that the activity be one that is\nnormally engaged in only by adults.~ We have\nno doubt that deer hunting is a dangerous sport.\nWe cannot say, however, either on the basis of\nthe record before us or on the basis of common\nknowledge, that deer hunting is an activity\nnormally engaged in by adults only. To the\ncontrary, all the indications are the other way.~\nWe know, from common knowledge, that\nyoungsters only six or eight years old frequently\nuse .22 caliber rifles and other lethal firearms to\nhunt rabbits, birds, and other small game. We\ncannot conscientiously declare, without proof\nand on the basis of mere judicial notice, that\nonly adults normally go deer hunting.\xe2\x80\x9d\n\nGender\nTraditionally, the objective standard for negligence was known as the\n\xe2\x80\x9creasonable man\xe2\x80\x9d standard. Courts and commentators have now\nshifted to speaking of the \xe2\x80\x9creasonable person.\xe2\x80\x9d But the question\nremains as to whether the standard \xe2\x80\x93 by whatever name it is called \xe2\x80\x93\nretains a male bias. Professor Leslie Bender of Syracuse University\nputs it this way in A Lawyer\xe2\x80\x99s Primer on Feminist Theory and Tort, 38\nJ. LEGAL EDUC. 3 (1988):\n\xe2\x80\x9cDoes converting a \xe2\x80\x9creasonable man\xe2\x80\x9d to a\n\xe2\x80\x9creasonable person\xe2\x80\x9d in an attempt to eradicate\nthe term\xe2\x80\x99s sexism actually exorcise the sexism or\ninstead embed it?~ This \xe2\x80\x9cresolution\xe2\x80\x9d of the\nstandard\xe2\x80\x99s sexism ignores several important\nfeminist insights. The original phrase\n\xe2\x80\x9creasonable man\xe2\x80\x9d failed in its claim to represent\nan abstract, universal person. Even if such a\ncreature could be imagined, the \xe2\x80\x9creasonable\nman\xe2\x80\x9d standard was postulated by men, who,\nbecause they were the only people who wrote\nand argued the law, philosophy, and politics at\n\n165\n\n\x0cthat time, only theorized about themselves.\nWhen the standard was written into judicial\nopinions, treaties, and casebooks, it was written\nabout and by men. The case law and treatises\nexplaining the standard are full of examples\nexplaining how the \xe2\x80\x9creasonable man\xe2\x80\x9d is the\n\xe2\x80\x9cman on the Clapham Omnibus\xe2\x80\x9d or \xe2\x80\x9cthe man\nwho takes the magazines at home and in the\nevening pushes the lawn mower in his shirt\nsleeves.\xe2\x80\x9d When the authors of such works said\n\xe2\x80\x9creasonable man,\xe2\x80\x9d they meant \xe2\x80\x9cmale,\xe2\x80\x9d \xe2\x80\x9cman\xe2\x80\x9d in\na gendered sense.\xe2\x80\x9d\n\nProfessor Bender suggests the possibility of a different and higher\nstandard of care \xe2\x80\x93 a \xe2\x80\x9creasonable neighbor\xe2\x80\x9d standard, in which people\nare expected to treat one another at least as well as we would social\nacquaintances. She also asks what would happen if we understood\n\xe2\x80\x9cstandard of care\xe2\x80\x9d to mean \xe2\x80\x9cstandard of caring.\xe2\x80\x9d In her view, \xe2\x80\x9cthe\nfeminine voice can design a tort system that encourages behavior that\nis caring about others\xe2\x80\x99 safety and responsive to others\xe2\x80\x99 needs or\nhurts, and that attends to human contexts and consequences.\xe2\x80\x9d\nSome Questions to Ponder About the Reasonable\nPerson Standard\nA. Why should the reasonable person standard be deferential to child\ndefendants of lesser ability, but unyielding for elderly defendants? Is\nthere a sensible rationale that can be articulated? Is some emotional\nresponse at work? Is this pernicious discrimination?\nB. Why should physical limitations be usable in the defendant\xe2\x80\x99s favor\nto decrease the standard of care, but not mental limitations? Should it\nmatter that science can increasingly identify physical causes of mental\nlimitations, such as brain chemistry, genetics, or brain tissue that is\ndegenerated or damaged?\nC. How do you think negligence law might have developed\ndifferently over the past centuries if women served on the bench in\nnumbers equal to men?\n\n166\n\n\x0cD. Could you do away altogether with the mental construct of a\nhypothetical person as setting the standard of care? What might you\nuse instead?\n\nNegligence Per Se\nBasics\nUsually the standard of care is a matter for the parties to argue about\nthrough the mental construct of the fictional reasonable person. But\nthe plaintiff can argue to the court that the case should instead be\nsubmitted to the jury with a specific standard of care that is borrowed\nfrom a statute or regulation. The doctrine governing this is called\nnegligence per se.\n\nExample: Flatbed with Rebar \xe2\x80\x93 Suppose a statute says that\n(1) that a driver who has a cargo load protruding beyond the\nrear bumper of a vehicle must attach a red flag to the\nprotrusion to warn drivers behind the vehicle, and (2)\nregardless of the flag, the load must not protrude more than\nfour feet. The defendant, driving a 10-foot flatbed truck, is\ncarrying a load of 16-foot-long rebar, such that the load\nprotrudes six feet beyond the rear bumper. The defendant\ndoes not attach any flag. The plaintiff is driving behind the\ndefendant when the defendant stops suddenly. The plaintiff\xe2\x80\x99s\nvehicle collides with the defendant\xe2\x80\x99s truck. As the plaintiff\xe2\x80\x99s\ncar crumples into the truck\xe2\x80\x99s bumper assembly, the\nprotruding rebar pierces the windshield and injures the\nplaintiff. The plaintiff would likely be able to use the statute\nto set the standard of care, obviating the need for argument\nabout whether the defendant\xe2\x80\x99s actions were reasonable.\nNegligence per se doctrine can be very helpful to plaintiffs because it\ncan function as a free pass on the element of breach of the duty of\ncare. If the evidence shows that the defendant failed to comply with\nthe statute or regulation, and if the negligence per se doctrine applies,\nthen there will be no need to make an elaborate argument to the jury\nabout the conduct being unreasonable.\n\n167\n\n\x0c\xe2\x80\x9cPer se\xe2\x80\x9d is Latin meaning \xe2\x80\x9cby itself\xe2\x80\x9d or \xe2\x80\x9cin itself.\xe2\x80\x9d But translating this\nphrase does not help much. There are many situations irrelevant to\nnegligence per se in which you could describe something as being\n\xe2\x80\x9cnegligence, in itself.\xe2\x80\x9d The phrase \xe2\x80\x9cnegligence per se\xe2\x80\x9d is a term of art:\nIt refers specifically to the use of a statute or regulation to set the\nstandard of care in a negligence case.\nWhat Makes a Statute or Regulation Amenable\nNot every statute or regulation can be used by a plaintiff as a\nreplacement for the generic reasonable-person standard of care. The\nanalysis for whether a statute or regulation can be used as a per-se\nstandard can be summed up as the class-of-risk/class-of-persons\ntest. Two questions must be asked:\n\xef\x82\xb7\n\nDoes the injury or accident being sued on represent the kind\nof risk that the statute or regulation was designed to address?\n\n\xef\x82\xb7\n\nIs the plaintiff within the class of persons that the statute or\nregulation was designed to protect?\n\nIf the answers to both questions are yes, then the statute or\nregulation can be used. This test helps to filter out some cases where\nthe negligence-per-se doctrine would lead to some unfair or bizarre\nresults.\n\nExample: Young Smoker \xe2\x80\x93 Suppose a statute prohibits\npersons under the age of 18 from using tobacco. The\ndefendant, a 17-year-old, is smoking a cigarette in bed when\nhe falls asleep. The smoldering cigarette starts a fire, which\nburns down a neighbor\xe2\x80\x99s apartment. To determine whether\nthe tobacco-age-limit statute can be used to set the standard\nof care, first ask the class-of-risks question: Was the statute\nmeant to protect against risks of structure fires? The answer\nwould seem to be no. The statute was meant to protect young\npersons from the health hazards associated with inhaling\ntobacco smoke or placing tobacco in contact with the\nepithelial tissues of the mouth. It was not about preventing\nfires. So negligence per se will not apply here.\n\n168\n\n\x0cExample: Young-looking Smoker \xe2\x80\x93 Suppose a statute\nrequires sellers of tobacco products to require any person\nappearing to be under the age of 35 to produce a state-issued\nidentification card or driver\xe2\x80\x99s license to prove that she or he is\n18 years of age or older. The plaintiff is and appears to be in\nhis early 20s. The plaintiff gets cancer caused by the use of\ntobacco products and sues the store that sold the products.\nThe plaintiff produces evidence that he has never had a stateissued identification card or driver\xe2\x80\x99s license, and thus would\nnot have been able to produce the required identification at\nthe sales counter. Can the statute be used to set the standard\nof care? The class-of-risks part of the test would seem to be\nsatisfied. The risks intended to be addressed by the statute are\nthe health risks of using tobacco. But a problem is revealed\nwith the class-of-persons part of the test. We ask: Is the\nplaintiff within the class of persons meant to be protected by\nthe statute? The answer would seem to be no. The statute\nappears to be aimed at protecting persons under the age of 18\n\xe2\x80\x93 not adults without ID. So the statute could not be used to\nset the standard of care in this lawsuit.\nIt is important to understand what the class-of-risk/class-of-persons\ntest does not require: It does not require that the statute or regulation\nwas enacted with the intent that it be used in negligence lawsuits. It is\nalmost always the case that such statutes and regulations were\nenacted with no thought about whether or not they could be used in\ntorts lawsuits. Usually, such statutes are for the purpose of allowing\ncriminal prosecutions or some form of administrative enforcement\n(such as by government regulatory agencies who conduct inspections,\nassess fines, revoke licenses, etc.). It may be that the enacting body\nnever dreamed that the provisions it promulgated would be used in\nprivate tort lawsuits. Generally speaking, that lack of legislative or\nregulatory intent is irrelevant. Whether or not the statute or\nregulation can be commandeered under negligence-per-se doctrine\ndepends instead on the class-of-risks/class-of-persons test.\n\n169\n\n\x0cCase: Gorris v. Scott\nThe following is a seminal case on negligence per se, applying the\nclass-of-risk/class-of-persons test in classical fashion.\n\nGorris v. Scott\nCourt of Exchequer\nApril 22, 1874\nL.R. 9 Ex. 125. Gorris and Another v. Scott. Kelly, C.B., Pigott,\nPollock, and Amphlett, BB.\nChief Baron FITZROY KELLY:\nThis is an action to recover damages for the loss of a number of\nsheep which the defendant, a shipowner, had contracted to\ncarry, and which were washed overboard and lost by reason (as\nwe must take it to be truly alleged) of the neglect to comply with\na certain order made by the Privy Council, in pursuance of the\nContagious Diseases (Animale) Act, 1869. The Act was passed\nmerely for sanitary purposes, in order to prevent animals in a\nstate of infectious disease from communicating it to other\nanimals with which they might come in contact. Under the\nauthority of that Act, certain orders were made; amongst others,\nan order by which any ship bringing sheep or cattle from any\nforeign port to ports in Great Britain is to have the place\noccupied by such animals divided into pens of certain\ndimensions, and the floor of such pens furnished with battens\nor foot holds. The object of this order is to prevent animals\nfrom being overcrowded, and so brought into a condition in\nwhich the disease guarded against would be likely to be\ndeveloped. This regulation has been neglected, and the question\nis, whether the loss, which we must assume to have been caused\nby that neglect, entitles the plaintiffs to maintain an action.\nThe argument of the defendant is, that the Act has imposed\npenalties to secure the observance of its provisions, and that,\naccording to the general rule, the remedy prescribed by the\nstatute must be pursued; that although, when penalties are\nimposed for the violation of a statutory duty, a person aggrieved\nby its violation may sometimes maintain an action for the\n\n170\n\n\x0cdamage so caused, that must be in cases where the object of the\nstatute is to confer a benefit on individuals, and to protect them\nagainst the evil consequences which the statute was designed to\nprevent, and which have in fact ensued; but that if the object is\nnot to protect individuals against the consequences which have\nin fact ensued, it is otherwise; that if, therefore, by reason of the\nprecautions in question not having been taken, the plaintiffs had\nsustained that damage against which it was intended to secure\nthem, an action would lie, but that when the damage is of such a\nnature as was not contemplated at all by the statute, and as to\nwhich it was not intended to confer any benefit on the plaintiffs,\nthey cannot maintain an action founded on the neglect. The\nprinciple may be well illustrated by the case put in argument of a\nbreach by a railway company of its duty to erect a gate on a level\ncrossing, and to keep the gate closed except when the crossing is\nbeing actually and properly used. The object of the precaution is\nto prevent injury from being sustained through animals or\nvehicles being upon the line at unseasonable times; and if by\nreason of such a breach of duty, either in not erecting the gate,\nor in not keeping it closed, a person attempts to cross with a\ncarriage at an improper time, and injury ensues to a passenger,\nno doubt an action would lie against the railway company,\nbecause the intention of the legislature was that, by the erection\nof the gates and by their being kept closed individuals should be\nprotected against accidents of this description. And if we could\nsee that it was the object, or among the objects of this Act, that\nthe owners of sheep and cattle coming from a foreign port\nshould be protected by the means described against the danger\nof their property being washed overboard, or lost by the perils\nof the sea, the present action would be within the principle.\nBut, looking at the Act, it is perfectly clear that its provisions\nwere all enacted with a totally different view; there was no\npurpose, direct or indirect, to protect against such damage; but,\nas is recited in the preamble, the Act is directed against the\npossibility of sheep or cattle being exposed to disease on their\nway to this country. The preamble recites that \xe2\x80\x9cit is expedient to\nconfer on Her Majesty\xe2\x80\x99s most honourable Privy Council power\nto take such measures as may appear from time to time\n\n171\n\n\x0cnecessary to prevent the introduction into Great Britain of\ncontagious or infectious diseases among cattle, sheep, or other\nanimals, by prohibiting or regulating the importation of foreign\nanimals,\xe2\x80\x9d and also to provide against the \xe2\x80\x9cspreading\xe2\x80\x9d of such\ndiseases in Great Britain. Then follow numerous sections\ndirected entirely to this object. Then comes s. 75, which enacts\nthat \xe2\x80\x9cthe Privy Council may from time to time make such orders\nas they think expedient for all or any of the following purposes.\xe2\x80\x9d\nWhat, then, are these purposes? They are \xe2\x80\x9cfor securing for\nanimals brought by sea to ports in Great Britain a proper supply\nof food and water during the passage and on landing,\xe2\x80\x9d \xe2\x80\x9cfor\nprotecting such animals from unnecessary suffering during the\npassage and on landing,\xe2\x80\x9d and so forth; all the purposes\nenumerated being calculated and directed to the prevention of\ndisease, and none of them having any relation whatever to the\ndanger of loss by the perils of the sea. That being so, if by\nreason of the default in question the plaintiffs\xe2\x80\x99 sheep had been\novercrowded, or had been caused unnecessary suffering, and so\nhad arrived in this country in a state of disease, I do not say that\nthey might not have maintained this action. But the damage\ncomplained of here is something totally apart from the object of\nthe Act of Parliament, and it is in accordance with all the\nauthorities to say that the action is not maintainable.\nBaron PIGOTT:\nFor the reasons which have been so exhaustively stated by the\nLord Chief Baron, I am of opinion that the declaration shews\nno cause of action. It is necessary to see what was the object of\nthe legislature in this enactment, and it is set forth clearly in the\npreamble as being \xe2\x80\x9cto prevent the introduction into Great\nBritain of contagious or infectious diseases among cattle, sheep,\nor other animals,\xe2\x80\x9d and the \xe2\x80\x9cspread of such diseases in Great\nBritain.\xe2\x80\x9d The purposes enumerated in s. 75 are in harmony with\nthis preamble, and it is in furtherance of that section that the\norder in question was made. The object, then, of the regulations\nwhich have been broken was, not to prevent cattle from being\nwashed overboard, but to protect them against contagious\ndisease.~\n\n172\n\n\x0cBaron CHARLES EDWARD POLLOCK:\nI also think this demurrer must be allowed.~ [T]he Act of\nParliament was passed alio intuitu; the recital in the preamble\nand the words of s. 75 point out that what the Privy Council\nhave power to do is to make such orders as may be expedient\nfor the purpose of preventing the introduction and the spread of\ncontagious and infectious diseases amongst animals. Suppose,\nthen, that the precautions directed are useful and advantageous\nfor preventing animals from being washed overboard[.] [Y]et\nthey were never intended for that purpose, and a loss of that\nkind caused by their neglect cannot give a cause of action.\nBaron RICHARD AMPHLETT:\nI am of the same opinion.\n\nNegligence Per Se and Contributory/Comparative\nNegligence\nWhen the plaintiff\xe2\x80\x99s own negligence contributes the injury that the\nplaintiff is suing over, the defendant can use that fact to establish an\naffirmative defense \xe2\x80\x93 called contributory negligence or comparative\nnegligence, depending on the jurisdiction. This is discussed in more\ndetail in a later chapter. For now, note only that negligence per se can\nbe used by plaintiffs in a prima facie case and by defendants to\nestablish contributory/comparative negligence.\nConsider the example of the rear-end collision with the truck loaded\nwith rebar. Suppose the plaintiff\xe2\x80\x99s car was following the defendant\xe2\x80\x99s\ntruck on the freeway at 80 miles per hour. Suppose also that the\nposted speed limit on this stretch of freeway is 65 miles per hour. If\nthe plaintiff\xe2\x80\x99s speed was partly at fault for the plaintiff\xe2\x80\x99s injuries, then\nthe defendant can use the violation of the statute to establish the\nplaintiff\xe2\x80\x99s negligence for a contributory or comparative negligence\ndefense.\nNegligence Per Se and Causation\nWhen negligence per se is being used, it is important to keep in mind\nthat for the prima facie case to work as a whole, the violation of the\nstatute must have caused the injury the plaintiff is suing over. Again,\n\n173\n\n\x0clet\xe2\x80\x99s go back to the example of the flatbed loaded with rebar. Suppose\nevidence at trial shows that before the accident, the plaintiff had seen\nthe truck from the side, and had mentally noted how far the rebar\nextended beyond the bumper. If that is the case, then violation of the\nportion of the statute that requires a red flag does not help the\nplaintiff\xe2\x80\x99s case, because it is clear that the red flag would not have\nmade a difference in preventing the accident. The only thing the red\nflag could have done was make the plaintiff aware of the\nprotuberance \xe2\x80\x93 but the plaintiff was already aware, so the violation of\nthe statute cannot be viewed as a cause of the accident.\nIt should be noted that the necessity of this causal link between\nbreach and injury applies in all negligence cases \xe2\x80\x93 whether the\nreasonable person standard of care is used or the doctrine of\nnegligence per se. But for some reason the causation analysis is more\nintuitive when the reasonable person standard is used than with\nnegligence per se, where it seems to present a habitual pitfall.\nCase: Martin v. Herzog\nThe following case is from the New York Court of Appeals, which,\ndespite the name, is actually the highest state court \xe2\x80\x93 equivalent to\nthe \xe2\x80\x9csupreme\xe2\x80\x9d court in most jurisdictions. This case is written by the\nmost famous New York Court of Appeals judge of all time: Benjamin\nN. Cardozo.\n\nMartin v. Herzog\nCourt of Appeals of New York\nFebruary 24, 1920\nElizabeth Martin, as Administratrix of the Estate of William J.\nMartin, Deceased, Appellant, v. Samuel A. Herzog, Respondent,\nImpleaded with Another. Judges: Cardozo, J. Hiscock, Ch. J.,\nPound, McLaughlin, Andrews and Elkus, JJ., concur with\nCardozo, J.; Hogan, J., reads dissenting opinion.\nJudge BENJAMIN N. CARDOZO:\nThe action is one to recover damages for injuries resulting in\ndeath.\n\n174\n\n\x0cPlaintiff and her husband, while driving toward Tarrytown in a\nbuggy on the night of August 21, 1915, were struck by the\ndefendant\xe2\x80\x99s automobile coming in the opposite direction. They\nwere thrown to the ground, and the man was killed. At the point\nof the collision the highway makes a curve. The car was\nrounding the curve when suddenly it came upon the buggy,\nemerging, the defendant tells us, from the gloom. Negligence is\ncharged against the defendant, the driver of the car, in that he\ndid not keep to the right of the center of the highway (Highway\nLaw, sec. 286, subd. 3; sec. 332; Consol. Laws, ch. 25).\nNegligence is charged against the plaintiff\xe2\x80\x99s intestate, the driver\nof the wagon, in that he was traveling without lights (Highway\nLaw, sec. 329a, as amended by L. 1915, ch. 367). There is no\nevidence that the defendant was moving at an excessive speed.\nThere is none of any defect in the equipment of his car. The\nbeam of light from his lamps pointed to the right as the wheels\nof his car turned along the curve toward the left; and looking in\nthe direction of the plaintiff\xe2\x80\x99s approach, he was peering into the\nshadow. The case against him must stand, therefore, if at all,\nupon the divergence of his course from the center of the\nhighway. The jury found him delinquent and his victim\nblameless. The Appellate Division reversed, and ordered a new\ntrial.\nWe agree with the Appellate Division that the charge to the jury\nwas erroneous and misleading. The case was tried on the\nassumption that the hour had arrived when lights were due. It\nwas argued on the same assumption in this court. In such\ncircumstances, it is not important whether the hour might have\nbeen made a question for the jury. A controversy put out of the\ncase by the parties is not to be put into it by us. We say this by\nway of preface to our review of the contested rulings. In the\nbody of the charge the trial judge said that the jury could\nconsider the absence of light \xe2\x80\x9cin determining whether the\nplaintiff\xe2\x80\x99s intestate was guilty of contributory negligence in\nfailing to have a light upon the buggy as provided by law. I do\nnot mean to say that the absence of light necessarily makes him\nnegligent, but it is a fact for your consideration.\xe2\x80\x9d The defendant\nrequested a ruling that the absence of a light on the plaintiff\xe2\x80\x99s\n\n175\n\n\x0cvehicle was \xe2\x80\x9cprima facie evidence of contributory negligence.\xe2\x80\x9d\nThis request was refused, and the jury were again instructed that\nthey might consider the absence of lights as some evidence of\nnegligence, but that it was not conclusive evidence. The plaintiff\nthen requested a charge that \xe2\x80\x9cthe fact that the plaintiff\xe2\x80\x99s\nintestate was driving without a light is not negligence in itself,\xe2\x80\x9d\nand to this the court acceded. The defendant saved his rights by\nappropriate exceptions.\nWe think the unexcused omission of the statutory signals is\nmore than some evidence of negligence. It is negligence in itself.\nLights are intended for the guidance and protection of other\ntravelers on the highway (Highway Law, sec. 329a). By the very\nterms of the hypothesis, to omit, willfully or heedlessly, the\nsafeguards prescribed by law for the benefit of another that he\nmay be preserved in life or limb, is to fall short of the standard\nof diligence to which those who live in organized society are\nunder a duty to conform. That, we think, is now the established\nrule in this state. Whether the omission of an absolute duty, not\nwillfully or heedlessly, but through unavoidable accident, is also\nto be characterized as negligence, is a question of nomenclature\ninto which we need not enter, for it does not touch the case\nbefore us. There may be times, when if jural niceties are to be\npreserved, the two wrongs, negligence and breach of statutory\nduty, must be kept distinct in speech and thought. In the\nconditions here present they come together and coalesce. A rule\nless rigid has been applied where the one who complains of the\nomission is not a member of the class for whose protection the\nsafeguard is designed. Some relaxation there has also been\nwhere the safeguard is prescribed by local ordinance, and not by\nstatute. Courts have been reluctant to hold that the police\nregulations of boards and councils and other subordinate\nofficials create rights of action beyond the specific penalties\nimposed. This has led them to say that the violation of a statute\nis negligence, and the violation of a like ordinance is only\nevidence of negligence. An ordinance, however, like a statute, is\na law within its sphere of operation, and so the distinction has\nnot escaped criticism. Whether it has become too deeply rooted\nto be abandoned, even if it be thought illogical, is a question not\n\n176\n\n\x0cnow before us. What concerns us at this time is that even in the\nordinance cases, the omission of a safeguard prescribed by\nstatute is put upon a different plane, and is held not merely\nsome evidence of negligence, but negligence in itself. In the case\nat hand, we have an instance of the admitted violation of a\nstatute intended for the protection of travelers on the highway,\nof whom the defendant at the time was one. Yet the jurors were\ninstructed in effect that they were at liberty in their discretion to\ntreat the omission of lights either as innocent or as culpable.\nThey were allowed to \xe2\x80\x9cconsider the default as lightly or gravely\xe2\x80\x9d\nas they would (Thomas, J., in the court below). They might as\nwell have been told that they could use a like discretion in\nholding a master at fault for the omission of a safety appliance\nprescribed by positive law for the protection of a workman.\nJurors have no dispensing power by which they may relax the\nduty that one traveler on the highway owes under the statute to\nanother. It is error to tell them that they have. The omission of\nthese lights was a wrong, and being wholly unexcused was also a\nnegligent wrong. No license should have been conceded to the\ntriers of the facts to find it anything else.\nWe must be on our guard, however, against confusing the\nquestion of negligence with that of the causal connection\nbetween the negligence and the injury. A defendant who travels\nwithout lights is not to pay damages for his fault unless the\nabsence of lights is the cause of the disaster. A plaintiff who\ntravels without them is not to forfeit the right to damages unless\nthe absence of lights is at least a contributing cause of the\ndisaster. To say that conduct is negligence is not to say that it is\nalways contributory negligence. \xe2\x80\x9cProof of negligence in the air,\nso to speak, will not do\xe2\x80\x9d (Pollock Torts [10th ed.], p. 472). We\nthink, however, that evidence of a collision occurring more than\nan hour after sundown between a car and an unseen buggy,\nproceeding without lights, is evidence from which a causal\nconnection may be inferred between the collision and the lack\nof signals. If nothing else is shown to break the connection, we\nhave a case, prima facie sufficient, of negligence contributing to\nthe result. There may indeed be times when the lights on a\nhighway are so many and so bright that lights on a wagon are\n\n177\n\n\x0csuperfluous. If that is so, it is for the offender to go forward\nwith the evidence, and prove the illumination as a kind of\nsubstituted performance. The plaintiff asserts that she did so\nhere. She says that the scene of the accident was illumined by\nmoonlight, by an electric lamp, and by the lights of the\napproaching car. Her position is that if the defendant did not\nsee the buggy thus illumined, a jury might reasonably infer that\nhe would not have seen it anyhow. We may doubt whether there\nis any evidence of illumination sufficient to sustain the jury in\ndrawing such an inference, but the decision of the case does not\nmake it necessary to resolve the doubt, and so we leave it open.\nIt is certain that they were not required to find that lights on the\nwagon were superfluous. They might reasonably have found the\ncontrary. They ought, therefore, to have been informed what\neffect they were free to give, in that event, to the violation of the\nstatute. They should have been told not only that the omission\nof the lights was negligence, but that it was \xe2\x80\x9cprima facie evidence\nof contributory negligence,\xe2\x80\x9d i.e., that it was sufficient in itself\nunless its probative force was overcome (Thomas, J., in court\nbelow) to sustain a verdict that the decedent was at fault. Here,\non the undisputed facts, lack of vision, whether excusable or\nnot, was the cause of the disaster. The defendant may have been\nnegligent in swerving from the center of the road, but he did not\nrun into the buggy purposely, nor was he driving while\nintoxicated, nor was he going at such a reckless speed that\nwarning would of necessity have been futile. Nothing of the\nkind is shown. The collision was due to his failure to see at a\ntime when sight should have been aroused and guided by the\nstatutory warnings. Some explanation of the effect to be given\nto the absence of those warnings, if the plaintiff failed to prove\nthat other lights on the car or the highway took their place as\nequivalents, should have been put before the jury. The\nexplanation was asked for, and refused.\nWe are persuaded that the tendency of the charge and of all the\nrulings following it, was to minimize unduly, in the minds of the\ntriers of the facts, the gravity of the decedent\xe2\x80\x99s fault. Errors may\nnot be ignored as unsubstantial when they tend to such an\noutcome. A statute designed for the protection of human life is\n\n178\n\n\x0cnot to be brushed aside as a form of words, its commands\nreduced to the level of cautions, and the duty to obey attenuated\ninto an option to conform.\nThe order of the Appellate Division should be affirmed, and\njudgment absolute directed on the stipulation in favor of the\ndefendant, with costs in all courts.\nJudge JOHN W. HOGAN, dissenting:\nThe following facts are undisputed. Leading from Broadway in\nthe village of Tarrytown, Westchester county, is a certain public\nhighway known as Neperham road, which runs in an easterly\ndirection to East View, town of Greenburg. The worked portion\nof the highway varies in width from 21\xc2\xbd feet at the narrowest\npoint a short distance easterly of the place of the collision\nhereinafter mentioned, to a width of 27\xc2\xbd feet at the point\nwhere the collision occurred.\nOn the evening of August 21st, 1915, the plaintiff, together with\nher husband, now deceased, were seated in an open wagon\ndrawn by a horse. They were traveling on the highway westerly\ntowards Tarrytown. The defendant was traveling alone on the\nhighway in the opposite direction, viz., from Tarrytown easterly\ntowards East View in an automobile which weighed about 3,000\npounds, having a capacity of 70 horse power, capable of\ndeveloping a speed of 75 miles an hour. Defendant was driving\nthe car.\nA collision occurred between the two vehicles on the highway at\nor near a hydrant located on the northerly side of the road.\nPlaintiff and her husband were thrown from the wagon in which\nthey were seated. Plaintiff was bruised and her shoulder\ndislocated. Her husband was seriously injured and died as a\nresult of the accident.\nAs indicated in the prevailing opinion, the manner in which the\naccident happened and the point in the highway where the\ncollision occurred are important facts in this case, for as therein\nstated: \xe2\x80\x9cThe case against him (defendant) must stand, therefore,\nif at all, upon the divergence of his course from the center of the\nhighway.\xe2\x80\x9d The evidence on behalf of plaintiff tended to\n\n179\n\n\x0cestablish that on the evening in question her husband was\ndriving the horse at a jogging gait along on their right side of the\nhighway near the grass which was outside of the worked part of\nthe road on the northerly side thereof; that plaintiff observed\nabout 120 feet down the road the automobile operated by\ndefendant approaching at a high rate of speed, two searchlights\nupon the same, and that the car seemed to be upon her side of\nthe road; that the automobile ran into the wagon in which\nplaintiff and her husband were seated at a point on their side of\nthe road while they were riding along near the grass. Evidence\nwas also presented tending to show that the rate of speed of the\nautomobile was 18 to 20 miles an hour and the lights upon the\ncar illuminated the entire road. The defendant was the sole\nwitness on the part of the defense upon the subject under\nconsideration. His version was:\n\xe2\x80\x9cJust before I passed the Tarrytown Heights\nStation, I noticed a number of children playing\nin the road. I slowed my car down a little more\nthan I had been running. I continued to drive\nalong the road, probably I proceeded along the\nroad 300 or 400 feet further, I do not know\nexactly how far, when suddenly there was a\ncrash and I stopped my car as soon as I could\nafter I realized that there had been a collision.\nWhether I saw anything in that imperceptible\nfraction of space before the wagon and car\ncame together I do not know. I have an\nimpression, about a quarter of a second before\nthe collision took place, I saw something white\ncross the road and heard somebody call \xe2\x80\x98whoa\xe2\x80\x99\nand that is all I knew until I stopped my car. \xe2\x80\xa6\nMy best judgment is I was travelling about 12\nmiles an hour. \xe2\x80\xa6 At the time of the collision I\nwas driving on the right of the road.\xe2\x80\x9d\nThe manner in which and the point in the highway where the\naccident occurred presented a question of fact for a jury. ~ The\ntrial justice charged the jury:~\n\xe2\x80\x9cIt is for you to determine whether the\ndefendant was driving on the wrong side of the\n\n180\n\n\x0croad at the time he collided with the buggy;\nwhether his lights did light up the road and the\nwhole road ahead of him to the extent that the\nbuggy was visible, and so, if he negligently\napproached the buggy in which plaintiff and her\nhusband were driving at the time. If you find\nfrom the evidence here, he was driving on the\nwrong side of the road and that for this reason\nhe collided with the buggy which was\nproceeding on the proper side, or if you find\nthat as he approached the buggy the road was so\nwell lighted up that he saw or should have seen\nthe buggy and yet collided with it then you may\nsay, if you so find, that the defendant was\ncareless and negligent.~ If [you] find that Mr.\nMartin was guilty of any negligence, no matter\nhow slight, which contributed to the accident,\nthe verdict must be for defendant.\xe2\x80\x9d~\nThe principal issue of fact was not only presented to the jury in\nthe original charge made by the trial justice, but emphasized and\nconcurred in by counsel for defendant.\nThe prevailing opinion in referring to the accident and the\nhighway at the point where the accident occurred describes the\nsame in the following language: \xe2\x80\x9cAt the point of the collision,\nthe highway makes a curve. The car was rounding the curve\nwhen suddenly it came upon the buggy emerging the defendant\ntells us from the gloom.\xe2\x80\x9d Such in substance was the testimony\nof the defendant but his version was rejected by the jurors and\nthe Appellate Division, and the evidence in the record is ample\nto sustain a contrary conclusion. As to the statement that the car\nwas rounding \xe2\x80\x9ca curve,\xe2\x80\x9d two maps made by engineers from\nactual measurements and surveys for defendant were put in\nevidence by counsel for plaintiff. Certain photographs made for\nthe purposes of the trial were also before the jury. I think we\nmay assume that the jurors gave credence to the maps and actual\nmeasurements rather than to the photographs and failed to\ndiscover therefrom a curve of any importance or which would\ninterfere with an unobstructed view of the road. As to the\n\xe2\x80\x9cbuggy emerging the defendant tells us from the gloom,\xe2\x80\x9d\n\n181\n\n\x0cevidence was adduced by plaintiff tending to show that the\nsearchlights on defendant\xe2\x80\x99s car lighted up the entire roadway to\nthe extent that the vehicle in which plaintiff and her husband\nwere riding was visible, that the evening was not dark, though it\nappeared as though a rainfall might be expected. Some witnesses\ntestified it was moonlight. The doctor called from Tarrytown\nwho arrived within twenty minutes after the collision, testified\nthat the electric lights all along the highway were burning as he\npassed over the road. The width of the worked part of the\nhighway at the point of the accident was 27\xc2\xbd feet. About\n25 feet westerly on the southerly side was located an electric\nlight which was burning. A line drawn across the highway from\nthat light to the point of the accident would be about 42 feet.\nOne witness called by plaintiff lived in a house directly across\nthe highway from the point of the accident. Seated in a front\nroom it was sufficiently light for her to see plaintiff\xe2\x80\x99s intestate\nwhen he was driving along the road at a point near a telegraph\npole which is shown on the map some 90 or 100 feet easterly of\nthe point of the accident, when she observed him turn his horse\ninto the right towards the fence. Soon thereafter she heard the\ncrash of the collision and immediately went across the highway\nand found Mr. Martin in a sitting position on the grass. A\nwitness called by the defendant testified that she was on the\nstoop of her house, which is across the highway from the point\nof the accident and about 40 feet distant from said point and\nwhile seated there she could see the body of Mr. Martin. While\nshe testified the evening was dark, the lights on the highway\nwere sufficient to enable her to see the body of Mr. Martin lying\nupon the grass 40 feet distant. The defendant upon crossexamination was confronted with his testimony given before the\ncoroner where he testified that the road was \xe2\x80\x9cfairly light.\xe2\x80\x9d\nThe facts narrated were passed upon by the jury under a proper\ncharge relating to the same, and were sustained by the Appellate\nDivision. The conclusions deducible therefrom are: (A)\nDefendant was driving his car upon the wrong side of the road.\n(B) Plaintiff and her intestate were driving a horse attached to\nthe wagon in which they were seated upon the extreme right\nside of the road. (C) The highway was well lighted. The evening\n\n182\n\n\x0cwas not dark. (D) Defendant collided with the vehicle in which\nplaintiff and her husband were riding and caused the accident.\nI must here note the fact that concededly there was no light\nupon the wagon in which plaintiff and her husband were riding,\nin order that I may express my views upon additional phrases in\nthe prevailing opinion. Therein it is stated: \xe2\x80\x9cThere may indeed\nbe times when the lights on a highway are so many and so bright\nthat lights on a wagon are superfluous.\xe2\x80\x9d I am in accord with that\nstatement, but I dissent from the suggestion we may doubt\nwhether there is any evidence of illumination sufficient to\nsustain the jury in drawing the inference that if defendant did\nnot see the buggy thus illumined it might reasonably infer that\nhe would not have seen it anyway. Further the opinion states:\n\xe2\x80\x9cHere, on the undisputed facts, lack of vision,\nwhether excusable or not, was the cause of the\ndisaster. The defendant may have been\nnegligent in swerving from the center of the\nroad, but he did not run into the buggy\npurposely, nor was he driving while intoxicated,\nnor was he going at such a reckless rate of speed\nthat warning would of necessity be futile.\nNothing of the kind is shown.\xe2\x80\x9d\nAs to the rate of speed of the automobile, the evidence adduced\nby plaintiff\xe2\x80\x99s witnesses was from 18 to 20 miles an hour, as\n\xe2\x80\x9cvery fast,\xe2\x80\x9d further that after the collision the car proceeded 100\nfeet before it was stopped. The defendant testified that he was\ndriving about 12 miles an hour, that at such rate of speed he\nthought the car should be stopped in five or six feet and though\nhe put on the foot brake he ran 20 feet before he stopped. The\njury had the right to find that a car traveling at the rate of 12\nmiles an hour which could be stopped within five or six feet,\nand with the foot brake on was not halted within 100 feet must\nat the time of the collision have been running \xe2\x80\x9cvery fast\xe2\x80\x9d or at a\nreckless rate of speed, and, therefore, warning would of\nnecessity be futile. No claim was made that defendant was\nintoxicated or that he purposely ran into the buggy. Nor was\nproof of such facts essential to plaintiff\xe2\x80\x99s right to recover. This\ncase does not differ from many others wherein the failure to\n\n183\n\n\x0cexercise reasonable care to observe a condition is disclosed by\nevidence and properly held a question of fact for a jury. In the\nearlier part of the prevailing opinion, as I have pointed out, the\nstatement was: \xe2\x80\x9cThe case against him (defendant) must stand or\nfall, if at all, upon the divergence of his course from the center\nof the highway.\xe2\x80\x9d It would appear that \xe2\x80\x9clack of vision whether\nexcusable or not was the cause of the disaster\xe2\x80\x9d had been\nadopted in lieu of divergence from the center of the highway. I\nhave, therefore, discussed divergence from the center of the\nroad. My examination of the record leads me to the conclusion\nthat lack of vision was not on the undisputed facts the sole\ncause of the disaster. Had the defendant been upon his right\nside of the road, upon the plaintiff\xe2\x80\x99s theory he might have been\ndriving recklessly and the plaintiff and her intestate being near to\nthe grass on the northerly side of a roadway 27 feet and upwards\nin width the accident would not have happened and the\npresence of or lack of vision would not be material. If, however,\nas found by the jury, defendant was wrongfully on plaintiff\xe2\x80\x99s\nside of the road and caused the accident, the question of\nwhether or not under the facts in the exercise of reasonable care\nhe might have discovered his error and the presence of plaintiff\nand thereupon avoid the collision was for the jury. The question\nwas presented whether or not as defendant approached the\nwagon the roadway was so well lighted up that defendant saw or\nin the exercise of reasonable care could have seen the wagon in\ntime to avoid colliding with the same, and upon that proposition\nthe conclusion of the jury was adverse to defendant, thereby\nestablishing that the lights of the car on the highway were\nequivalent to any light which if placed upon the wagon of\nplaintiff would have aroused the attention of defendant, and that\nno causal connection existed between the collision and absence\nof a light on the wagon.\nAt the close of the charge to the jury the trial justice was\nrequested by counsel for defendant to charge \xe2\x80\x9cthat the failure to\nhave a light on plaintiff\xe2\x80\x99s vehicle is prima facie evidence of\ncontributory negligence on the part of plaintiff.\xe2\x80\x9d The justice\ndeclined to charge in the language stated, but did charge that the\njury might consider it on the question of negligence, but it was\n\n184\n\n\x0cnot in itself conclusive evidence of negligence. For the refusal to\ninstruct the jury as requested, the judgment of the Trial Term\nwas reversed by the Appellate Division.\nThe request to charge was a mere abstract proposition. Even\nassuming that such was the law, it would not bar a recovery by\nplaintiff unless such contributory negligence was the proximate\nand not a remote contributory cause of the injury. The request\nto charge excluded that important requisite. The trial justice\ncharged the jury that the burden rested upon plaintiff to\nestablish by the greater weight of evidence that plaintiff\xe2\x80\x99s\nintestate\xe2\x80\x99s death was caused by the negligence of the defendant\nand that such negligence was the proximate cause of his death;\nthat by \xe2\x80\x9cproximate cause\xe2\x80\x9d is meant that cause without which the\ninjury would not have happened, otherwise she could not\nrecover in the action. In the course of his charge the justice\nenlarged on the subject of contributory negligence, and in\nconnection therewith read to the jury the provisions of the\nHighway Law and then charged that the jury should consider\nthe absence of a light upon the wagon in which plaintiff and her\nintestate were riding and whether the absence of a light on the wagon\ncontributed to the accident. At the request of counsel for defendant,\nthe justice charged that, if the jury should find any negligence on\nthe part of Mr. Martin, no matter how slight, contributed to the\naccident, the verdict must be for the defendant. I cannot concur\nthat we may infer that the absence of a light on the front of the\nwagon was not only the cause but the proximate cause of the\naccident. Upon the evidence adduced upon the trial and the\ncredence attached to the same, the fact has been determined that\nthe accident would have been avoided had the defendant been\nupon his side of the road or attentive to where he was driving\nalong a public highway, or had he been driving slowly, used his\nsense of sight and observed plaintiff and her intestate as he\napproached them, they being visible at the time. The defendant\xe2\x80\x99s\nrequest to charge which was granted, \xe2\x80\x9cthat plaintiff must stand\nor fall on her claim as made, and if the jury do not find that the\naccident happened as substantially claimed by her and her\nwitnesses that the verdict of the jury must be for the defendant,\xe2\x80\x9d\npresented the question quite succinctly. The jury found that the\n\n185\n\n\x0caccident happened as claimed by the plaintiff and her witnesses\nand we cannot surmise or infer that the accident would not have\nhappened had a light been located on the wagon.\nIn my opinion the charge of the trial justice upon the subject of\nproximate cause of the accident was a full and complete\nstatement of the law of the case, especially when considered in\nconnection with the charge that the slightest negligence on the\npart of the intestate contributing to the accident would require a\nverdict for defendant.~\nThe charge requested and denied in this case was in effect that a\nfailure to have a light upon the intestate\xe2\x80\x99s wagon was as matter\nof law such negligence on his part as to defeat the cause of\naction irrespective of whether or not such negligence was the\nproximate cause of the injury. My conclusion is that we are\nsubstituting form and phrases for substance and diverging from\nthe rule of causal connection.\n\nExcuse for Complying with a Statute or Regulation\nThe courts will sometimes excuse failure to comply with a statute or\nregulation. Recognized excuses can include situations in which\ncomplying with the statute or regulation would be more dangerous\nthan violating it, inability to comply with the statute or regulation\ndespite an honest attempt to do so, and emergency circumstances \xe2\x80\x93\nso long as the emergency itself was not the defendant\xe2\x80\x99s own fault.\n\nExample: Southbound Swerver \xe2\x80\x93 Suppose a statute\nrequires motorists to not travel on the wrong side of the road.\nA motorist is traveling southbound on a road when a group\nof children suddenly dart out into traffic. To avoid hitting\nthem, the motorist swerves across the double yellow line and\nsideswipes a northbound vehicle. The southbound motorist is\nexcused from complying with the statute, and thus negligence\nper se doctrine cannot be used to establish breach of the duty\nof care.\nKeep in mind that even where a person is excused from complying\nwith a statute, there is still the duty of reasonable care. So the\n\n186\n\n\x0csouthbound swerver must still exercise care reasonable under the\ncircumstances when crossing the double-yellow line.\nComplying with Statutes or Regulations as a Defense\nSince violating a statute or regulation can count as a breach of the\nduty of care under negligence-per-se doctrine, the question naturally\narises whether complying with a relevant statute or regulation will\nsuffice to show that the relevant standard of care was met. In other\nwords, since statutes can be used by plaintiffs to establish breach, can\ncompliance with statutes be used by defendants to show a lack of\nbreach?\nThe general rule is that defendants can introduce compliance with a\nstatute or regulation to the jury as evidence that the relevant standard\nof care was met. However, compliance with a statute or regulation is\nnot dispositive. A plaintiff is free to argue that the reasonable person\nstandard of care required doing more than the statute or regulation\nitself required.\n\nExample: Retail Railing \xe2\x80\x93 Suppose a statute requires that\nrailings in retail stores be of a certain height. The defendant\xe2\x80\x99s\nrailing meets the standard. Nonetheless, the plaintiff falls over\nthe railing, with the theory of negligence being that the railing\nwas not high enough to reasonably prevent falls. Can the\ndefendant use compliance with the statute to defeat the\nnegligence claim? Not necessarily. The defendant can present\nthe statute to the jury and argue that the fact that the railing\nwas as a high as required by statute indicates that reasonable\ncare was taken. But the plaintiff can argue that the railing\nheight was not reasonable regardless. Suppose evidence at\ntrial showed that several similar accidents had happened at\nthe store in the past. One can imagine that the jury would be\npersuaded to find the railing height unreasonably low despite\nthe fact that it was as high as the statute required.\nSo, for defendants, compliance with a statute or regulation forms an\nincomplete argument. For plaintiffs, however, violation of a statute\nor regulation, if it passes the negligence-per-se requirements,\n\n187\n\n\x0cfunctions to end all argument and tally up a win for the plaintiff on\nthe breach element of the negligence case.\nSome Problems on Negligence Per Se\nA. Westbound Walker \xe2\x80\x93 A statute requires pedestrians walking\nalong a roadway to walk such that they are facing traffic. William is\ndriving along a rural road when his car breaks down. There being no\ncell phone service in this area, William will have to walk into town to\nget help. The nearest town to the east is 100 miles away. The nearest\ntown to the west is three miles away. In the westbound direction, the\nright side of the road has a wide shoulder, while the left side of the\nroad \xe2\x80\x93 which faces traffic \xe2\x80\x93has a narrow shoulder and drops off to\nthe left over a cliff. William decides to walk westbound on the right\nside of the road with his back to traffic. Another motorist, Minsky, is\ntravelling westbound along the road and hits William. Can Minsky\nprevail in a negligence suit against William for the damage to\nMinsky\xe2\x80\x99s car? If William sues Minsky for bodily injuries he sustained\nin being hit by Minsky\xe2\x80\x99s car, can Minsky successfully repel the suit by\narguing that the man was contributorily negligent? (Assume that we\nare in a contributory negligence jurisdiction, where any negligence on\nthe part of the plaintiff that contributed to the injury forms a\ncomplete defense.)\nB. SparkleStar Skate \xe2\x80\x93 The following hypothetical uses a real statute\nand real language from a roller-rink sign.\nSuppose there is a roller rink in North Carolina named SparkleStar\nSkate that hosts an open skate session on an unlucky afternoon.\nA North Carolina statute provides as follows:\nN.C. General Statutes \xc2\xa7 99E-12. Duties of a roller skater.\nEach roller skater shall, to the extent commensurate with the\nperson\xe2\x80\x99s age:\n(1)\nMaintain reasonable control of his or her speed and\ncourse at all times.\n(2)\nHeed all posted signs and warnings.\n(3)\nMaintain a proper lookout to avoid other roller\nskaters and objects.\n\n188\n\n\x0c(4)\n\nAccept the responsibility for knowing the range of his\nor her ability to negotiate the intended direction of\ntravel while on roller skates and to skate within the\nlimits of that ability.\n(5)\nRefrain from acting in a manner that may cause or\ncontribute to the injury of himself, herself, or any\nother person.\nA sign inside SparkleStar Skate contains the following language:\nDRESS AND CONDUCT CODE\nSkaters shall conduct themselves as\nladies and gentlemen.\nNo in and out privileges, loitering, or\nlittering around building. \xe2\x80\x9cWhen you leave\n\xe2\x80\x93 you leave.\xe2\x80\x9d\nAll skaters renting skates shall be\nrequired to wear socks. If you feel that\nyour rental skates are defective or\nimproperly adjusted, please return them to\nthe rental skate counter immediately.\nNo foul language is permitted.\nParent spectators only.\nSkate At Your Own Risk.\n\nSix-year-old Jeanette, a novice roller skater, is using rental skates. She\nis not wearing socks. Jeanette skates around the skate floor, gradually\ngoing faster as her confidence builds. Still skating slower than most\nother skaters, Jeanette becomes flummoxed when closely passed by\nseveral tweens who are skating fast and laughing loudly. Jeanette\nstarts to careen out of control. Though she tries to regain her\nbalance, she tumbles into the path of Kevin, a 39-year-old father\nskating with his young son. Kevin falls and breaks his arm. Kevin,\nwho is unemployed and without health insurance, asks Jeanette\xe2\x80\x99s\nparents \xe2\x80\x93 both of whom are partners in a national accounting firm \xe2\x80\x93\nfor help with his subsequent medical bills. They refuse.\nFour-year-old Lawrence, who has been skating since the age of 17\nmonths, is whiz on the floor. Zooming in and out of much older\n\n189\n\n\x0cskaters, he elicits ooohs and aaahs from everyone who sees him.\nWhile smiling and waving at onlookers, Lawrence runs into Molly, a\n13-year-old novice who is struggling to stay up right. The collision\ncauses Molly to lose her balance and fall, causing her to break several\nteeth. Molly will need thousands of dollars\xe2\x80\x99 worth of dentistry, and\nLawrence has money coming in from a national television\ncommercial he landed thanks to his skating prowess.\nNilou, a 72-year-old skater at SparkleStar Skate with her great\ngrandson, is an experienced and competent roller skater. She rents\nskates. As she tries them out, her left skate feels as if it has a wobbly\nwheel. But Nilou ignores it, as her great-grandson is already skating\noff ahead. After a few minutes of skating, Nilou\xe2\x80\x99s left skate suddenly\ncollapses, causing Nilou to fall and suffer a broken femur. It turns\nout there was indeed a wobbly wheel on the left skate owing to\nimproper maintenance by SparkleStar Skate\xe2\x80\x99s tech, who was at the\ntime unlawfully intoxicated with marijuana.\nA. Can Kevin use N.C.G.L. \xc2\xa799E-12 to successfully sue Jeanette for\nnegligence?\nB. Can Molly use N.C.G.L. \xc2\xa799E-12 to successfully sue Lawrence for\nnegligence?\nC. Can Nilou successfully make out a prima facie case for negligence\nagainst SparkleStar Skate, using N.C.G.L. \xc2\xa799E-12?\nD. Can SparkleStar Skate use N.C.G.L. \xc2\xa799E-12 to establish an\naffirmative defense of contributory negligence if sued by Nilou?\n(North Carolina is a contributory negligence jurisdiction, so if Nilou\xe2\x80\x99s\nnegligence contributed to her injury at all, then she will be barred\nfrom recovering any damages.)\nE. Can SparkleStar Skate use N.C.G.L. \xc2\xa799E-12 to sue Nilou for\nnegligence for damage to the left skate?\n\nThe Role of Custom or Standard Practices\nGolfers yell \xe2\x80\x9cFore!\xe2\x80\x9d before teeing off. Lumberjacks yell, \xe2\x80\x9cTimber!\xe2\x80\x9d\nWaiters serving fajitas say, \xe2\x80\x9cThe plate is very hot.\xe2\x80\x9d Adults insist that\nlittle kids hold hands in a parking lot. What is the relevance of such\n\n190\n\n\x0chabitual ways of doing things on the standard of care in a negligence\ncase?\nJudges and people writing on torts call such conduct \xe2\x80\x9ccustom.\xe2\x80\x9d\n(Although in the business world, \xe2\x80\x9cstandard practice\xe2\x80\x9d may be the\nmore common term.) The rule with regard to custom is that it can be\nrelevant evidence for the jury on the standard of care, but custom is\nnot dispositive to the issue. In fact, no matter how firmly established\ncustom is, custom itself is not the standard of care. The standard is\nwhat it always is: what the reasonable person would do under the\ncircumstances.\nCustom can be relevant and helpful to the jury in many ways.\nShowing that a practice is customary tends to show that it is a\npracticable and well-known means of reducing risk. An established\ncustom can also be reflective of the amalgamated judgment of a large\ncommunity. These showings can go a long way in making an\nargument about what the reasonable person would have done.\nAn important exception to the rule that custom is not dispositive is\nprofessional-malpractice negligence \xe2\x80\x93 that is negligence in the\npractice of medicine, dentistry, law, etc. In the professionalmalpractice context, the prevailing custom in the professional\ncommunity is dispositive. That is, the custom actually sets the\nstandard of care, replacing reasonable-person analysis. Professional\nmalpractice is discussed in a later chapter on healthcare liability. Just\nremember that outside the context of negligence committed by a\nprofessional in the course of professional practice, custom cannot\nusurp the reasonable-person standard of care.\nCase: The T.J. Hooper\nThe following case is the classic exposition on the use of custom in\ntort law. Ironically, the case does not technically concern torts, but\nrather admiralty law, the common law of obligations arising at sea.\nAdmiralty law covers a lot of topics \xe2\x80\x93 such as sunken treasure \xe2\x80\x93 that\nare not covered by tort. But when it comes to liability for accidents at\nsea, admiralty law and torts are largely consonant.\n\n191\n\n\x0cThe T.J. Hooper\nUnited States Court of Appeals for the Second Circuit\nJuly 21, 1932\n60 F.2d 737. The T. J. Hooper.; The Northern No. 30 and No.\n17.; The Montrose. In re Eastern Transp. Co., New England\nCoal & Coke Co. v. Northern Barge Corporation, H. N.\nHartwell & Son, Inc., v. Same. No. 430. Petition by the Eastern\nTransportation Company, as owner of the tugs Montrose and T.J.\nHooper. Before LEARNED HAND, SWAN, and AUGUSTUS\nN. HAND, Circuit Judges.\nJudge LEARNED HAND:\nThe barges No. 17 and No. 30, belonging to the Northern Barge\nCompany, had lifted cargoes of coal at Norfolk, Virginia, for\nNew York in March, 1928. They were towed by two tugs of the\npetitioner, the Montrose and the Hooper, and were lost off the\nJersey Coast on March tenth, in an easterly gale. The cargo\nowners sued the barges under the contracts of carriage; the\nowner of the barges sued the tugs under the towing contract,\nboth for its own loss and as bailee of the cargoes; the owner of\nthe tug filed a petition to limit its liability. All the suits were\njoined and heard together, and the judge found that all the\nvessels were unseaworthy; the tugs, because they did not carry\nradio receiving sets by which they could have seasonably got\nwarnings of a change in the weather which should have caused\nthem to seek shelter in the Delaware Breakwater en route. He\ntherefore entered an interlocutory decree holding each tug and\nbarge jointly liable to each cargo owner, and each tug for half\ndamages for the loss of its barge. The petitioner appealed, and\nthe barge owner appealed and filed assignments of error.\nEach tug had three ocean going coal barges in tow, the lost\nbarge being at the end. The Montrose, which had the No. 17,\ntook an outside course; the Hooper with the No. 30, inside. The\nweather was fair without ominous symptoms, as the tows passed\nthe Delaware Breakwater about midnight of March eighth, and\nthe barges did not get into serious trouble until they were about\nopposite Atlantic City some sixty or seventy miles to the north.\n\n192\n\n\x0cThe wind began to freshen in the morning of the ninth and rose\nto a gale before noon; by afternoon the second barge of the\nHooper\xe2\x80\x99s tow was out of hand and signalled the tug, which found\nthat not only this barge needed help, but that the No. 30 was\naleak. Both barges anchored and the crew of the No. 30 rode\nout the storm until the afternoon of the tenth, when she sank,\nher crew having been meanwhile taken off. The No. 17 sprang a\nleak about the same time; she too anchored at the Montrose\xe2\x80\x99s\ncommand and sank on the next morning after her crew also had\nbeen rescued. The cargoes and the tugs maintain that the barges\nwere not fit for their service; the cargoes and the barges that the\ntugs should have gone into the Delaware Breakwater, and\nbesides, did not handle their tows properly.\nThe evidence of the condition of the barges was very extensive,\nthe greater part being taken out of court. As to each, the fact\nremains that she foundered in weather that she was bound to\nwithstand. A March gale is not unusual north of Hatteras; barges\nalong the coast must be ready to meet one, and there is in the\ncase at bar no adequate explanation for the result except that\nthese were not well-found. The test of seaworthiness, being\nability for the service undertaken, the case might perhaps be left\nwith no more than this. As to the cargoes, the charters excused\nthe barges if \xe2\x80\x98reasonable means\xe2\x80\x99 were taken to make them\nseaworthy; and the barge owners amended their answers during\nthe trial to allege that they had used due diligence in that regard.\nAs will appear, the barges were certainly not seaworthy in fact,\nand we do not think that the record shows affirmatively the\nexercise of due diligence to examine them. The examinations at\nleast of the pumps were perfunctory; had they been sufficient\nthe loss would not have occurred.~\nA more difficult issue is as to the tugs. We agree with the judge\nthat once conceding the propriety of passing the Breakwater on\nthe night of the eighth, the navigation was good enough. It\nmight have been worse to go back when the storm broke than\nto keep on. The seas were from the east and southeast, breaking\non the starboard quarter of the barges, which if tight and well\nfound should have lived. True they were at the tail and this is\nthe most trying position, but to face the seas in an attempt to\n\n193\n\n\x0creturn was a doubtful choice; the masters\xe2\x80\x99 decision is final unless\nthey made a plain error. The evidence does not justify that\nconclusion; and so, the case as to them turns upon whether they\nshould have put in at the Breakwater.\nThe weather bureau at Arlington broadcasts two predictions\ndaily, at ten in the morning and ten in the evening. Apparently\nthere are other reports floating about, which come at uncertain\nhours but which can also be picked up. The Arlington report of\nthe morning read as follows: \xe2\x80\x98Moderate north, shifting to east\nand southeast winds, increasing Friday, fair weather to-night.\xe2\x80\x99\nThe substance of this, apparently from another source, reached\na tow bound north to New York about noon, and, coupled with\na falling glass, decided the master to put in to the Delaware\nBreakwater in the afternoon. The glass had not indeed fallen\nmuch and perhaps the tug was over cautious; nevertheless,\nalthough the appearances were all fair, he thought discretion the\nbetter part of valor. Three other tows followed him, the masters\nof two of which testified. Their decision was in part determined\nby example; but they too had received the Arlington report or its\nequivalent, and though it is doubtful whether alone it would\nhave turned the scale, it is plain that it left them in an indecision\nwhich needed little to be resolved on the side of prudence; they\npreferred to take no chances, and chances they believed there\nwere. Courts have not often such evidence of the opinion of\nimpartial experts, formed in the very circumstances and\nconfirmed by their own conduct at the time.\nMoreover, the Montrose and the Hooper would have had the\nbenefit of the evening report from Arlington had they had\nproper receiving sets. This predicted worse weather; it read:\n\xe2\x80\x98Increasing east and southeast winds, becoming fresh to strong,\nFriday night and increasing cloudiness followed by rain Friday.\xe2\x80\x99\nThe bare \xe2\x80\x98increase\xe2\x80\x99 of the morning had become \xe2\x80\x98fresh to strong.\xe2\x80\x99\nTo be sure this scarcely foretold a gale of from forty to fifty\nmiles for five hours or more, rising at one time to fifty-six; but if\nthe four tows thought the first report enough, the second ought\nto have laid any doubts. The master of the Montrose himself,\nwhen asked what he would have done had he received a\nsubstantially similar report, said that he would certainly have put\n\n194\n\n\x0cin. The master of the Hooper was also asked for his opinion, and\nsaid that he would have turned back also, but this admission is\nsomewhat vitiated by the incorporation in the question of the\nstatement that it was a \xe2\x80\x98storm warning,\xe2\x80\x99 which the witness seized\nupon in his answer. All this seems to us to support the\nconclusion of the judge that prudent masters, who had received\nthe second warning, would have found the risk more than the\nexigency warranted; they would have been amply vindicated by\nwhat followed. To be sure the barges would, as we have said,\nprobably have withstood the gale, had they been well found; but\na master is not justified in putting his tow to every test which\nshe will survive, if she be fit. There is a zone in which proper\ncaution will avoid putting her capacity to the proof; a coefficient\nof prudence that he should not disregard. Taking the situation as\na whole, it seems to us that these masters would have taken\nundue chances, had they got the broadcasts.\nThey did not, because their private radio receiving sets, which\nwere on board, were not in working order. These belonged to\nthem personally, and were partly a toy, partly a part of the\nequipment, but neither furnished by the owner, nor supervised\nby it. It is not fair to say that there was a general custom among\ncoastwise carriers so to equip their tugs. One line alone did it; as\nfor the rest, they relied upon their crews, so far as they can be\nsaid to have relied at all. An adequate receiving set suitable for a\ncoastwise tug can now be got at small cost and is reasonably\nreliable if kept up; obviously it is a source of great protection to\ntheir tows. Twice every day they can receive these predictions,\nbased upon the widest possible information, available to every\nvessel within two or three hundred miles and more. Such a set is\nthe ears of the tug to catch the spoken word, just as the master\xe2\x80\x99s\nbinoculars are her eyes to see a storm signal ashore. Whatever\nmay be said as to other vessels, tugs towing heavy coal laden\nbarges, strung out for half a mile, have little power to\nmanoeuvre, and do not, as this case proves, expose themselves\nto weather which would not turn back stauncher craft. They can\nhave at hand protection against dangers of which they can learn\nin no other way.\n\n195\n\n\x0cIs it then a final answer that the business had not yet generally\nadopted receiving sets? There are, no doubt, cases where courts\nseem to make the general practice of the calling the standard of\nproper diligence; we have indeed given some currency to the\nnotion ourselves. Indeed in most cases reasonable prudence is in\nfact common prudence; but strictly it is never its measure; a\nwhole calling may have unduly lagged in the adoption of new\nand available devices. It never may set its own tests, however\npersuasive be its usages. Courts must in the end say what is\nrequired; there are precautions so imperative that even their\nuniversal disregard will not excuse their omission. But here there\nwas no custom at all as to receiving sets; some had them, some\ndid not; the most that can be urged is that they had not yet\nbecome general. Certainly in such a case we need not pause;\nwhen some have thought a device necessary, at least we may say\nthat they were right, and the others too slack. The statute\n(section 484, title 46, U. S. Code) does not bear on this situation\nat all. It prescribes not a receiving, but a transmitting set, and for\na very different purpose; to call for help, not to get news. We\nhold the tugs therefore because had they been properly\nequipped, they would have got the Arlington reports. The injury\nwas a direct consequence of this unseaworthiness.\nDecree affirmed.\n\nThe Negligence Calculus\nIntroduction\nAn alternative way of thinking about negligence has emerged from\nthe law-and-economics movement: the negligence calculus, also\ncalled the \xe2\x80\x9cHand Formula.\xe2\x80\x9d The idea is that a person is obliged to\nundertake a precaution when the benefits outweigh the costs. The\nparticular way this is spelled out in the Hand Formula is that a\ndefendant has breached its duty of care if it fails to take a precaution\nwhen the burden of doing so is less than the probability of the harm\nmultiplied by the magnitude of the harm.\nFollowing the case, we will spell this out in a formal way with defined\nvariables and a mathematically expressed inequality.\n\n196\n\n\x0cCase: U.S. v. Carroll Towing\nThe Hand Formula comes to us from an opinion filed 14 years after\nthe T.J. Hooper. Yet this case was also authored by Judge Learned\nHand and also happens to concern a tugboat.\n\nUnited States v. Carroll Towing\nUnited States Court of Appeals for the Second Circuit\nJanuary 9, 1947\n159 F.2d 169. Nos. 96 and 97, Dockets 20371 and 20372.\nConners Marine Company, Inc., against Pennsylvania Railroad\nCompany, charterer of the covered barge Anna C and\nproceedings in the matter of the petition of the Carroll Towing\nCompany, Inc., as owner of the steamship Joseph F. Carroll.\nGrace Line, Inc. impleaded. Before L. HAND, CHASE and\nFRANK, Circuit Judges.\nJudge LEARNED HAND:\nThese appeals concern the sinking of the barge, Anna C, on\nJanuary 4, 1944, off Pier 51, North River. The Conners Marine\nCo., Inc., was the owner of the barge, which the Pennsylvania\nRailroad Company had chartered; the Grace Line, Inc., was the\ncharterer of the tug, Carroll, of which the Carroll Towing Co.,\nInc., was the owner. The decree in the limitation proceeding\nheld the Carroll Company liable to the United States for the loss\nof the barge\xe2\x80\x99s cargo of flour, and to the Pennsylvania Railroad\nCompany, for expenses in salving the cargo and barge; and it\nheld the Carroll Company also liable to the Conners Company\nfor one half the damage to the barge; these liabilities being all\nsubject to limitation. The decree in the libel suit held the Grace\nLine primarily liable for the other half of the damage to the\nbarge, and for any part of the first half, not recovered against\nthe Carroll Company because of limitation of liability; it also\nheld the Pennsylvania Railroad secondarily liable for the same\namount that the Grace Line was liable. The Carroll Company\nand the Pennsylvania Railroad Company have filed assignments\nof error.\n\n197\n\n\x0cThe facts, as the judge found them, were as follows. On June 20,\n1943, the Conners Company chartered the barge, Anna C to the\nPennsylvania Railroad Company at a stated hire per diem, by a\ncharter of the kind usual in the Harbor, which included the\nservices of a bargee, apparently limited to the hours 8 A.M. to 4\nP.M. On January 2, 1944, the barge, which had lifted the cargo\nof flour, was made fast off the end of Pier 58 on the Manhattan\nside of the North River, whence she was later shifted to Pier 52.\nAt some time not disclosed, five other barges were moored\noutside her, extending into the river; her lines to the pier were\nnot then strengthened. At the end of the next pier north (called\nthe Public Pier), lay four barges; and a line had been made fast\nfrom the outermost of these to the fourth barge of the tier\nhanging to Pier 52. The purpose of this line is not entirely\napparent, and in any event it obstructed entrance into the slip\nbetween the two piers of barges. The Grace Line, which had\nchartered the tug, Carroll, sent her down to the locus in quo to\n\xe2\x80\x98drill\xe2\x80\x99 out one of the barges which lay at the end of the Public\nPier; and in order to do so it was necessary to throw off the line\nbetween the two tiers. On board the Carroll at the time were not\nonly her master, but a \xe2\x80\x98harbormaster\xe2\x80\x99 employed by the Grace\nLine. Before throwing off the line between the two tiers, the\nCarroll nosed up against the outer barge of the tier lying off Pier\n52, ran a line from her own stem to the middle bit of that barge,\nand kept working her engines \xe2\x80\x98slow ahead\xe2\x80\x99 against the ebb tide\nwhich was making at that time. The captain of the Carroll put a\ndeckhand and the \xe2\x80\x98harbormaster\xe2\x80\x99 on the barges, told them to\nthrow off the line which barred the entrance to the slip; but,\nbefore doing so, to make sure that the tier on Pier 52 was safely\nmoored, as there was a strong northerly wind blowing down the\nriver. The \xe2\x80\x98harbormaster\xe2\x80\x99 and the deckhand went aboard the\nbarges and readjusted all the fasts to their satisfaction, including\nthose from the Anna C to the pier.\nAfter doing so, they threw off the line between the two tiers and\nagain boarded the Carroll, which backed away from the outside\nbarge, preparatory to \xe2\x80\x98drilling\xe2\x80\x99 out the barge she was after in the\ntier off the Public Pier. She had only got about seventy-five feet\naway when the tier off Pier 52 broke adrift because the fasts\n\n198\n\n\x0cfrom the Anna C, either rendered, or carried away. The tide and\nwind carried down the six barges, still holding together, until the\nAnna C fetched up against a tanker, lying on the north side of\nthe pier below- Pier 51- whose propeller broke a hole in her at\nor near her bottom. Shortly thereafter: i.e., at about 2:15 P.M.,\nshe careened, dumped her cargo of flour and sank. The tug,\nGrace, owned by the Grace Line, and the Carroll, came to the\nhelp of the flotilla after it broke loose; and, as both had syphon\npumps on board, they could have kept the Anna C afloat, had\nthey learned of her condition; but the bargee had left her on the\nevening before, and nobody was on board to observe that she\nwas leaking. The Grace Line wishes to exonerate itself from all\nliability because the \xe2\x80\x98harbormaster\xe2\x80\x99 was not authorized to pass\non the sufficiency of the fasts of the Anna C which held the tier\nto Pier 52; the Carroll Company wishes to charge the Grace\nLine with the entire liability because the \xe2\x80\x98harbormaster\xe2\x80\x99 was\ngiven an over-all authority. Both wish to charge the Anna C with\na share of all her damages, or at least with so much as resulted\nfrom her sinking. The Pennsylvania Railroad Company also\nwishes to hold the barge liable. The Conners Company wishes\nthe decrees to be affirmed.\nThe first question is whether the Grace Line should be held\nliable at all for any part of the damages. The answer depends\nfirst upon how far the \xe2\x80\x98harbormaster\xe2\x80\x99s\xe2\x80\x99 authority went, for\nconcededly he was an employee of some sort. Although the\njudge made no other finding of fact than that he was an\n\xe2\x80\x98employee,\xe2\x80\x99 in his second conclusion of law he held that the\nGrace Line was \xe2\x80\x98responsible for his negligence.\xe2\x80\x99 Since the facts\non which he based this liability do not appear, we cannot give\nthat weight to the conclusion which we should to a finding of\nfact; but it so happens that on cross-examination the\n\xe2\x80\x98harbormaster\xe2\x80\x99 showed that he was authorized to pass on the\nsufficiency of the facts of the Anna C. He said that it was part of\nhis job to tie up barges; that when he came \xe2\x80\x98to tie up a barge\xe2\x80\x99 he\nhad \xe2\x80\x98to go in and look at the barges that are inside the barge\xe2\x80\x99 he\nwas \xe2\x80\x98handling\xe2\x80\x99; that in such cases \xe2\x80\x98most of the time\xe2\x80\x99 he went in\n\xe2\x80\x98to see that the lines to the inside barges are strong enough to\nhold these barges\xe2\x80\x99; and that \xe2\x80\x98if they are not\xe2\x80\x99 he \xe2\x80\x98put out sufficient\n\n199\n\n\x0cother lines as are necessary.\xe2\x80\x99 That does not, however, determine\nthe other question: i.e., whether, when the master of the Carroll\ntold him and the deckhand to go aboard the tier and look at the\nfasts, preparatory to casting off the line between the tiers, the\ntug master meant the \xe2\x80\x98harbormaster\xe2\x80\x99 to exercise a joint authority\nwith the deckhand. As to this the judge in his tenth finding said:\n\xe2\x80\x98The captain of the Carroll then put the deckhand of the tug and\nthe harbor master aboard the boats at the end of Pier 52 to\nthrow off the line between the two tiers of boats after first\nascertaining if it would be safe to do so.\xe2\x80\x99 Whatever doubts the\ntestimony of the \xe2\x80\x98harbormaster\xe2\x80\x99 might raise, this finding settles it\nfor us that the master of the Carroll deputed the deckhand and\nthe \xe2\x80\x98harbormaster,\xe2\x80\x99 jointly to pass upon the sufficiency of the\nAnna C\xe2\x80\x99s fasts to the pier. The case is stronger against the Grace\nLine than Rice v. The Marion A.C. Meseck, was against the tug\nthere held liable, because the tug had only acted under the\nexpress orders of the \xe2\x80\x98harbormaster.\xe2\x80\x99 Here, although the\nrelations were reversed, that makes no difference in principle;\nand the \xe2\x80\x98harbormaster\xe2\x80\x99 was not instructed what he should do\nabout the fast, but was allowed to use his own judgment. The\nfact that the deckhand shared in this decision, did not exonerate\nhim, and there is no reason why both should not be held equally\nliable, as the judge held them.\nWe cannot, however, excuse the Conners Company for the\nbargee\xe2\x80\x99s failure to care for the barge, and we think that this\nprevents full recovery. First as to the facts. As we have said, the\ndeckhand and the \xe2\x80\x98harbormaster\xe2\x80\x99 jointly undertook to pass upon\nthe Anna C\xe2\x80\x99s fasts to the pier; and even though we assume that\nthe bargee was responsible for his fasts after the other barges\nwere added outside, there is not the slightest ground for saying\nthat the deckhand and the \xe2\x80\x98harbormaster\xe2\x80\x99 would have paid any\nattention to any protest which he might have made, had he been\nthere. We do not therefore attribute it as in any degree a fault of\nthe Anna C that the flotilla broke adrift. Hence she may recover\nin full against the Carroll Company and the Grace Line for any\ninjury she suffered from the contact with the tanker\xe2\x80\x99s propeller,\nwhich we shall speak of as the \xe2\x80\x98collision damages.\xe2\x80\x99 On the other\nhand, if the bargee had been on board, and had done his duty to\n\n200\n\n\x0chis employer, he would have gone below at once, examined the\ninjury, and called for help from the Carroll and the Grace Line\ntug. Moreover, it is clear that these tugs could have kept the\nbarge afloat, until they had safely beached her, and saved her\ncargo. This would have avoided what we shall call the \xe2\x80\x98sinking\ndamages.\xe2\x80\x99 Thus, if it was a failure in the Conner Company\xe2\x80\x99s\nproper care of its own barge, for the bargee to be absent, the\ncompany can recover only one third of the \xe2\x80\x98sinking\xe2\x80\x99 damages\nfrom the Carroll Company and one third from the Grace Line.\nFor this reason the question arises whether a barge owner is\nslack in the care of his barge if the bargee is absent.\nAs to the consequences of a bargee\xe2\x80\x99s absence from his barge\nthere have been a number of decisions; and we cannot agree\nthat it never ground for liability even to other vessels who may\nbe injured.~ It appears~ there is no general rule to determine\nwhen the absence of a bargee or other attendant will make the\nowner of the barge liable for injuries to other vessels if she\nbreaks away from her moorings. However, in any cases where\nhe would be so liable for injuries to others obviously he must\nreduce his damages proportionately, if the injury is to his own\nbarge. It becomes apparent why there can be no such general\nrule, when we consider the grounds for such a liability. Since\nthere are occasions when every vessel will break from her\nmoorings, and since, if she does, she becomes a menace to those\nabout her; the owner\xe2\x80\x99s duty, as in other similar situations, to\nprovide against resulting injuries is a function of three variables:\n(1) The probability that she will break away; (2) the gravity of\nthe resulting injury, if she does; (3) the burden of adequate\nprecautions. Possibly it serves to bring this notion into relief to\nstate it in algebraic terms: if the probability be called P; the\ninjury, L; and the burden, B; liability depends upon whether B is\nless than L multiplied by P: i.e., whether B less than PL. Applied\nto the situation at bar, the likelihood that a barge will break from\nher fasts and the damage she will do, vary with the place and\ntime; for example, if a storm threatens, the danger is greater; so\nit is, if she is in a crowded harbor where moored barges are\nconstantly being shifted about. On the other hand, the barge\nmust not be the bargee\xe2\x80\x99s prison, even though he lives aboard; he\n\n201\n\n\x0cmust go ashore at times. We need not say whether, even in such\ncrowded waters as New York Harbor a bargee must be aboard\nat night at all; it may be that the custom is otherwise, as Ward, J.,\nsupposed in The Kathryn B. Guinan; and that, if so, the situation is\none where custom should control. We leave that question open;\nbut we hold that it is not in all cases a sufficient answer to a\nbargee\xe2\x80\x99s absence without excuse, during working hours, that he\nhas properly made fast his barge to a pier, when he leaves her.\nIn the case at bar the bargee left at five o\xe2\x80\x99clock in the afternoon\nof January 3rd, and the flotilla broke away at about two o\xe2\x80\x99clock\nin the afternoon of the following day, twenty-one hours\nafterwards. The bargee had been away all the time, and we hold\nthat his fabricated story was affirmative evidence that he had no\nexcuse for his absence. At the locus in quo \xe2\x80\x93 especially during\nthe short January days and in the full tide of war activity \xe2\x80\x93\nbarges were being constantly \xe2\x80\x98drilled\xe2\x80\x99 in and out. Certainly it was\nnot beyond reasonable expectation that, with the inevitable\nhaste and bustle, the work might not be done with adequate\ncare. In such circumstances we hold \xe2\x80\x93 and it is all that we do\nhold \xe2\x80\x93 that it was a fair requirement that the Conners Company\nshould have a bargee aboard (unless he had some excuse for his\nabsence), during the working hours of daylight.~\nDecrees reversed and cause remanded for further proceedings in\naccordance with the foregoing.\n\nThe BPL Formula\xe2\x80\x99s Place in Torts\nBased on the Carroll Towing opinion, it does not appear that Judge\nHand intended to wholly redefine negligence using algebra. Instead, it\nlooks like he meant to use algebra as a way of illustrating the\nnegligence concept of what is reasonable. Yet however modestly\nJudge Hand might have intended it, his algebraic way of thinking\nabout breach of the duty of care has been embraced by law-andeconomics scholars as holding the key to describing liability in a way\nthat promotes economic efficiency.\nThe key figure in the promotion of the Hand Formula was Professor\nRichard A. Posner of the University of Chicago. In a 1972 article,\nProfessor Posner \xe2\x80\x93 now a judge on the Seventh Circuit \xe2\x80\x93 saluted\n\n202\n\n\x0cCarroll Towing as providing the path to understanding negligence in\nterms of a cost-benefit analysis. Posner rejected the view that\nnegligence is about compensation or morals. Instead, he argued that\nit is about economics.\n\xe2\x80\x9cIt is time to take a fresh look at the social\nfunction of liability for negligent acts. The\nessential clue, I believe, is provided by Judge\nLearned Hand\xe2\x80\x99s famous formulation of the\nnegligence standard \xe2\x80\x93 one of the few attempts\nto give content to the deceptively simple\nconcept of ordinary care. [I]t never purported to\nbe original but was an attempt to make explicit\nthe standard that the courts had long applied.\n\xe2\x80\xa6 Hand was adumbrating, perhaps unwittingly,\nan economic meaning of negligence.\nDiscounting (multiplying) the cost of an\naccident if it occurs by the probability of\noccurrence yields a measure of the economic\nbenefit to be anticipated rom incurring the costs\nnecessary to prevent the accident.\xe2\x80\x9d\n\nRichard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 32\n(1972). The idea of reconceptualizing negligence in economic terms,\nso that it will serve economic goals, has been highly influential in\nscholarly circles. The impact in the courts has been considerably\nsmaller. While there are sporadic examples of courts expressly\nengaging in the negligence calculus \xe2\x80\x93 including opinions authored by\nJudge Posner \xe2\x80\x93 the formula has not been widely embraced by the\nbench. Insofar as the idea has had influence, it has been followed by\ncontroversy.\nHow the BPL Formula Works\nIn U.S. v. Carroll Towing, the BPL formula assigns variables as follows:\nB is the burden, P is the probability that something will go\nwrong, and L is the total loss that would result.\nWhen multiplied together, P and L represent the total amount of\nrisk. It follows from this that just because the L is big, it is not\nnecessarily the case that the total level of risk is big. A relatively large\nharm, when coupled with a miniscule probability, might represent a\n\n203\n\n\x0crelatively small risk overall. The variable P can be thought of as\n\xe2\x80\x9cdiscounting\xe2\x80\x9d L.\nWhat you might call the \xe2\x80\x9cnegligence condition\xe2\x80\x9d exists when the\nfollowing inequality is true:\nB < PL\nIf we incorporate that formula into an algorithm, we would have this:\nRegarding a certain precaution:\nIf B < PL,\nand if the certain precaution is not taken,\nthen the duty of care is breached.\nIf the PL is greater than B, there is a breach of the duty of care. If the\nB is greater than the PL, then there is there is no breach. What\nhappens if B = PL? This essentially reflects a tie between the plaintiff\nand defendant on the breach-of-duty question. Since the fundaments\nof civil procedure mandate that the plaintiff has the burden of proof,\nsuch a tie would, in essence, go to the defendant, since it is a failure\nto prove breach. Thus, B = PL means there is no breach of the duty\nof care.\nSome important things to keep in mind:\nThe L in the formula reflects the total amount of loss suffered \xe2\x80\x93\nnot the loss suffered by the defendant. This is where BPL analysis\ncan be distinguished from what most people think of as \xe2\x80\x9ccost-benefit\nanalysis.\xe2\x80\x9d When a business manager weighs the costs and the benefits\nof undertaking some initiative, the manager is looking at the costs\nand the benefits to the firm. That is not how the BPL formula is\nmeant to work. The BPL formula is meant to take into account the\nentire loss suffered anywhere.\nThe P in the formula is a number ranging from 0 to 1. If there is\nno chance that the harm could come to pass, then P is 0. If it is\ncertain that the harm would come to fruition absent the precaution,\nthen P is 1. If there is a 50% probability \xe2\x80\x93 alternately stated as odds\nof 1 to 1, or a chance of 1 in 2 \xe2\x80\x93 then the P is 0.5.\n\n204\n\n\x0cExample: Dangling Danger \xe2\x80\x93 Suppose a company will be\nusing a crane to move a large generator assembly to the top\nof a tall building. If the crane or cabling fails, then the\nequipment package will fall, crushing a single-story restaurant\nbelow. The move will be done when the restaurant is closed\nand vacated, so there will be no danger to people. If the\nrestaurant were to be destroyed, it would represent a loss to\nits proprietors of $600,000. The kind of crane involved,\nmaking this kind of maneuver, has a failure rate of 1 in\n10,000. Using a second crane to lift the load at the same time\nwould eliminate this risk, but it would cost an additional\n$12,000 to hire. If no second crane is used, and the load falls,\ndestroying the restaurant, then according to BPL analysis, was\nthere a breach of the duty of care? In this case, L = $600,000\nand B = $12,000. To get P, we divide 1 by 10,000, so P =\n0.0001. P multiplied by L is $60. Since the B of $12,000 is not\nless than the PL of $60, it is not a breach of the duty of care\nto forgo the precaution.\nIn order to make the analysis work, you need to do it on a\nprecaution-by-precaution basis. In the example just given, there are\nprobably many things that the construction company could do to\navoid danger to the restaurant. It could disassemble the package and\nmove it in smaller bundles. It could redesign the new building so that\nit didn\xe2\x80\x99t require a generator assembly on top. It could build a\ntemporary protective shell around the restaurant to protect it in the\ncase of a crane failure. There is no need to put all these into the BPL\nformula at once, because they all represent different decisions. BPL\nanalysis works on one decision at a time \xe2\x80\x93 providing an answer as to\nwhether it is a breach of the duty of care to do or omit to do a certain\nsomething.\nAlso, to make the analysis work, the B and the L must be expressed\nin the same units. For instance, if B and L are both expressed in\npresent-value dollars, the proper comparison can be made. If the B\nwere in dollars and the L in euros, you would have to convert one\ninto the other. The time value of money can be a complicating factor\nas well. If the B is expressed in present dollars \xe2\x80\x93 which would make\n\n205\n\n\x0csense, since money would have to be spent on the precaution now \xe2\x80\x93\nthe L must be expressed in present dollars as well. This may require\nsome translation, because if the harm would be suffered 10 years\nfrom now, then whatever the loss would represent in dollars at that\ntime must be translated into a figure stated in present dollars. This\ncan be accomplished by \xe2\x80\x9cdiscounting\xe2\x80\x9d the future funds to present\nvalue. If the harm would not necessarily take place at a certain time in\nthe future, but may take place at any time over the next 25 years, say,\nperhaps with the magnitude of the loss varying over time, then the\ncalculation becomes very complex \xe2\x80\x93 something probably better\nsuited for an accountant rather than a lawyer. The point is that BPL\nanalysis is about comparing numerical values, and that necessarily\nmeans they must be expressed in equivalent units.\nIf compensation for different currencies and the time value of money\nis a difficult problem, an even bigger challenge lurks where the loss is\nnot originally stated in terms of money at all, but is stated in terms of\nlives potentially cut short. If the burden is expressed in terms of\ndollars, but the danger is one of loss of life, then to do the analysis\nyou must put a dollar-value on human life. Distasteful as it may seem,\nif you are going to use BPL analysis in a situation where human life is\non the line, there is no way around this need to monetize death.\nAs it turns out, the torts system is quite accustomed to putting a\ndollar value on human life in the case of wrongful death claims. This\nthorny damages question \xe2\x80\x93 how much money will fairly compensate a\nplaintiff for the loss of a loved one \xe2\x80\x93 is a subject for a later chapter.\nPutting a dollar value on human life is also a regular part of the job\nfor government regulators trying to decide questions such as how\nmuch money should be spent on motor vehicle safety measures or\nenvironmental remediation. The U.S. Department of Transportation\nhas used a value of $6 million per human life to justify new vehicle\nstandards, such as more crush-resistant roofs on cars. In 2008, the\nU.S. Environmental Protection Agency valued a single human at\n$7.22 million in making decisions about limits on air pollution. In\n2010, the EPA used a value of $9.1 million per life in proposing new,\ntighter standards. Another way of valuing human life is by the year. A\ncommon figure used by insurers to decide whether life-saving\n\n206\n\n\x0cmedical treatment should be provided is $50,000 per year of \xe2\x80\x9cquality\xe2\x80\x9d\nlife. Another estimate came up with $129,000 per quality year per\nperson. (See Binyamin Appelbaum, \xe2\x80\x9cAs U.S. Agencies Put More\nValue on a Life, Businesses Fret,\xe2\x80\x9d N.Y. TIMES, Feb. 16, 2011;\nKathleen Kingsbury, \xe2\x80\x9cThe Value of a Human Life: $129,000,\xe2\x80\x9d TIME,\nTuesday, May 20, 2008.)\nCheck-Your-Understanding Questions About the Hand\nFormula\nA. Aaron does a Hand Formula calculation, specifying values as\nfollows: B = $77,000, P = 25, L = $1 million. On this basis he\ncalculates that the defendant is negligent for not undertaking the\nprecaution. What has Aaron done wrong?\nB. Brinda does a Hand Formula calculation, specifying values as\nfollows: B = 44 work hours, P = 0.003, L = $10,000. On this basis\nshe calculates that the defendant is not negligent for neglecting the\nprecaution. What has Brinda done wrong?\nSome Simple Problems Using the Hand Formula\nC. A company built a temporary scaffolding structure near a parade\nroute for a television network. The purpose was to support several\nremotely controlled television cameras to provide national coverage\nof a New Year\xe2\x80\x99s Day parade. On the day of the parade, a large float\ngoes out of control and strikes the structure. The cameras plummet\nand are completely destroyed. At trial, the plaintiff television network\nproduces evidence that the cameras together were worth $65,000.\nThe evidence shows that the defendant company could have built the\nscaffolding structure with reinforcements such that it would not have\ncollapsed following such a collision, but this would have cost an\nadditional $2,000 to accomplish. Expert testimony at trial explains\nthat based on past accidents, there was a 1-in-10,000 chance that a\nfloat would have veered off course at this particular place during the\nparade. Using BPL analysis, did the defendant company breach its\nduty of care?\nD. A natural-gas pipeline operated by the defendant leaks and causes\nan explosion. The explosion destroys the plaintiff\xe2\x80\x99s aviation fuel\n\n207\n\n\x0cdepot. The plaintiff\xe2\x80\x99s fuel depot is the only structure along this\nsection of pipeline. The lost depot and the inventory of fuel it\ncontains totals $12 million. The defendant company that operates the\npipeline could have avoided the accident by installing an automatic\ncut-off mechanism on the section of pipeline near the plaintiff\xe2\x80\x99s\nwarehouse. The installation of the mechanism would have cost $8 per\nyear, amortized over the life of the pipeline. Experts estimated the\nchance of a pipeline explosion along this section of pipe in any given\nyear to be 1 in 140,000. Using BPL analysis, did the defendant\npipeline company breach its duty of care?\nSome Not-So-Simple Problems Using the Hand\nFormula\nE. A different natural gas pipeline leaks and causes an explosion,\ndestroying the plaintiff\xe2\x80\x99s car, a new minivan valued at $35,000. The\ntheory of negligence urged at trial is that the defendant pipeline\noperator should have installed a centrally controlled multi-modal\npressure-monitoring/chemical-sniffer system, which, if installed,\nwould have prevented this type of accident not only from happening\nat the location where plaintiff\xe2\x80\x99s car was parked, but anywhere along\nthe pipeline. Installation of the system would have cost an amortized\n$15 million per year of the pipelines\xe2\x80\x99 operational life. The pipeline is\n500 miles long runs through many densely populated urban areas,\nincluding business/financial centers, hospitals, and government\nfacilities. In that sense, it appears lucky that this mishap happened in\nan isolated area where it only destroyed an unoccupied minivan. At\ntrial, an expert estimated that an average explosion along the length\nof the pipeline, taking into account the destructive radius and the\nconcentration of people and property along the route, would\nrepresent a loss of 20 lives plus $300 million in property damage. The\nprobability of such an explosion, the expert estimated, was 1-in-200\nin any given year over the operating lifetime of the pipeline. The\nprobability that the defendant\xe2\x80\x99s minivan, in particular, would be\ndestroyed, the expert estimated at 1 in 10,000,000. Can BPL analysis\nbe used to determine whether the defendant company breached its\nduty of care? Is so, what result?\n\n208\n\n\x0cF. A new particle accelerator has been built to collide atomic nuclei\ntogether at enormous energies to probe the leading edge of\nfundamental physics. Physicists are very excited about the data the\nexperiment will produce, and it is possible that it could reveal new\ntruths about our universe. The project is not, however, expected to\nproduce anything of practical value. Because the machine is built to\nexplore new realms of physics, there are some unknowns about what\nthe machine could produce. One hypothesized danger is that the\ncollider could produce strangelets \xe2\x80\x93 microscopic particles of \xe2\x80\x9cstrange\nmatter\xe2\x80\x9d \xe2\x80\x93 that could start a chain reaction converting all normal\nmatter on Earth into strange matter, which would reduce the Earth\nto a hyperdense ball, about 100 meters wide, destroying all life in the\nprocess. No one has calculated a probability of such a disaster, but\none team of physicists calculated the ceiling on the probability of a\nstrangelet disaster as no more than 1-in-50,000. The collider\nrepresents a total cost of about $1.1 billion. Astronomers believe that\nthe Sun will eventually expand as it dies, scorching Earth and killing\neverything on it. Assume the planet has another 7 billion years before\nit is engulfed by the Sun. The current world population is about\n7 billion. Can BPL analysis be used to determine whether operating\nthe collider represents a breach of the duty of due care? If so, what\nresult?\n\nRes Ipsa Loquitor\nThe doctrine of res ipsa loquitor provides a special way for a plaintiff\nto prevail on the element of breach of the duty of due care. To\nunderstand how res ipsa loquitor works and why it is advantageous to\nsome plaintiffs, it\xe2\x80\x99s first necessary to understand some context.\nThe Usual Necessity of Specific Evidence of Breach\nOrdinarily, a negligence plaintiff must have \xe2\x80\x9ca specific theory of\nnegligence\xe2\x80\x9d to take to the jury. That is to say, the plaintiff must prove\na breach of the duty of care with specific evidence as to what\nhappened, allowing the jury to conclude that the particular conduct\nwas in breach of the duty of care.\nFor instance, if the evidence shows that plaintiff fell in the\ndefendant\xe2\x80\x99s store and was injured as a result, no prima facie case for\n\n209\n\n\x0cnegligence has been made out. Why not? There is nothing in\nevidence that can provide a fair inference that any breach of the duty\nof care occurred. Perhaps the plaintiff fell because he slipped on\nsomething just dropped by a fellow customer. Perhaps the plaintiff\nfell because he was tripped by another customer. Perhaps the plaintiff\ntripped over his own feet. If, however, the plaintiff presents\ntestimony from a store clerk that where the plaintiff fell there was a\npool of water on the floor owing to an unrepaired roof leak, then\nthere is specific evidence of conduct constituting a breach of the duty\nof due care.\nThe Place for Res Ipsa Loquitor\nWhile specific evidence of a breach of the duty of care is the norm in\nnegligence law and is generally required, sometimes there is a lack of\nevidence as to how an accident happened. Yet, because of the\ncircumstances, it may be obvious that there was negligence. In such a\ncase, the doctrine of res ipsa loquitor allows a plaintiff to prevail in\nspite of a lack of specific evidence showing a breach of the duty of\ncare.\nSuppose a pedestrian walks along the sidewalk next to a multistory\nbuilding where a flour warehouse occupies an upper floor. A barrel\nof flour suddenly drops on top of the plaintiff. There is no specific\nevidence of how the barrel fell. Was there negligence? You might say\nthat a falling barrel of flour pretty much speaks for itself. And that is\nexactly what the court said in the leading case of Byrne v. Boadle: \xe2\x80\x9cThe\nthing speaks for itself.\xe2\x80\x9d Only Chief Baron Pollock said it in Latin:\n\xe2\x80\x9cRes ipsa loquitor.\xe2\x80\x9d\nWith the doctrine of res ipsa loquitor, the law is essentially saying that\neven when we don\xe2\x80\x99t know exactly what happened, it is nonetheless\nobvious that, whatever it was, it was likely negligent.\nCase: Byrne v. Boadle\nThis case, from mid-19th-Century Liverpool, is the progenitor of res\nipsa loquitor doctrine.\n\n210\n\n\x0cByrne v. Boadle\nCourt of Exchequer\nNovember 25, 1863\n159 E.R. 299. England. 2 Hurlstone and Coltman 722. Opinion\nby POLLOCK, C.B. BRAMWELL, B.; CHANNELL, B.; and\nPIGOTT, B. concurred, with CHANNELL writing separately.\nThe FACTS as set forth by the REPORTER:\nThe plaintiff was walking in a public street past the defendant\xe2\x80\x99s\nshop when a barrel of flour fell upon him from a window above\nthe shop, and seriously injured him. Held sufficient prim\xc3\xa2 facie\nevidence of negligence for the jury, to cast on the defendant the\nonus of proving that the accident was not caused by his\nnegligence.~\nDeclaration:\nFor that the defendant, by his servants, so\nnegligently and unskilfully managed and lowered\ncertain barrels of flour by means of a certain\njigger-hoist and machinery attached to the shop\nof the defendant, situated in a certain highway,\nalong which the plaintiff was then passing, that\nby and through the negligence of the defendant,\nby his said servants, one of the said barrels of\nflour fell upon and struck against the plaintiff,\nwhereby the plaintiff was thrown down,\nwounded, lamed, and permanently injured, and\nwas prevented from attending to his business\nfor a long time, to wit, thence hitherto, and\nincurred great expense for medical attendance,\nand suffered great pain and anguish, and was\notherwise damnified.~\nAt the trial before the learned Assessor of the Court of Passage\nat Liverpool, the evidence adduced on the part of the plaintiff\nwas as follows: A witness named Critchley said: \xe2\x80\x9cOn the 18th\nJuly, I was in Scotland Road, on the right side going north,\ndefendant\xe2\x80\x99s shop is on that side. When I was opposite to his\nshop, a barrel of flour fell from a window above in defendant\xe2\x80\x99s\nhouse and shop, and knocked the plaintiff down. He was carried\n\n211\n\n\x0cinto an adjoining shop. A horse and cart came opposite the\ndefendant\xe2\x80\x99s door. Barrels of flour were in the cart. I do not\nthink the barrel was being lowered by a rope. I cannot say: I did\nnot see the barrel until it struck the plaintiff. It was not swinging\nwhen it struck the plaintiff. It struck him on the shoulder and\nknocked him towards the shop. No one called out until after the\naccident.\xe2\x80\x9d The plaintiff said: \xe2\x80\x9cOn approaching Scotland Place\nand defendant\xe2\x80\x99s shop, I lost all recollection. I felt no blow. I saw\nnothing to warn me of danger. I was taken home in a cab. I was\nhelpless for a fortnight.\xe2\x80\x9d (He then described his sufferings.) \xe2\x80\x9cI\nsaw the path clear. I did not see any cart opposite defendant\xe2\x80\x99s\nshop.\xe2\x80\x9d Another witness said: \xe2\x80\x9cI saw a barrel falling. I don\xe2\x80\x99t\nknow how, but from defendant\xe2\x80\x99s.\xe2\x80\x9d The only other witness was a\nsurgeon, who described the injury which the plaintiff had\nreceived. It was admitted that the defendant was a dealer in\nflour.\nIt was submitted, on the part of the defendant, that there was no\nevidence of negligence for the jury. The learned Assessor was of\nthat opinion, and nonsuited the plaintiff, reserving leave to him\nto move the Court of Exchequer to enter the verdict for him\nwith damages, the amount assessed by the jury.~\n\nCHIEF BARON CHARLES EDWARD POLLOCK:\nThere are certain cases of which it may be said res ipsa loquitur,\nand this seems one of them. ~I think it would be wrong to lay\ndown as a rule that in no case can presumption of negligence\narise from the fact of an accident. Suppose in this case the barrel\nhad rolled out of the warehouse and fallen on the plaintiff, how\ncould he possibly ascertain from what cause it occurred? It is the\nduty of persons who keep barrels in a warehouse to take care\nthat they do not roll out, and I think that such a case would,\nbeyond all doubt, afford prim\xc3\xa2 facie evidence of negligence. A\nbarrel could not roll out of a warehouse without some\nnegligence, and to say that a plaintiff who is injured by it must\ncall witnesses from the warehouse to prove negligence seems to\nme preposterous. So in the building or repairing a house, or\nputting pots on the chimneys, if a person passing along the road\nis injured by something falling upon him, I think the accident\n\n212\n\n\x0calone would be prim\xc3\xa2 facie evidence of negligence. Or if an\narticle calculated to cause damage is put in a wrong place and\ndoes mischief, I think that those whose duty it was to put it in\nthe right place are prim\xc3\xa2 facie responsible, and if there is any\nstate of facts to rebut the presumption of negligence, they must\nprove them. The present case upon the evidence comes to this,\na man is passing in front of the premises of a dealer in flour, and\nthere falls down upon him a barrel of flour. I think it apparent\nthat the barrel was in the custody of the defendant who\noccupied the premises, and who is responsible for the acts of his\nservants who had the controul of it; and in my opinion the fact\nof its falling is prim\xc3\xa2 facie evidence of negligence, and the\nplaintiff who was injured by it is not bound to shew that it could\nnot fall without negligence, but if there are any facts inconsistent\nwith negligence it is for the defendant to prove them.\n\nThe Requirements for Res Ipsa Loquitor\nThe two requirements for res ipsa loquitor are that the antecedent to\nthe accident was (1) likely negligence (that is, likely a breach of the\nduty of care), and (2) likely the conduct of the defendant.\nThese requirements are dictated by logic: If it is not likely negligence\nor if it is not likely the defendant who caused the accident, then it\ncannot be said that the defendant likely breached the duty of care.\nNote that some courts are stricter. Instead of requiring the plaintiff\nmerely to show that it was likely the defendant\xe2\x80\x99s conduct at issue,\nsome courts require proof that that the instrumentality of harm was\nin the defendant\xe2\x80\x99s \xe2\x80\x9cexclusive control.\xe2\x80\x9d Such a view is not the\nprevailing modern one.\nThe Effect of Res Ipsa Loquitor\nIf the plaintiff successfully convinces the court that res ipsa loquitor\nshould be allowed in the case, then this usually means one of two\nthings, depending on the jurisdiction. In some jurisdictions, the effect\nof res ipsa loquitor is that the jury is permitted \xe2\x80\x93 but not required \xe2\x80\x93\nto draw an inference that the defendant breached the duty of care.\nOther jurisdictions hold that the effect of res ipsa loquitor is to\nestablish the breach element of the negligence case in the plaintiff\xe2\x80\x99s\n\n213\n\n\x0cfavor, switching the burden to the defendant, who can then rebut the\npresumption of breach with specific evidence.\nThis burden-shifting function of res ipsa loquitor is potentially\nimportant where specific facts are difficult for the plaintiff to\ndiscover. Such was likely the case with Byrne v. Boadle. In modern\nAmerican litigation, however, civil procedure rules allow very wideranging discovery. So with the kind of depositions and document\nrequests that are allowed today, it might be quite easy to discover\nexactly what happened. When such discovery does not work to shed\nlight on the matter, however \xe2\x80\x93 perhaps because of uncooperative or\nunavailable witnesses \xe2\x80\x93 then the burden-shifting function of res ipsa\nloquitor remains important as a way of making it the defendant\xe2\x80\x99s\nproblem to find out what was going on at the defendant\xe2\x80\x99s place of\nbusiness or arena of operation that caused the emergence of the\nmeans that did the plaintiff harm.\nRecurrent Situations for Res Ipsa Loquitor\nCertain situations come up again and again as candidates for res ipsa\nloquitor.\nOne such recurrent situation involves gravity-driven injuries \xe2\x80\x93 like\nthe falling barrel of Byrne. There probably are no more upper-floor\nbarrel warehouses in crowded pedestrian areas these days, but there\nare still many accidents where gravity is the moving force. A falling\nlight fixture in a sports arena, for instance, is a good candidate for res\nipsa loquitor: Lights don\xe2\x80\x99t usually fall absent negligence (so the first\nprong of \xe2\x80\x9clikely negligence\xe2\x80\x9d is met), and it is probable that the\noperator of the sports arena was the negligent party (\xe2\x80\x9clikely the\nconduct of the defendant\xe2\x80\x9d).\nAirplane crashes have been a frequent source for the invocation of\nres ipsa loquitor. For example, in Widmyer v. Southeast Skyways, Inc.,\n584 P.2d 1 (Alaska 1978), the Supreme Court of Alaska held that \xe2\x80\x9cair\ncrashes do not normally occur absent negligence, even in inclement\nweather.\xe2\x80\x9d The court based its reasoning on the strong general track\nrecord of safety in aviation in the late 1970s. And of course, since\nthen, aviation has only gotten safer.\n\n214\n\n\x0cPackaged food is another wellspring of res ipsa loquitor cases. In\nparticular, an almost unbelievable number of mid-20th-century cases\ninvolve glass bottles of Coca-Cola soft drinks. In Payne v. Rome CocaCola Bottling Co., 10 Ga.App. 762, (Ga.App. 1912), the court allowed\nres ipsa loquitor to be used by a customer whose sight was destroyed\nwhen an exploding bottle propelled glass fragments through his eye.\nThe Payne court summed up res ipsa loquitor about as well as anyone\nbefore or since when it said:\n\xe2\x80\x9cBottles filled with a harmless and refreshing\nbeverage do not ordinarily explode. When they\ndo, an inference of negligence somewhere and\nin somebody may arise.\xe2\x80\x9d\n\nA sampling of other cases: Zentz v. Coca Cola Bottling Co. of Fresno, 39\nCal.2d 436 (Cal. 1952) (restaurant worker severely cut by exploding\nbottle allowed to use res ipsa loquitor); Groves v. Florida Coca-Cola\nBottling Co, 40 So.2d 128 (Fla. 1949) (waitress injured by exploding\nbottle allowed to use res ipsa loquitor); Honea v. Coca Cola Bottling Co.,\n143 Tex. 272 (Tex. 1944) (15-year-old boy who suffered a severe\nwrist injury from exploding bottle when moving a case of Coca-Cola\nallowed to argue res ipsa loquitor); Escola v. Coca Cola Bottling Co. of\nFresno, 24 Cal.2d 453 (Cal. 1944) (waitress injured by exploding bottle\nallowed to use res ipsa loquitor); Starke Coca-Cola Bottling Co. v.\nCarrington, 159 Fla. 718 (Fla. 1947) (vending machine customer\ninjured by exploding bottle allowed to use res ipsa loquitor).\nAnother recurrent arena for res ipsa loquitor involves nursery schools\nand nursing homes \xe2\x80\x93 facilities where the very young or very old are\ncared for. What very young children and the infirmed elderly can\nhave in common is an inability to speak for themselves, leaving them\nunable to explain how they were injured. When such persons are hurt\nwithout any witnesses other than the defendants, the situation is ripe\nfor a cover up: If the defendants lie and destroy evidence, it may well\nbe impossible to make a specific showing of negligent conduct.\nCase: Fowler v. Seaton\nWhile most cases in this book take the form of judicial opinions, the\nreading for this case is the opening statement delivered to the jury by\n\n215\n\n\x0cthe plaintiff\xe2\x80\x99s attorney. The case illustrates the potential for res ipsa\nloquitor in a child-care setting.\n\nFowler v. Seaton\nSuperior Court of Los Angeles\nc. 1963\nJENNY GENE FOWLER, a Minor, etc., Plaintiff, v.\nANNABELLE SEATON, Defendant. L.A. No. 27865.\nReproduced in 61 Cal.2d 684-686.\nOPENING STATEMENT for the PLAINTIFF by\nattorney WILLIAM P. CAMUSI:\nPlaintiff in this case of Fowler versus Seaton expects to prove\nthe following facts: Minor plaintiff, Jenny Gene Fowler began\nattending the Happy Day Nursery School in September 1958.\nThe Happy Day Nursery was a pre school nursery where\nchildren would be left for the day by their parents. Their nursery\nconsisted of a house and a little children\'s playground with such\nplaythings as a swing and slide and similar paraphernalia. The\nHappy Day Nursery is located in the City of Van Nuys~. The\nHappy Day Nursery was owned and operated at all times herein\nrelevant by the defendant, Annabelle Seaton.\nThe nursery school made a weekly monetary charge to the\nparents of such pre school age children who attended there. The\nschool is, of course, a private school and the defendant was at\nall times licensed to operate such a school.\nOn January 21, 1959 the minor plaintiff, Jenny Gene Fowler was\ntaken to the said Happy Day Nursery School by her mother and\nleft in charge of and custody of the defendant at about 9:00 a.m.\nof that day. At that time Jenny Gene Fowler was three years and\nten months of age. When her mother left her in the custody of\nthe defendant on that morning of January 21, 1959, Jenny Gene\nFowler was in good health and sound of limb and body and she\nwas well and had no marks on her body.\nJenny Gene Fowler\'s mother picked her up at the nursery school\nat approximately 6:00 p.m. of said day. At that time the\n\n216\n\n\x0cdefendant told plaintiff\'s mother that Jenny Fowler had had an\naccident in that the child had wet her pants.\nHowever, we will offer proof that the child had stopped wetting\nher pants approximately a year prior to this day of January 21,\n1959.\nOn the way home that evening and for the remainder of the\nevening the child appeared downcast or depressed and stayed\nclose to her mother at all times. At the dinner table at\napproximately 7:00 p.m. Jenny Gene Fowler\xe2\x80\x99s father noticed\nthat the child\'s eyes were crossed. The child\'s hair was arranged\nin bangs over her forehead and her forehead was not usually\nvisible. At that time the mother approached the child to look\ninto the child\'s eyes. The mother pushed the child\xe2\x80\x99s hair away\nfrom the forehead, for the first time noticed a sizable round\nprotruding bump on the child\xe2\x80\x99s forehead.\nJenny Gene Fowler had been in the mother\'s immediate\npresence ever since the mother had picked her up at the school,\nthe nursery school, and the child had not received any injury or\nhad not been in any accident whatsoever from the time she was\npicked up at the nursery school until her parents observed the\ncross eyes and bump on the child\'s forehead at the dinner table.\nThe mother immediately called the defendant at the nursery\nschool and asked what had happened to plaintiff at the school\nthat day. Defendant replied that another child had struck the\nplaintiff.\nAttorney for the minor plaintiff took the deposition of the\ndefendant Annabelle Seaton and Miss Seaton testified in effect\nas follows:\nNear the end of the day defendant had four or five children in a\nroom seated in a semi circle on the floor looking at television\nwhile the children were waiting to be picked up by their parents.\nMinor plaintiff was one of the children in this group. None of\nthe children in this group were more than five years of age. The\ndefendant testified that she was in the room somewhat behind\nthe children at the time observing them, when suddenly a little\nboy named Bobbie Schimp seated on the floor next to minor\n\n217\n\n\x0cplaintiff hit minor plaintiff without warning in the forehead area\nof her head. The defendant testified that Bobbie Schimp had\nnothing in his hands.\nSome time early the following morning, January 22, 1959, minor\nplaintiff had a nose bleed and was vomiting. She also had a\nslight temperature. From the evening of January 21, 1959 minor\nplaintiff\'s eyes would intermittently cross and uncross until\nwithin several months the child\'s eyes were constantly crossed.\nThe minor plaintiff had never had cross eyes before the\naccident. Plaintiff will prove by a competent medical doctor that\nplaintiff, Jenny Gene Fowler, suffered a concussion of the brain\non January 21, 1959, and that a blow to the forehead \xe2\x80\x93 and that\nsaid blow to the forehead caused said concussion, that said blow\nand assault resulted, and shock resulted in Jenny Gene Fowler\'s\neyes becoming crossed.\nWe will prove through said medical authority that some children\nhave a latent tendency to crossing of the eyes. That the fusion\nmechanism which causes a person\xe2\x80\x99s eyes to function in parallel\nunison and see singularly is very delicately balanced in a small\nchild the age of minor plaintiff, and that a blow or deep shock\nwhich might result from a blow may cause the fusion\nmechanism to cease to function properly and that the delicate\nmuscles of the eyes become imbalanced.\nAs a result of the accident minor plaintiff had had surgery to the\nright eye. Her eyes are still crossed. We will prove through a\nmedical specialist that one additional operation will be necessary\nand possibly a third, that cosmetically the appearance of\nplaintiff\'s eyes can be improved to normal or almost normal\nposition, she may have some impairment of good sight.\nWe will offer proof of certain unpaid medical bills to which\nplaintiff is responsible and the estimated cost of future medical\ncare and surgery to her eyes necessitated by the accident.\n[E]ither because of the shock or fright resulting from the\naccident or because of the age of plaintiff, she has been unable\nto state or give any information concerning the accident. No\n\n218\n\n\x0cinformation is available from the other children because of their\ntender years.\nPlaintiff will prove through a medical doctor that the blow on\nthe forehead and resulting concussion to minor plaintiff on\nJanuary 21, 1959 was of such a force that it would have been\nimpossible for a boy five years of age or less sitting on the floor\nwith nothing in his hands to have delivered a blow of such force\nas to have caused the said injuries to minor plaintiff, and that\nthe only inference that can be drawn is that the defendant,\nAnnabelle Seaton, is not telling us what really happened that day\nat the nursery school and that the only reasonable inference\nwhich can be drawn is that the defendant, Annabelle Seaton, did\nnot exercise reasonable care for the safety of the children in her\ncare and custody, and, more specifically with reference to minor\nplaintiff.\nI should also state with regard to the damages sustained by the\nminor plaintiff and as a result of her eyes crossing she has\nbecome more withdrawn and has certain psychological\nproblems and has not done as well in school as she might\notherwise had it not been for this accident.\n\nPostscript on Fowler v. Seaton\nFollowing the opening statement, the defendant moved to dismiss\nthe case on the basis that the doctrine of res ipsa loquitor was\ninapplicable to the case. The court granted the motion, but the\nSupreme Court of California reversed, saying:\n\xe2\x80\x9cNot only was the plaintiff healthy when\ndelivered and badly injured when returned to\nher parents, but it appears that defendant had a\nguilty conscience and tried to cover up the\ninjury. Here we have a severe and unusual\ninjury,~ one that does not normally occur in\nnursery schools if the children are properly\nsupervised. We have a volunteer explanation\nthat was inferably false, and, when faced with a\ndemand to explain, the proffering of another\ninferably false explanation. We have a case\nwhere it appears that the plaintiff did not\n\n219\n\n\x0ccontribute to her own injuries. Thus the\nproffered evidence showed the existence of a\nduty of careful supervision owed by defendant\nto plaintiff. Under the circumstances it is\ninferable that defendant had a consciousness of\nguilt, knew the cause of the injury, was under a\nduty to explain, and was trying to conceal it.\nThus it may be reasonably inferred that the duty\nwas violated. Certainly it is more probable than\nnot that the injury was the result of defendant\xe2\x80\x99s\nfaulty supervision.\xe2\x80\x9d\n\nThe Similarity of Res Ipsa Loquitor to Strict Liability\nThe application of res ipsa loquitor in negligence bears considerable\npractical similarity to the cause of action for strict liability. As\ndiscussed in the tort-law overview of Chapter 2, strict liability is a\ncause of action that, like negligence, is available for personal injuries\nand property damage suffered as a result of accidents. In terms of\ndoctrine, strict liability is the same as negligence with one very large\ndifference: The elements of duty of care and breach of the duty of\ncare in the negligence cause of action are replaced in strict liability by\na single element of \xe2\x80\x9cabsolute duty of safety,\xe2\x80\x9d which requires the\nplaintiff to show that the situation in which the harm arose falls into\none of five categories: ultrahazardous activities, defective products,\nwild animals, trespassing livestock, and domestic animals with known\nvicious propensities. If so, there is no need to show that the\ndefendant was careless; so long as an injury and causation can be\nshown, the defendant is on the hook for the damages.\nHow res ipsa loquitor and strict liability are similar is that in either\ninstance, the plaintiff is relieved of having to show that it was\ndefendant\xe2\x80\x99s carelessness that led to the injury. With res ipsa loquitor,\nthe plaintiff is given a presumption in lieu of having to present\nevidence on breach of the duty of care. With strict liability, the\nelement of breach of duty of care is not part of the prima facie case.\nEither way, the defendant becomes absolutely responsible should\nsomething go wrong. You will also notice overlap in the situations in\nwhich res ipsa loquitor and strict liability are imposed. The exploding\nCoca-Cola bottle cases, for instance, were brought as negligence\n\n220\n\n\x0cclaims making use of res ispa loquitor. Today, thanks to the evolution\nof tort law, those same cases could be brought as claims for strict\nliability, since exploding pop bottles would constitute defective\nproducts. (Happily, of course, pop bottles rarely explode these days\nthanks to advances in plastics and glass.)\n\nSpecial Rules for Land Owners and Occupiers\nAn idiosyncratic aspect of the common law regards the standard of\ncare expected of owners or occupiers of real property. When it comes\nto the liability for conditions of land and buildings, there are special\nrules that dictate the standard of care.\nThese special rules only apply when the injury arises from a condition\nof real property.\nThe phrase \xe2\x80\x9creal property\xe2\x80\x9d means land and anything built on the land\nalong with all fixtures. In property law, a \xe2\x80\x9cfixture\xe2\x80\x9d is something\nattached to the real property. So an installed ceiling lamp is a fixture,\nand thus part of the real property, while a floor lamp that can be\nunplugged and repositioned is \xe2\x80\x9cchattel\xe2\x80\x9d \xe2\x80\x93 meaning property that is\nnot real property.\nThe special rules apply to land owners and occupiers because one does\nnot have to \xe2\x80\x9cown\xe2\x80\x9d the property outright to be liable for conditions\non the property. Someone who is in possession of the property \xe2\x80\x93 a\nlessee, for example, can be liable in the same way as an owner.\nThe special rules apply only to conditions on the property. Note that\nactivities on the property, as opposed to conditions, are not covered by\nthe special rules. If an injury results because of something the land\nowner/occupier is doing on the land, then the standard of care is that\nof the reasonable person. But if the injury results from a condition of\nthe property \xe2\x80\x93 such as a rotted stair case or a knife-like edge on\nhandhold \xe2\x80\x93 then the special rules are engaged.\nThe key to how the special rules work is that they require a different\nstandard of care depending on the classification of the plaintiff \xe2\x80\x93 i.e.,\nthe person who enters the land.\nThe rules differ from jurisdiction to jurisdiction, so any restatement\nof them will be highly imperfect. But what follows is a fairly standard\n\n221\n\n\x0cconception of the traditional rules, ordered from the lowest duty to\nthe highest.\nUndiscovered/Unanticipated Trespassers\nA person is a trespasser if she or he intentionally enters upon\nsomeone else\xe2\x80\x99s land without permission (express or implied) or some\nother privilege to do so. And if the land owner/occupier has no\nreason to know of or anticipate the trespassers\xe2\x80\x99 presence on the land,\nthen the trespasser is an \xe2\x80\x9cundiscovered/unanticipated\xe2\x80\x9d trespasser.\nSuch a person is owed no duty. That is to say, there is no way the\nundiscovered/unanticipated trespasser can recover against a land\nowner/occupier in a negligence action for an injury sustained because\nof a condition of the real property.\nDiscovered/Anticipated Trespassers\nA discovered/anticipated trespasser is a trespasser \xe2\x80\x93 someone\nintentionally entering upon the land without privilege \xe2\x80\x93 who the land\nowner/occupier either knows or expects to be on the land. If a land\nowner knows that people habitually cut across the property as a\nshortcut between two public places, then such people would be\nanticipated trespassers. Even if the owner/occupier has not\nwitnessed trespassers in the past, if there is evidence on the property\nthat a reasonable person would understand as indicating trespassers \xe2\x80\x93\nsuch as a beaten path \xe2\x80\x93 then the owner/occupier will be considered\nto have constructive notice of the trespassers.\nDiscovered/anticipated trespassers are owed a duty. In courts\nfollowing the traditional approach, there is a duty to warn of or\nmake safe any concealed artificial conditions which are capable\nof causing death or serious bodily injury. This is lower than the\nreasonable-care standard in three key ways: (1) only concealed or\nhidden dangers \xe2\x80\x93 \xe2\x80\x9ctraps\xe2\x80\x9d the courts sometimes say \xe2\x80\x93 trigger the duty;\n(2) the duty only applies to artificial conditions, not natural\nconditions; (3) the dangers must be very serious ones, such as those\nrisking life or limb. A good example is an abandoned mine shaft: it\xe2\x80\x99s\nhidden, it\xe2\x80\x99s not a natural feature, and it\xe2\x80\x99s potentially lethal. To obviate\nsuch liability the owner/occupier can either remedy the condition or\ncreate an effective warning \xe2\x80\x93 such as with posted signs.\n\n222\n\n\x0cNote that some courts have scrapped the traditional approach in\nfavor of applying the ordinary reasonable-care standard for\ndiscovered/anticipated trespassers.\nDiscovered/Anticipated Child Trespassers\nAn extra duty is placed on an owner/occupier in certain\ncircumstances when the known (or knowable) trespassers are\nchildren. This rule is often called attractive nuisance doctrine,\nalthough as we will see that name is misleading.\nWhere a land owner/occupier knows or should be aware of child\ntrespassers, that owner/occupier has a duty to remediate a\ndangerous artificial condition on the land capable of causing\ndeath or serious bodily injury, so long as the condition can be\nremedied without imposing an unreasonable burden on the\nowner/occupier.\nThe most important difference with regard to anticipated child\ntrespassers as opposed to their adult counterparts is that the danger\nneed not be concealed to trigger the duty. Another important\ndifference is that prominent warning signs do not offer an easy way\nout of liability. These differences reflect that fact that children lack\ngood judgment and are often drawn to obviously dangerous things\nrather than being revulsed by them.\nThe special treatment of children got its start in cases where children\ntrespassed onto railroad land, attracted to the idea of playing on a rail\nturntable. A seminal case was Keffe v. Milwaukee & St. Paul Railway Co.,\n21 Minn. 207 (Minn. 1875). A 7-year-old boy riding the turntable in\nthis way got his leg caught, crushing it and necessitating an\namputation. The court reasoned as follows:\n\xe2\x80\x9c[T]he defendant knew that the turn-table,\nwhen left unfastened, was easily revolved; that,\nwhen left unfastened, it was very attractive, and\nwhen put in motion by them, dangerous, to\nyoung children: and knew also that many\nchildren were in the habit of going upon it to\nplay. The defendant therefore knew that by\nleaving this turn-table unfastened and\n\n223\n\n\x0cunguarded, it was not merely inviting young\nchildren to come upon the turn-table, but was\nholding out an allurement, which, acting upon\nthe natural instincts by which such children are\ncontrolled, drew them by those instincts into a\nhidden danger; and having thus knowingly\nallured them into a place of danger, without\ntheir fault, (for it cannot blame them for not\nresisting the temptation it has set before them,)\nit was bound to use care to protect them from\nthe danger into which they were thus led, and\nfrom which they could not be expected to\nprotect themselves.\xe2\x80\x9d\n\nFor this reason the doctrine was often referred to as the \xe2\x80\x9cturntable\ndoctrine.\xe2\x80\x9d A broader label, apparently traceable to the Keffe case, is\nthe \xe2\x80\x9cattractive nuisance doctrine.\xe2\x80\x9d The doctrine reflects a special\nprotectiveness courts often exhibit toward children. But not all\ncourts. The doctrine was rejected in Michigan in Ryan v. Towar, 128\nMich. 463 (Mich. 1901), a case in which an 8-year-old girl was caught\nin a water wheel on an abandoned industrial site. When she began\nscreaming, her older sister came to her aid and was injured as well.\nJustice Frank Hooker wrote for the Supreme Court of Michigan:\n\xe2\x80\x9cThere is no more lawless class than children,\nand none more annoyingly resent an attempt to\nprevent their trespasses. The average citizen has\nlearned that the surest way to be overrun by\nchildren is to give them to understand that their\npresence is distasteful.~ The remedy which the\nlaw affords for the trifling trespasses of children\nis inadequate. No one ever thinks of suing them,\nand to attempt to remove a crowd of boys from\nprivate premises by gently laying on of hands,\nand using no more force than necessary to put\nthem off, would be a roaring farce, with all\nhonors to the juveniles. For a corporation with\nan empty treasury, and overwhelmed with debt,\nto be required to be to the expense of\npreventing children from going across its lots to\nschool, lest it be said that it invited and licensed\n\n224\n\n\x0cthem to do so, is to our minds an unreasonable\nproposition.\xe2\x80\x9d\n\nOriginally, attractive nuisance doctrine required \xe2\x80\x93 as its name\nsuggests \xe2\x80\x93 that the child be induced to trespass through attraction to\nthe dangerous condition itself, in order for the land owner/occupier\xe2\x80\x99s\nduty to be triggered. This is no longer generally the case. Although\ncourts often still call the doctrine \xe2\x80\x9cattractive nuisance,\xe2\x80\x9d the danger\nneed not attract the child in order for the land owner/occupier to\nhave a duty. For instance Michigan \xe2\x80\x93 which these days recognizes\nattractive nuisance doctrine \xe2\x80\x93 has no requirement that the condition\nlure the children onto the land. The court in Pippin v Atallah, 245\nMich App 136 (Mich. App. 2001) explains, \xe2\x80\x9cThe term \xe2\x80\x98attractive\nnuisance\xe2\x80\x99 is a misnomer (or historical leftover) because it is not\nnecessary, in order to maintain such an action, that the hazardous\ncondition be the reason that the children came onto the property.\xe2\x80\x9d\nLicensees\nThe category of licensee is the default category of nontrespassers.\nSomeone who is not trespassing is a licensee unless for some reason\nthey qualify as an invitee (discussed below). In general, people on\nprivate property with the consent of the owner/occupier are\nlicensees. Licensees include visitors to private homes, such as friends\nand family. Ironically (and confusingly), people who come into your\nhome by way of a formal party invitation are not invitees; they are\nlicensees.\nWith regard to conditions on real property, an owner/occupier owes\nto licensees a duty to warn of or try reasonably to make safe\nconcealed hazards that are known to the owner/occupier. This\nis different from the duty to discovered/anticipated trespassers in\nthat to trigger a duty, the danger need not be artificial, nor does it\nneed to constitute a threat of serious bodily injury or death.\nInvitees\nInvitees are people who are allowed to come on land to conduct\nbusiness related to the owner/occupier\xe2\x80\x99s business, or who are\nmembers of the public on land that is held open to the general\npublic. Customers at the mall, visitors in a hospital, fans at a concert,\n\n225\n\n\x0cand sunbathers in a park are all invitees. Some jurisdictions also\nconsider public employees such as police officers, firefighters, and\nmail carriers to be invitees, even when in private homes, so long as\nthey are privileged to be there.\nInvitees are owed the highest duty by land owners/occupiers.\nWhen it comes to conditions of real property, invitees are owed a\nduty to adequately warn of or render safe concealed hazards\nplus to make a diligent effort to inspect for unknown dangers.\nThe key difference between licensees and invitees is that with\ninvitees, there is a requirement to affirmatively go out and look for\nconditions that may be a hazard for the unwary. This makes sense if\nyou consider that invitees are generally persons from whom the\nowner/occupier stands to make money. In cases where there is no\nmoney to be made, such as with public spaces like parks, there is at\nleast a subtle cue that the space is one where visitors can feel entitled\nto be there, as opposed to a private locale where they should feel as if\nthey are guests who are obliged to be a little more circumspect.\nCase: Campbell v. Weathers\nThe following case makes use of the special rules for negligence of\nland owners/occupiers and explores the boundaries of the definition\nof \xe2\x80\x9cinvitee.\xe2\x80\x9d\n\nCampbell v. Weathers\nSupreme Court of Kansas\nMarch 8, 1941\n153 Kan. 316. JOE CAMPBELL, Appellant, v. CLAUDE\nWEATHERS, doing business as WEATHERS CIGAR STORE\nAND LUNCH, THE FIRST NATIONAL BANK of\nWICHITA, as Trustee of the Colar Sims Estate, and R. E.\nBLACK, as Manager, etc., Appellees. No. 34,850.\nJustice HUGO T. WEDELL:\nThis was an action against three defendants to recover damages\nfor personal injury. The demurrers of the defendants to\n\n226\n\n\x0cplaintiff\xe2\x80\x99s evidence were sustained and those rulings constitute\nthe sole basis of appeal.\nThe defendants were the lessee of a building, who operated a\ncigar and lunch business, the owner of the building and the\nowner\xe2\x80\x99s manager of the building.\nThe building was located in the business section of the city of\nWichita, and at the southeast corner of an intersection. The\nbuilding faced the north. It had an entrance at the west front\ncorner and from the north near the northeast corner. A counter\nwas located near the front and across the building east and west.\nBetween the east end of the counter and the east wall of the\nbuilding was an opening which led to a hallway along the east\nside of the building. The hallway led to a toilet which was\nlocated toward the west end of the hall. The toilet was west of\nthe hallway. Immediately to the south of the portion of the\nbuilding occupied by the defendant lessee another tenant\noperated a shoeshine parlor. There was an entrance to the\nshoeshine parlor from the west. There was access from the\nshoeshine parlor to the toilet and hallway by means of a door\ninto the toilet. There was a trap door in the floor of the hallway\napproximately half way between the lunch counter of the\ndefendant lessee and the toilet room. The hallway was 29 or 31\ninches in width. Plaintiff had been a customer of the defendant\nlessee for a number of years. On Sunday morning, June 4, 1939,\nbetween 8:30 and 9 o\xe2\x80\x99clock, plaintiff entered the place of\nbusiness operated by the defendant lessee as a cigar and lunch\nbusiness. He spent probably fifteen or twenty minutes in the\nfront part of the building and then started for the toilet. He\nstepped into the open trap door in the floor of the hallway,\nbroke his right arm and sustained some other injuries.\nOther pertinent facts will be considered in connection with the\ncontentions of the respective parties.\nWe shall first consider the sufficiency of the evidence to take the\ncase to the jury on the question of lessee\xe2\x80\x99s liability. Lessee\ndemurred to the evidence upon the ground it showed that if\nplaintiff sustained an injury it was due to his own contributory\nnegligence and not the negligence of Weathers, the lessee.\n\n227\n\n\x0cAppellant contends that demurrer raised only the question of his\ncontributory negligence. The contention is not good. The\ndemurrer was intended to raise, and did raise, also, the question\nof the sufficiency of the evidence to show negligence on the part\nof the lessee. It was so considered and ruled upon.\nThe first issue to be determined is the relationship between\nplaintiff and the lessee. Was plaintiff a trespasser, a licensee or\nan invitee? The answer must be found in the evidence. A part of\nthe answer is contained in the nature of the business the lessee\nconducted. It is conceded lessee operated a business which was\nopen to the public. Lessee\xe2\x80\x99s business was that of selling cigars\nand lunches to the public. It was conceded in oral argument,\nalthough the abstract does not reflect it, that the lessee also\noperated a bar for the sale of beer, but that beer was not being\nsold on Sunday, the day of the accident. Plaintiff had been a\ncustomer of the lessee for a number of years. He resided in the\ncity of Wichita. He was a switchman for one of the railroads. He\nstopped at the lessee\xe2\x80\x99s place of business whenever he was in\ntown. He had used the hallway and toilet on numerous\noccasions, whenever he was in town, and had never been\nadvised the toilet was not intended for public use. When he\nentered lessee\xe2\x80\x99s place of business the lessee and three of his\nemployees were present. He thought he had stated he was going\nback to use the toilet, but he was not certain he had so stated.\nNone of the persons present heard the remark. He saw no signs\nwhich warned him not to use the hallway or toilet. The hallway\nwas the direct route to the toilet. One of lessee\xe2\x80\x99s employees\ntestified he had never been told by the lessee or anyone else that\nthe toilet was a private toilet. On that point the examination of\none of lessee\xe2\x80\x99s employees discloses the following:\nQ. Mr. Hodges, do you know or were you ever\ntold by Mr. Weathers or by Mr. Black or\nanybody who purported to be the manager of\nthat building that that toilet was a private toilet?\nA. No, sir.\n\n228\n\n\x0cQ. Do you know whether or not it was used by\npeople other than the employees and the lessees\nand lessors of that building?\nA. Yes, sir.\nQ. Well, was it used?\nA. Yes, it was used by everybody, used by the\npublic.\nAppellant insists the evidence discloses he was an invitee.\nAppellee counters with the contention appellant was not an\ninvitee for the purpose of using the toilet. Appellee also urges\nthe evidence does not disclose appellant purchased anything on\nthis particular day and hence was not a customer on this\noccasion.\nThe evidence disclosed appellant had been a regular customer of\nthe lessee for a number of years and that he had used the\nhallway and toilet about every day he had been in town. He had\nnever seen any signs not to use the toilet and had never been\nforbidden to use it. That the public had a general invitation to\nbe or to become lessee\xe2\x80\x99s customers cannot be doubted. It\nappears the trial court sustained the demurrer on the ground\nappellant had received no specific invitation or express\npermission to use the toilet on this particular occasion. Was a\nspecific invitation or permission necessary in this case? That\nlessee was operating a lunch counter is conceded. No valid\nreason is advanced by appellee for his contention that lessee was\nnot conducting a restaurant business within the ordinary\nacceptation of that term. We think it would constitute undue\nand unwarranted nicety of discrimination to say that a person\nwho operates a public lunch counter is not engaged in the\nrestaurant business. This appellant, a restaurant operator in the\ncity of Wichita, was required by statute to provide a water closet\nfor the accommodation of his guests. G. S. 1935, 36-111 and 36113, required that he furnish a public washroom, convenient\nand of easy access to his guests. The word \xe2\x80\x9ctoilet\xe2\x80\x9d might refer to\neither a water closet or washroom. Appellant was an invitee not\nonly while in the front part of the place of business where the\nlunch counter was located but while he was on his way to the\n\n229\n\n\x0ctoilet. He was an invitee at all times. Appellant had been a\nregular customer of the lessee for a number of years. We think it\nis clear appellant, in view of the evidence in the instant case, was\nan invitee to use the toilet. The mere fact appellant had received\nno special invitation or specific permission on this particular\noccasion to use the toilet provided for guests or invitees did not\nconvert him into a mere licensee. The evidence is clear appellant\nhad used the hallway and toilet for a number of years and that it\nwas used by everybody.\nCan we say, as a matter of law, in view of the record in this\nparticular case, appellant had no implied invitation to use the\ntoilet simply because he had not made an actual purchase before\nhe was injured? Assuming for the moment that it might be\nnecessary under some circumstances for a regular customer of\nlong standing to be an actual purchaser on the particular\noccasion of his injury to constitute him an implied invitee to use\nthe toilet, does the evidence in the instant case compel such a\nruling on the demurrer? We think it does not.~\nThe writer cannot subscribe to the theory that a regular\ncustomer of long standing is not an invitee to use toilet facilities\nrequired by law to be provided by the operator of a restaurant,\nsimply because the customer had not actually made a purchase\non the particular occasion of his injury, prior to his injury. It\nwould seem doubtful whether such a doctrine could be applied\njustly to regular customers of a business which the law does not\nspecifically require to be supplied with toilet facilities, but which\ndoes so for the convenience or accommodation of its guests.~ It\nis common knowledge that business concerns invest huge sums\nof money in newspaper, radio and other mediums of advertising\nin order to induce regular and prospective customers to frequent\ntheir place of business and to examine their stocks of\nmerchandise. They do not contemplate a sale to every invitee.\nThey do hope to interest regular customers and cultivate\nprospective customers. It is common knowledge that an open\ndoor of a business place, without special invitation by\nadvertisement or otherwise, constitutes an invitation to the\npublic generally to enter.~ In the case of Kinsman v. Barton &\n\n230\n\n\x0cCompany, 141 Wash. 311, that court had occasion to determine\nwhat constituted an invitee, and said:\n\xe2\x80\x9cAn invitee is one who is either expressly or\nimpliedly invited onto the premises of another\nin connection with the business carried on by\nthat other. \xe2\x80\xa6 If one goes into a store with the\nview of then, or at some other time, doing some\nbusiness with the store, he is an invitee.\xe2\x80\x9d\n[In] MacDonough v. Woolworth Co., 91 N.J.L. 677~ it was held:\n\xe2\x80\x9cThe implied invitation of the storekeeper is\nbroad enough to include one who enters a\ngeneral store with a vague purpose of buying if\nshe sees anything that strikes her fancy.\xe2\x80\x9d\nOf course, if it appears a person had no intention of presently or\nin the future becoming a customer he could not be held to be an\ninvitee, as there would be no basis for any thought of mutual\nbenefit.~\nDid the lessee violate any duty to appellant, an invitee? The\nspecific negligence alleged was:\n1. That they caused an opening to be made in\nthe middle of the dimly lighted hallway leading\nto the toilet, knowing that the said hallway was\nused by customers, employees and the general\npublic.\n2. That they negligently failed to warn this\nplaintiff of the hole in the said floor and of the\ndangerous condition caused by the hole being\nleft open in the floor.\n3. That they negligently failed to warn this\nplaintiff of the insufficiently lighted and\ndarkened condition caused by the defendants in\nthe said hall. At the time the plaintiff entered\ninto the said hall, the defendants and their\nagents knew well that the hole was not properly\nlighted and that there was no lid on the hole\nthat this plaintiff stepped into, and that they, the\ndefendants, and their agents, negligently failed\n\n231\n\n\x0cto warn this plaintiff of the condition of the said\nfloor.\nIt was also alleged the foregoing acts of negligence were directly\nresponsible for the injury sustained.\nThe trap door in the hallway was opened on the day before the\naccident. It was opened in order to obtain ventilation\nunderneath the floor and in order to get relief from dampness\nand the muddy ground, preparatory to reenforcing the floor. It\nwas left open on Sunday, the day of the accident, at the\nsuggestion of the lessee. The hallway was very narrow, only 29\nor 31 inches in width. The trap door covered enough of the\nfloor so as to make it impossible or highly inconvenient for\npersons to pass between the east side of the hole and the east\nwall without walking sideways. That distance was between six\nand eight inches, or perhaps one foot. On the morning of the\naccident the hallway was dark or dimly lighted. There was an\nelectric light suspended from the ceiling, but it was not lighted at\nthe time of the injury. It appears, if appellant stated he was\ngoing to the toilet, no one heard the statement. Appellant did\nnot know the trap door was open. He saw no signs to warn him\nit was open and no one in person advised him concerning it.\nThe lessee previously had been expressly warned by one of his\nown employees that he had almost fallen into the hole and that\nit should be closed or someone would be injured and sue him.\nThe employee thought the lessee advised him to leave the hole\nopen. At any rate it was left open. It was the custom to clean up\non Sunday mornings and to throw trash into the hallway. After\nappellant started for the toilet he passed the porter, who had a\nbroom in his hand. Owing to the lack of light, appellant could\nsee only the image of a pasteboard box on the floor of the\nhallway. The hole could not be seen by reason of the box. It has\nbeen held upon good authority that a storekeeper who places\nracks of merchandise about a railing around a stairway to a\nbasement so as to obstruct the view of customers is negligent.\nThere was not sufficient room between the box and the east\nwall to pass around the box. Appellant stepped over the box,\n\xe2\x80\x9cvery easily\xe2\x80\x9d and in doing so stepped into the hole, broke his\nright arm and possibly sustained some other injuries. The\n\n232\n\n\x0cpasteboard box was variously described as 20 inches in height,\n16 to 18 inches in height, and approximately 14 to 16 inches\nwide. In the case of Bass v. Hunt, 151 Kan. 740, the trial court\nsustained a demurrer to plaintiff\xe2\x80\x99s evidence in a case very similar\nin principle. This court reversed the ruling, and held:\n\xe2\x80\x9cIt is the duty of a restaurant keeper to keep in a\nreasonably safe condition the portions of his\nestablishment where his guests may be expected to\ncome and go, including a necessary water closet\nand the passage thereto, and it cannot be said as a\nmatter of law there was no actionable\nnegligence in his failure to sufficiently light the\npassageway or to warn a guest of an unguarded\nstairway covered by a trap door which was not\nclosed.\xe2\x80\x9d (Emphasis supplied.)\nWe are unable to distinguish the Bass case from the instant case,\nin principle.~\nThe lessee also contends the pasteboard box constituted a\nwarning~. Certainly we cannot say, as a matter of law, appellant\nshould have interpreted the existence of a pasteboard box of the\nsize mentioned, in view of other circumstances, as constituting a\nbarricade to an open hole in the floor immediately on the other\nside of the box. Nor is there any evidence in the record the box\nwas intended to constitute a barricade.~\nThe order sustaining~ the demurrer of the lessee is reversed.\n\nQuestions to Ponder About Campbell v. Weathers\nA. Do you think the ruling in this case will function to help business\npatrons in the long run? On the plus side, it may encourage business\nowners to make their premises safer. Business owners would likely\nargue that the decision will hurt patrons in the long run, because it\nwill cause fewer restrooms to be made available. Which perspective\ndo you think is right? Or is it possible that businesses will not apprise\nthemselves of developments in the law of torts regarding dangerous\nconditions, and thus the Campbell case will have no effect other than\nto make it easier for injured patrons to recover?\n\n233\n\n\x0cB. One defense to negligence \xe2\x80\x93 which is discussed in a later chapter \xe2\x80\x93\nis assumption of the risk. Suppose the business proprietor posted the\nfollowing sign:\nGoing to the restroom may be dangerous.\nPatrons who choose to use the restroom\nassume all risk of doing so.\n\nWhat effect do you think this should have, if any? Assuming such a\nsign could relieve all liability, would it be a good business decision to\npost it?\nC. Recall the discussion of gender and the reasonable person\nstandard above. In discussing women\xe2\x80\x99s shopping and men\xe2\x80\x99s drinking\nand cigar smoking, does the Campbell opinion reveal sexist\nstereotyping among 20th Century judges? Do you think a judge\nwould write the same things today? If not, do you think a judge might\nthink the same things today? Either way, do you think it matters to\nthe outcome of the case or the doctrine announced?\nSome Problems About Duties of Land\nOwners/Occupiers\nA. Addison\xe2\x80\x99s mother-in-law, Yelena, is beginning to descend the\nstairs into Addison\xe2\x80\x99s cellar. \xe2\x80\x9cWatch out, Yelena,\xe2\x80\x9d Addison calls.\n\xe2\x80\x9cThere is a pipe that sticks out of the wall on the right around the\nmiddle of the stairs, down near your feet.\xe2\x80\x9d Yelena, in a hurry, does\nnot try to crowd to the left. She hits the pipe, trips, and falls down\nthe remainder of the stairs, sustaining injuries. It turns out that\nAddison, who is a licensed plumber, could have easily fixed the pipe\nwith about a 20 minute\xe2\x80\x99s work and $20 worth of supplies. But she\nnever bothered. Can Yelena recover from Addison in negligence?\nB. Jayla owns and operates an independent hardware store\ndowntown. Sawyer, a customer, browses the decorative drawer pulls.\nWhen he notices Jayla disappear into the back, Sawyer sneaks\nthrough a door marked \xe2\x80\x9cNo Admittance.\xe2\x80\x9d Sawyer, an amateur sleuth\nwho has been turned down several times for a private investigator\xe2\x80\x99s\nlicense because of a record of criminal convictions, is looking for\nevidence of a price-fixing conspiracy he is convinced exists with\nother hardware stores in town. He finds a shelf containing banker\xe2\x80\x99s\n\n234\n\n\x0cboxes of documents. He starts to pull one out, and the entire shelf\ncollapses on top of him, injuring him badly. It turns out the kid Jayla\nhired on a subminimum youth-training wage did not follow\ndirections putting the shelf together, leaving out several bolts and\nbracket-supports. Can Sawyer recover from Jayla in negligence?\nC. Gareth owns a 20,000-acre ranch out west where herds of buffalo\nroam through a maze of badlands. Badlands are areas unsuitable for\nagriculture and difficult to travel through that are characterized by\nravines, gullies, hoodoos, cliffs, and canyons. Gareth knows that\nhunters often trek through his land to hunt deer and pheasants. One\ngeological formation, which Gareth and his ranch hands have come\nto call Dead Man\xe2\x80\x99s Drop, is a steep, narrow ravine in an otherwise\nflat plain overgrown with tall prairie grass. At certain times of day,\nthe opening is all but invisible. It\xe2\x80\x99s already injured 15 trespassers, two\nfatally. Nonetheless, Gareth has posted no warning signs or done\nanything else to remedy the danger. Twyla, a bow hunter looking for\nbucks, is stalking through the grass silently while aiming and looking\nto her side when \xe2\x80\x93 WHOOSH \xe2\x80\x93 she falls into the gap, sustaining\nmultiple bone fractures, torn ligaments, and other injuries. Can Twyla\nrecover from Gareth in negligence?\nCase: Rowland v. Christian\nNot all jurisdictions follow the special rules for owner/occupier\nnegligence for conditions of real property. In this case, California\xe2\x80\x99s\nhigh court expresses considerable contempt for the traditional rules\nand decides to discard them in favor of the flexible and portable\nreasonable-person standard.\n\nRowland v. Christian\nSupreme Court of California\nAugust 8, 1968\n69 Cal. 2d 108. JAMES DAVIS ROWLAND, JR., Plaintiff and\nAppellant, v. NANCY CHRISTIAN, Defendant and\nRespondent. S. F. No. 22583. In Bank. Peters, J. Traynor, C. J.,\nTobriner, J., Mosk, J., and Sullivan, J., concurred. Burke, J.,\ndissents. McComb, J., concurred.\n\n235\n\n\x0cJustice RAYMOND E. PETERS:\nPlaintiff appeals from a summary judgment for defendant\nNancy Christian in this personal injury action.\nIn his complaint plaintiff alleged that about November 1, 1963,\nMiss Christian told the lessors of her apartment that the knob of\nthe cold water faucet on the bathroom basin was cracked and\nshould be replaced; that on November 30, 1963, plaintiff\nentered the apartment at the invitation of Miss Christian; that he\nwas injured while using the bathroom fixtures, suffering severed\ntendons and nerves of his right hand; and that he has incurred\nmedical and hospital expenses. He further alleged that the\nbathroom fixtures were dangerous, that Miss Christian was\naware of the dangerous condition, and that his injuries were\nproximately caused by the negligence of Miss Christian. Plaintiff\nsought recovery of his medical and hospital expenses, loss of\nwages, damage to his clothing, and $100,000 general damages. It\ndoes not appear from the complaint whether the crack in the\nfaucet handle was obvious to an ordinary inspection or was\nconcealed.\nMiss Christian filed an answer containing a general denial except\nthat she alleged that plaintiff was a social guest and admitted the\nallegations that she had told the lessors that the faucet was\ndefective and that it should be replaced. Miss Christian also\nalleged contributory negligence and assumption of the risk. In\nconnection with the defenses, she alleged that plaintiff had failed\nto use his \xe2\x80\x9ceyesight\xe2\x80\x9d and knew of the condition of the premises.\nApart from these allegations, Miss Christian did not allege\nwhether the crack in the faucet handle was obvious or\nconcealed.\nMiss Christian\xe2\x80\x99s affidavit in support of the motion for summary\njudgment alleged facts showing that plaintiff was a social guest\nin her apartment when, as he was using the bathroom, the\nporcelain handle of one of the water faucets broke in his hand\ncausing injuries to his hand and that plaintiff had used the\nbathroom on a prior occasion. In opposition to the motion for\nsummary judgment, plaintiff filed an affidavit stating that\nimmediately prior to the accident he told Miss Christian that he\n\n236\n\n\x0cwas going to use the bathroom facilities, that she had known for\ntwo weeks prior to the accident that the faucet handle that\ncaused injury was cracked, that she warned the manager of the\nbuilding of the condition, that nothing was done to repair the\ncondition of the handle, that she did not say anything to plaintiff\nas to the condition of the handle, and that when plaintiff turned\noff the faucet the handle broke in his hands severing the\ntendons and medial nerve in his right hand.\nThe summary judgment procedure is drastic and should be used\nwith caution so that it does not become a substitute for an open\ntrial.~ A summary judgment for defendant has been held\nimproper where his affidavits were conclusionary and did not\nshow that he was entitled to judgment and where the plaintiff\ndid not file any counteraffidavits.\nIn the instant case, Miss Christian\xe2\x80\x99s affidavit and admissions\nmade by plaintiff show that plaintiff was a social guest and that\nhe suffered injury when the faucet handle broke; they do not\nshow that the faucet handle crack was obvious or even\nnonconcealed. Without in any way contradicting her affidavit or\nhis own admissions, plaintiff at trial could establish that she was\naware of the condition and realized or should have realized that\nit involved an unreasonable risk of harm to him, that defendant\nshould have expected that he would not discover the danger,\nthat she did not exercise reasonable care to eliminate the danger\nor warn him of it, and that he did not know or have reason to\nknow of the danger. Plaintiff also could establish, without\ncontradicting Miss Christian\xe2\x80\x99s affidavit or his admissions, that\nthe crack was not obvious and was concealed. Under the\ncircumstances, a summary judgment is proper in this case only\nif, after proof of such facts, a judgment would be required as a\nmatter of law for Miss Christian. The record supports no such\nconclusion.\nSection 1714 of the Civil Code provides:\n\xe2\x80\x9cEvery one is responsible, not only for the\nresult of his willful acts, but also for an injury\noccasioned to another by his want of ordinary\ncare or skill in the management of his property\n\n237\n\n\x0cor person, except so far as the latter has,\nwillfully or by want of ordinary care, brought\nthe injury upon himself. \xe2\x80\xa6 \xe2\x80\x9d\nThis code section, which has been unchanged in our law since\n1872, states a civil law and not a common law principle.\nNevertheless, some common law judges and commentators\nhave urged that the principle embodied in this code section\nserves as the foundation of our negligence law. Thus in a\nconcurring opinion, Brett, M. R. in Heaven v. Pender (1883) 11\nQ.B.D. 503, 509, states: \xe2\x80\x9cwhenever one person is by\ncircumstances placed in such a position with regard to another\nthat every one of ordinary sense who did think would at once\nrecognize that if he did not use ordinary care and skill in his own\nconduct with regard to those circumstances he would cause\ndanger of injury to the person or property of the other, a duty\narises to use ordinary care and skill to avoid such danger.\xe2\x80\x9d\nCalifornia cases have occasionally stated a similar view: \xe2\x80\x9cAll\npersons are required to use ordinary care to prevent others\nbeing injured as the result of their conduct.\xe2\x80\x9d Although it is true\nthat some exceptions have been made to the general principle\nthat a person is liable for injuries caused by his failure to exercise\nreasonable care in the circumstances, it is clear that in the\nabsence of statutory provision declaring an exception to the\nfundamental principle enunciated by \xc2\xa7 1714 of the Civil Code,\nno such exception should be made unless clearly supported by\npublic policy.\nA departure from this fundamental principle involves the\nbalancing of a number of considerations; the major ones are the\nforeseeability of harm to the plaintiff, the degree of certainty\nthat the plaintiff suffered injury, the closeness of the connection\nbetween the defendant\xe2\x80\x99s conduct and the injury suffered, the\nmoral blame attached to the defendant\xe2\x80\x99s conduct, the policy of\npreventing future harm, the extent of the burden to the\ndefendant and consequences to the community of imposing a\nduty to exercise care with resulting liability for breach, and the\navailability, cost, and prevalence of insurance for the risk\ninvolved.\n\n238\n\n\x0cOne of the areas where this court and other courts have\ndeparted from the fundamental concept that a man is liable for\ninjuries caused by his carelessness is with regard to the liability\nof a possessor of land for injuries to persons who have entered\nupon that land. It has been suggested that the special rules\nregarding liability of the possessor of land are due to historical\nconsiderations stemming from the high place which land has\ntraditionally held in English and American thought, the\ndominance and prestige of the landowning class in England\nduring the formative period of the rules governing the\npossessor\xe2\x80\x99s liability, and the heritage of feudalism.\nThe departure from the fundamental rule of liability for\nnegligence has been accomplished by classifying the plaintiff\neither as a trespasser, licensee, or invitee and then adopting\nspecial rules as to the duty owed by the possessor to each of the\nclassifications. Generally speaking a trespasser is a person who\nenters or remains upon land of another without a privilege to do\nso; a licensee is a person like a social guest who is not an invitee\nand who is privileged to enter or remain upon land by virtue of\nthe possessor\xe2\x80\x99s consent, and an invitee is a business visitor who\nis invited or permitted to enter or remain on the land for a\npurpose directly or indirectly connected with business dealings\nbetween them.\nAlthough the invitor owes the invitee a duty to exercise ordinary\ncare to avoid injuring him, the general rule is that a trespasser\nand licensee or social guest are obliged to take the premises as\nthey find them insofar as any alleged defective condition thereon\nmay exist, and that the possessor of the land owes them only the\nduty of refraining from wanton or willful injury. The ordinary\njustification for the general rule severely restricting the\noccupier\xe2\x80\x99s liability to social guests is based on the theory that the\nguest should not expect special precautions to be made on his\naccount and that if the host does not inspect and maintain his\nproperty the guest should not expect this to be done on his\naccount.\nAn increasing regard for human safety has led to a retreat from\nthis position, and an exception to the general rule limiting\n\n239\n\n\x0cliability has been made as to active operations where an\nobligation to exercise reasonable care for the protection of the\nlicensee has been imposed on the occupier of land. In an\napparent attempt to avoid the general rule limiting liability,\ncourts have broadly defined active operations, sometimes giving\nthe term a strained construction in cases involving dangers\nknown to the occupier.\nThus in Hansen v. Richey, 237 Cal.App.2d 475, 481, an action for\nwrongful death of a drowned youth, the court held that liability\ncould be predicated not upon the maintenance of a dangerous\nswimming pool but upon negligence \xe2\x80\x9cin the active conduct of a\nparty for a large number of youthful guests in the light of\nknowledge of the dangerous pool.\xe2\x80\x9d \xef\x81\x81Rather than characterizing\nthe finding of active negligence in Hansen v. Richey, supra, 237\nCal.App.2d 475, 481, as a strained construction of that term\nperhaps the opinion should be characterized as \xe2\x80\x9can ingenious\nprocess of finding active negligence in addition to the known\ndangerous condition, \xe2\x80\xa6 \xe2\x80\x9d (See, Witkin, Summary of Cal. Law\n(1967 Supp.) Torts, \xc2\xa7 255, pp. 535-536.)\xef\x81\x80 In Howard v. Howard,\n186 Cal.App.2d 622, 625, where plaintiff was injured by slipping\non spilled grease, active negligence was found on the ground\nthat the defendant requested the plaintiff to enter the kitchen by\na route which he knew would be dangerous and defective and\nthat the defendant failed to warn her of the dangerous\ncondition. In Newman v. Fox West Coast Theatres, 86 Cal.App.2d\n428, 431-433, the plaintiff suffered injuries when she slipped and\nfell on a dirty washroom floor, and active negligence was found\non the ground that there was no water or foreign substances on\nthe washroom floor when plaintiff entered the theater, that the\nmanager of the theater was aware that a dangerous condition\nwas created after plaintiff\xe2\x80\x99s entry, that the manager had time to\nclean up the condition after learning of it, and that he did not do\nso or warn plaintiff of the condition.\nAnother exception to the general rule limiting liability has been\nrecognized for cases where the occupier is aware of the\ndangerous condition, the condition amounts to a concealed trap,\nand the guest is unaware of the trap. In none of these cases,\n\n240\n\n\x0chowever, did the court impose liability on the basis of a\nconcealed trap; in some liability was found on another theory,\nand in others the court concluded that there was no trap. A trap\nhas been defined as a \xe2\x80\x9cconcealed\xe2\x80\x9d danger, a danger with a\ndeceptive appearance of safety. It has also been defined as\nsomething akin to a spring gun or steel trap. In the latter case it\nis pointed out that the lack of definiteness in the application of\nthe term \xe2\x80\x9ctrap\xe2\x80\x9d to any other situation makes its use\nargumentative and unsatisfactory.\nThe cases dealing with the active negligence and the trap\nexceptions are indicative of the subtleties and confusion which\nhave resulted from application of the common law principles\ngoverning the liability of the possessor of land. Similar\nconfusion and complexity exist as to the definitions of\ntrespasser, licensee, and invitee.\nIn refusing to adopt the rules relating to the liability of a\npossessor of land for the law of admiralty, the United States\nSupreme Court stated:\n\xe2\x80\x9cThe distinctions which the common law draws\nbetween licensee and invitee were inherited\nfrom a culture deeply rooted to the land, a\nculture which traced many of its standards to a\nheritage of feudalism. In an effort to do justice\nin an industrialized urban society, with its\ncomplex economic and individual relationships,\nmodern common-law courts have found it\nnecessary to formulate increasingly subtle verbal\nrefinements, to create subclassifications among\ntraditional common-law categories, and to\ndelineate fine gradations in the standards of care\nwhich the landowner owes to each. Yet even\nwithin a single jurisdiction, the classifications\nand subclassifications bred by the common law\nhave produced confusion and conflict. As new\ndistinctions have been spawned, older ones\nhave become obscured. Through this semantic\nmorass the common law has moved, unevenly\nand with hesitation, towards \xe2\x80\x98imposing on\n\n241\n\n\x0cowners and occupiers a single duty of\nreasonable care in all the circumstances.\xe2\x80\x99\xe2\x80\x9d\nThe courts of this state have also recognized the failings of the\ncommon law rules relating to the liability of the owner and\noccupier of land. In refusing to apply the law of invitees,\nlicensees, and trespassers to determine the liability of an\nindependent contractor hired by the occupier, we pointed out\nthat application of those rules was difficult and often arbitrary.\nIn refusing to apply the common law rules to a known\ntrespasser on an automobile, the common law rules were\ncharacterized as \xe2\x80\x9cunrealistic, arbitrary, and inelastic,\xe2\x80\x9d and it was\npointed out that exceedingly fine distinctions had been\ndeveloped resulting in confusion and that many recent cases\nhave in fact applied the general doctrine of negligence embodied\nin \xc2\xa7 1714 of the Civil Code rather than the rigid common law\ncategories test.~\nThere is another fundamental objection to the approach to the\nquestion of the possessor\xe2\x80\x99s liability on the basis of the common\nlaw distinctions based upon the status of the injured party as a\ntrespasser, licensee, or invitee. Complexity can be borne and\nconfusion remedied where the underlying principles governing\nliability are based upon proper considerations. Whatever may\nhave been the historical justifications for the common law\ndistinctions, it is clear that those distinctions are not justified in\nthe light of our modern society and that the complexity and\nconfusion which has arisen is not due to difficulty in applying\nthe original common law rules \xe2\x80\x93 they are all too easy to apply in\ntheir original formulation \xe2\x80\x93 but is due to the attempts to apply\njust rules in our modern society within the ancient terminology.~\nA man\xe2\x80\x99s life or limb does not become less worthy of protection\nby the law nor a loss less worthy of compensation under the law\nbecause he has come upon the land of another without\npermission or with permission but without a business purpose.\nReasonable people do not ordinarily vary their conduct\ndepending upon such matters, and to focus upon the status of\nthe injured party as a trespasser, licensee, or invitee in order to\ndetermine the question whether the landowner has a duty of\n\n242\n\n\x0ccare, is contrary to our modern social mores and humanitarian\nvalues. The common law rules obscure rather than illuminate\nthe proper considerations which should govern determination\nof the question of duty.\nIt bears repetition that the basic policy of this state set forth by\nthe Legislature in \xc2\xa7 1714 of the Civil Code is that everyone is\nresponsible for an injury caused to another by his want of\nordinary care or skill in the management of his property. The\nfactors which may in particular cases warrant departure from\nthis fundamental principle do not warrant the wholesale\nimmunities resulting from the common law classifications, and\nwe are satisfied that continued adherence to the common law\ndistinctions can only lead to injustice or, if we are to avoid\ninjustice, further fictions with the resulting complexity and\nconfusion. We decline to follow and perpetuate such rigid\nclassifications. The proper test to be applied to the liability of\nthe possessor of land in accordance with \xc2\xa7 1714 of the Civil\nCode is whether in the management of his property he has acted\nas a reasonable man in view of the probability of injury to\nothers, and, although the plaintiff\xe2\x80\x99s status as a trespasser,\nlicensee, or invitee may in the light of the facts giving rise to\nsuch status have some bearing on the question of liability, the\nstatus is not determinative.\nOnce the ancient concepts as to the liability of the occupier of\nland are stripped away, the status of the plaintiff relegated to its\nproper place in determining such liability, and ordinary\nprinciples of negligence applied, the result in the instant case\npresents no substantial difficulties. As we have seen, when we\nview the matters presented on the motion for summary\njudgment as we must, we must assume defendant Miss Christian\nwas aware that the faucet handle was defective and dangerous,\nthat the defect was not obvious, and that plaintiff was about to\ncome in contact with the defective condition, and under the\nundisputed facts she neither remedied the condition nor warned\nplaintiff of it. Where the occupier of land is aware of a\nconcealed condition involving in the absence of precautions an\nunreasonable risk of harm to those coming in contact with it\nand is aware that a person on the premises is about to come in\n\n243\n\n\x0ccontact with it, the trier of fact can reasonably conclude that a\nfailure to warn or to repair the condition constitutes negligence.\nWhether or not a guest has a right to expect that his host will\nremedy dangerous conditions on his account, he should\nreasonably be entitled to rely upon a warning of the dangerous\ncondition so that he, like the host, will be in a position to take\nspecial precautions when he comes in contact with it.\nIt may be noted that by carving further exceptions out of the\ntraditional rules relating to the liability to licensees or social\nguests, other jurisdictions reach the same result, that by\ncontinuing to adhere to the strained construction of active\nnegligence or possibly, by applying the trap doctrine the result\nwould be reached on the basis of some California precedents~.\nHowever, to approach the problem in these manners would\nonly add to the confusion, complexity, and fictions which have\nresulted from the common law distinctions.\nThe judgment is reversed.\nJustice LOUIS H. BURKE, dissenting:\nI dissent. In determining the liability of the occupier or owner of\nland for injuries, the distinctions between trespassers, licensees\nand invitees have been developed and applied by the courts over\na period of many years. They supply a reasonable and workable\napproach to the problems involved, and one which provides the\ndegree of stability and predictability so highly prized in the law.\nThe unfortunate alternative, it appears to me, is the route taken\nby the majority in their opinion in this case; that such issues are\nto be decided on a case by case basis under the application of\nthe basic law of negligence, bereft of the guiding principles and\nprecedent which the law has heretofore attached by virtue of the\nrelationship of the parties to one another.~\nIn my view, it is not a proper function of this court to overturn\nthe learning, wisdom and experience of the past in this field.\nSweeping modifications of tort liability law fall more suitably\nwithin the domain of the Legislature, before which all affected\ninterests can be heard and which can enact statutes providing\nuniform standards and guidelines for the future.\n\n244\n\n\x0cI would affirm the judgment for defendant.\n\nSome Questions to Ponder About Rowland v. Christian\nA. Is the flexibility of the reasonable person standard a strength? Or\nis it a necessary evil for the great universe of situations for which we\ncannot hope to create specific rules, such as those traditionally used\nfor conditions on real property?\nB. Justice Burke\xe2\x80\x99s dissent suggests that such changes in the law are\nbetter made by the legislature so that \xe2\x80\x9call affected interests can be\nheard\xe2\x80\x9d and so that the law can \xe2\x80\x9cuniform standards and guidelines for\nthe future.\xe2\x80\x9d But note that the \xe2\x80\x9clearning, wisdom, and experience of\nthe past\xe2\x80\x9d that Justice Burke salutes \xe2\x80\x93 what he says is reflected in the\ntraditional rules \xe2\x80\x93 are the product of judicial, not legislative, effort.\nPerhaps the dissent can be characterized as saying, in essence, that\nthe judiciary has done such a great job developing these special rules,\nonly the legislature should be trusted to change them. Is that a fair\ncharacterization? Is there any way to resolve the apparent tension in\nJustice Burke\xe2\x80\x99s reasoning?\nStatute: California Civil Code \xc2\xa7 847\n\nCalifornia Civil Code \xc2\xa7 847\nAdded by Stats. 1985, c. 1541 \xc2\xa7 1.\nThe CALIFORNIA CODE:\n(a) An owner, including, but not limited to, a public entity, as\ndefined in Section 811.2 of the Government Code, of any estate\nor any other interest in real property, whether possessory or\nnonpossessory, shall not be liable to any person for any injury or\ndeath that occurs upon that property during the course of or\nafter the commission of any of the felonies set forth in\nsubdivision (b) by the injured or deceased person.\n(b) The felonies to which the provisions of this section apply are\nthe following: (1) Murder or voluntary manslaughter; (2)\nmayhem; (3) rape; (4) sodomy by force, violence, duress,\nmenace, or threat of great bodily harm; (5) oral copulation by\nforce, violence, duress, menace, or threat of great bodily harm;\n(6) lewd acts on a child under the age of 14 years; (7) any felony\n\n245\n\n\x0cpunishable by death or imprisonment in the state prison for life;\n(8) any other felony in which the defendant inflicts great bodily\ninjury on any person, other than an accomplice, or any felony in\nwhich the defendant uses a firearm; (9) attempted murder; (10)\nassault with intent to commit rape or robbery; (11) assault with a\ndeadly weapon or instrument on a peace officer; (12) assault by\na life prisoner on a noninmate; (13) assault with a deadly weapon\nby an inmate; (14) arson; (15) exploding a destructive device or\nany explosive with intent to injure; (16) exploding a destructive\ndevice or any explosive causing great bodily injury; (17)\nexploding a destructive device or any explosive with intent to\nmurder; (18) burglary; (19) robbery; (20) kidnapping; (21) taking\nof a hostage by an inmate of a state prison; (22) any felony in\nwhich the defendant personally used a dangerous or deadly\nweapon; (23) selling, furnishing, administering, or providing\nheroin, cocaine, or phencyclidine (PCP) to a minor; (24) grand\ntheft as defined in Sections 487 and 487a of the Penal Code; and\n(25) any attempt to commit a crime listed in this subdivision\nother than an assault.\n(c) The limitation on liability conferred by this section arises at\nthe moment the injured or deceased person commences the\nfelony or attempted felony and extends to the moment the\ninjured or deceased person is no longer upon the property.\n(d) The limitation on liability conferred by this section applies\nonly when the injured or deceased person\xe2\x80\x99s conduct in\nfurtherance of the commission of a felony specified in\nsubdivision (b) proximately or legally causes the injury or death.\n(e) The limitation on liability conferred by this section arises\nonly upon the charge of a felony listed in subdivision (b) and the\nsubsequent conviction of that felony or a lesser included felony\nor misdemeanor arising from a charge of a felony listed in\nsubdivision (b). During the pendency of any such criminal\naction, a civil action alleging this liability shall be abated and the\nstatute of limitations on the civil cause of action shall be tolled.\n(f) This section does not limit the liability of an owner or an\nowner\xe2\x80\x99s agent which otherwise exists for willful, wanton, or\n\n246\n\n\x0ccriminal conduct, or for willful or malicious failure to guard or\nwarn against a dangerous condition, use, structure, or activity.\n(g) The limitation on liability provided by this section shall be in\naddition to any other available defense.\nA COMMENTARY on the statute by the Supreme Court of\nCalifornia:\n[From Calvillo-Silva v. Home Grocery, 19 Cal. 4th 714 (Cal. 1998):]\nSection 847 of the Civil Code provides that in certain\ncircumstances an owner of any estate or other interest in real\nproperty shall not be liable for injuries that occur upon the\nproperty during or after the injured person\xe2\x80\x99s commission of any\none of 25 felonies listed in the statute.~\nThe general policy of California with respect to tort liability is\nset forth in \xc2\xa7 1714. For well over 100 years, \xc2\xa7 1714 has provided\nin relevant part: \xe2\x80\x9cEvery one is responsible, not only for the\nresult of his willful acts, but also for an injury occasioned to\nanother by his want of ordinary care or skill in the management\nof his property or person, except so far as the latter has, willfully\nor by want of ordinary care, brought the injury upon himself.\xe2\x80\x9d\nThree decades ago, Rowland v. Christian (1968) 69 Cal. 2d 108\nrelied upon the basic policy articulated in \xc2\xa7 1714 to hold that a\npossessor of land generally owes a duty of care to all persons\nwho enter the possessor\xe2\x80\x99s premises, whether the person is an\ninvitee (business visitor), a licensee (social guest), or a\ntrespasser.~\nWhen the Legislature considered enactment of \xc2\xa7 847 in 1985, it\nheard arguments from proponents of the measure that\nimmunity was needed \xe2\x80\x9cto address the increasing number of\nattempts by criminals injured in the course of their crimes to\ndemand compensation from their intended victims\xe2\x80\x9d and to\nprovide a means to \xe2\x80\x9cfacilitate the early dismissal of lawsuits of\nthis type.\xe2\x80\x9d In evaluating the matter, the Legislature specifically\nconsidered two controversial cases in which plaintiffs had\nsought substantial sums for injuries they incurred while\ntrespassing on the property of others. In one case involving\npublic property, a plaintiff sued a school district for $3 million\n\n247\n\n\x0cafter he fell through a skylight during an attempt to illegally\nremove floodlights from the roof of a school gymnasium. The\nplaintiff, who was rendered a quadriplegic from the fall,\nobtained a settlement of $260,000 plus monthly payments of\n$1,200 for life. In another case, a motorcycle thief who\ntrespassed and went joyriding across a farmer\xe2\x80\x99s field received\nnearly $500,000 in damages from the farmer for injuries he\nsustained after hitting a pothole in the field.~ The bill to enact\n\xc2\xa7 847 was viewed as proposing a partial reversal of Rowland v.\nChristian, which in effect had permitted such lawsuits to be\nmaintained. As noted by various legislative committees, the\nsentiment providing the impetus for the legislation was reflected\nin the following statements of the bill\xe2\x80\x99s author: \xe2\x80\x9c[W]hatever may\nbe said in defense of the alleged right of a trespasser to sue a\nlandowner for the trespasser\xe2\x80\x99s injuries sustained while\ntrespassing, there is almost nothing to be said on behalf of the\nthief, a cattle rustler or other felon who is injured in the course\nof his felony. Such a wrongdoer should not be allowed by the\nlaw to add still more injury to insult.\xe2\x80\x9d~\n\nSome Questions to Ponder About California Civil Code \xc2\xa7 847\nA. What effect would \xc2\xa7 847 have on a plaintiff who was injured while\non property committing attempted voluntary manslaughter, which is\na crime in California. Look at subsection (b) and consider provisions\n(1), (9) and (25) together. Is a person convicted of attempted\nvoluntary manslaughter disallowed recovery in negligence? What do\nyou think the legislature intended? Why do think they included (1),\n(9), and (25) as they did? Given (1) and (25), what would be the point\nof (9)?\nB. Why do you think the legislature stopped short of completely\noverturning Rowland by reinstating the traditional common law rules\nthat disallow any recovery in negligence for an unknown trespasser?\nC. How do you think it came to pass that the would-be thief who fell\nthrough a skylight received a settlement for more than a quarter\nmillion dollars? Notice that this was not a court-entered judgment,\nbut was instead a settlement. What circumstances can you think of\nthat might have led to this result?\n\n248\n\n\x0c249\n\n\x0c7. Actual Causation\n\xe2\x80\x9cIf we could fly out of that window hand in hand,\nhover over this great city, gently remove the roofs,\nand peep in at the queer things which are going on,\nthe strange coincidences, the plannings, the crosspurposes, the wonderful chains of events, working\nthrough generations, and leading to the most outr\xc3\xa9\nresults, it would make all fiction with its\nconventionalities and foreseen conclusions most stale\nand unprofitable.\xe2\x80\x9d\n\xe2\x80\x93 Sherlock Holmes, \xe2\x80\x9cA Case of Identity,\xe2\x80\x9d by Arthur\nConan Doyle, 1892\n\nIntroduction\nThe chapter does double duty. Actual causation is not just an element\nof negligence, it is an issue in torts generally, including with strict\nliability, battery, trespass to land, etc. So you will learn the concepts\nhere, in the context of negligence, but keep in mind that they are\ngenerally applicable throughout the landscape of tort law. (Your\nintroductory course in criminal law may cover actual causation as\nwell. The essential concept there is the same, although the\nramifications can be quite distinct.)\nYou may find that actual causation is the simplest element to\nunderstand. And, in many cases, it is also the easiest to prove at trial.\nIn other cases, however, showing actual causation can be the most\nperplexing challenge the plaintiff will face.\nThe requirement of actual causation is simply that there must be a\ncause-and-effect relationship between the defendant\xe2\x80\x99s conduct and\nthe plaintiff\xe2\x80\x99s injury. The concept of breaching a duty of care is an\nalmost endless jurisprudential puzzle. It requires real wrangling.\nActual causation, by contrast, is almost self-explanatory. As we will\nsee in this chapter, however, there are a few complications \xe2\x80\x93 some of\nthem quite surprising \xe2\x80\x93 that bear some scrutiny. Nonetheless, the\n\n250\n\n\x0crelative simplicity of the concept means that there is considerably less\nto say about it.\nWhen actual causation presents a live issue in a case, it is usually a\nfactual matter rather than a legal one. That is, the issue is usually\nsomething to be resolved with evidence, witnesses, and logical\nthinking. The first case in this chapter, Beswick v. CareStat, presents a\nfascinating vehicle for thinking about issues of proving actual\ncausation by a preponderance of the evidence.\nNext are some complications, considered under the label of\n\xe2\x80\x9cmultiplicity issues,\xe2\x80\x9d that come about when there are multiple parties\nthat could be said to be responsible, yet who could slip out of liability\nbecause of some seemingly paradoxical results that come from strict\napplication of the actual-causation requirement.\n\nThe But-For Test\nHere is 95% of the law of actual causation: If the injury would not\nhave occurred but for the defendant\xe2\x80\x99s breach of the duty of care,\nthen actual causation is satisfied; if not, then not. That is called the\n\xe2\x80\x9cbut for\xe2\x80\x9d test. You simply ask, \xe2\x80\x9cBut for the defendant\xe2\x80\x99s breach of the\nduty of care, would the injury have occurred?\xe2\x80\x9d\nNow, you can ask same the question without using the words \xe2\x80\x9cbut\nfor.\xe2\x80\x9d (E.g., \xe2\x80\x9cAbsent the defendant\xe2\x80\x99s accused conduct, would the\ninjury have occurred anyway?\xe2\x80\x9d) But the words used by all the courts\nand all the learned treatises are \xe2\x80\x9cbut for.\xe2\x80\x9d Law, in general, is filled\nwith long phrases, big words, counterintuitive terms, and numerical\ncode provisions \xe2\x80\x93 not to mention a heavy helping of Latin. So it may\ncome as something of a surprise that the lynchpin of actual causation\ncomes down to a test named with two words of three letters each\nthat mean exactly what they sound like they mean: \xe2\x80\x9cbut for.\xe2\x80\x9d\nMoreover, the term is universal. Everyone calls it the \xe2\x80\x9cbut for\xe2\x80\x9d test,\neven a law-school-dean-turned-justice writing for a unanimous U.S.\nSupreme Court. See Fox v. Vice, __ U.S. __, 131 S.Ct. 2205, 2215\n(2011) (Justice Kagan, discussing the \xe2\x80\x9cbut-for test\xe2\x80\x9d in the context of\ncivil rights claims under 42 U.S.C. \xc2\xa7 1988).\n\n251\n\n\x0cActual Causation vs. Proximate Causation\nThere are two distinct concepts within the umbrella of \xe2\x80\x9ccausation\xe2\x80\x9d in\ntorts. One is actual causation, the subject of this chapter. The other is\nproximate causation, the subject of the next. Since actual causation\nand proximate causation are conceptually distinct, this book treats\nthem as separate elements. But many writers will lump them together\nas \xe2\x80\x9ccausation.\xe2\x80\x9d Thus, distinguishing the concepts from one another is\nthe first step in understanding either one.\nActual causation is a matter of strict, logical, cause-and-effect\nrelationships. Proximate causation \xe2\x80\x93 where proximate means \xe2\x80\x9cclose\xe2\x80\x9d\n\xe2\x80\x93 is a judgment call about how direct or attenuated the cause-andeffect relationship is, and whether it is close enough for liability.\nThis example will help you see the difference. Suppose you drive a\ncar carelessly and run over your neighbor\xe2\x80\x99s mailbox. Your neighbor,\nsitting on her front porch, has seen the whole thing. Bursting out of\nthe car, you put your hands on your hips and say, with indignity, \xe2\x80\x9cMy\nmother and father caused this to happen.\xe2\x80\x9d Your neighbor screws up\nher eyebrows. \xe2\x80\x9cWhat on earth are you talking about?\xe2\x80\x9d she says. You\nanswer, \xe2\x80\x9cMy mother and father got together and they, you know,\ncaused me to exist. So they caused this to happen to your mailbox.\nI\xe2\x80\x99m so sorry.\xe2\x80\x9d\nIn such a case it would be absolutely undeniably true that, as a strict\nmatter of the logic of cause-and-effect, you mother and father caused\nthe accident. But, of course, offering this as some kind of explanation\nfor what happened to the mailbox is silly. The tension here is the\ndifference between actual causation and proximate causation. It is\ntrue that your mother and father caused the accident in the sense of\nactual causation. But your mother and father did not cause the accident\nin the sense of proximate causation.\nIn everyday, non-legal English, when we use the word \xe2\x80\x9ccaused,\xe2\x80\x9d we\nare talking about some combination of actual causation and\nproximate causation. Most of the time, there is no need to separate\nout the concepts. But when it comes to legal analysis in torts, we\nneed to specify exactly what we are talking about because, as you will\nsee, the two concepts implicate entirely different sets of concerns.\n\n252\n\n\x0cSome Notes on the Terminology of Causation\nA key stumbling block in learning actual causation is the vocabulary\nused to talk about it. Ironically, while the test for actual causation is\neasy, and while it is represented by a pithy, descriptive label with\nconsistent usage \xe2\x80\x93 \xe2\x80\x9cbut for\xe2\x80\x9d \xe2\x80\x93 the same cannot be said for the\nterminology used to talk about actual causation itself, or that of its\nneighboring prima facie element, proximate causation. Be on guard.\nThe labels are myriad, confusing, and used inconsistently by lawyers\nand judges alike.\nActual Causation\xe2\x80\x99s Other Labels: Causation-in-Fact,\nFactual Causation, and More\nWhat we are calling \xe2\x80\x9cactual causation\xe2\x80\x9d in this book goes by different\nnames.\nIt is not enough to tell you that we will use the term \xe2\x80\x9cactual\ncausation\xe2\x80\x9d in this book, and leave it at that. You have to learn the\nother terms, and how they are potentially confusing, so that you will\nbe able to read and understand cases, briefs, and other legal\ndocuments no matter whom they are written by.\n\xe2\x80\x9cActual causation\xe2\x80\x9d is also called \xe2\x80\x9ccausation-in-fact,\xe2\x80\x9d \xe2\x80\x9cfactual\ncausation,\xe2\x80\x9d and \xe2\x80\x9cdirect causation.\xe2\x80\x9d The term \xe2\x80\x9ccausation-in-fact\xe2\x80\x9d\nactually appears to be the most commonly used term, with \xe2\x80\x9cactual\ncausation,\xe2\x80\x9d being the second most common.\nWe are using \xe2\x80\x9cactual causation\xe2\x80\x9d in this book, even though it comes in\nsecond place in frequency, because it is the most apt and least\nconfusing term of those in common use. The potential problem with\ncalling the requirement \xe2\x80\x9ccausation-in-fact\xe2\x80\x9d or \xe2\x80\x9cfactual causation\xe2\x80\x9d is\nthat it makes it sound like it is not a legal concept, but is instead just\nsomething for the jury to decide based only on factual evidence. That\nperception would be mistaken, however. Actual causation is a judgerendered legal doctrine, and the law of actual causation is applied,\nclarified, and evolved by judges and appellate courts. So \xe2\x80\x9cfactual\ncausation\xe2\x80\x9d is actually quite \xe2\x80\x9clegal.\xe2\x80\x9d\nNo doubt the commonality of the term \xe2\x80\x9ccausation-in-fact\xe2\x80\x9d owes to\nthe fact that, in practice, that the actual causation element of the\n\n253\n\n\x0cplaintiff\xe2\x80\x99s case often presents only fact issues for the jury and leaves\nno questions that need to be decided by the judge. But that is not\nbecause actual causation is not legal, is it is only because the legal\ndoctrine on actual causation is crystal clear in nearly all cases. That is\nto say, in the garden variety negligence case, all open questions with\nregard to actual causation will turn on how facts are interpreted and\nhow the factfinder perceives the credibility of witnesses. The parties\nwill not typically present the judge with conflicting interpretations of\nthe law of actual causation, but will instead agree to use standard jury\ninstructions on actual causation.\nWhile we are on the subject of the tendency to call actual causation\n\xe2\x80\x9cfactual causation,\xe2\x80\x9d we should note that proximate causation is\nsometimes called \xe2\x80\x9clegal causation.\xe2\x80\x9d The reasons for this are corollary\nto the prevalence of \xe2\x80\x9cfactual causation\xe2\x80\x9d and \xe2\x80\x9ccausation-in-fact\xe2\x80\x9d for\nactual causation. If you put the terms together, calling actual\ncausation \xe2\x80\x9cfactual causation\xe2\x80\x9d and proximate causation \xe2\x80\x9clegal\ncausation,\xe2\x80\x9d it sounds as if they are the factual and legal sides to a\nunified question of \xe2\x80\x9ccausation.\xe2\x80\x9d But that\xe2\x80\x99s not accurate. Actual\ncausation and proximate causation are two conceptually separate\nrequirements of the prima facie case for negligence, both of which\ninvolve the application of law to facts. Both implicate legal questions\nand both implicate factual issues. So, to avoid headscratchers like\ntalking about the \xe2\x80\x9claw of causation-in-fact\xe2\x80\x9d or the \xe2\x80\x9cfacts needed to\nshow legal causation,\xe2\x80\x9d we will stick to the terms \xe2\x80\x9cactual causation\xe2\x80\x9d\nand \xe2\x80\x9cproximate causation.\xe2\x80\x9d\nNow, there is another label for actual causation that is more\nconfusing than any of the others by an order of magnitude.\nSometimes, reported opinions will use the label \xe2\x80\x9cproximate\ncausation\xe2\x80\x9d to refer to actual causation. Courts frequently say that the\nplaintiff cannot prove that something is the \xe2\x80\x9cproximate cause\xe2\x80\x9d of\nsomething else, when what they are talking about is failure to show\nactual causation. You will find an example in the Beswick case\nimmediately below. Courts probably do this because they are lumping\nthe concepts of actual causation and proximate causation together,\nbut then instead of calling the amalgam \xe2\x80\x9ccausation,\xe2\x80\x9d they refer to it as\n\xe2\x80\x9cproximate causation.\xe2\x80\x9d In such cases, you can mentally translate the\n\n254\n\n\x0cphrase as \xe2\x80\x9ccausation, which includes a requirement that the causation\nbe proximate.\xe2\x80\x9d\nThese complications over terminology seem like needless headaches.\nYou might think that a better casebook would have gone through all\nthe cases and used bracketed insertions to make all the terms\nconsistent. Yet that would be doing students a serious disservice. In\nthe real world, the terminology is all over the place. So you might as\nwell learn your way around it now.\nFor good or for bad, these sorts of lexicological tangles are part and\nparcel of our common law system. Using any of these terms \xe2\x80\x93\nincluding \xe2\x80\x9cproximate causation\xe2\x80\x9d \xe2\x80\x93 to discuss actual causation cannot\nbe called \xe2\x80\x9cwrong.\xe2\x80\x9d These usages lead to confusion, yes, but they are\nnot actually incorrect. Because court opinions are built by using\nvarious other court opinions as precedent, the body of common law\nexists as a web of interconnected nodes unorganized by any\ncentralized authority. Some courts see one element of causation\nwhere other courts see two. Among the courts, different names\nspring up, and differences persist both out of a kind of linguistic drift\nand because of stubborn disagreement about which terms are best.\nCheck-Your-Understanding Questions About Causation\nTerminology\nA. A court says, \xe2\x80\x9cThe plaintiff cannot prove causation, in fact,\nbecause the plaintiff\xe2\x80\x99s injury is only tenuously and indirectly\nconnected with the defendant\xe2\x80\x99s action.\xe2\x80\x9d What concept of causation is\nthe court talking about?\nB. A court says, \xe2\x80\x9cThe plaintiff\xe2\x80\x99s case fails for want of proximate\ncausation since the plaintiff\xe2\x80\x99s injuries would have happened\nregardless of the alleged negligent conduct of the defendant.\xe2\x80\x9d What\nconcept of causation is the court talking about?\nThink \xe2\x80\x9cA\xe2\x80\x9d Not \xe2\x80\x9cThe\xe2\x80\x9d\nThe most important conceptual aspect of the law of causation for\nyou to understand is that an injury can have more than one actual\ncause. Do not think in terms of whether some action is \xe2\x80\x9cthe cause\xe2\x80\x9d\n\n255\n\n\x0cof an injury, instead ask whether the action is \xe2\x80\x9ca cause.\xe2\x80\x9d This applies\nboth to actual causation and proximate causation.\nThere is a tendency \xe2\x80\x93 perhaps endemic to human cognition \xe2\x80\x93 to want\nto find the factor or the person who is to blame. This is reflected in\nthe question, \xe2\x80\x9cWho really is to blame?\xe2\x80\x9d (That phrase, in quotes, gets\n299,000 hits on Google.) Clearly many people think this way when\nconsidering issues of responsibility. Tort law, however, does not. In\nreality, there are a nearly limitless number of causes for every event.\nAnd every event may have a nearly limitless number of effects. Tort\nlaw recognizes this, and thus actual causation doctrine only requires\nthat there be a logical, actual cause-and-effect relationship between\nthe alleged breach of the duty of care and the plaintiff\xe2\x80\x99s injury. If\nmore than one breach of the duty of care was an actual cause of the\nplaintiff\xe2\x80\x99s injury, then the plaintiff can separately establish the\nelement of actual causation as to each and every such breach,\nincluding against an unlimited number of defendants.\n\nExample: Leadfoot to Liver Lobe \xe2\x80\x93 A leadfoot driver\nshoots through a suburban intersection at 90 miles per hour.\nShe hits a driver making a left turn who is texting instead of\nlooking ahead. The vectors of the colliding masses of\nautomobile wreckage converge to eject a spray of debris at a\ngasoline tanker parked nearby. The tank is structurally weak\nbecause of improper welds \xe2\x80\x93 welds that would have been\nfixed except that they were missed by a safety inspector. The\nwelds burst and the spilling mass of gasoline erupts into\nflames near the plaintiff. While not seriously hurt, the plaintiff\nis nonetheless whisked to the hospital for observation where\nhe is x-rayed. The radiologist misreads the film and counsels\nan unnecessary surgery. During that surgery, an unwashed\nscalpel, supplied by the hospital, is handed to an unobservant\nsurgeon by an unobservant nurse. Either the surgeon or the\nnurse could have seen with a mere glance that the scalpel was\ncovered with blood before it got anywhere near the patient\xe2\x80\x99s\nskin. Upon incision, the dirty scalpel transmits a flotilla of\nmicrobial pathogens to the plaintiff. Those pathogens\nprecipitate a case of sepsis, eventually resulting in the plaintiff\n\n256\n\n\x0closing the left lobe of his liver. Who actually caused the\naccident? We apply the but-for test, and we must conclude\nthat the harm befalling the plaintiff would not have occurred\nbut for the negligent conduct of the leadfoot, the texter, the\nwelder, the inspector, the radiologist, the hospital, the nurse,\nand the surgeon. Each one represents a but-for cause. Every\nsingle one can be held liable. The plaintiff can sue one, some,\nor all. It\xe2\x80\x99s entirely the plaintiff\xe2\x80\x99s choice.\n\nProof and Preponderance\nLike all elements of the prima facie case, the element of actual\ncausation must be proved by a preponderance of the evidence. That\nis, it must be shown that it was more likely than not that the injury\nwould not have occurred but for the defendant\xe2\x80\x99s breach of the duty\nof care. Where actual causation is an issue in a case, it is meeting this\nburden through the presentation of evidence to the jury that often\nposes the biggest challenge to the plaintiff.\nCase: Beswick v. CareStat\nThe following case provides a rich set of facts to consider issues of\nactual causation. Note that the court in this case uses the phrase\n\xe2\x80\x9cproximate causation\xe2\x80\x9d to denote its discussion of actual causation\nquestions. (See \xe2\x80\x9cSome Notes on the Terminology of Actual\nCausation,\xe2\x80\x9d above.)\n\nBeswick v. CareStat\nUnited States District Court for the Eastern District of Pennsylvania\nDecember 6, 2001\n185 F.Supp.2d 418. No. 00-1304. Reported as \xe2\x80\x9cBeswick v. City\nof Philadelphia.\xe2\x80\x9d Ralph Raymond BESWICK, et al. v. CITY OF\nPHILADELPHIA, et al. Civil Action No. 00-1304.\nChief Judge JAMES T. GILES:\nI. INTRODUCTION\nRalph Raymond Beswick, Jr. and Rose Wiegand, CoAdministrators of the Estate of Ralph Richard Beswick, Sr.,\nbring a constitutional claim pursuant to 42 U.S.C. \xc2\xa7 1983 against\n\n257\n\n\x0cthe City of Philadelphia (\xe2\x80\x9cCity\xe2\x80\x9d) and its former 911 call-taker,\nJulie Rodriguez, and, asserting pendent jurisdiction, bring state\nlaw negligence claims against Julie Rodriguez, and Father and\nSon Transport Leasing Inc., d/b/a CareStat Ambulance and\nInvalid Coach Transportation, Inc. (\xe2\x80\x9cCareStat\xe2\x80\x9d), a private\nambulance service, its record owner, Slawomir Cieloszcyk, a\npurported owner and manager, Gregory Sverdlev, and two\nCareStat employees, Ruslan Ilehuk and Ivan Tkach (collectively\n\xe2\x80\x9cCareStat defendants\xe2\x80\x9d).\nBefore the court are four Motions for Summary Judgment filed\nby:~ the CareStat defendants, for alleged failure to establish\nproximate cause;~ and~ Tkach~ and Ilehuk, on the grounds\nthat~ there is no competent evidence supporting the claim of\nTkach and Ilehuk\xe2\x80\x99s employee negligence~ .\nFor the reasons that follow, the City\xe2\x80\x99s motion is granted, the\nCareStat defendants\xe2\x80\x99 motions are denied, and the motions of\nSverdlev, Tkach, and Ilehuk are denied.\nII. FACTUAL BACKGROUND\nPlaintiffs\xe2\x80\x99 claims all arise from the death of Ralph Richard\nBeswick, Sr. on February 11, 2000.~\nConsistent with the review standards applicable to motions for\nsummary judgment, Fed.R.Civ.P. 56(c), the alleged facts, viewed\nin the light most favorable to the plaintiffs, follow.\nA. The Events of February 11, 2000\nOn the evening of February 11, 2000, Ralph Richard Beswick,\nSr. collapsed on the dining room floor of the South Kensington\nhome that he and Wiegand had shared for 23 years. From the\nliving room where she had been watching television, Wiegand\nheard the \xe2\x80\x9cthump\xe2\x80\x9d of Beswick falling and went to him.\xef\x81\x81There\nis some discrepancy in the record as to whether Wiegand went\nto Beswick immediately after he had fallen, or if some minutes\nhad passed before she realized he had fallen. For the purposes\nof summary judgment, this court must assume that Wiegand\nwent to him straightaway, as she indicated in her police\nstatement taken eleven days after Beswick\xe2\x80\x99s death.\xef\x81\x80 Upon\n\n258\n\n\x0centering the kitchen and finding Beswick lying prone on the\nfloor, Wiegand immediately dialed the City\xe2\x80\x99s medical emergency\nresponse number, 911, and told the answering call-taker, Julie\nRodriguez, that Beswick had fallen and needed urgent\nassistance, and requested an ambulance. Rodriguez asked if\nBeswick was breathing. Wiegand responded that he was.\nWithout obtaining any further information, Rodriguez told\nWiegand that \xe2\x80\x9csomebody\xe2\x80\x9d was \xe2\x80\x9con the way.\xe2\x80\x9d\nFire Department regulations require 911 operators to refer all\nemergency medical calls to the Fire Department, which then\ndispatches Fire Rescue Units appropriately equipped and staffed\nto respond to medical emergencies. The mechanical protocol of\nthe job of 911 call-taker requires that the call be transferred\nimmediately to the dispatcher upon termination of the\nemergency call. The last step of the mechanical protocol of the\ncall-taker job is to punch a sequential button on a console to\nconnect the dispatcher and transmit the acquired information\nfrom the caller. The dispatcher forwards the call to the Rescue\nUnit closest to the response site.\nInstead of following established procedure, which would have\ncontinued the process to trigger the Rescue Unit\xe2\x80\x99s response,\nRodriguez abandoned protocol and used a telephone located\nnext to her console to call a private ambulance company,\nCareStat, to see if it could respond to the Wiegand call.\nRodriguez, without the knowledge of the City, had recently\nbegun working for CareStat as a dispatcher in her off hours, and\nhad a secret deal with CareStat to refer to it all calls received in\nher City 911 capacity that she believed CareStat could handle.\nUnder the City\xe2\x80\x99s protocol, Rodriguez was required to treat all\n911 calls as emergencies requiring the City\xe2\x80\x99s Rescue Unit\nresponse. She had no discretion to act otherwise.\nImmediately after speaking with Wiegand, Rodriguez telephoned\nSlawomir Cieloszcyk (also known as \xe2\x80\x9cSlavik\xe2\x80\x9d), the owner and\ndispatcher of CareStat. Upon telling Cieloszcyk that Ralph\nBeswick, Sr. was age 65 and unconscious from a fall, Rodriguez\nasked how long it would take CareStat to get to the Beswick\nhome. Neither Rodriguez nor Cieloszcyk knew that the 911 call\n\n259\n\n\x0cwas, in fact, a situation other than an emergency, such as a heart\nattack or other serious medical event. Cieloszcyk estimated a\nresponse time of fifteen minutes. He ended the conversation by\nsaying, \xe2\x80\x9cWe\xe2\x80\x99re on the way.\xe2\x80\x9d\nArguably, corruptly, in violation of Pennsylvania\xe2\x80\x99s statutory\nrequirements applicable to private ambulances, Cieloszcyk\nundertook a response to a medical situation to which CareStat\nwas not authorized to respond. All 911 calls are assumed to be\nmedical emergencies unless and until actual response and\nevaluation by the City Fire Department might determine\notherwise. CareStat had no permission from the City to use 911\ncall-taker Rodriguez to refer calls to it and knew that the 911 call\nwas being diverted from the City\xe2\x80\x99s established response system.\nUnder these circumstances, Cieloszcyk nevertheless gave the\nBeswick response assignment to employees Ilehuk and Tkach,\nneither of whom had completed the requisite training to become\na licensed EMT or paramedic. Ilehuk and Tkach, having the\nsame knowledge as Cieloszcyk, including the deal with\nRodriguez to compromise her City 911 job responsibilities,\naccepted the call and set out for the Beswick residence.\nTen minutes after the first 911 call had been made, because\nthere was yet no emergency vehicle at the Beswick home,\nWiegand\xe2\x80\x99s sister placed another 911 call at 8:02 p.m. to make\nsure that the City\xe2\x80\x99s rescue services had already been dispatched.\nThis call also happened to have been received and handled by\nRodriguez. Despite this second urgent call, Rodriguez did not\npunch it over to the City\xe2\x80\x99s emergency dispatch system. She\ncalled CareStat again, seeking assurance that its ambulance\ndispatched would arrive soon. Cieloszcyk assured Rodriguez\nthat the CareStat ambulance was on the way as he had promised\nher.\nBecause an emergency equipped unit still had not arrived,\nWiegand called 911 a third time. The third call came to a calltaker other than Rodriguez. He followed all Fire Department\nprocedures and within a very short time period a City Fire\nDepartment Rescue Unit arrived at the Beswick home.\nRodriguez became aware of the third Wiegand call. She\n\n260\n\n\x0cpromptly called Cieloszcyk at CareStat and told him that a City\nparamedic unit was responding to the Beswick home, and\nrequested that he hide her involvement in the misdirecting of\nthe 911 calls. By the time that the CareStat ambulance arrived,\nthe Fire Rescue Unit had already removed Beswick from the\nhome. It was then that the Beswick family realized that the 911\ncall-taker had caused a private ambulance to attempt to respond\nto their emergency call, and that it was ill-equipped to have dealt\nwith the Beswick medical emergency had it arrived earlier.\nB. The Delay in Response to Beswick because of Defendants\xe2\x80\x99\nActions\nThe first emergency telephone call concerning Beswick was\nreceived by Rodriguez at the Fire Command Center (\xe2\x80\x9cFCC\xe2\x80\x9d) at\n19:53:41. The second call, placed by Wiegand\xe2\x80\x99s sister, was\nreceived by Rodriguez at 20:02:54. The third Wiegand call was\nreceived at the FCC by dispatcher Jose Zayes at 20:04:57, and\nthe City Fire Department response was immediately dispatched.\nFire Battalion Chief William C. Schweizer confirmed that at the\ntime Rodriguez received the first call at 19:53:41, Medic Unit\nNo. 2 would have been available to respond from its base at\nKensington and Castor, which was within several minutes of the\nBeswick home. Medic Unit No. 2, like other City Medic Units,\nwas staffed with paramedics, who have more training than\nEMTs. However, at 20:04:57, when Zayes received the third call,\nMedic Unit No. 2 was no longer available. Nor was the next\nclosest Medic Unit, No. 8, based at Boudinot and Hart Streets.\nIn response to the 20:04:47 call, Medic Unit 31, the third closest\nof the City\xe2\x80\x99s Medic Units, was dispatched from Second Street,\nand Fire Department Engine No. 7 was dispatched from\nKensington and Castor. However, Engine No. 7 is staffed only\nwith EMTs, and EMTs are not permitted to administer\nepinephrine or atropine to patients. Medic unit 31 took 8\nminutes and 34 seconds to arrive at 959 East Schiller Street.\nEngine No. 7 took 3 minutes and 34 seconds to arrive. Engine\nNo. 7 and Medic Unit No. 2 \xe2\x80\x93 which was available for the first\ncall but was never contacted by Rodriguez \xe2\x80\x93 were both based at\nKensington and Castor, and would have had to travel the same\n\n261\n\n\x0cdistance to get to the Beswick residence. Based upon this\ninformation, the total delay in getting a Medic Unit to respond\nto Beswick has been estimated by Battalion Chief Schweizer to\nbe 16 minutes and 16 seconds. \xef\x81\x81It is undisputed that Beswick\ndied of a heart attack upon his arrival at the hospital. He was\ncremated two days later without an autopsy, so the exact\nmagnitude of his heart attack can never be known.\xef\x81\x80\nPlaintiffs have introduced evidence that this 16 minute, 16\nsecond delay caused or contributed to the cause of Beswick\xe2\x80\x99s\ndeath, through the deposition testimony of Kale Etchberger and\nJoanne Przeworski, the two Fire Department paramedics who\narrived on the scene as part of Medic Unit 31. Both testified that\nwhen they arrived, Engine No. 7\xe2\x80\x99s EMTs were already tending\nto Beswick. However, those EMTs, unlike paramedics, cannot\nadminister medications. As indicated in these paramedics\xe2\x80\x99\ndepositions, Engine No. 7\xe2\x80\x99s Lifepack 500 defibrillator machine\nreceived a \xe2\x80\x9cshock advised\xe2\x80\x9d message at 20:07:48, which suggests\nthat at the time, Beswick was either in a state of v-fib or v-tack;\nin other words, his heartbeat was not totally flat. Additionally,\nupon the administration of medications by Etchberger and\nPrzeworski, Beswick\xe2\x80\x99s heart rate was temporarily restored. Both\nparamedics testified that they believed he had a chance to be\nsaved when they first came to the scene. Plaintiffs\xe2\x80\x99 expert, Dr.\nNorman Makous, a cardiologist, would opine to a reasonable\ndegree of medical certainty that based on established medical\nliterature regarding observed cardiac arrests due to ventricular\nfibrillation, and assuming that Beswick was still breathing at the\ntime of the first 911 call, that had Medic Unit No. 2 arrived after\nthe first call, Beswick\xe2\x80\x99s chance of survival would have equaled, if\nnot exceeded, thirty-four (34) percent.~\nIII. Discussion\nSummary judgment under Federal Rule of Civil Procedure 56(c)\nis appropriate only if, drawing all inferences in favor of the nonmoving party, \xe2\x80\x9cthe pleadings, depositions, answers to\ninterrogatories and admissions on file, together with the\naffidavits, if any, show that there is no genuine issue of material\n\n262\n\n\x0cfact and the movant is entitled to judgment as a matter of law.\xe2\x80\x9d\n~\n\nLoss of a Chance Theory of Proximate Cause\nCareStat defendants argue that on its face, a statistical survival\nrate of 34 percent, which plaintiffs\xe2\x80\x99 medical expert concludes is\nthe chance for survival Beswick would have had if a City\nambulance had been appropriately dispatched, is insufficient as a\nmatter of law to establish proximate cause. In the alternative,\nCareStat defendants argue that additional factors unique to\nBeswick, such as preexisting heart and stroke conditions, as well\nas chronic obstructive pulmonary disease, necessarily served to\nreduce his chances of survival well below 34 percent; further,\nthey contend that Wiegand\xe2\x80\x99s deposition testimony indicates that\nshe waited \xe2\x80\x9cfive or ten minutes\xe2\x80\x9d before responding to Beswick\xe2\x80\x99s\ncollapse, therefore Dr. Makous\xe2\x80\x99 conclusions, which are based on\nobserved cardiac arrests, are inadmissible. Daubert v. Merrell Dow\nPharmaceuticals, Inc., 509 U.S. 579 (1993) (holding that when\nexpert testimony\xe2\x80\x99s factual basis, data, principles, methods or\ntheir application are called sufficiently into question, the trial\ncourt must determine whether the testimony has a reliable basis\nin the knowledge and experience of the relevant discipline).\n1. For Purposes of Summary Judgment, Beswick\xe2\x80\x99s Chance of\nSurvival, Absent Defendants\xe2\x80\x99 Negligence, was 34 Percent.\nAddressing defendants\xe2\x80\x99 alternative argument first, for summary\njudgment purposes, this court must accept plaintiffs\xe2\x80\x99 allegation\nthat Wiegand heard Beswick collapse and responded\nimmediately, as she stated in the police report taken eleven days\nafter Beswick\xe2\x80\x99s death. Further, Dr. Makous\xe2\x80\x99 conclusions are\npredicated upon an article from the New England Journal of\nMedicine, which states that \xe2\x80\x9cthe rate of survival to hospital\ndischarge for patients with a witnessed collapse who are found\nto be in ventricular fibrillation is 34 percent.\xe2\x80\x9d Mickey S.\nEisenberg, M.D., Ph.D., & Terry J. Mengert, M.D., \xe2\x80\x9cCardiac\nResuscitation,\xe2\x80\x9d N. Eng. J. Med., vol. 344, no. 17, at 1304 (April\n26, 2001). The article further states that \xe2\x80\x9c[w]hen\ncardiopulmonary resuscitation is started within four minutes\nafter collapse, the likelihood of survival to hospital discharge\n\n263\n\n\x0cdoubles.\xe2\x80\x9d Id. at 1305. Viewing all facts of record in the light\nmost favorable to plaintiffs, this court must assume that\nWiegand called 911 immediately after Beswick\xe2\x80\x99s collapse, and\nthat at that time, Medic Unit No. 2, with licensed paramedics,\nwas available for dispatch and 3 minutes and 34 seconds from\nthe Beswick residence. \xef\x81\x81The article does not specify whether\nthe start of CPR within four minutes after cardiac arrest doubles\nthe 34 percent chance of survival, or if it refers to some other\nstatistic.\xef\x81\x80 Thus, a jury could conclude that Beswick\xe2\x80\x99s chances for\nsurvival were at least 34 percent, if not more, had the 911 call\nnot been diverted to CareStat. Moreover, the 34 percent survival\nrate noted in the article and in Dr. Makous\xe2\x80\x99 conclusions does\nnot assume only patients who are experiencing their first cardiac\narrest, or patients without other pre-existing conditions. Thus,\nfor the purposes of summary judgment, the court must assume\nthat the factors surrounding the cardiac arrest of an individual\nwith Beswick\xe2\x80\x99s medical history were taken into account by both\nthe article and Dr. Makous.~\nThe court finds Dr. Makous, a licensed physician who has spent\nmore than fifty years practicing cardiology, is basing his\nopinions upon established modern medicine, stated, inter loci, in\nthe New England Journal of Medicine, and thus is scientifically\nreliable~. The 34 percent probability that Dr. Makous cites\nshould not be confused with the degree of his medical certainty\nas to the accuracy of that opinion.\n2. Loss of a Chance\nPennsylvania tort law follows the Restatement Second of Torts,\n\xc2\xa7 323, which provides:\n\xc2\xa7 323. Negligent Performance of Undertaking to\nRender Services. One who undertakes,\ngratuitously or for consideration, to render\nservices to another which he should recognize\nas necessary for the protection of the other\xe2\x80\x99s\nperson or things, is subject to liability to the\nother for physical harm resulting from his\nfailure to exercise reasonable care to perform\nhis undertaking, if (a) his failure to exercise such care\n\n264\n\n\x0cincreases the risk of such harm, or (b) the harm is\nsuffered because of the other\xe2\x80\x99s reliance upon\nthe undertaking.\n(emphasis added). See Hamil v. Bashline, 481 Pa. 256 (1978). In\nHamil, plaintiff\xe2\x80\x99s husband, who was suffering from severe chest\npains, was brought to the defendant hospital. Due to a faulty\nelectrical outlet, the EKG machine failed to function. A second\nEKG machine could not be found and, upon receiving no\nfurther aid or treatment, Hamil transported her husband to a\nprivate doctor\xe2\x80\x99s office, where he died of cardiac arrest while an\nEKG was being taken. Plaintiff\xe2\x80\x99s expert witness estimated that\nthe decedent would have had a 75 percent chance of surviving\nthe attack had he been appropriately treated upon his arrival at\nthe hospital. Following the introduction of all evidence, the trial\ncourt determined that plaintiff\xe2\x80\x99s medical expert had failed to\nestablish, with the required degree of medical certainty, that the\nalleged negligence of the defendant was the proximate cause of\nplaintiff\xe2\x80\x99s harm, and directed a verdict for the defendant. The\nSupreme Court reversed, finding that cases such as this \xe2\x80\x9cby their\nvery nature elude the degree of certainty one would prefer and\nupon which the law normally insists before a person may be\nheld liable.\xe2\x80\x9d The court interpreted the effect of \xc2\xa7 323(a) of the\nRestatement as to address these situations, and relaxed the\ndegree of evidentiary proof normally required for plaintiff to\nmake a case for the jury as to whether a defendant may be held\nliable for the plaintiff\xe2\x80\x99s injuries. Accordingly, the court adopted\nthe following standard:\nOnce a plaintiff has introduced evidence that a\ndefendant\xe2\x80\x99s negligent act or omission increased\nthe risk of harm to a person in plaintiff\xe2\x80\x99s\nposition, and that the harm was in fact\nsustained, it becomes a question for the jury as\nto whether or not that increased risk was a\nsubstantial factor in producing the harm. Such a\nconclusion follows from an analysis of the\nfunction of \xc2\xa7 323(a).\nIn determining the burden of proof required ultimately to\nwarrant a jury verdict for the plaintiff, the Hamil court again\n\n265\n\n\x0crelied on the Restatement Second of Torts, which reflected the\nstate of the law at the time of its adoption in 1965; namely that\nthe quantum of proof, or \xe2\x80\x9csubstantial factor,\xe2\x80\x9d necessary is a\npreponderance of the evidence.\n\xef\x81\x81\n\nComment (a) of \xc2\xa7 433B states:\na. Subsection (1) states the general rule as to the\nburden of proof on the issue of causation. As\non other issues in civil cases, the plaintiff is\nrequired to produce evidence that the conduct\nof the defendant has been a substantial factor in\nbringing about the harm he has suffered, and to\nsustain his burden of proof by a preponderance\nof the evidence. This means that he must make\nit appear that it is more likely than not that the\nconduct of the defendant was a substantial\nfactor in bringing about the harm. A mere\npossibility of such causation is not enough; and\nwhen the matter remains one of pure\nspeculation and conjecture, or the probabilities\nare at best evenly balanced, it becomes the duty\nof the court to direct a verdict for the\ndefendant.\xef\x81\x80\n\nAccordingly, this court will permit Dr. Makous\xe2\x80\x99 testimony\nregarding the increased risk of harm to Beswick of 34 percent,\nand will allow the jury to determine, by a preponderance of the\nevidence, whether this increased risk brought about Beswick\xe2\x80\x99s\ndeath.~\nD. Negligence of Ilehuk and Tkach\nThe CareStat defendants seek dismissal of Tkach and Ilehuk on\nthe grounds that any negligence on their part could not have\nbeen a proximate cause of the death of Beswick because they\narrived after the Fire Department, and thus never participated in\nthe care of Beswick. Plaintiffs argue that it is not the lack of\nqualifications of these defendants that caused the delay in\nBeswick\xe2\x80\x99s treatment. Rather, they claim that these defendants\nshould have turned down the assignment because of their lack\nof qualifications, which contributed to the delay in medical\nattention. Plaintiffs assert, and defendants do not dispute, that\n\n266\n\n\x0cIlehuk and Tkach had not yet completed their training as\nparamedics. Thus, plaintiffs contend, those defendants\xe2\x80\x99\nacceptance of the 911 call was improper as a matter of\nPennsylvania statutory law. Because of the breach of their duty\nto refuse a call for a residential transport, defendants caused a\ndelay which allegedly was the proximate cause of Beswick losing\nall chance of survival.\nIV. CONCLUSION\nFor the foregoing reasons,~ the CareStat defendants\xe2\x80\x99 Motions\nare denied, and~ Tkach, and Ilehuk\xe2\x80\x99s Motion is denied.\nAn appropriate order follows.~\n\nSome Historical Notes on Beswick\nA. Perception of corruption and incompetence with the 911 system\ngoes back well before Beswick. Rap group Public Enemy included\n\xe2\x80\x9c911 Is a Joke\xe2\x80\x9d on their seminal Fear of a Black Planet album in 1990.\nFlava Flav rapped:\n\xe2\x80\x9cNow I dialed 911 a long time ago\nDon\xe2\x80\x99t you see how late they\xe2\x80\x99re reactin\xe2\x80\x99\nThey only come and they come when they wanna\nSo get the morgue, embalm the goner~\nYou better wake up and smell the real flavor\nCause 911 is a fake life saver\xe2\x80\x9d\n\nB. Even though Julia Rodriguez knew that Ralph R. Beswick, Sr. died\non February 11, 2000, according to newspaper accounts she again\ndiverted calls to CareStat two days later on February 13. The Beswick\ncall was one of eight allegedly diverted to CareStat on February 11\nand 13, 2000. The others included a 34-week pregnant woman who\nwas \xe2\x80\x9cleaking water,\xe2\x80\x9d a man asking for an ambulance to transport his\n78-year-old grandfather to the hospital, a person who was having\nblood-pressure problems following a dental procedure, a woman\nasking for transport to the hospital for her 77-year-old father after his\nfeeding tube popped out, and two different women requesting\nassistance for their mothers who had fallen.\n\n267\n\n\x0cOn March 21, 2000, between four and six in the morning, police\narrested Julia Rodriguez, Slawomir Cieloszczyk, Ruslan Ilehuk, and\nIvan Tkach. Rodriguez pled guilty to a series of charges. Cieloszczyk,\nIlchuk and Tkach were convicted of various counts of conspiracy,\ntheft of services, and recklessly endangering another person. In April\n2001, the four were sentenced. Rodriguez received a one to two year\nprison sentence plus four years of probation and 100 hours of\ncommunity service. Cieloszczyk received six to 23 months in prison\nplus three years of probation. Ilchuk and Tkach, each received six to\n23 months of house arrest plus two years of probation and 200 hours\nof community service.\nThe CareStat ambulance company went out of business and the\nPhiladelphia Fire Department severed its relationship with the private\nparamedic school where Rodriguez first met Ilchuk and Tkach.\n\nNote on Loss of a Chance and Some Questions to Ponder\nThere are difficult philosophical questions brewing in Beswick.\nThe plaintiff\xe2\x80\x99s expert says that had Ralph Beswick gotten to the\nhospital without the CareStat-instigated delay, then he would have\nhad a 34 percent chance of surviving. In other words, the odds are\nthat Beswick would have died even if he had received the emergency\nservices blocked by the defendants. So, bearing that in mind, did the\ndefendants\xe2\x80\x99 actions kill Beswick? Or is it even possible to say?\nHere we have what is called a \xe2\x80\x9closs of a chance\xe2\x80\x9d situation, a recurrent\nproblem in a great variety of torts lawsuits, especially those involving\nexpert testimony that offers statistical probabilities.\nThere are two ways of conceiving of the loss-of-a-chance problem \xe2\x80\x93\nas a question of causation, or as a question of whether or not there is\nan injury sufficient for a prima facie case. The distinction between\nthese two modes of thought begins with understanding what, exactly,\nis the injury being sued upon.\nIf the injury is the loss of a chance to survive, then we encounter the\ndifficult question of whether losing a \xe2\x80\x9ca chance\xe2\x80\x9d counts as a personal\ninjury.\n\n268\n\n\x0cIf, however, the injury being sued upon is death, then we have the\ndifficult causation question of whether one can say that causing a\ndecreased probability of survival is the same as causing death.\nThe loss-of-a-chance question is dealt with in a deeper way in the\ncase of Herskovits v. Group Health, which appears later on in Chapter 9\nas part of a discussion of the injury requirement of the prima facie\ncase for negligence. Herskovits presents both ways of conceiving of\nthe problem \xe2\x80\x93 as a question of causation, and as a question of the\nexistence of an injury.\nFor now, however, in the case of Beswick, the injury being sued on is\nBeswick\xe2\x80\x99s death. That means we are confronted with the causation\nquestion. So, some questions to ponder:\nA. The preponderance standard requires that the plaintiff prove that\nit is more likely than not (>50%) that the injury \xe2\x80\x93 death in this case \xe2\x80\x93\nwas actually caused by the defendant\xe2\x80\x99s negligent action. Can we say\nthat we are more than 50% sure that Beswick\xe2\x80\x99s death was caused by\nthe defendants\xe2\x80\x99 negligence when Beswick had a greater than 50%\nchance of dying anyway?\nB. Consider the following from the court\xe2\x80\x99s opinion:\n\xe2\x80\x9c[T]his court will permit Dr. Makous\xe2\x80\x99 testimony\nregarding the increased risk of harm to Beswick\nof 34 percent, and will allow the jury to\ndetermine, by a preponderance of the evidence,\nwhether this increased risk brought about\nBeswick\xe2\x80\x99s death.\xe2\x80\x9d\n\nDoes this question make sense? How can an \xe2\x80\x9cincreased risk\xe2\x80\x9d of\ndeath bring about someone\xe2\x80\x99s death? That is, how can someone be\nkilled by an increased risk of being killed by something, as opposed\nto being killed by the something itself? And if this question is so\nconceptually vexed, then what is the point of putting it to a jury?\n\nNote on \xe2\x80\x9cSubstantial Factor\xe2\x80\x9d\nIn seeking a way to resolve the thorny loss-of-a-chance causation\nquestions presented in this case, the Beswick court follows the lead of\nPennsylvania state courts in looking to the \xe2\x80\x9csubstantial factor\xe2\x80\x9d\n\n269\n\n\x0crequirement of the Restatement Second of Torts. The court quotes\nfrom Comment (a) of \xc2\xa7 433B, \xe2\x80\x9c[T]he plaintiff is required to produce\nevidence that the conduct of the defendant has been a substantial\nfactor in bringing about the harm he has suffered.\xe2\x80\x9d\nIt is not clear, however, that engaging in a \xe2\x80\x9csubstantial factor\xe2\x80\x9d inquiry\ndoes much to help. In fact, it is hard even to know what the\n\xe2\x80\x9csubstantial factor test\xe2\x80\x9d is supposed to be. A team of torts scholars\nhas noted that the substantial factor test is surrounded by ambiguity\nand uncertainty. They write, \xe2\x80\x9c[T]he test gives no clear guidance to the\nfactfinder about how one should approach the causal problem. It also\npermits courts to engage in fuzzy-headed thinking about what sort of\ncausal requirement should be imposed on plaintiffs, especially in\ncases that present complications in the availability of causal\nevidence.\xe2\x80\x9d Joseph Sanders, William C. Powers, Jr., Michael D. Green,\nThe Insubstantiality of the \xe2\x80\x9cSubstantial Factor\xe2\x80\x9d Test for Causation, 73 MO. L.\nREV. 399, 430 (2008).\n\nMultiplicity Issues\nIn any given case, trying to untangle the facts to determine but-for\ncausation can be difficult. Conceptually, however, the but-for test\nitself is simple. And, as we discussed earlier, the but-for test is most\nof actual causation doctrine. When we do have to venture beyond the\nbut-for test, actual causation doctrine gets considerably more\ncomplex.\nThe situations in which actual causation doctrine moves beyond the\nbut-for test all have to do with concurrent negligent conduct by\nmultiple actors \xe2\x80\x93 what we are calling in this book \xe2\x80\x9cmultiplicity\xe2\x80\x9d\nissues. As you will see, once multiple negligent actors enter the mix, it\nis possible to create scenarios where the strict application of the butfor test will allow some or all of them to escape liability, even in\nsituations where that seems at odds with our intuitions of fairness.\nThe multiplicity exceptions to the but-for test all apply when the butfor test is not satisfied \xe2\x80\x93 that is, when a defendant\xe2\x80\x99s negligent action\ncannot be shown by a preponderance of the evidence to be a but-for\ncause of the plaintiff\xe2\x80\x99s injury. In other words, the exceptions to the\nbut-for test are for holding defendants liable even when the conduct\n\n270\n\n\x0cof those defendants was not a but-for cause of the plaintiff\xe2\x80\x99s injury.\nStated still another way, the multiplicity exceptions to the but-for test\nhelp plaintiffs, not defendants. (To be entirely candid, this is not\nuniversally true. Some highly complex cases involving things like\nenvironmental damage have employed but-for exceptions against\nplaintiffs, but those cases are rare, involve exotic facts, tend to be\nidiosyncratic, and are arguably erroneously decided. We won\xe2\x80\x99t be\ncovering them here.)\nAlso, keep in mind that just because there are multiple actors in a\ncase, it does not follow that we need to look at exceptions to the butfor doctrine. In the vast majority of situations in the real world that\ninvolve multiple negligent defendants, the but-for test will indicate\nthat each one of them is an actual cause of the plaintiff\xe2\x80\x99s injury.\nMultiple Necessary Causes\nIn situations where there are multiple necessary causes \xe2\x80\x93 more than\none action that had to occur in order for the plaintiff to be injured \xe2\x80\x93\nthen there is no need to look for an exception to but-for causation,\nbecause all such action satisfy the but-for test.\nLet\xe2\x80\x99s go back to the basic rule: If a plaintiff would not have suffered\nthe complained-of injury but for the negligent conduct of the\ndefendant, then actual causation is satisfied. Stated in this positive\nform, the but-for rule has no exceptions. That is, it is true with no\ncaveats that if a defendant is a but-for cause of the plaintiff\xe2\x80\x99s injury,\nthen actual causation is satisfied.\nEverything else in actual causation law is directed at expanding the\nrange of defendants who will be deemed an actual cause of the\nplaintiff\xe2\x80\x99s injuries. That is, in rare circumstances, the law sometimes\nwill allow the actual causation requirement to be satisfied against a\ndefendant who cannot, because of strict logic or a lack of proof, be\nfound to be a but-for cause of the plaintiff\xe2\x80\x99s injury. Those situations\nare exemplified in the cases found further below in this chapter:\nKingston v. Chicago & Northwestern Railway, Summers v. Tice, and Sindell v.\nAbbott Labs.\n\n271\n\n\x0cBut first, let\xe2\x80\x99s cement our understanding of how the but-for test\nworks with multiple parties. Any and all defendants whose conduct is\na but-for cause of the sued-upon injury has the actual-causation\nelement satisfied against them. No such defendant can point to any\nother defendant and say, \xe2\x80\x9cThat defendant is really to blame, so I\nshould not be held liable.\xe2\x80\x9d (You might want to re-review the Leadfoot\nto Liver Lobe example above.)\nWhen we study damages later on, we will find out that it may be\npossible for one of multiple defendants to escape responsibility for a\nportion of the damages. Whether this is possible depends on the\njurisdiction and the circumstances. Sometimes, one of many\nresponsible defendants can, at plaintiff\xe2\x80\x99s election, be made to pay all\nthe damages (joint and several liability), other times less culpable\ndefendants can shrug off a part of the financial hit (such as through\napportionment, indemnity, or contribution). But none of this changes\nthe analysis with regard to the actual-causation element: But-for\ncausation satisfies the element actual causation.\nThe situation where there is more than one but-for cause is\nsometimes called multiple necessary causes. We can state a rule for\nthis situation as follows: Where multiple causes are necessary to\nproduce the harm, then each such cause is an actual cause.\nNow, you can regard this as a rule. It\xe2\x80\x99s reliably accurate. But, in\nreality, calling it a \xe2\x80\x9crule\xe2\x80\x9d is unnecessary. The only good that comes of\nstating this as a rule is to dispel an instinctual misapprehension that,\nin the ordinary case, there is only one true cause of a plaintiff\xe2\x80\x99s harm.\nAll you need to do is apply the but-for test: If the defendant is a butfor cause, then the actual-causation element is met. Other defendants\nare simply irrelevant to the actual causation question.\nCase: Jarvis v. J.I. Case Co.\nThe following case illustrates how any defendant who is a but-for\ncause is helpless to escape the actual causation element. Note that the\ncourt \xe2\x80\x93 continuing our cavalcade of motley terminology \xe2\x80\x93 uses the\nterms \xe2\x80\x9clegal cause\xe2\x80\x9d and \xe2\x80\x9ccause in fact\xe2\x80\x9d to refer to actual causation.\n\n272\n\n\x0cJarvis v. J.I. Case Co.\nCourt of Appeal of Louisiana, First Circuit\nOctober 11, 1989\n551 So.2d 61. Harry Jarvis & Dorothy Jarvis v. J.I. Case Co.,\nTeledyne Wisconsin Motor, Louisiana Municipal Risk\nManagement Agency, Certainteed Corp., Koppers, Inc., and\nWilliam D. Cook d/b/a Billy\xe2\x80\x99s Equipment Repair, a/k/a B&L\nGroup, Inc. Nos. 88 CA 0700, 88 CA 1579 and 88 CA 1288.\nBefore WATKINS, CRAIN and ALFORD, JJ.\nJudge J. LOUIS WATKINS, JR.:\nFrom a series of summary judgments dismissing all defendants,\nplaintiffs Harry and Dorothy Jarvis have appealed.\nIn their petition plaintiffs claimed damages for severe personal\ninjury, alleging negligence and strict products liability on the part\nof the following defendants: Certainteed Corporation~, Koppers\nCompany, Inc.~, J.I. Case Corporation (Case), Teledyne\nWisconsin Motor~, and B&L Group, Inc.~\nMr. Jarvis was an experienced foreman of a repair crew for the\nCity of Baker. On December 10, 1984, his crew was sent out to\nrepair a natural gas leak. Mr. Jarvis was operating a backhoe\npowered by a gasoline powered internal combustion engine.\nBefore the gas to the leaking line was cut off by the supervisor\nand a co-worker, Mr. Jarvis positioned the backhoe over the\narea of the gas leak. Plaintiffs allege that the backhoe backfired,\ncausing the gas to ignite and explode. Mr. Jarvis was rescued\nfrom the fire, but he received severe burns to much of his body.\nSeveral weeks prior to the accident city employees performed\nsome maintenance work on the particular gas vein, which was\nconstructed of PVC pipe designed, manufactured, and sold by\ndefendant Certainteed. The workers used a solvent, Bitumastic\nNo. 50, which was designed, manufactured, and distributed by\ndefendant Koppers. The solvent was used at a coupling to\nfacilitate that procedure, but in the process some of the solvent\ncame into contact with the PVC pipe. The solvent allegedly\ncaused the pipe to soften and eventually rupture.\n\n273\n\n\x0cPlaintiffs\xe2\x80\x99 cause of action against the remaining defendants\nfocuses on the backhoe. At some undisclosed time prior to the\naccident, the backhoe, designed and manufactured by defendant\nCase, was taken to defendant B&L for an engine replacement.\nDefendant Teledyne designed and manufactured the engine\nwhich the repairman installed.\nThus, plaintiffs claim the use of four instrumentalities \xe2\x80\x93 the\npipe, the solvent, the backhoe, and the engine \xe2\x80\x93 combined to\ncause the explosion and the resulting personal injury. The\ndefenses available to the four manufacturers are identical. ~[A]ll\ndefendants claim that they cannot be liable because Mr. Jarvis\nwas the sole cause of his own injury when he knowingly placed\nthe backhoe in contact with the leaking gas. The fallacy of\ndefendants\xe2\x80\x99 argument is their failure to acknowledge the concept\nthat there can be several causes in fact which combine, result in\ninjury, and become legal cause.\nPlaintiffs contend that the trial court erred in granting the\nmotions because the defendants are not entitled to judgment as\na matter of law. We agree. In oral reasons for judgment the trial\njudge appeared to focus on the nature of an internal combustion\nengine: that the substitution of a natural gas mixture in lieu of an\noxygen mixture into the carburator will result in a \xe2\x80\x9cvery\nspectacular combustion.\xe2\x80\x9d However, the laws of physics do not\nresolve the question of legal cause. Although the trial judge\nstated he was basing his decision to grant the summary\njudgments on a duty-risk analysis of the facts, our own analysis\nleads to a different result.\n[I]n this case there is an obvious ease of association between\ninjury by explosion and the duty of manufacturers and\nrepairmen to provide pipe, solvent, a backhoe and an engine\nthat are not unreasonably dangerous, whether the danger arises\nfrom poor design, failure to warn, or from traditional\nnegligence.\nFurthermore, causation is clearly a question for the trier of fact.\nAny causal connection between the harm and a defendant\nmover\'s act, however slight when compared with other causes in\nfact, presents a jury question.~\n\n274\n\n\x0cAccordingly, we reverse the judgments of the trial court and\nremand the case for further proceedings. Costs of appeal are to\nbe borne by the five appellees-defendants.\nREVERSED AND REMANDED.\n\nMultiple Sufficient Causes\nHere we come to the first kind of case in which actual causation can\nbe established against a defendant despite the fact that the plaintiff\nwould have suffered the injury even if the defendant had not acted\nnegligently \xe2\x80\x93 that is, even where the defendant is not a but-for cause.\nThe occasion is where there are multiple sufficient causes, that is\nwhere there was more than one negligent act \xe2\x80\x93 i.e., breach of the duty\nof care \xe2\x80\x93 that would have caused the harm.\nThe doctrine is best explained with an example that drove the\ndoctrine\xe2\x80\x99s development: twin fires. In fact, multiple-sufficient-cause\ndoctrine might well be called the \xe2\x80\x9ctwin-fires doctrine,\xe2\x80\x9d since it is so\nclosely associated with this particular circumstance: Defendant A\nnegligently sets a fire that spreads through the countryside. Not far\naway, Defendant B negligently sets a fire that spreads through the\ncountryside. Soon, the A fire and the B fire merge. The merged fire\nproceeds along a path that leads to the plaintiff\xe2\x80\x99s property, burning it\ndown. Neither defendant represents a but-for cause of plaintiff\xe2\x80\x99s\ninjuries. Why not? Ask the but-for question. Would the plaintiff have\nbeen uninjured but for the actions of A? No \xe2\x80\x93 the plaintiff would\nhave been injured anyway, since the fire set by B was sufficient to\ncause a conflagration to move across the countryside to plaintiff\xe2\x80\x99s\nproperty. That is, if A had been careful and not set any fire, the\nplaintiff\xe2\x80\x99s house still would have burned down. So A is not a but-for\ncause of the plaintiff\xe2\x80\x99s injuries. The exact same can be said of B. If B\nhad been non-negligent and never set the fire, the plaintiff\xe2\x80\x99s property\nstill would have burned, since A\xe2\x80\x99s ignition of the countryside was\nsufficient to burn the path to the plaintiff.\nIf but-for causation were the only way to establish the element of\nactual causation against a defendant, then in a twin-fires case, the\nplaintiff would lose. Courts found this result unpalatable: The only\nreason the plaintiff winds up empty handed is that there was more\n\n275\n\n\x0ccarelessness. So the courts fashioned doctrine that allows actual\ncausation to be satisfied even where the but-for test is not. We can\nstate a rule for these situations like this: Where each of multiple\ndiscrete events, not committed by the same actor, would have\nbeen sufficient each in itself to cause the harm, then each act is\ndeemed an actual cause, despite not being a but-for cause.\nOur twin-fire example had two negligent actors, each contributing a\nsufficient cause. But in its purest form, the doctrine does not require\nmultiple negligent actors. One cause could have been set in motion\nnonnegligently \xe2\x80\x93 for instance, by someone who caused the fire\ndespite exercising all due care, or even by natural causes. Not all\ncourts would go so far \xe2\x80\x93 as the Kingston case indicates, below.\nNonetheless, the application of the doctrine focuses on whomever\nthe plaintiff has sued. If that defendant\xe2\x80\x99s actions were sufficient to\ncause the plaintiff\xe2\x80\x99s injury, then actual causation can be deemed\nsatisfied despite the fact that the defendant\xe2\x80\x99s actions are not a but-for\ncause.\nCase: Kingston v. Chicago & Northwestern Railway\nThe following is a classic twin-fires case that illustrates the doctrine.\n\nKingston v. Chicago & Northwestern Railway\nSupreme Court of Wisconsin\nJanuary 11, 1927\n191 Wis. 610, KINGSTON, Respondent, v. CHICAGO &\nNORTHWESTERN RAILWAY COMPANY, Appellant.\nThe FACTS in the OFFICIAL REPORTER:\nAction to recover damages caused by a fire. One main line of\ndefendant\xe2\x80\x99s railroad extends in a general north-and-south\ndirection from Gillett, Wisconsin, to Saunders, Michigan,\nthrough Bonita. A branch line extends westerly from Bonita to\nOconto Company\xe2\x80\x99s logging road. The branch runs generally in\nan east-and-west direction and is about ten miles in length.\nLaFortune\xe2\x80\x99s spur is on the branch about two miles west of\nBonita. The spur consists of a sidetrack on the south side of and\nparallel with the branch track. Plaintiff\xe2\x80\x99s property was located on\n\n276\n\n\x0ca landing, known as Kingston\xe2\x80\x99s landing, and as the cedar yard,\nadjacent to and south of the spur track.\nOn April 29, 1925, a forest fire was burning about one half to\none mile northwesterly, nearly west, of this landing. On the\nsame date another fire was burning about four miles northeast\nof the landing. On April 30th these two fires united in a region\nabout 940 feet north of the railroad track. The line of fire thus\nformed after the union was about forty or fifty rods east and\nwest. It then traveled south and burned plaintiff\xe2\x80\x99s property,\nconsisting of logs, timber, and poles on this landing or in the\ncedar yard. The plaintiff claims that both fires which united\nwere set by the railroad company, one by a locomotive on its\nmain line running north of Bonita, the other by a locomotive on\nthe branch about three miles west of Bonita and about a mile in\na westerly direction from the spur.\nThe jury found that both fires were set by locomotives\nbelonging to the defendant company and that both fires\nconstituted a proximate cause of the damage.~\nJudgment was rendered for the plaintiff for the amount of the\ndamages as found by the jury, and the defendant brings this\nappeal.\nJustice WALTER C. OWEN:\nThe jury found that both fires were set by sparks emitted from\nlocomotives on and over defendant\xe2\x80\x99s right of way. Appellant\ncontends that there is no evidence to support the finding that\neither fire was so set. We have carefully examined the record\nand have come to the conclusion that the evidence does support\nthe finding that the northeast fire was set by sparks emitted\nfrom a locomotive then being run on and over the right of way\nof defendant\xe2\x80\x99s main line. We conclude, however, that the\nevidence does not support the finding that the northwest fire\nwas set by sparks emitted from defendant\xe2\x80\x99s locomotives or that\nthe defendant had any connection with its origin. A review of\nthe evidence to justify these conclusions would seem to serve no\ngood purpose, and we content ourselves by a simple statement\nof the conclusions thus reached.\n\n277\n\n\x0cWe therefore have this situation: The northeast fire was set by\nsparks emitted from defendant\xe2\x80\x99s locomotive. This fire,\naccording to the finding of the jury, constituted a proximate\ncause of the destruction of plaintiff\xe2\x80\x99s property. This finding we\nfind to be well supported by the evidence. We have the\nnorthwest fire, of unknown origin. This fire, according to the\nfinding of the jury, also constituted a proximate cause of the\ndestruction of the plaintiff\xe2\x80\x99s property. This finding we also find\nto be well supported by the evidence. We have a union of these\ntwo fires 940 feet north of plaintiff\xe2\x80\x99s property, from which point\nthe united fire bore down upon and destroyed the property. We\ntherefore have two separate, independent, and distinct agencies,\neach of which constituted the proximate cause of plaintiff\xe2\x80\x99s\ndamage, and either of which, in the absence of the other, would\nhave accomplished such result.\nIt is settled in the law of negligence that any one of two or more\njoint tortfeasors, or one of two or more wrongdoers whose\nconcurring acts of negligence result in injury, are each\nindividually responsible for the entire damage resulting from\ntheir joint or concurrent acts of negligence. This rule also\nobtains \xe2\x80\x9cwhere two causes, each attributable to the negligence\nof a responsible person, concur in producing an injury to\nanother, either of which causes would produce it regardless of\nthe other, \xe2\x80\xa6 because, whether the concurrence be intentional,\nactual, or constructive, each wrongdoer, in effect, adopts the\nconduct of his co-actor, and for the further reason that it is\nimpossible to apportion the damage or to say that either\nperpetrated any distinct injury that can be separated from the\nwhole. The whole loss must necessarily be considered and\ntreated as an entirety.\xe2\x80\x9d\nFrom our present consideration of the subject we are not\ndisposed to criticise the doctrine which exempts from liability a\nwrongdoer who sets a fire which unites with a fire originating\nfrom natural causes, such as lightning, not attributable to any\nhuman agency, resulting in damage. It is also conceivable that a\nfire so set might unite with a fire of so much greater\nproportions, such as a raging forest fire, as to be enveloped or\nswallowed up by the greater holocaust, and its identity\n\n278\n\n\x0cdestroyed, so that the greater fire could be said to be an\nintervening or superseding cause. But we have no such situation\nhere. These fires were of comparatively equal rank. If there was\nany difference in their magnitude or threatening aspect, the\nrecord indicates that the northeast fire was the larger fire and\nwas really regarded as the menacing agency. At any rate there is\nno intimation or suggestion that the northeast fire was\nenveloped and swallowed up by the northwest fire. We will err\non the side of the defendant if we regard the two fires as of\nequal rank.~\nNow the question is whether the railroad company, which is\nfound to have been responsible for the origin of the northeast\nfire, escapes liability because the origin of the northwest fire is\nnot identified, although there is no reason to believe that it had\nany other than human origin. An affirmative answer to that\nquestion would certainly make a wrongdoer a favorite of the law\nat the expense of an innocent sufferer. The injustice of such a\ndoctrine sufficiently impeaches the logic upon which it is\nfounded. Where one who has suffered damage by fire proves\nthe origin of a fire and the course of that fire up to the point of\nthe destruction of his property, one has certainly established\nliability on the part of the originator of the fire. Granting that\nthe union of that fire with another of natural origin, or with\nanother of much greater proportions, is available as a defense,\nthe burden is on the defendant to show that by reason of such\nunion with a fire of such character the fire set by him was not\nthe proximate cause of the damage. No principle of justice\nrequires that the plaintiff be placed under the burden of\nspecifically identifying the origin of both fires in order to\nrecover the damages for which either or both fires are\nresponsible.~\nBy the Court. \xe2\x80\x93 Judgment affirmed.\n\nTwin-Fires Cases and the \xe2\x80\x9cSubstantial Factor Test\xe2\x80\x9d in\nthe Multiplicity Context\nThe \xe2\x80\x9csubstantial factor\xe2\x80\x9d inquiry \xe2\x80\x93 which we discussed in relation to\nthe Beswick case \xe2\x80\x93 often comes up when courts confront situations \xe2\x80\x93\nlike that in Kingston v. Chicago & Northwestern Railway \xe2\x80\x93 where there are\n\n279\n\n\x0cmultiple sufficient causes for a single injury. The idea is that if there\nare multiple sufficient causes, then to count as an actual cause, the\nconduct need not be a but-for cause, but must at least be a\n\xe2\x80\x9csubstantial factor\xe2\x80\x9d in causing the plaintiff\xe2\x80\x99s injury.\nAlthough courts frequently refer to this as a \xe2\x80\x9ctest,\xe2\x80\x9d it does not tend\nto function like one. Professor David A. Fischer has written, \xe2\x80\x9cThe\ntest offers no real guidance for determining when a factor is\nsubstantial or even a \xe2\x80\x98factor.\xe2\x80\x99 Courts and juries must rely on intuition\nto decide the issue.\xe2\x80\x9d See Fischer, Insufficient Causes, 94 KY. L.J. 277,\n280-81 (2005).\nAt any rate, courts have now gone on to use the \xe2\x80\x9csubstantial factor\xe2\x80\x9d\ninquiry far beyond situations involving multiple sufficient causes.\nFisher notes, \xe2\x80\x9cOver the years, courts used the substantial factor test\nto do an increasing variety of things it was never intended to do and\nfor which it is not appropriate. As a result, the test now creates\nunnecessary confusion in the law and has outlived its usefulness.\xe2\x80\x9d Id.\nat 277 (footnote omitted).\nAbout the best that can be said about the \xe2\x80\x9csubstantial factor\xe2\x80\x9d\nrequirement is that it seems to function as a placeholder for a given\ncourt\xe2\x80\x99s intuitive sense of fairness \xe2\x80\x93 one that, while defying crisp\nlogical specification, provides a path to a more comfortable result.\nThe Summers v. Tice Doctrine\nAnother situation in which the courts will permit actual causation to\nbe satisfied despite the failure of the but-for test is the situation in\nSummers v. Tice: Multiple actors do something negligent, and while\nonly one of them logically could be responsible for the plaintiff\xe2\x80\x99s\ninjury, because of the circumstances, it is impossible to tell which one\nis. In such a case, the Summers v. Tice doctrine allows the plaintiff a\npresumption that each of the multiple actors is an actual cause; thus\nthe burden of proof is shifted, leaving it to the defendants to\ndisprove causation \xe2\x80\x93 if they can \xe2\x80\x93 on an individual basis.\nThis doctrine has been called \xe2\x80\x9cdouble fault and alternative liability\xe2\x80\x9d\nby treatise writers Prosser & Keeton, and \xe2\x80\x9calternative causes and the\nshifted burden of proof\xe2\x80\x9d by the Dan B. Dobbs treatise. But in this\n\n280\n\n\x0ccasebook, we will simply call it \xe2\x80\x9cSummers v. Tice doctrine,\xe2\x80\x9d which is\nprobably the most common shorthand, referring as it does to the\nbizarre case that gave the doctrine its birth.\nCase: Summers v. Tice\nThe seminal case on Summers v. Tice doctrine is also its most vivid\nexemplar.\n\nSummers v. Tice\nSupreme Court of California\nNovember 17, 1948\n33 Cal. 2d 80. CHARLES A. SUMMERS, Respondent, v.\nHAROLD W. TICE et al., Appellants. L. A. Nos. 20650, 20651.\nIn Bank. Carter, J. Gibson, C. J., Shenk, J., Edmonds, J.,\nTraynor, J., Schauer, J., and Spence, J., concurred.\nJustice JESSE W. CARTER:\nEach of the two defendants appeals from a judgment against\nthem in an action for personal injuries. Pursuant to stipulation\nthe appeals have been consolidated.\nPlaintiff\xe2\x80\x99s action was against both defendants for an injury to his\nright eye and face as the result of being struck by bird shot\ndischarged from a shotgun. The case was tried by the court\nwithout a jury and the court found that on November 20, 1945,\nplaintiff and the two defendants were hunting quail on the open\nrange. Each of the defendants was armed with a 12 gauge\nshotgun loaded with shells containing 7 1/2 size shot. Prior to\ngoing hunting plaintiff discussed the hunting procedure with\ndefendants, indicating that they were to exercise care when\nshooting and to \xe2\x80\x9ckeep in line.\xe2\x80\x9d In the course of hunting plaintiff\nproceeded up a hill, thus placing the hunters at the points of a\ntriangle. The view of defendants with reference to plaintiff was\nunobstructed and they knew his location. Defendant Tice\nflushed a quail which rose in flight to a 10-foot elevation and\nflew between plaintiff and defendants. Both defendants shot at\nthe quail, shooting in plaintiff\xe2\x80\x99s direction. At that time\ndefendants were 75 yards from plaintiff. One shot struck\nplaintiff in his eye and another in his upper lip. Finally it was\n\n281\n\n\x0cfound by the court that as the direct result of the shooting by\ndefendants the shots struck plaintiff as above mentioned and\nthat defendants were negligent in so shooting and plaintiff was\nnot contributorily negligent.\nFirst, on the subject of negligence, defendant Simonson\ncontends that the evidence is insufficient to sustain the finding\non that score, but he does not point out wherein it is lacking.\nThere is evidence that both defendants, at about the same time\nor one immediately after the other, shot at a quail and in so\ndoing shot toward plaintiff who was uphill from them, and that\nthey knew his location. That is sufficient from which the trial\ncourt could conclude that they acted with respect to plaintiff\nother than as persons of ordinary prudence. The issue was one\nof fact for the trial court.~\nThe problem presented in this case is whether the judgment\nagainst both defendants may stand. It is argued by defendants\nthat they are not joint tort feasors, and thus jointly and severally\nliable, as they were not acting in concert, and that there is not\nsufficient evidence to show which defendant was guilty of the\nnegligence which caused the injuries \xe2\x80\x93 the shooting by Tice or\nthat by Simonson. Tice argues that there is evidence to show\nthat the shot which struck plaintiff came from Simonson\xe2\x80\x99s gun\nbecause of admissions allegedly made by him to third persons\nand no evidence that they came from his gun. Further in\nconnection with the latter contention, the court failed to find on\nplaintiff\xe2\x80\x99s allegation in his complaint that he did not know which\none was at fault \xe2\x80\x93 did not find which defendant was guilty of the\nnegligence which caused the injuries to plaintiff.\nConsidering the last argument first, we believe it is clear that the\ncourt sufficiently found on the issue that defendants were jointly\nliable and that thus the negligence of both was the cause of the\ninjury or to that legal effect. It found that both defendants were\nnegligent and \xe2\x80\x9cThat as a direct and proximate result of the shots\nfired by defendants, and each of them, a birdshot pellet was caused to\nand did lodge in plaintiff\xe2\x80\x99s right eye and that another birdshot\npellet was caused to and did lodge in plaintiff\xe2\x80\x99s upper lip.\xe2\x80\x9d In so\ndoing the court evidently did not give credence to the\n\n282\n\n\x0cadmissions of Simonson to third persons that he fired the shots,\nwhich it was justified in doing. It thus determined that the\nnegligence of both defendants was the legal cause of the injury \xe2\x80\x93\nor that both were responsible. Implicit in such finding is the\nassumption that the court was unable to ascertain whether the\nshots were from the gun of one defendant or the other or one\nshot from each of them. The one shot that entered plaintiff\xe2\x80\x99s\neye was the major factor in assessing damages and that shot\ncould not have come from the gun of both defendants. It was\nfrom one or the other only.~\nWhen we consider the relative position of the parties and the\nresults that would flow if plaintiff was required to pin the injury\non one of the defendants only, a requirement that the burden of\nproof on that subject be shifted to defendants becomes\nmanifest. They are both wrongdoers \xe2\x80\x93 both negligent toward\nplaintiff. They brought about a situation where the negligence of\none of them injured the plaintiff, hence it should rest with them\neach to absolve himself if he can. The injured party has been\nplaced by defendants in the unfair position of pointing to which\ndefendant caused the harm. If one can escape the other may also\nand plaintiff is remediless. Ordinarily defendants are in a far\nbetter position to offer evidence to determine which one caused\nthe injury.~\nIn addition to that, however, it should be pointed out that the\nsame reasons of policy and justice shift the burden to each of\ndefendants to absolve himself if he can \xe2\x80\x93 relieving the wronged\nperson of the duty of apportioning the injury to a particular\ndefendant, apply here where we are concerned with whether\nplaintiff is required to supply evidence for the apportionment of\ndamages. If defendants are independent tort feasors and thus\neach liable for the damage caused by him alone, and, at least,\nwhere the matter of apportionment is incapable of proof, the\ninnocent wronged party should not be deprived of his right to\nredress. The wrongdoers should be left to work out between\nthemselves any apportionment.~\nThe judgment is affirmed.\n\n283\n\n\x0cCheck-Your-Understanding Questions About Summers\nA. Could Summers have proved by a preponderance of the evidence\nthat he would not have suffered his injury but for the negligent action\nof Tice?\nB. Could Summers have proved by a preponderance of the evidence\nthat he would not have suffered his injury but for the negligent action\nof Simonson?\nC. Suppose, instead of things happening the way they did, Summers\xe2\x80\x99s\neye was injured in the following manner: Tice shouts at Simonson\nthat there is a quail in the direction Tice is pointing. This is despite\nthe fact that Summers is fully visible in this direction. Simonson takes\nthe shot, even though, had Simonson simply looked, he would have\nnoticed Summers standing in the open in the line of fire. Under these\ntweaked facts, is the doctrine announced in Summers v. Tice now\nnecessary for Summers to show actual causation against Tice and\nSimonson for the eye injury? Or do the actions of both Simonson\nand Tice individually satisfy the but-for test?\nMarket-Share Liability\nThe final situation we will cover in which a court will allow actual\ncausation to be established notwithstanding a lack of but-for\ncausation is that of market-share liability. This doctrine is applicable\nin situations that are similar to Summers v. Tice, where it is unknown\nwho among multiple negligent actors caused the harm. But marketshare liability can be used in situations where courts have been\nreluctant to extend Summers, in particular, where there is a large\nnumber of defendants and where those defendants are not\nquantitatively equal participants in the conduct that is alleged to have\nharmed the plaintiff.\nJust as the multiple-sufficient-cause doctrine is closely associated with\nthe twin-fires situation and the Summers doctrine is associated with\nsimultaneously discharged shotguns, the market-share liability\ndoctrine is closely associated with a particular set of facts: cancer\ncaused by diethylstilbesterol \xe2\x80\x93 called \xe2\x80\x9cDES\xe2\x80\x9d \xe2\x80\x93 a drug given to\npregnant women primarily in the 1940s, 50s, and 60s. It turns out\n\n284\n\n\x0cthat an expectant mother\xe2\x80\x99s ingestion of DES can cause changes in a\nfemale fetus that eventually manifest as adenosis and cancer when the\nfemale child reaches at least the age of 10 or 12 years. Sometimes\nthese problems do not manifest until adulthood. Many different drug\ncompanies manufactured DES, and because of the passage of time\nand the erosion of memory and destruction of records, it became\nimpossible to determine who among them manufactured the\nparticular tablets taken by any given plaintiff\xe2\x80\x99s mother.\nAs with Summers, in the DES cases multiple parties engaged in\nnegligent or otherwise culpable conduct, and as with Summers, it was\nimpossible for the injured plaintiff to show but-for causation against\nany single defendant. But the DES situation was unlike Summers in\nthat some drug companies manufactured a large portion of the DES\nsold, while others manufactured only a very small sliver. There was\nalso a very large number of manufacturers \xe2\x80\x93 upwards of 200. By\ncontrast, in Summers, there were only two defendants, each of whom\ndischarged similar shotgun shells at the same time with equal\nlikelihood of injuring the plaintiff. Holding any one DES defendant\nresponsible for all of plaintiff\xe2\x80\x99s damages \xe2\x80\x93 as Summers v. Tice would\nhave allowed \xe2\x80\x93 seemed unfair to courts. But so did not providing\nplaintiffs any path to recovery. The solution was market-share\nliability, in which each defendant could be made liable for a portion\nof the plaintiff\xe2\x80\x99s damages corresponding to the defendant\xe2\x80\x99s share of\nthe DES market.\nCase: Sindell v. Abbott Labs\nThe following is the seminal case on market-share liability. It also\ndemonstrates the potential influence of a student law-review note.\n\nSindell v. Abbott Labs\nSupreme Court of California\nMarch 20, 1980\n26 Cal. 3d 588. JUDITH SINDELL, Plaintiff and Appellant, v.\nABBOTT LABORATORIES et al., Defendants and\nRespondents. MAUREEN ROGERS, Plaintiff and Appellant, v.\nREXALL DRUG COMPANY et al., Defendants and\nRespondents. Defendant-appellees: Abbott Laboratories, Eli\n\n285\n\n\x0cLilly and Company, E.R. Squibb and Sons, the Upjohn\nCompany, and Rexall Drug Company. Opinion by Mosk, J.,\nwith Bird, C.J., Newman, J., and White, J., concurring. Separate\ndissenting opinion by Richardson, J., with Clark and Manuel, JJ.,\nconcurring. White, J., assigned by the Chairperson of the Judicial\nCouncil.\nJustice STANLEY MOSK:\nThis case involves a complex problem both timely and\nsignificant: may a plaintiff, injured as the result of a drug\nadministered to her mother during pregnancy, who knows the\ntype of drug involved but cannot identify the manufacturer of\nthe precise product, hold liable for her injuries a maker of a drug\nproduced from an identical formula?\nPlaintiff Judith Sindell brought an action against eleven drug\ncompanies and Does 1 through 100, on behalf of herself and\nother women similarly situated. The complaint alleges as\nfollows:\nBetween 1941 and 1971, defendants were engaged in the\nbusiness of manufacturing, promoting, and marketing\ndiethylstilbesterol (DES), a drug which is a synthetic compound\nof the female hormone estrogen. The drug was administered to\nplaintiff\xe2\x80\x99s mother and the mothers of the class she represents,\nfor the purpose of preventing miscarriage. The plaintiff class\nalleged consists of \xe2\x80\x9cgirls and women who are residents of\nCalifornia and who have been exposed to DES before birth and\nwho may or may not know that fact or the dangers\xe2\x80\x9d to which\nthey were exposed. Defendants are also sued as representatives\nof a class of drug manufacturers which sold DES after 1941.\nIn 1947, the Food and Drug Administration authorized the\nmarketing of DES as a miscarriage preventative, but only on an\nexperimental basis, with a requirement that the drug contain a\nwarning label to that effect.\nDES may cause cancerous vaginal and cervical growths in the\ndaughters exposed to it before birth, because their mothers took\nthe drug during pregnancy. The form of cancer from which\nthese daughters suffer is known as adenocarcinoma, and it\n\n286\n\n\x0cmanifests itself after a minimum latent period of 10 or 12 years.\nIt is a fast-spreading and deadly disease, and radical surgery is\nrequired to prevent it from spreading. DES also causes adenosis,\nprecancerous vaginal and cervical growths which may spread to\nother areas of the body. The treatment for adenosis is\ncauterization, surgery, or cryosurgery. Women who suffer from\nthis condition must be monitored by biopsy or colposcopic\nexamination twice a year, a painful and expensive procedure.\nThousands of women whose mothers received DES during\npregnancy are unaware of the effects of the drug.\nIn 1971, the Food and Drug Administration ordered defendants\nto cease marketing and promoting DES for the purpose of\npreventing miscarriages, and to warn physicians and the public\nthat the drug should not be used by pregnant women because of\nthe danger to their unborn children.\nDuring the period defendants marketed DES, they knew or\nshould have known that it was a carcinogenic substance, that\nthere was a grave danger after varying periods of latency it\nwould cause cancerous and precancerous growths in the\ndaughters of the mothers who took it, and that it was ineffective\nto prevent miscarriage. Nevertheless, defendants continued to\nadvertise and market the drug as a miscarriage preventative.\nThey failed to test DES for efficacy and safety; the tests\nperformed by others, upon which they relied, indicated that it\nwas not safe or effective. In violation of the authorization of the\nFood and Drug Administration, defendants marketed DES on\nan unlimited basis rather than as an experimental drug, and they\nfailed to warn of its potential danger. It is alleged also that\ndefendants failed to determine if there was any means to avoid\nor treat the effects of DES upon the daughters of women\nexposed to it during pregnancy, and failed to monitor the\ncarcinogenic effects of the drug.\nBecause of defendants\xe2\x80\x99 advertised assurances that DES was safe\nand effective to prevent miscarriage, plaintiff was exposed to the\ndrug prior to her birth. She became aware of the danger from\nsuch exposure within one year of the time she filed her\ncomplaint. As a result of the DES ingested by her mother,\n\n287\n\n\x0cplaintiff developed a malignant bladder tumor which was\nremoved by surgery. She suffers from adenosis and must\nconstantly be monitored by biopsy or colposcopy to insure early\nwarning of further malignancy.\nThe first cause of action alleges that defendants were jointly and\nindividually negligent in that they manufactured, marketed and\npromoted DES as a safe and efficacious drug to prevent\nmiscarriage, without adequate testing or warning, and without\nmonitoring or reporting its effects.\nA separate cause of action alleges that defendants are jointly\nliable regardless of which particular brand of DES was ingested\nby plaintiff\xe2\x80\x99s mother because defendants collaborated in\nmarketing, promoting and testing the drug, relied upon each\nother\xe2\x80\x99s tests, and adhered to an industry-wide safety standard.\nDES was produced from a common and mutually agreed upon\nformula as a fungible drug interchangeable with other brands of\nthe same product; defendants knew or should have known that\nit was customary for doctors to prescribe the drug by its generic\nrather than its brand name and that pharmacists filled\nprescriptions from whatever brand of the drug happened to be\nin stock.\nOther causes of action are based upon theories of strict liability,\nviolation of express and implied warranties, false and fraudulent\nrepresentations, misbranding of drugs in violation of federal law,\nconspiracy and \xe2\x80\x9clack of consent.\xe2\x80\x9d\nEach cause of action alleges that defendants are jointly liable\nbecause they acted in concert, on the basis of express and\nimplied agreements, and in reliance upon and ratification and\nexploitation of each other\xe2\x80\x99s testing and marketing methods.\nPlaintiff seeks compensatory damages of $1 million and punitive\ndamages of $10 million for herself. For the members of her\nclass, she prays for equitable relief in the form of an order that\ndefendants warn physicians and others of the danger of DES\nand the necessity of performing certain tests to determine the\npresence of disease caused by the drug, and that they establish\nfree clinics in California to perform such tests.\n\n288\n\n\x0cDefendants demurred to the complaint. While the complaint did\nnot expressly allege that plaintiff could not identify the\nmanufacturer of the precise drug ingested by her mother, she\nstated in her points and authorities in opposition to the\ndemurrers filed by some of the defendants that she was unable\nto make the identification, and the trial court sustained the\ndemurrers of these defendants without leave to amend on the\nground that plaintiff did not and stated she could not identify\nwhich defendant had manufactured the drug responsible for her\ninjuries. Thereupon, the court dismissed the action.~\nThis case is but one of a number filed throughout the country\nseeking to hold drug manufacturers liable for injuries allegedly\nresulting from DES prescribed to the plaintiffs\xe2\x80\x99 mothers since\n1947. According to a note in the Fordham Law Review,\nestimates of the number of women who took the drug during\npregnancy range from 1 1/2 million to 3 million. Hundreds,\nperhaps thousands, of the daughters of these women suffer\nfrom adenocarcinoma, and the incidence of vaginal adenosis\namong them is 30 to 90 percent. ([Naomi Sheiner] Comment,\nDES and a Proposed Theory of Enterprise Liability (1978) 46\nFORDHAM L. REV. 963, 964-967 [hereafter Fordham\nComment].) Most of the cases are still pending. With two\nexceptions, those that have been decided resulted in judgments\nin favor of the drug company defendants because of the failure\nof the plaintiffs to identify the manufacturer of the DES\nprescribed to their mothers. The same result was reached in a\nrecent California case. The present action is another attempt to\novercome this obstacle to recovery.\nWe begin with the proposition that, as a general rule, the\nimposition of liability depends upon a showing by the plaintiff\nthat his or her injuries were caused by the act of the defendant\nor by an instrumentality under the defendant\xe2\x80\x99s control. The rule\napplies whether the injury resulted from an accidental event or\nfrom the use of a defective product.\nThere are, however, exceptions to this rule. Plaintiff\xe2\x80\x99s complaint\nsuggests several bases upon which defendants may be held liable\nfor her injuries even though she cannot demonstrate the name\n\n289\n\n\x0cof the manufacturer which produced the DES actually taken by\nher mother. The first of these theories, classically illustrated by\nSummers v. Tice (1948) 33 Cal.2d 80, places the burden of proof\nof causation upon tortious defendants in certain circumstances.\nThe second basis of liability emerging from the complaint is that\ndefendants acted in concert to cause injury to plaintiff. There is\na third and novel approach to the problem, sometimes called the\ntheory of \xe2\x80\x9centerprise liability,\xe2\x80\x9d but which we prefer to designate\nby the more accurate term of \xe2\x80\x9cindustry-wide\xe2\x80\x9d liability, which\nmight obviate the necessity for identifying the manufacturer of\nthe injury-causing drug. We shall conclude that these doctrines,\nas previously interpreted, may not be applied to hold defendants\nliable under the allegations of this complaint. However, we shall\npropose and adopt a fourth basis for permitting the action to be\ntried, grounded upon an extension of the Summers doctrine.\nI\nPlaintiff places primary reliance upon cases which hold that if a\nparty cannot identify which of two or more defendants caused\nan injury, the burden of proof may shift to the defendants to\nshow that they were not responsible for the harm. This principle\nis sometimes referred to as the \xe2\x80\x9calternative liability\xe2\x80\x9d theory.\nThe celebrated case of Summers v. Tice, supra, 33 Cal.2d 80, a\nunanimous opinion of this court, best exemplifies the rule. In\nSummers, the plaintiff was injured when two hunters negligently\nshot in his direction. It could not be determined which of them\nhad fired the shot that actually caused the injury to the plaintiff\xe2\x80\x99s\neye, but both defendants were nevertheless held jointly and\nseverally liable for the whole of the damages. We reasoned that\nboth were wrongdoers, both were negligent toward the plaintiff,\nand that it would be unfair to require plaintiff to isolate the\ndefendant responsible, because if the one pointed out were to\nescape liability, the other might also, and the plaintiff-victim\nwould be shorn of any remedy. In these circumstances, we held,\nthe burden of proof shifted to the defendants, \xe2\x80\x9ceach to absolve\nhimself if he can.\xe2\x80\x9d We stated that under these or similar\ncircumstances a defendant is ordinarily in a \xe2\x80\x9cfar better position\xe2\x80\x9d\n\n290\n\n\x0cto offer evidence to determine whether he or another defendant\ncaused the injury.\nIn Summers, we relied upon Ybarra v. Spangard (1944) 25 Cal.2d\n486. There, the plaintiff was injured while he was unconscious\nduring the course of surgery. He sought damages against several\ndoctors and a nurse who attended him while he was\nunconscious. We held that it would be unreasonable to require\nhim to identify the particular defendant who had performed the\nalleged negligent act because he was unconscious at the time of\nthe injury and the defendants exercised control over the\ninstrumentalities which caused the harm. Therefore, under the\ndoctrine of res ipsa loquitur, an inference of negligence arose\nthat defendants were required to meet by explaining their\nconduct.\nThe rule developed in Summers has been embodied in the\nRestatement of Torts. (Rest.2d Torts, \xc2\xa7 433B, subd. (3).) Indeed,\nthe Summers facts are used as an illustration.\nDefendants assert that these principles are inapplicable here.\nFirst, they insist that a predicate to shifting the burden of proof\nunder Summers-Ybarra is that the defendants must have greater\naccess to information regarding the cause of the injuries than the\nplaintiff, whereas in the present case the reverse appears.\nPlaintiff does not claim that defendants are in a better position\nthan she to identify the manufacturer of the drug taken by her\nmother or, indeed, that they have the ability to do so at all, but\nargues, rather, that Summers does not impose such a requirement\nas a condition to the shifting of the burden of proof. In this\nrespect we believe plaintiff is correct.\nIn Summers, the circumstances of the accident themselves\nprecluded an explanation of its cause. To be sure, Summers states\nthat defendants are \xe2\x80\x9c[ordinarily] \xe2\x80\xa6 in a far better position to\noffer evidence to determine which one caused the injury\xe2\x80\x9d than a\nplaintiff, but the decision does not determine that this\n\xe2\x80\x9cordinary\xe2\x80\x9d situation was present. Neither the facts nor the\nlanguage of the opinion indicate that the two defendants,\nsimultaneously shooting in the same direction, were in a better\n\n291\n\n\x0cposition than the plaintiff to ascertain whose shot caused the\ninjury. As the opinion acknowledges, it was impossible for the\ntrial court to determine whether the shot which entered the\nplaintiff\xe2\x80\x99s eye came from the gun of one defendant or the other.\nNevertheless, burden of proof was shifted to the defendants.\nHere, as in Summers, the circumstances of the injury appear to\nrender identification of the manufacturer of the drug ingested by\nplaintiff\xe2\x80\x99s mother impossible by either plaintiff or defendants,\nand it cannot reasonably be said that one is in a better position\nthan the other to make the identification. Because many years\nelapsed between the time the drug was taken and the\nmanifestation of plaintiff\xe2\x80\x99s injuries she, and many other\ndaughters of mothers who took DES, are unable to make such\nidentification. Certainly there can be no implication that plaintiff\nis at fault in failing to do so \xe2\x80\x93 the event occurred while plaintiff\nwas in utero, a generation ago.\nOn the other hand, it cannot be said with assurance that\ndefendants have the means to make the identification. In this\nconnection, they point out that drug manufacturers ordinarily\nhave no direct contact with the patients who take a drug\nprescribed by their doctors. Defendants sell to wholesalers, who\nin turn supply the product to physicians and pharmacies.\nManufacturers do not maintain records of the persons who take\nthe drugs they produce, and the selection of the medication is\nmade by the physician rather than the manufacturer. Nor do we\nconclude that the absence of evidence on this subject is due to\nthe fault of defendants. While it is alleged that they produced a\ndefective product with delayed effects and without adequate\nwarnings, the difficulty or impossibility of identification results\nprimarily from the passage of time rather than from their\nallegedly negligent acts of failing to provide adequate warnings.~\nIt is important to observe, however, that while defendants do\nnot have means superior to plaintiff to identify the maker of the\nprecise drug taken by her mother, they may in some instances be\nable to prove that they did not manufacture the injury-causing\nsubstance. In the present case, for example, one of the original\n\n292\n\n\x0cdefendants was dismissed from the action upon proof that it did\nnot manufacture DES until after plaintiff was born.\nThus we conclude the fact defendants do not have greater\naccess to information that might establish the identity of the\nmanufacturer of the DES which injured plaintiff does not per se\nprevent application of the Summers rule.\nNevertheless, plaintiff may not prevail in her claim that the\nSummers rationale should be employed to fix the whole liability\nfor her injuries upon defendants, at least as those principles have\npreviously been applied. There is an important difference\nbetween the situation involved in Summers and the present case.\nThere, all the parties who were or could have been responsible\nfor the harm to the plaintiff were joined as defendants. Here, by\ncontrast, there are approximately 200 drug companies which\nmade DES, any of which might have manufactured the injuryproducing drug.\nDefendants maintain that, while in Summers there was a 50\npercent chance that one of the two defendants was responsible\nfor the plaintiff\xe2\x80\x99s injuries, here since any one of 200 companies\nwhich manufactured DES might have made the product that\nharmed plaintiff, there is no rational basis upon which to infer\nthat any defendant in this action caused plaintiff\xe2\x80\x99s injuries, nor\neven a reasonable possibility that they were responsible.\nThese arguments are persuasive if we measure the chance that\nany one of the defendants supplied the injury-causing drug by\nthe number of possible tortfeasors. In such a context, the\npossibility that any of the five defendants supplied the DES to\nplaintiff\xe2\x80\x99s mother is so remote that it would be unfair to require\neach defendant to exonerate itself. There may be a substantial\nlikelihood that none of the five defendants joined in the action\nmade the DES which caused the injury, and that the offending\nproducer not named would escape liability altogether. While we\npropose, infra, an adaptation of the rule in Summers which will\nsubstantially overcome these difficulties, defendants appear to\nbe correct that the rule, as previously applied, cannot relieve\nplaintiff of the burden of proving the identity of the\nmanufacturer which made the drug causing her injuries.\n\n293\n\n\x0cII\nThe second principle upon which plaintiff relies is the so-called\n\xe2\x80\x9cconcert of action\xe2\x80\x9d theory.~ The gravamen of the charge of\nconcert is that defendants failed to adequately test the drug or to\ngive sufficient warning of its dangers and that they relied upon\nthe tests performed by one another and took advantage of each\nothers\xe2\x80\x99 promotional and marketing techniques. These allegations\ndo not amount to a charge that there was a tacit understanding\nor a common plan among defendants to fail to conduct\nadequate tests or give sufficient warnings, and that they\nsubstantially aided and encouraged one another in these\nomissions.\nIII\nA third theory upon which plaintiff relies is the concept of\nindustry-wide liability, or according to the terminology of the\nparties, \xe2\x80\x9centerprise liability.\xe2\x80\x9d This theory was suggested in Hall v.\nE. I. Du Pont de Nemours & Co., Inc. (E.D.N.Y. 1972) 345 F.\nSupp. 353. In that case, plaintiffs were 13 children injured by the\nexplosion of blasting caps in 12 separate incidents which\noccurred in 10 different states between 1955 and 1959. The\ndefendants were six blasting cap manufacturers, comprising\nvirtually the entire blasting cap industry in the United States, and\ntheir trade association.~ The gravamen of the complaint was that\nthe practice of the industry of omitting a warning on individual\nblasting caps and of failing to take other safety measures created\nan unreasonable risk of harm, resulting in the plaintiffs\xe2\x80\x99 injuries.\nThe complaint did not identify a particular manufacturer of a\ncap which caused a particular injury.\nThe court reasoned as follows: there was evidence that\ndefendants, acting independently, had adhered to an industrywide standard with regard to the safety features of blasting caps,\nthat they had in effect delegated some functions of safety\ninvestigation and design, such as labelling, to their trade\nassociation, and that there was industry-wide cooperation in the\nmanufacture and design of blasting caps. In these circumstances,\nthe evidence supported a conclusion that all the defendants\njointly controlled the risk. Thus, if plaintiffs could establish by a\n\n294\n\n\x0cpreponderance of the evidence that the caps were manufactured\nby one of the defendants, the burden of proof as to causation\nwould shift to all the defendants. The court noted that this\ntheory of liability applied to industries composed of a small\nnumber of units, and that what would be fair and reasonable\nwith regard to an industry of five or ten producers might be\nmanifestly unreasonable if applied to a decentralized industry\ncomposed of countless small producers.\nPlaintiff attempts to state a cause of action under the rationale\nof Hall. She alleges joint enterprise and collaboration among\ndefendants in the production, marketing, promotion and testing\nof DES, and \xe2\x80\x9cconcerted promulgation and adherence to\nindustry-wide testing, safety, warning and efficacy standards\xe2\x80\x9d for\nthe drug. We have concluded above that allegations that\ndefendants relied upon one another\xe2\x80\x99s testing and promotion\nmethods do not state a cause of action for concerted conduct to\ncommit a tortious act. Under the theory of industry-wide\nliability, however, each manufacturer could be liable for all\ninjuries caused by DES by virtue of adherence to an industrywide standard of safety.\nWe decline to apply this theory in the present case. At least 200\nmanufacturers produced DES; Hall, which involved 6\nmanufacturers representing the entire blasting cap industry in\nthe United States, cautioned against application of the doctrine\nespoused therein to a large number of producers. Moreover, in\nHall, the conclusion that the defendants jointly controlled the\nrisk was based upon allegations that they had delegated some\nfunctions relating to safety to a trade association. There are no\nsuch allegations here, and we have concluded above that\nplaintiff has failed to allege liability on a concert of action\ntheory.\nEqually important, the drug industry is closely regulated by the\nFood and Drug Administration, which actively controls the\ntesting and manufacture of drugs and the method by which they\nare marketed, including the contents of warning labels. To a\nconsiderable degree, therefore, the standards followed by drug\nmanufacturers are suggested or compelled by the government.\n\n295\n\n\x0cAdherence to those standards cannot, of course, absolve a\nmanufacturer of liability to which it would otherwise be subject.\nBut since the government plays such a pervasive role in\nformulating the criteria for the testing and marketing of drugs, it\nwould be unfair to impose upon a manufacturer liability for\ninjuries resulting from the use of a drug which it did not supply\nsimply because it followed the standards of the industry.\nIV\nIf we were confined to the theories of Summers and Hall, we\nwould be constrained to hold that the judgment must be\nsustained. Should we require that plaintiff identify the\nmanufacturer which supplied the DES used by her mother or\nthat all DES manufacturers be joined in the action, she would\neffectively be precluded from any recovery. As defendants\ncandidly admit, there is little likelihood that all the\nmanufacturers who made DES at the time in question are still in\nbusiness or that they are subject to the jurisdiction of the\nCalifornia courts. There are, however, forceful arguments in\nfavor of holding that plaintiff has a cause of action.\nIn our contemporary complex industrialized society, advances in\nscience and technology create fungible goods which may harm\nconsumers and which cannot be traced to any specific producer.\nThe response of the courts can be either to adhere rigidly to\nprior doctrine, denying recovery to those injured by such\nproducts, or to fashion remedies to meet these changing needs.\nJust as Justice Traynor in his landmark concurring opinion in\nEscola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, recognized\nthat in an era of mass production and complex marketing\nmethods the traditional standard of negligence was insufficient\nto govern the obligations of manufacturer to consumer, so\nshould we acknowledge that some adaptation of the rules of\ncausation and liability may be appropriate in these recurring\ncircumstances. The Restatement comments that modification of\nthe Summers rule may be necessary in a situation like that before\nus.\nThe most persuasive reason for finding plaintiff states a cause of\naction is that advanced in Summers: as between an innocent\n\n296\n\n\x0cplaintiff and negligent defendants, the latter should bear the cost\nof the injury. Here, as in Summers, plaintiff is not at fault in\nfailing to provide evidence of causation, and although the\nabsence of such evidence is not attributable to the defendants\neither, their conduct in marketing a drug the effects of which are\ndelayed for many years played a significant role in creating the\nunavailability of proof.\nFrom a broader policy standpoint, defendants are better able to\nbear the cost of injury resulting from the manufacture of a\ndefective product. As was said by Justice Traynor in Escola,\n\xe2\x80\x9c[the] cost of an injury and the loss of time or health may be an\noverwhelming misfortune to the person injured, and a needless\none, for the risk of injury can be insured by the manufacturer\nand distributed among the public as a cost of doing business.\xe2\x80\x9d\nThe manufacturer is in the best position to discover and guard\nagainst defects in its products and to warn of harmful effects;\nthus, holding it liable for defects and failure to warn of harmful\neffects will provide an incentive to product safety. These\nconsiderations are particularly significant where medication is\ninvolved, for the consumer is virtually helpless to protect\nhimself from serious, sometimes permanent, sometimes fatal,\ninjuries caused by deleterious drugs.\nWhere, as here, all defendants produced a drug from an identical\nformula and the manufacturer of the DES which caused\nplaintiff\xe2\x80\x99s injuries cannot be identified through no fault of\nplaintiff, a modification of the rule of Summers is warranted. As\nwe have seen, an undiluted Summers rationale is inappropriate to\nshift the burden of proof of causation to defendants because if\nwe measure the chance that any particular manufacturer\nsupplied the injury-causing product by the number of producers\nof DES, there is a possibility that none of the five defendants in\nthis case produced the offending substance and that the\nresponsible manufacturer, not named in the action, will escape\nliability.\nBut we approach the issue of causation from a different\nperspective: we hold it to be reasonable in the present context to\nmeasure the likelihood that any of the defendants supplied the\n\n297\n\n\x0cproduct which allegedly injured plaintiff by the percentage\nwhich the DES sold by each of them for the purpose of\npreventing miscarriage bears to the entire production of the\ndrug sold by all for that purpose. Plaintiff asserts in her briefs\nthat Eli Lilly and Company and five or six other companies\nproduced 90 percent of the DES marketed. If at trial this is\nestablished to be the fact, then there is a corresponding\nlikelihood that this comparative handful of producers\nmanufactured the DES which caused plaintiff\xe2\x80\x99s injuries, and\nonly a 10 percent likelihood that the offending producer would\nescape liability.\nThe Fordham Comment explains the connection between\npercentage of market share and liability as follows: \xe2\x80\x9c[If] X\nManufacturer sold one-fifth of all the DES prescribed for\npregnancy and identification could be made in all cases, X would\nbe the sole defendant in approximately one-fifth of all cases and\nliable for all the damages in those cases. Under alternative\nliability, X would be joined in all cases in which identification\ncould not be made, but liable for only one-fifth of the total\ndamages in these cases. X would pay the same amount either\nway. Although the correlation is not, in practice, perfect~, it is\nclose enough so that defendants\xe2\x80\x99 objections on the ground of\nfairness lose their value.\xe2\x80\x9d (Fordham Comment, supra, at p. 994.)\nIf plaintiff joins in the action the manufacturers of a substantial\nshare of the DES which her mother might have taken, the\ninjustice of shifting the burden of proof to defendants to\ndemonstrate that they could not have made the substance which\ninjured plaintiff is significantly diminished. While 75 to 80\npercent of the market is suggested as the requirement by the\nFordham Comment, we hold only that a substantial percentage\nis required.\nThe presence in the action of a substantial share of the\nappropriate market also provides a ready means to apportion\ndamages among the defendants. Each defendant will be held\nliable for the proportion of the judgment represented by its\nshare of that market unless it demonstrates that it could not\nhave made the product which caused plaintiff\xe2\x80\x99s injuries. In the\n\n298\n\n\x0cpresent case, as we have seen, one DES manufacturer was\ndismissed from the action upon filing a declaration that it had\nnot manufactured DES until after plaintiff was born. Once\nplaintiff has met her burden of joining the required defendants,\nthey in turn may cross-complain against other DES\nmanufacturers, not joined in the action, which they can allege\nmight have supplied the injury-causing product.\nUnder this approach, each manufacturer\xe2\x80\x99s liability would\napproximate its responsibility for the injuries caused by its own\nproducts. Some minor discrepancy in the correlation between\nmarket share and liability is inevitable; therefore, a defendant\nmay be held liable for a somewhat different percentage of the\ndamage than its share of the appropriate market would justify. It\nis probably impossible, with the passage of time, to determine\nmarket share with mathematical exactitude. But just as a jury\ncannot be expected to determine the precise relationship\nbetween fault and liability in applying the doctrine of\ncomparative fault or partial indemnity, the difficulty of\napportioning damages among the defendant producers in exact\nrelation to their market share does not seriously militate against\nthe rule we adopt. As we said in Summers with regard to the\nliability of independent tortfeasors, where a correct division of\nliability cannot be made \xe2\x80\x9cthe trier of fact may make it the best it\ncan.\xe2\x80\x9d\nWe are not unmindful of the practical problems involved in\ndefining the market and determining market share, but these are\nlargely matters of proof which properly cannot be determined at\nthe pleading stage of these proceedings. Defendants urge that it\nwould be both unfair and contrary to public policy to hold them\nliable for plaintiff\xe2\x80\x99s injuries in the absence of proof that one of\nthem supplied the drug responsible for the damage. Most of\ntheir arguments, however, are based upon the assumption that\none manufacturer would be held responsible for the products of\nanother or for those of all other manufacturers if plaintiff\nultimately prevails. But under the rule we adopt, each\nmanufacturer\xe2\x80\x99s liability for an injury would be approximately\nequivalent to the damage caused by the DES it manufactured.\n\n299\n\n\x0cThe judgments are reversed.\n\nQuestions to Ponder About Sindell v. Abbott Labs\nA. The court says that under Sindell\xe2\x80\x99s market-share liability, \xe2\x80\x9ceach\nmanufacturer\xe2\x80\x99s liability would approximate its responsibility for the\ninjuries caused by its own products.\xe2\x80\x9d But is this the case? Suppose a\nmanufacturer only manufactured 0.01% of the DES sold in the\nrelevant market. Would it be worth it for a plaintiff to sue such a\nmanufacturer at all? If not, how might such a manufacturer end up\n\xe2\x80\x9cbe[ing] held liable for the proportion of the judgment represented\nby its share of that market\xe2\x80\x9d?\nB. Sindell allows recovery despite an absence of strict actual causation.\nWhat, if anything, does the Sindell court require in its absence?\nC. Considering how the actual causation requirement has been\nrelaxed in Sindell (as well as in Kingston and Summers), perhaps we\nshould consider a deeper question: Why bother having actual\ncausation as a general requirement in negligence cases? If the plaintiff\ncan prove an injury deserving of compensation and prove culpable\nconduct on the part of the defendant deserving liability, then why not\nallow a cause of action on those bases alone?\nProblem: Nighttime Hit and Run\nSuppose a pedestrian is walking at night, legally crossing the road.\nThe pedestrian is hit by a speeding taxicab, which then leaves the\nscene without stopping or even slowing down. Both an eyewitness\nand the pedestrian were able to see that the car was a taxicab, but\nneither were able to see the name of the taxicab company on the side.\nInvestigation and discovery discloses that there are three cab\ncompanies in the town. On the night the pedestrian was hit, Ace Taxi\nService was operating 41% of the cabs, Bravo Taxi Service was\noperating 34%, and Crystal Taxi Service was operating 25%. The\npedestrian sues Ace, Bravo, and Crystal. Is this the kind of situation\nin which the plaintiff can use market-share liability as announced\nunder Sindell? Why or why not?\n\n300\n\n\x0c8. Proximate Causation\n\xe2\x80\x9cFor the want of a nail the shoe was lost,\nFor the want of a shoe the horse was lost,\nFor the want of a horse the rider was lost,\nFor the want of a rider the battle was lost,\nFor the want of a battle the kingdom was lost,\nAnd all for the want of a horseshoe-nail.\xe2\x80\x9d\n\xe2\x80\x93 Benjamin Franklin, 1758\n\nIntroduction\nThis chapter \xe2\x80\x93 like the one on actual causation \xe2\x80\x93 will do double duty.\nProximate causation is not only an element of negligence, it is a\nrequirement for torts generally, including, for example, the\nintentional torts of battery, trespass to land, and trespass to chattels,\nas well as strict liability. For now, we will be talking about proximate\ncausation in the context of negligence. But when you move on to\nconsidering other tort causes of action, the same doctrine of\nproximate causation will apply. (And, once again, you may find that\nyour criminal law course covers proximate causation as well. The\nconcept, at root, is the same for torts and crimes, although the\nimplications diverge.)\nTo meet the requirement of proximate causation, the plaintiff must\nshow that the causal chain from the defendant\xe2\x80\x99s breach of duty to the\ninjury suffered was not too attenuated or indirect. The point of\nproximate causation is that it places some outer bound on the scope\nof a defendant\xe2\x80\x99s liability for any given tortious act.\nGenerally, the touchstone is some version of foreseeability. If the\nplaintiff\xe2\x80\x99s injury is foreseeable at the time of the time of the\ndefendant\xe2\x80\x99s duty-breaching conduct, then proximate causation is\nusually satisfied \xe2\x80\x93 although the details of the doctrine get\nconsiderably more complex.\n\n301\n\n\x0cThe Place of Proximate Causation\nActual causation is a matter of strict, logical, cause-and-effect\nrelationships. The element of proximate causation, on the other hand, is\na judgment call about how long or attenuated the cause-and-effect\nrelationship is. \xe2\x80\x9cProximate\xe2\x80\x9d means \xe2\x80\x9cclose.\xe2\x80\x9d The label gets at the\nquestion of how close the breach of duty and injury are. The breach\nand injury need not be close in space or close in time \xe2\x80\x93 they could\ntake place many miles and many days apart. But the breach and injury\nmust be somehow close along the chain of causation that links one to\nthe other.\nThe element of proximate causation is an outgrowth of the commonsense meaning of the word \xe2\x80\x9ccause.\xe2\x80\x9d As we saw in the last chapter,\nthere is a bewilderingly large number of events that are actual causes\nof an injury.\nSuppose a pedestrian is injured when struck by a car. The car was\nbeing driven by a minister who was headed up a lonely stretch of\nmountain road to officiate at a small wedding ceremony. The bride\nand groom met a couple years ago when the groom was taken to the\nhospital after being injured by a negligently maintained lighting\nfixture, which dropped on him from the ceiling of a department\nstore. The bride-to-be was the groom-to-be\xe2\x80\x99s treating physician, and\nafter they met, they fell in love.\nNow, can we say the department store\xe2\x80\x99s negligence caused the car\naccident? A good response might be: \xe2\x80\x9cYes, but only if you are being\nsilly about it.\xe2\x80\x9d In terms of strict cause-and-effect, there is no question\nthat the department store\xe2\x80\x99s negligence caused the accident. So the\nelement of actual causation is met. But it still seems ridiculous to say\nthat the department store \xe2\x80\x9ccaused\xe2\x80\x9d the accident. That\xe2\x80\x99s where\nproximate causation comes in. In the language of tort, we would say\nthat the department store\xe2\x80\x99s negligence was not a proximate cause of\nthe automobile accident.\nOne way, then, of defining proximate causation is that it is a certain\nlack of silliness in saying that one thing is the \xe2\x80\x9ccause\xe2\x80\x9d of another.\nProximate causation is one aspect of what we mean in everyday\nlanguage when we talk about one thing being the cause of another\n\n302\n\n\x0cthing. Actual causation is the other. The point of separating them out\nfor legal analysis is so that we can speak of the concepts more\ncarefully and thoroughly, which should ultimately allow us to get at a\nmore fair result.\n\nThe Label for Proximate Causation\nJust as actual causation goes by many names (see \xe2\x80\x9cSome Notes\nAbout the Terminology of Causation\xe2\x80\x9d in the previous chapter),\nproximate causation is also cursed by having multiple labels. It is\nworth spending a little bit of time on the terminology question to\navoid confusion later on.\nProximate cause is sometimes called \xe2\x80\x9clegal cause\xe2\x80\x9d and sometimes\n\xe2\x80\x9cscope of liability.\xe2\x80\x9d The different labels have developed largely\nbecause many commentators believe \xe2\x80\x9cproximate causation\xe2\x80\x9d is a\nconfusing misnomer.\nSome critics of the label say that \xe2\x80\x9cproximate causation\xe2\x80\x9d is misleading\nbecause geographical proximity of the incident and injury is not\nrequired under the doctrine. Neither is proximity in time. Point taken.\nBut \xe2\x80\x9cproximate\xe2\x80\x9d is apropos if you think not in terms of a physical\ncloseness but instead in terms of a kind of metaphysical closeness \xe2\x80\x93\nthat is, closeness along the chain of causation that links the incident\nto the injury.\nOthers criticize the label \xe2\x80\x9cproximate causation\xe2\x80\x9d because, they say, the\ndoctrine has nothing to do with causation. That, however, depends\non how you define \xe2\x80\x9ccausation.\xe2\x80\x9d But that\xe2\x80\x99s only true if you define\n\xe2\x80\x9ccausation\xe2\x80\x9d as the strict logical relationship between cause and effect\n\xe2\x80\x93 in other words, if you define proximate causation as actual\ncausation. When we say \xe2\x80\x9ccause\xe2\x80\x9d in everyday speech, there is\nordinarily both a proximate and an actual sense in which we are\ntalking: We mean that there is a relatively direct cause-and-effect\nrelationship. If the word \xe2\x80\x9ccause\xe2\x80\x9d in everyday speech did not include a\nkernel of the proximate causation concept, then it would not be\nabsurd to say the Norman invasion of England \xe2\x80\x9ccaused\xe2\x80\x9d you to be\nlate to class.\n\n303\n\n\x0cUltimately, whether it\xe2\x80\x99s a good label or not, you should think of\n\xe2\x80\x9cproximate causation\xe2\x80\x9d as a term of art. And like many other legal\nterms of art, you must learn the concept behind it without trying to\nderive its meaning from its constituent words.\nLet\xe2\x80\x99s look at the other labels that are used for the proximate\ncausation concept.\n\xe2\x80\x9cLegal causation\xe2\x80\x9d is one. The \xe2\x80\x9clegal causation\xe2\x80\x9d label was championed\nby the authors of the Second Restatement of Torts. The term gets at\nthe idea that the doctrine is an artificial limitation on the natural\ncausal chain \xe2\x80\x93 a limitation that is construed to exist by law. The\ndownside of \xe2\x80\x9clegal causation\xe2\x80\x9d as a label is that it sounds like it is the\nlegal side of \xe2\x80\x9cfactual causation.\xe2\x80\x9d And that is not the case at all. The\nterm \xe2\x80\x9clegal causation\xe2\x80\x9d also makes it sound like the doctrine is in the\nhands of the judge, as a \xe2\x80\x9clegal question,\xe2\x80\x9d rather than in the hands of\nthe jury, as a \xe2\x80\x9cfactual issue.\xe2\x80\x9d In fact, generally the opposite is true.\nProximate causation is frequently taken to be mostly a factual issue\nfor resolution by the jury.\n\xe2\x80\x9cScope of liability\xe2\x80\x9d is another label. This label has been championed\nby the authors of the Third Restatement of Torts. As a term of art,\n\xe2\x80\x9cscope of liability\xe2\x80\x9d avoids the problems people have with \xe2\x80\x9cproximate\ncausation\xe2\x80\x9d and \xe2\x80\x9clegal causation.\xe2\x80\x9d A problem, however, is that \xe2\x80\x9cscope\nof liability\xe2\x80\x9d does not sound like a term of art. Indeed, \xe2\x80\x9cscope of\nliability\xe2\x80\x9d is commonly used in a non-term-of-art sense. For instance, a\nlawyer might accurately say, as a way of talking about the statute of\nlimitations, \xe2\x80\x9cInjuries that were suffered 10 years ago are outside the\ncompany\xe2\x80\x99s scope of liability.\xe2\x80\x9d Such a statement has nothing to do\nwith the proximate-causation concept. One might also talk about the\n\xe2\x80\x9cscope of liability\xe2\x80\x9d for patent infringement \xe2\x80\x93 and that would have\nnothing to do with the proximate-causation concept or even tort law.\nAt the end of the day, however, the biggest problem with \xe2\x80\x9cscope of\nliability\xe2\x80\x9d is that it simply has not caught on, the efforts of the\nRestatement authors notwithstanding. When you see \xe2\x80\x9cscope of\nliability,\xe2\x80\x9d be aware that the term may or may not be a synonym for\nproximate causation.\n\n304\n\n\x0cHaving considered these different labels, the bottom line for you as a\nbudding lawyer is that you need to be cognizant that when a court or\ncommentator is talking about the concept of proximate causation,\nthose words might not appear in the text.\nPerhaps even more frustrating, you must be aware of the opposite\nproblem: Courts often use the words \xe2\x80\x9cproximate causation\xe2\x80\x9d to refer\nto actual causation. This happens because court will sometimes say\n\xe2\x80\x9cproximate causation\xe2\x80\x9d to mean causation in general \xe2\x80\x93 with the actual\nand proximate varieties lumped together. And in many of these\ninstances, the court will go on to speak exclusively of problems of\nactual causation. This leads to some confusing statements, such as,\n\xe2\x80\x9cTo prove proximate cause a plaintiff must show that the result\nwould not have occurred \xe2\x80\x98but for\xe2\x80\x99 defendant\xe2\x80\x99s action.\xe2\x80\x9d Mazda Motor\nCorp. v. Lindahl, 706 A.2d 526, 532 (Del. 1998).\nThese complications can be extremely frustrating to new law\nstudents. But keep reading and thinking actively. You will soon\nbecome adroit enough with the concepts that you can see through to\nwhat the court is talking about no matter what labels are being\nthrown around.\n\nThe Relationship Between Proximate Causation and\nDuty of Care\nViewing all of the elements of a prima facie case for negligence\ntogether, you will find considerable practical and conceptual overlap\nbetween the duty-of-care element and the proximate causation\nelement. Both proximate causation and duty of care function to\ncircumscribe in a somewhat arbitrary way the range of situations\nwhere a plaintiff can recover from a defendant. In accomplishing this,\nboth elements largely revolve around the idea of foreseeability. So\nwhy have both elements in the cause of action of negligence? What\ndistinguishes the two?\nThese are excellent questions. Conceivably the elements of duty of\ncare and proximate causation could be combined, or one absorbed\ninto the other. But for whatever historical reasons there might be,\nnegligence law developed the way it did, and we have the two\nelements.\n\n305\n\n\x0cRegardless of whether it is ideal to have duty of care and proximate\ncause separated, it is possible to articulate some helpful distinctions\nbetween the elements as they exist in modern negligence law.\nFirst, the elements of duty of care and proximate causation can be\ndistinguished in that they look at the injury-producing incident from\ndifferent perspectives. The duty of care element gets at the question,\n\xe2\x80\x9cWhen must you be careful?\xe2\x80\x9d Proximate causation asks the question,\n\xe2\x80\x9cAssuming you weren\xe2\x80\x99t careful, just how much are you going to be\non the hook for?\xe2\x80\x9d\nThis difference in perspective has driven the development of one\nelement or the other when novel questions have arisen. For instance,\nthe question in Tarasoff v. University of California, of whether a\npsychotherapist should be held liable for failing to warn third parties\nof a patient\xe2\x80\x99s dangerous propensities, was a question that was\nanswered by evolving duty-of-care doctrine.\nThere is also a distinction between the duty-of-care element and the\nproximate-causation element in how and to what extent they are the\nprovince of the judge or the jury. It is sometimes said that duty of\ncare is a question of law to be decided by a judge, while proximate\ncausation is an issue of fact to be decided by the jury. This is fair as a\nbroad generalization, but it is not categorically true. Both elements\ncomprise judge-made legal doctrine that requires judicial\ninterpretation, and both elements require factual evidence to prove.\nNonetheless, as a functional matter in many cases, the duty-of-care\nelement is a way for judges to limit the scope of negligence liability,\nwhile proximate causation gives juries a way to do the same.\nUltimately, the most important difference between the duty-of-care\nelement and the proximate-causation element is that the duty-of-care\nelement is distinct to the negligence cause of action, while the\nconcept of proximate causation finds applicability across tort law,\nshowing up as a general requirement for recovering compensatory\ndamages. Proximate causation is also a prima facie element of other\ncauses of action (e.g., strict liability). This difference is probably the\nmost convincing reason for keeping the two elements doctrinally\nseparate. The requirement of proximate causation is needed for the\n\n306\n\n\x0cother tort causes of action to prevent silly results. Suppose a vandal\nthrows paint on a fence \xe2\x80\x93 actionable as trespass to land. After\nwashing off the paint, the fence-owner plaintiff realizes she likes the\ncolor, so she decides to use it to repaint her living room. While on\nher way to a fourth paint store in a vain attempt to match the\nvandal\xe2\x80\x99s hue in an interior latex enamel, her car is struck by the\ngetaway vehicle of a bank robber who is being chased by police.\nProximate causation prevents the fence owner from successfully\nsuing the vandal for personal injuries sustained in the crash. Without\nproximate causation, we might have a very silly result. Keep in mind\nthat duty of care cannot be a barrier to this suit, because there is no\nduty-of-care element in a cause of action for trespass to land.\nMeanwhile, we need the duty-of-care element to stop certain wouldbe negligence suits. Suppose a burglar breaks into a store at night and\nis injured when hit on the head by a negligently secured lighting\nfixture. Proximate causation will not prevent this suit, since the causal\nrelation is entirely unattenuated. But the duty-of-care element is a\nshowstopper for the burglar plaintiff, because burglars are not owed a\nduty of care.\nIn truth, the duty-of-care element is more important than just\nstopping unwanted negligence suits. The duty-of-care concept is the\nvery essence of the negligence cause of action. The duty concept, and\nthe inquiry of whether the defendant\xe2\x80\x99s duty was breached, is what\ndistinguishes negligence from strict liability and the intentional torts.\nStrict liability has no element of breach of duty whatsoever, being\nlimited in extent by the tightly circumscribed situations in which it is\napplicable. And the intentional torts are limited by the intent concept\nrather than duty.\nThus, while duty of care and proximate causation have a great deal of\noverlap, neither can be done away with without completely\nrestructuring our entire system of tort doctrine from the ground up.\nCase: Palsgraf v. Long Island Railroad\nAs discussed, there are some situations that present a duty-of-care\nissue, yet do not involve any question of proximate causation. Other\nsituations do the opposite. Many cases, however, implicate both. The\n\n307\n\n\x0cfollowing case implicates both concepts, and in so doing it provides a\nvehicle for discussing each and their relation to one another. It is\nsuch a good vehicle for considering these issues that it has become\nthe most famous case in American tort law. It may even be the most\nfamous case in the entire American common-law canon. In it, Judge\nBenjamin N. Cardozo and Judge William Shankland Andrews\nprovide two very different views of the place of proximate causation.\n\nPalsgraf v. Long Island Railroad\nCourt of Appeals of New York\nMay 29, 1928\n248 N.Y. 339. Helen Palsgraf, Respondent, v. The Long Island\nRailroad Company, Appellant. Cardozo, Ch.J. Pound, Lehman\nand Kellogg, JJ., concur with Cardozo, Ch.J.; Andrews, J.,\ndissents in opinion in which Crane and O\xe2\x80\x99Brien, JJ., concur.\nChief Judge BENJAMIN N. CARDOZO:\nPlaintiff was standing on a platform of defendant\xe2\x80\x99s railroad after\nbuying a ticket to go to Rockaway Beach. A train stopped at the\nstation, bound for another place. Two men ran forward to catch\nit. One of the men reached the platform of the car without\nmishap, though the train was already moving. The other man,\ncarrying a package, jumped aboard the car, but seemed unsteady\nas if about to fall. A guard on the car, who had held the door\nopen, reached forward to help him in, and another guard on the\nplatform pushed him from behind. In this act, the package was\ndislodged, and fell upon the rails. It was a package of small size,\nabout fifteen inches long, and was covered by a newspaper. In\nfact it contained fireworks, but there was nothing in its\nappearance to give notice of its contents. The fireworks when\nthey fell exploded. The shock of the explosion threw down\nsome scales at the other end of the platform, many feet away.\nThe scales struck the plaintiff, causing injuries for which she\nsues.\nThe conduct of the defendant\xe2\x80\x99s guard, if a wrong in its relation\nto the holder of the package, was not a wrong in its relation to\nthe plaintiff, standing far away. Relatively to her it was not\n\n308\n\n\x0cnegligence at all. Nothing in the situation gave notice that the\nfalling package had in it the potency of peril to persons thus\nremoved. Negligence is not actionable unless it involves the\ninvasion of a legally protected interest, the violation of a right.\n\xe2\x80\x9cProof of negligence in the air, so to speak, will not do\xe2\x80\x9d\n(Pollock, Torts [11th ed.], p. 455; Martin v. Herzog, 228 N.Y. 164,\n170). \xe2\x80\x9cNegligence is the absence of care, according to the\ncircumstances\xe2\x80\x9d (Willes, J., in Vaughan v. Taff Vale Ry. Co., 5 H. &\nN. 679, 688). The plaintiff as she stood upon the platform of the\nstation might claim to be protected against intentional invasion\nof her bodily security. Such invasion is not charged. She might\nclaim to be protected against unintentional invasion by conduct\ninvolving in the thought of reasonable men an unreasonable\nhazard that such invasion would ensue. These, from the point of\nview of the law, were the bounds of her immunity, with perhaps\nsome rare exceptions, survivals for the most part of ancient\nforms of liability, where conduct is held to be at the peril of the\nactor (Sullivan v. Dunham, 161 N.Y. 290). If no hazard was\napparent to the eye of ordinary vigilance, an act innocent and\nharmless, at least to outward seeming, with reference to her, did\nnot take to itself the quality of a tort because it happened to be a\nwrong, though apparently not one involving the risk of bodily\ninsecurity, with reference to some one else. \xe2\x80\x9cIn every instance,\nbefore negligence can be predicated of a given act, back of the\nact must be sought and found a duty to the individual\ncomplaining, the observance of which would have averted or\navoided the injury\xe2\x80\x9d (McSherry, C.J., in W. Va. Central R. Co. v.\nState, 96 Md. 652, 666). \xe2\x80\x9cThe ideas of negligence and duty are\nstrictly correlative\xe2\x80\x9d (Bowen, L.J., in Thomas v. Quartermaine, 18 Q.\nB. D. 685, 694). The plaintiff sues in her own right for a wrong\npersonal to her, and not as the vicarious beneficiary of a breach\nof duty to another.\nA different conclusion will involve us, and swiftly too, in a maze\nof contradictions. A guard stumbles over a package which has\nbeen left upon a platform. It seems to be a bundle of\nnewspapers. It turns out to be a can of dynamite. To the eye of\nordinary vigilance, the bundle is abandoned waste, which may be\nkicked or trod on with impunity. Is a passenger at the other end\n\n309\n\n\x0cof the platform protected by the law against the unsuspected\nhazard concealed beneath the waste? If not, is the result to be\nany different, so far as the distant passenger is concerned, when\nthe guard stumbles over a valise which a truckman or a porter\nhas left upon the walk? The passenger far away, if the victim of\na wrong at all, has a cause of action, not derivative, but original\nand primary. His claim to be protected against invasion of his\nbodily security is neither greater nor less because the act\nresulting in the invasion is a wrong to another far removed. In\nthis case, the rights that are said to have been violated, the\ninterests said to have been invaded, are not even of the same\norder. The man was not injured in his person nor even put in\ndanger. The purpose of the act, as well as its effect, was to make\nhis person safe. If there was a wrong to him at all, which may\nvery well be doubted, it was a wrong to a property interest only,\nthe safety of his package. Out of this wrong to property, which\nthreatened injury to nothing else, there has passed, we are told,\nto the plaintiff by derivation or succession a right of action for\nthe invasion of an interest of another order, the right to bodily\nsecurity. The diversity of interests emphasizes the futility of the\neffort to build the plaintiff\xe2\x80\x99s right upon the basis of a wrong to\nsome one else. The gain is one of emphasis, for a like result\nwould follow if the interests were the same. Even then, the orbit\nof the danger as disclosed to the eye of reasonable vigilance\nwould be the orbit of the duty. One who jostles one\xe2\x80\x99s neighbor\nin a crowd does not invade the rights of others standing at the\nouter fringe when the unintended contact casts a bomb upon\nthe ground. The wrongdoer as to them is the man who carries\nthe bomb, not the one who explodes it without suspicion of the\ndanger. Life will have to be made over, and human nature\ntransformed, before prevision so extravagant can be accepted as\nthe norm of conduct, the customary standard to which behavior\nmust conform.\nThe argument for the plaintiff is built upon the shifting\nmeanings of such words as \xe2\x80\x9cwrong\xe2\x80\x9d and \xe2\x80\x9cwrongful,\xe2\x80\x9d and shares\ntheir instability. What the plaintiff must show is \xe2\x80\x9ca wrong\xe2\x80\x9d to\nherself, i.e., a violation of her own right, and not merely a wrong\nto some one else, nor conduct \xe2\x80\x9cwrongful\xe2\x80\x9d because unsocial, but\n\n310\n\n\x0cnot \xe2\x80\x9ca wrong\xe2\x80\x9d to any one. We are told that one who drives at\nreckless speed through a crowded city street is guilty of a\nnegligent act and, therefore, of a wrongful one irrespective of\nthe consequences. Negligent the act is, and wrongful in the\nsense that it is unsocial, but wrongful and unsocial in relation to\nother travelers, only because the eye of vigilance perceives the\nrisk of damage. If the same act were to be committed on a\nspeedway or a race course, it would lose its wrongful quality.\nThe risk reasonably to be perceived defines the duty to be\nobeyed, and risk imports relation; it is risk to another or to\nothers within the range of apprehension (Seavey, Negligence,\nSubjective or Objective, 41 H. L. Rv. 6; Boronkay v. Robinson &\nCarpenter, 247 N.Y. 365). This does not mean, of course, that\none who launches a destructive force is always relieved of\nliability if the force, though known to be destructive, pursues an\nunexpected path. \xe2\x80\x9cIt was not necessary that the defendant\nshould have had notice of the particular method in which an\naccident would occur, if the possibility of an accident was clear\nto the ordinarily prudent eye\xe2\x80\x9d (Munsey v. Webb, 231 U.S. 150,\n156). Some acts, such as shooting, are so imminently dangerous\nto any one who may come within reach of the missile, however\nunexpectedly, as to impose a duty of prevision not far from that\nof an insurer. Even today, and much oftener in earlier stages of\nthe law, one acts sometimes at one\xe2\x80\x99s peril (Jeremiah Smith, Tort\nand Absolute Liability, 30 H. L. Rv. 328; Street, Foundations of\nLegal Liability, vol. 1, pp. 77, 78). Under this head, it may be, fall\ncertain cases of what is known as transferred intent, an act\nwillfully dangerous to A resulting by misadventure in injury to B\n(Talmage v. Smith, 101 Mich. 370, 374) These cases aside, wrong\nis defined in terms of the natural or probable, at least when\nunintentional. The range of reasonable apprehension is at times\na question for the court, and at times, if varying inferences are\npossible, a question for the jury. Here, by concession, there was\nnothing in the situation to suggest to the most cautious mind\nthat the parcel wrapped in newspaper would spread wreckage\nthrough the station. If the guard had thrown it down knowingly\nand willfully, he would not have threatened the plaintiff\xe2\x80\x99s safety,\nso far as appearances could warn him. His conduct would not\n\n311\n\n\x0chave involved, even then, an unreasonable probability of\ninvasion of her bodily security. Liability can be no greater where\nthe act is inadvertent.\nNegligence, like risk, is thus a term of relation. Negligence in the\nabstract, apart from things related, is surely not a tort, if indeed\nit is understandable at all (Bowen, L.J., in Thomas v. Quartermaine,\n18 Q.B.D. 685, 694). Negligence is not a tort unless it results in\nthe commission of a wrong, and the commission of a wrong\nimports the violation of a right, in this case, we are told, the\nright to be protected against interference with one\xe2\x80\x99s bodily\nsecurity. But bodily security is protected, not against all forms of\ninterference or aggression, but only against some. One who\nseeks redress at law does not make out a cause of action by\nshowing without more that there has been damage to his\nperson. If the harm was not willful, he must show that the act as\nto him had possibilities of danger so many and apparent as to\nentitle him to be protected against the doing of it though the\nharm was unintended. Affront to personality is still the keynote\nof the wrong. Confirmation of this view will be found in the\nhistory and development of the action on the case. Negligence\nas a basis of civil liability was unknown to mediaeval law. For\ndamage to the person, the sole remedy was trespass, and\ntrespass did not lie in the absence of aggression, and that direct\nand personal. Liability for other damage, as where a servant\nwithout orders from the master does or omits something to the\ndamage of another, is a plant of later growth. When it emerged\nout of the legal soil, it was thought of as a variant of trespass, an\noffshoot of the parent stock. This appears in the form of action,\nwhich was known as trespass on the case. The victim does not\nsue derivatively, or by right of subrogation, to vindicate an\ninterest invaded in the person of another. Thus to view his cause\nof action is to ignore the fundamental difference between tort\nand crime. He sues for breach of a duty owing to himself.\nThe law of causation, remote or proximate, is thus foreign to the\ncase before us. The question of liability is always anterior to the\nquestion of the measure of the consequences that go with\nliability. If there is no tort to be redressed, there is no occasion\nto consider what damage might be recovered if there were a\n\n312\n\n\x0cfinding of a tort. We may assume, without deciding, that\nnegligence, not at large or in the abstract, but in relation to the\nplaintiff, would entail liability for any and all consequences,\nhowever novel or extraordinary. There is room for argument\nthat a distinction is to be drawn according to the diversity of\ninterests invaded by the act, as where conduct negligent in that it\nthreatens an insignificant invasion of an interest in property\nresults in an unforseeable invasion of an interest of another\norder, as, e. g., one of bodily security. Perhaps other distinctions\nmay be necessary. We do not go into the question now. The\nconsequences to be followed must first be rooted in a wrong.\nThe judgment of the Appellate Division and that of the Trial\nTerm should be reversed, and the complaint dismissed, with\ncosts in all courts.\nJudge WILLIAM SHANKLAND ANDREWS, dissenting:\nAssisting a passenger to board a train, the defendant\xe2\x80\x99s servant\nnegligently knocked a package from his arms. It fell between the\nplatform and the cars. Of its contents the servant knew and\ncould know nothing. A violent explosion followed. The\nconcussion broke some scales standing a considerable distance\naway. In falling they injured the plaintiff, an intending passenger.\nUpon these facts may she recover the damages she has suffered\nin an action brought against the master? The result we shall\nreach depends upon our theory as to the nature of negligence. Is\nit a relative concept \xe2\x80\x93 the breach of some duty owing to a\nparticular person or to particular persons? Or where there is an\nact which unreasonably threatens the safety of others, is the\ndoer liable for all its proximate consequences, even where they\nresult in injury to one who would generally be thought to be\noutside the radius of danger? This is not a mere dispute as to\nwords. We might not believe that to the average mind the\ndropping of the bundle would seem to involve the probability of\nharm to the plaintiff standing many feet away whatever might be\nthe case as to the owner or to one so near as to be likely to be\nstruck by its fall. If, however, we adopt the second hypothesis\nwe have to inquire only as to the relation between cause and\neffect. We deal in terms of proximate cause, not of negligence.\n\n313\n\n\x0cNegligence may be defined roughly as an act or omission which\nunreasonably does or may affect the rights of others, or which\nunreasonably fails to protect oneself from the dangers resulting\nfrom such acts. Here I confine myself to the first branch of the\ndefinition. Nor do I comment on the word \xe2\x80\x9cunreasonable.\xe2\x80\x9d For\npresent purposes it sufficiently describes that average of conduct\nthat society requires of its members.\nThere must be both the act or the omission, and the right. It is\nthe act itself, not the intent of the actor, that is important. In\ncriminal law both the intent and the result are to be considered.\nIntent again is material in tort actions, where punitive damages\nare sought, dependent on actual malice \xe2\x80\x93 not on merely reckless\nconduct. But here neither insanity nor infancy lessens\nresponsibility.\nAs has been said, except in cases of contributory negligence,\nthere must be rights which are or may be affected. Often though\ninjury has occurred, no rights of him who suffers have been\ntouched. A licensee or trespasser upon my land has no claim to\naffirmative care on my part that the land be made safe. Where a\nrailroad is required to fence its tracks against cattle, no man\xe2\x80\x99s\nrights are injured should he wander upon the road because such\nfence is absent. An unborn child may not demand immunity\nfrom personal harm.\nBut we are told that \xe2\x80\x9cthere is no negligence unless there is in the\nparticular case a legal duty to take care, and this duty must be\none which is owed to the plaintiff himself and not merely to\nothers.\xe2\x80\x9d (Salmond Torts [6th ed.], 24.) This, I think too narrow\na conception. Where there is the unreasonable act, and some\nright that may be affected there is negligence whether damage\ndoes or does not result. That is immaterial. Should we drive\ndown Broadway at a reckless speed, we are negligent whether\nwe strike an approaching car or miss it by an inch. The act itself\nis wrongful. It is a wrong not only to those who happen to be\nwithin the radius of danger but to all who might have been there\n\xe2\x80\x93 a wrong to the public at large. Such is the language of the\nstreet. Such the language of the courts when speaking of\ncontributory negligence. Such again and again their language in\n\n314\n\n\x0cspeaking of the duty of some defendant and discussing\nproximate cause in cases where such a discussion is wholly\nirrelevant on any other theory. As was said by Mr. Justice\nHolmes many years ago, \xe2\x80\x9cthe measure of the defendant\xe2\x80\x99s duty in\ndetermining whether a wrong has been committed is one thing,\nthe measure of liability when a wrong has been committed is\nanother.\xe2\x80\x9d (Spade v. Lynn & Boston R. R. Co., 172 Mass. 488.) Due\ncare is a duty imposed on each one of us to protect society from\nunnecessary danger, not to protect A, B or C alone.\nIt may well be that there is no such thing as negligence in the\nabstract. \xe2\x80\x9cProof of negligence in the air, so to speak, will not\ndo.\xe2\x80\x9d In an empty world negligence would not exist. It does\ninvolve a relationship between man and his fellows. But not\nmerely a relationship between man and those whom he might\nreasonably expect his act would injure. Rather, a relationship\nbetween him and those whom he does in fact injure. If his act\nhas a tendency to harm some one, it harms him a mile away as\nsurely as it does those on the scene. We now permit children to\nrecover for the negligent killing of the father. It was never\nprevented on the theory that no duty was owing to them. A\nhusband may be compensated for the loss of his wife\xe2\x80\x99s services.\nTo say that the wrongdoer was negligent as to the husband as\nwell as to the wife is merely an attempt to fit facts to theory. An\ninsurance company paying a fire loss recovers its payment of the\nnegligent incendiary. We speak of subrogation \xe2\x80\x93 of suing in the\nright of the insured. Behind the cloud of words is the fact they\nhide, that the act, wrongful as to the insured, has also injured the\ncompany. Even if it be true that the fault of father, wife or\ninsured will prevent recovery, it is because we consider the\noriginal negligence not the proximate cause of the injury.\n(Pollock, Torts [12th ed.], 463.)\nIn the well-known Polemis Case (1921, 3 K. B. 560), Scrutton, L.\nJ., said that the dropping of a plank was negligent for it might\ninjure \xe2\x80\x9cworkman or cargo or ship.\xe2\x80\x9d Because of either possibility\nthe owner of the vessel was to be made good for his loss. The\nact being wrongful the doer was liable for its proximate results.\nCriticized and explained as this statement may have been, I\nthink it states the law as it should be and as it is.\n\n315\n\n\x0cThe proposition is this. Every one owes to the world at large the\nduty of refraining from those acts that may unreasonably\nthreaten the safety of others. Such an act occurs. Not only is he\nwronged to whom harm might reasonably be expected to result,\nbut he also who is in fact injured, even if he be outside what\nwould generally be thought the danger zone. There needs be\nduty due the one complaining but this is not a duty to a\nparticular individual because as to him harm might be expected.\nHarm to some one being the natural result of the act, not only\nthat one alone, but all those in fact injured may complain. We\nhave never, I think, held otherwise. Indeed in the Di Caprio case\nwe said that a breach of a general ordinance defining the degree\nof care to be exercised in one\xe2\x80\x99s calling is evidence of negligence\nas to every one. We did not limit this statement to those who\nmight be expected to be exposed to danger. Unreasonable risk\nbeing taken, its consequences are not confined to those who\nmight probably be hurt.\nIf this be so, we do not have a plaintiff suing by \xe2\x80\x9cderivation or\nsuccession.\xe2\x80\x9d Her action is original and primary. Her claim is for\na breach of duty to herself \xe2\x80\x93 not that she is subrogated to any\nright of action of the owner of the parcel or of a passenger\nstanding at the scene of the explosion.\nThe right to recover damages rests on additional considerations.\nThe plaintiff\xe2\x80\x99s rights must be injured, and this injury must be\ncaused by the negligence. We build a dam, but are negligent as\nto its foundations. Breaking, it injures property down stream.\nWe are not liable if all this happened because of some reason\nother than the insecure foundation. But when injuries do result\nfrom our unlawful act we are liable for the consequences. It\ndoes not matter that they are unusual, unexpected, unforeseen\nand unforseeable. But there is one limitation. The damages must\nbe so connected with the negligence that the latter may be said\nto be the proximate cause of the former.\nThese two words have never been given an inclusive definition.\nWhat is a cause in a legal sense, still more what is a proximate\ncause, depend in each case upon many considerations, as does\nthe existence of negligence itself. Any philosophical doctrine of\n\n316\n\n\x0ccausation does not help us. A boy throws a stone into a pond.\nThe ripples spread. The water level rises. The history of that\npond is altered to all eternity. It will be altered by other causes\nalso. Yet it will be forever the resultant of all causes combined.\nEach one will have an influence. How great only omniscience\ncan say. You may speak of a chain, or if you please, a net. An\nanalogy is of little aid. Each cause brings about future events.\nWithout each the future would not be the same. Each is\nproximate in the sense it is essential. But that is not what we\nmean by the word. Nor on the other hand do we mean sole\ncause. There is no such thing.\nShould analogy be thought helpful, however, I prefer that of a\nstream. The spring, starting on its journey, is joined by tributary\nafter tributary. The river, reaching the ocean, comes from a\nhundred sources. No man may say whence any drop of water is\nderived. Yet for a time distinction may be possible. Into the\nclear creek, brown swamp water flows from the left. Later, from\nthe right comes water stained by its clay bed. The three may\nremain for a space, sharply divided. But at last, inevitably no\ntrace of separation remains. They are so commingled that all\ndistinction is lost.\nAs we have said, we cannot trace the effect of an act to the end,\nif end there is. Again, however, we may trace it part of the way.\nA murder at Serajevo may be the necessary antecedent to an\nassassination in London twenty years hence. An overturned\nlantern may burn all Chicago. We may follow the fire from the\nshed to the last building. We rightly say the fire started by the\nlantern caused its destruction.\nA cause, but not the proximate cause. What we do mean by the\nword \xe2\x80\x9cproximate\xe2\x80\x9d is, that because of convenience, of public\npolicy, of a rough sense of justice, the law arbitrarily declines to\ntrace a series of events beyond a certain point. This is not logic.\nIt is practical politics. Take our rule as to fires. Sparks from my\nburning haystack set on fire my house and my neighbor\xe2\x80\x99s. I may\nrecover from a negligent railroad. He may not. Yet the wrongful\nact as directly harmed the one as the other. We may regret that\nthe line was drawn just where it was, but drawn somewhere it\n\n317\n\n\x0chad to be. We said the act of the railroad was not the proximate\ncause of our neighbor\xe2\x80\x99s fire. Cause it surely was. The words we\nused were simply indicative of our notions of public policy.\nOther courts think differently. But somewhere they reach the\npoint where they cannot say the stream comes from any one\nsource.\nTake the illustration given in an unpublished manuscript by a\ndistinguished and helpful writer on the law of torts. A chauffeur\nnegligently collides with another car which is filled with\ndynamite, although he could not know it. An explosion follows.\nA, walking on the sidewalk nearby, is killed. B, sitting in a\nwindow of a building opposite, is cut by flying glass. C, likewise\nsitting in a window a block away, is similarly injured. And a\nfurther illustration. A nursemaid, ten blocks away, startled by the\nnoise, involuntarily drops a baby from her arms to the walk. We\nare told that C may not recover while A may. As to B it is a\nquestion for court or jury. We will all agree that the baby might\nnot. Because, we are again told, the chauffeur had no reason to\nbelieve his conduct involved any risk of injuring either C or the\nbaby. As to them he was not negligent.\nBut the chauffeur, being negligent in risking the collision, his\nbelief that the scope of the harm he might do would be limited\nis immaterial. His act unreasonably jeopardized the safety of any\none who might be affected by it. C\xe2\x80\x99s injury and that of the baby\nwere directly traceable to the collision. Without that, the injury\nwould not have happened. C had the right to sit in his office,\nsecure from such dangers. The baby was entitled to use the\nsidewalk with reasonable safety.\nThe true theory is, it seems to me, that the injury to C, if in truth\nhe is to be denied recovery, and the injury to the baby is that\ntheir several injuries were not the proximate result of the\nnegligence. And here not what the chauffeur had reason to\nbelieve would be the result of his conduct, but what the prudent\nwould foresee, may have a bearing. May have some bearing, for\nthe problem of proximate cause is not to be solved by any one\nconsideration.\n\n318\n\n\x0cIt is all a question of expediency. There are no fixed rules to\ngovern our judgment. There are simply matters of which we\nmay take account. We have in a somewhat different connection\nspoken of \xe2\x80\x9cthe stream of events.\xe2\x80\x9d We have asked whether that\nstream was deflected \xe2\x80\x93 whether it was forced into new and\nunexpected channels. This is rather rhetoric than law. There is in\ntruth little to guide us other than common sense.\nThere are some hints that may help us. The proximate cause,\ninvolved as it may be with many other causes, must be, at the\nleast, something without which the event would not happen.\nThe court must ask itself whether there was a natural and\ncontinuous sequence between cause and effect. Was the one a\nsubstantial factor in producing the other? Was there a direct\nconnection between them, without too many intervening\ncauses? Is the effect of cause on result not too attentuated? Is\nthe cause likely, in the usual judgment of mankind, to produce\nthe result? Or by the exercise of prudent foresight could the\nresult be foreseen? Is the result too remote from the cause, and\nhere we consider remoteness in time and space. (Bird v. St. Paul\nF. & M. Ins. Co., 224 N.Y. 47, where we passed upon the\nconstruction of a contract \xe2\x80\x93 but something was also said on this\nsubject.) Clearly we must so consider, for the greater the\ndistance either in time or space, the more surely do other causes\nintervene to affect the result. When a lantern is overturned the\nfiring of a shed is a fairly direct consequence. Many things\ncontribute to the spread of the conflagration \xe2\x80\x93 the force of the\nwind, the direction and width of streets, the character of\nintervening structures, other factors. We draw an uncertain and\nwavering line, but draw it we must as best we can.\nOnce again, it is all a question of fair judgment, always keeping\nin mind the fact that we endeavor to make a rule in each case\nthat will be practical and in keeping with the general\nunderstanding of mankind.\nHere another question must be answered. In the case supposed\nit is said, and said correctly, that the chauffeur is liable for the\ndirect effect of the explosion although he had no reason to\nsuppose it would follow a collision. \xe2\x80\x9cThe fact that the injury\n\n319\n\n\x0coccurred in a different manner than that which might have been\nexpected does not prevent the chauffeur\xe2\x80\x99s negligence from\nbeing in law the cause of the injury.\xe2\x80\x9d But the natural results of a\nnegligent act \xe2\x80\x93 the results which a prudent man would or should\nforesee \xe2\x80\x93 do have a bearing upon the decision as to proximate\ncause. We have said so repeatedly. What should be foreseen? No\nhuman foresight would suggest that a collision itself might injure\none a block away. On the contrary, given an explosion, such a\npossibility might be reasonably expected. I think the direct\nconnection, the foresight of which the courts speak, assumes\nprevision of the explosion, for the immediate results of which,\nat least, the chauffeur is responsible.\nIt may be said this is unjust. Why? In fairness he should make\ngood every injury flowing from his negligence. Not because of\ntenderness toward him we say he need not answer for all that\nfollows his wrong. We look back to the catastrophe, the fire\nkindled by the spark, or the explosion. We trace the\nconsequences \xe2\x80\x93 not indefinitely, but to a certain point. And to\naid us in fixing that point we ask what might ordinarily be\nexpected to follow the fire or the explosion.\nThis last suggestion is the factor which must determine the case\nbefore us. The act upon which defendant\xe2\x80\x99s liability rests is\nknocking an apparently harmless package onto the platform.\nThe act was negligent. For its proximate consequences the\ndefendant is liable. If its contents were broken, to the owner; if\nit fell upon and crushed a passenger\xe2\x80\x99s foot, then to him. If it\nexploded and injured one in the immediate vicinity, to him also\nas to A in the illustration. Mrs. Palsgraf was standing some\ndistance away. How far cannot be told from the record \xe2\x80\x93\napparently twenty-five or thirty feet. Perhaps less. Except for the\nexplosion, she would not have been injured. We are told by the\nappellant in his brief \xe2\x80\x9cit cannot be denied that the explosion was\nthe direct cause of the plaintiff\xe2\x80\x99s injuries.\xe2\x80\x9d So it was a substantial\nfactor in producing the result \xe2\x80\x93 there was here a natural and\ncontinuous sequence \xe2\x80\x93 direct connection. The only intervening\ncause was that instead of blowing her to the ground the\nconcussion smashed the weighing machine which in turn fell\nupon her. There was no remoteness in time, little in space. And\n\n320\n\n\x0csurely, given such an explosion as here it needed no great\nforesight to predict that the natural result would be to injure one\non the platform at no greater distance from its scene than was\nthe plaintiff. Just how no one might be able to predict. Whether\nby flying fragments, by broken glass, by wreckage of machines\nor structures no one could say. But injury in some form was\nmost probable.\nUnder these circumstances I cannot say as a matter of law that\nthe plaintiff\xe2\x80\x99s injuries were not the proximate result of the\nnegligence. That is all we have before us. The court refused to\nso charge. No request was made to submit the matter to the jury\nas a question of fact, even would that have been proper upon\nthe record before us.\nThe judgment appealed from should be affirmed, with costs.\n\nQuestions to Ponder About Palsgraf\nA. Who do you think is right? Judge Cardozo or Judge Andrews?\nB. Putting legal doctrine aside for a moment, do you think that it\nwould be fair for Palsgraf to recover from the L.I.R.R.? What goes\ninto your thinking?\nC. If Judge Andrews had carried the day, what do you think would\nhave happened on remand? That is, assuming the breach of duty was\nestablished and the case had gone to a jury on the issue of proximate\ncausation, do you think the jury would have found that the guard\xe2\x80\x99s\nnegligent action was a proximate cause of Palsgraf\xe2\x80\x99s injuries? If you\nwere on the jury, would you find proximate causation?\nA Different Version of the Palsgraf Case\nThe event that injured Helen Palsgraf was covered by many papers,\nincluding on the front pages of The New York Times, The New York\nWorld, and The New York Herald Tribune. The story that comes out of\nthese reports paints something of a different picture than what is\nfound in Judge Cardozo\xe2\x80\x99s opinion.\nOn Sunday, August 24, 1924, three men were carrying bundles on the\ncrowded platform at East New York Station. One of them dropped a\nlarge, unwieldy package. The package may have been closely similar\n\n321\n\n\x0cto an unexploded package later found at the scene; that bundle\ncontained six firework/explosive devices, each of which was four\ninches in diameter and a foot and a half long. The package that\ncaused the explosion fell between the car and the platform and\ndetonated with tremendous force, knocking over 30 or 40 people and\nsetting off a stampede. \xe2\x80\x9cThere was a terrific roar, followed by several\nmilder explosions, and a short lived pyrotechnic display,\xe2\x80\x9d according\nto the Long Island Daily Press.\nThe New York Times report said that \xe2\x80\x9cpieces of the big salute bomb\nshot up to the platform.\xe2\x80\x9d The blast, which could be heard several\nblocks away, according to the paper, damaged the roadbed, ripped\naway part of the passenger platform, and overthrew a penny scale\nmore than 10 feet away.\nThe damage to the scale, which included its glass smashed and its\nmechanism wrecked, was reported by three newspapers. According\nto the New York Times and the Long Island Daily Press, the distance\nfrom the detonation site to the scale was more than ten feet.\nThirteen people were reported injured, with three sent to the\nhospital. Injuries included cuts and burns. Helen Palsgraf was\nreported in the list of injured as suffering from shock.\nAll of these details and more are compiled in a wonderful law review\narticle: William H. Manz, Palsgraf: Cardozo\'s Urban Legend?, 107 DICK.\nL. REV. 785 (2003).\n\nMore Questions to Ponder About Palsgraf\nA. Does the version of facts reported in the newspapers change your\nview of whether there was a breach of the duty of care?\nB. Do the newspaper accounts change your mind as to whether you\nwould be inclined to find proximate causation? Do you think this\nview of the facts would make a difference to the jury? In what way?\nC. To the extent that Judge Cardozo\xe2\x80\x99s recitation of the facts differs\nfrom that in the newspapers, why do you think that is? Here are two\npossibilities out of many: Perhaps Judge Cardozo cut the story down\nto its essentials, omitting irrelevant detail. Alternatively, perhaps the\n\n322\n\n\x0cstory in the record that came before the Court of Appeals lacked the\ndetail found in the papers. What other explanations could there be?\nD. One seemingly significant fact is how far away Palsgraf was from\nthe detonation point. Judge Cardozo describes the distance by saying,\n\xe2\x80\x9cat the other end of the platform, many feet away.\xe2\x80\x9d Judge Andrews\ndescribes it as being \xe2\x80\x9csome distance away \xe2\x80\xa6 apparently twenty-five\nor thirty feet.\xe2\x80\x9d The papers said more than 10 feet. Are these\ndescriptions consistent? If all of them are plausibly interchangeable,\nto what extent do they create different mental pictures?\nE. If you could develop some additional detail about the facts that\nwould help illuminate the breach and/or proximate cause issues in\nthis case, what would you want to find out?\n\nVarious Tests for Proximate Causation\nTrying to pin down blackletter rules for proximate causation is a\nfrustrating task, because there is tremendous variability in how courts\napproach proximate causation. Various tests have been articulated,\nbut it is not easy to say when a certain test applies. The different\nformulations are applied in a haphazard fashion in different cases \xe2\x80\x93\nfrequently even within the same jurisdiction. Thus, it is not always\npossible to say that a given state follows a certain test in a certain\nkind of case. Nonetheless, it is worth reviewing the different tests,\nbecause doing so will give you a feel for the different ways courts\narticulate their analysis of proximate causation questions.\nThe Direct Test and Intervening Causes\nAn older test for proximate causation, now largely disused, is the\ndirect test. Despite its obsolescence, the direct test is helpful to\nknow, because the concepts and terms it introduces help define more\nmodern tests.\nToday, the touchstone for proximate causation is foreseeability. The\ndirect test, however, is not concerned with foreseeability at all. With\nthe direct test, you ask whether the accused act led directly to the\ninjury without there being an \xe2\x80\x9cintervening cause\xe2\x80\x9d between the two.\nAn intervening cause is some additional force or conduct that is\nnecessary in order to complete the chain of causation between the\n\n323\n\n\x0cbreaching conduct and the injury. The intervening cause could be the\nactions of a third party, or it could be some natural event. A good\nway to conceptualize the direct test is to start at the harm, and then\nwork backward to see if there are any forces that served as a more\nimmediate cause of the harm than the defendant\xe2\x80\x99s conduct.\n\nExample: Cash from Above I \xe2\x80\x93 Suppose an elderly man is\nproceeding down a sidewalk in the city. On a balcony above,\nan obnoxious rich woman decides to start throwing $20 bills\ninto the air. The flutter of gently descending cash causes a\nmad rush on the street, and the man is trampled. He sues the\nprofligate boor on the balcony who touched off the\nstampede. Were the woman\xe2\x80\x99s actions a proximate cause of\nthe man\xe2\x80\x99s injuries? Under the direct test, the answer is no.\nThe man will be unable to show proximate causation under\nthe direct test because the money-grabbers represent an\nintervening cause.\n\nExample: Cash from Above II \xe2\x80\x93 Same facts as in the\nprevious paragraph, except that this time, no one else was on\nthe street, and instead of being trampled, the man was injured\nwhen he slipped on slick piles of banknotes that had\naccumulated on the sidewalk. Is proximate causation satisfied\nunder the direct test? Yes. There is no intervening cause\nbetween the negligent action and the injury, so the direct test\nfor proximate causation is satisfied.\nThe leading example of the direct test is In re Polemis & Furness Withy\n& Company Ltd., 3 K.B. 560 (Court of Appeal of England 1921). The\nfreighter Polemis was being unloaded in the port of Casablanca. A\nworker dropped a wooden plank into the ship\xe2\x80\x99s hold. The friction of\nthe plank striking inside the hold caused a spark that ignited a cloud\nof accumulated fuel vapor. The ensuing fire completely destroyed the\nPolemis. In the case, it was stipulated as unforeseeable that a falling\nplank of wood could cause a fire. But there was no question that\ndropping the plank was a negligent act \xe2\x80\x93 i.e., a breach of the duty of\ncare. After all, it was easily foreseeable that the falling plank could\nhave struck and damaged something below by mechanical force. The\ncourt analyzed whether the dropping of the plank was a proximate\n\n324\n\n\x0ccause of the unforeseeable fire. The Polemis court used the direct test.\nUnder the direct test, proximate causation was satisfied. Lord Justice\nBankes wrote: \xe2\x80\x9cThe fire appears to me to have been directly caused\nby the falling of the plank. Under these circumstances I consider that\nit is immaterial that the causing of the spark by the falling of the\nplank could not have been reasonably anticipated.\xe2\x80\x9d\nSuppose that, instead of the facts unfolding as they did in the case,\nthe plank fell so as to awkwardly wedge itself across a walkway in the\nhold. And suppose that another worker came along, tripped over the\nplank, and dropped a lantern \xe2\x80\x93 igniting a fire. Under those facts, the\ndirect test would not be satisfied.\nThere is a philosophical problem with the direct test that is hard to\nignore: Every cause and effect relationship in real-world experience\ncan be said, at some level, to involve intervening causes. Maybe on\nthe Polemis it was the wafting of the fuel vapor through the air and the\ntravel of air molecules around the plank that allowed it to hit at the\nperfect angle to make the spark. Clearly, for the direct test to work,\nmany such would-be intervening causes must be ignored. Selecting\nwhat counts as an intervening cause thus requires some artificial\ncharacterization. One way to state the direct test so that it does not\nrely on the troublesome concept of intervening causes, is to use the\nconcept of a \xe2\x80\x9cset stage.\xe2\x80\x9d The formulation works like this: If it can be\nsaid that the defendant was acting on a \xe2\x80\x9cset stage\xe2\x80\x9d \xe2\x80\x93 where\neverything was lined up and waiting for the defendant\xe2\x80\x99s conduct to\ntouch off the sequence of events that led to the plaintiff\xe2\x80\x99s injury \xe2\x80\x93\nthen proximate causation is established under the direct test.\nBut keep in mind, the direct test is mostly obsolete at this point.\nForeseeability and Harm-Within-the-Risk\nToday, foreseeability is the touchstone for proximate causation\nanalysis. To apply the foreseeability test, you take an imaginary trip\nback in time to the point at which the defendant is about to breach\nthe duty of care. You then look forward and ask, \xe2\x80\x9cWhat might go\nwrong here?\xe2\x80\x9d\n\n325\n\n\x0cIn the foreseeability view of proximate causation, intervening causes\nare not a problem. Consider the Cash From Above I example. Is it\nforeseeable that throwing cash off a balcony could cause a stampede?\nYes, it is. Therefore, the foreseeability test for proximate causation is\nsatisfied.\nPerhaps the leading case on using foreseeability to determine\nproximate causation is Overseas Tankship (U.K.) Ltd. v. Morts Dock &\nEngineering Co, [1961] A.C. 388 (Privy Counsel 1961) \xe2\x80\x93 a case which is\nbetter known as \xe2\x80\x9cWagon Mound No. 1.\xe2\x80\x9d This case famously rejected\nthe direct-causation test of Polemis. In Wagon Mound No. 1, the steam\nship Wagon Mound was docked in the Port of Sydney, Australia.\nOwned by Caltex \xe2\x80\x93 a venture of what is today Chevron \xe2\x80\x93 the Wagon\nMound was discharging its cargo of gasoline and taking on oil to use\nas fuel for its engines. During this operation, the Wagon Mound spilled\na large amount of fuel oil into the water. Caltex made no attempt to\ndisperse the oil, and the Wagon Mound soon unberthed and went on\nits way. Within a few hours, the Wagon Mound\xe2\x80\x99s oil had spread over a\nsubstantial portion of the bay and had become thickly concentrated\nnear the property of Morts Dock, a ship-repairing business that was\ndoing welding that day on the Corrimal. Some bits of molten metal\nfrom the welding operation fell into the water and ignited some\ncotton waste that was floating on top of the oil. (Sydney is one of the\nmain ports for Australia\xe2\x80\x99s cotton exports.) The burning cotton waste\nin turn ignited the oil. The ensuing fire burned a large portion of\nMorts Dock and the Corrimal.\nThe court made the finding that \xe2\x80\x9cthe defendant did not know and\ncould not reasonably be expected to have known that [fuel oil] was\ncapable of being set afire when spread on water.\xe2\x80\x9d While this seems\nunbelievable, the court took pains to note that this finding was based\non \xe2\x80\x9ca wealth of evidence\xe2\x80\x9d including testimony of one Professor\nHunter, \xe2\x80\x9ca distinguished scientist.\xe2\x80\x9d\nThe court discussed Polemis extensively and rejected its direct-test\nview of proximate causation, positing instead that foreseeability is\nkey. Viscount Simonds wrote for the court, \xe2\x80\x9c[T]he essential factor in\ndetermining liability is whether the damage is of such a kind as the\nreasonable man should have foreseen~. It is a departure from this\n\n326\n\n\x0csovereign principle if liability is made to depend solely on the damage\nbeing the \xe2\x80\x98direct\xe2\x80\x99 or \xe2\x80\x98natural\xe2\x80\x99 consequence of the precedent act. Who\nknows or can be assumed to know all the processes of nature? But if\nit would be wrong that a man should be held liable for damage\nunpredictable by a reasonable man because it was \xe2\x80\x98direct\xe2\x80\x99 or \xe2\x80\x98natural\xe2\x80\x99,\nequally it would be wrong that he should escape liability, however\n\xe2\x80\x98indirect\xe2\x80\x99 the damage, if he foresaw or could reasonably foresee the\nintervening events which led to its being done~. Thus foreseeability\nbecomes the effective test.\xe2\x80\x9d\nSince it was held unforeseeable that spilling a large quantity of fuel oil\ncould lead to a destructive fire, Caltex won for want of proximate\ncausation.\nAnother, related test that can be applied is the harm-within-the-risk\ntest. Here, proximate cause is a question of germaneness: Is the kind\nof harm suffered by the plaintiff the kind that made the defendant\xe2\x80\x99s\naction negligent in the first place? The harm-within-the-risk test can\nbe thought of as a way of focusing and re-articulating the\nforeseeability test.\nThe Polemis case illustrates how the foreseeability test and the harmwithin-the-risk test can reach a different result than the direct test.\nThe fire aboard the Polemis was not foreseeable. Likewise, an inferno\nis not the kind of harm that makes it risky to drop a wooden plank\ninto a cargo hold. Thus, in the Polemis case, the plaintiff could show\nproximate causation under the direct test, but would not have been\nable to under the foreseeability test or the harm-within-the-risk test.\nUnder the Polemis facts, the direct test is more generous for plaintiffs\nthan the foreseeability test or the harm-within-the-risk test.\nThe Cash From Above I example shows that, under different facts, the\nopposite may be true \xe2\x80\x93 the foreseeability test and harm-within-therisk test can be more generous for plaintiffs than the direct test. It is\nforeseeable that throwing money into the air will cause a stampede,\nand the risk of stampede is what makes such boorish behavior risky.\nThus the foreseeability test is satisfied. The direct test is not satisfied,\nhowever, since the people rushing in represent intervening causes.\n\n327\n\n\x0cAs you can see, the foreseeability test and the harm-within-the-risk\ntest are both quite different from the direct test. But, you may be\nwondering, is there any practical difference between the foreseeability\ntest and harm-within-the-risk test? That is, will the two tests ever\nproduce different results? The answer is yes, although rarely.\nMost of the time, the foreseeability test and the harm-within-the-risk\ntest will yield the same results. A worker spills a bucket of soapy\nwater onto a public sidewalk. A pedestrian comes along and slips,\nsuffering a broken wrist. Is it foreseeable that a person would slip on\na puddle of soapy water? Yes. Is slipping the kind of harm that makes\nit dangerous to spill soapy water? Yes.\nTo illustrate the potential difference between the foreseeability test\nconsidered alone and its harm-within-the-risk elaboration, let\xe2\x80\x99s take\nthe facts from Berry v. Sugar Notch Borough, 191 Pa. 345 (Pa. 1899). On\na violently windy day, a trolley was speeding down the street.\nSuddenly a large chestnut tree fell on the trolley. The plaintiff, a\ntrolley passenger, was injured. The tree \xe2\x80\x93 probably already weak with\ndisease \xe2\x80\x93 fell when it did on account of the wind. The trolley,\nmeanwhile, was under the tree at the moment if fell because of the\nspeed the trolley was travelling. (The case does not say exactly how\nfast the trolley was travelling, except that it was considerably in excess\nof the modest speed limit of eight miles per hour. And while this rate\nof speed does not shock the conscience from a 21st Century\nperspective, we can stipulate that it was negligently fast for a trolley in\nthe late 1800s.) The question is whether the trolley\xe2\x80\x99s speeding was a\nproximate cause of the injury suffered by the plaintiff. Now, it is clear\nthat the speeding did not cause the tree to fall. The tree was going to\nfall when it did, regardless of what the trolley was doing. On the\nother hand, there is no question that if the trolley had been going at a\nslower, safer speed, it would not have been hit by the tree. After all, if\nthe trolley had been going slower, it would not have gotten to the\nplace where the tree fell at the time it fell.\nIn trying to decide the issue of proximate causation here, we see that\nwe get different results depending on whether we use the\nforeseeability test or the harm-within-the-risk test.\n\n328\n\n\x0cFor the foreseeability test, we ask the foreseeability question: Was the\nharm foreseeable? In this case, we must ask whether it was\nforeseeable that a tree would fall on the trolley if it drove too fast.\nThis is a hard question to answer. In some sense it is foreseeable.\nCertainly it is imaginable. Trees do fall in windstorms. So the\nforeseeability test appears to be passed, although in way that feels\nunsatisfying.\nNow let\xe2\x80\x99s ask the harm-within question: Is the possibility of getting\nhit by a falling tree the sort of thing that makes it risky to drive a\ntrolley too fast? Certainly not.\nSo in the Sugar Notch case, the foreseeability test provides a halting\nyes or is equivocal. The harm-within-the-risk test, however, provides\na clear answer of no.\nObjects of Foreseeability\nThe foreseeability concept does a lot to illuminate what is meant with\nthe doctrine of proximate causation. But foreseeability needs some\nadditional elaboration. In particular, we need to scrutinize exactly\nwhat is being focused on in the foreseeability inquiry. Is proximate\ncausation wanting if the plaintiff is unforeseeable? Or what if it is the\ntype, manner, or extent of harm that is unforeseeable?\n\nUnforeseeable Plaintiffs\nThe general rule is that if the plaintiff is unforeseeable, then\nproximate causation will not be satisfied. That is, if it was\nunforeseeable that the plaintiff could have been injured by the\naccused conduct, then the defendant wins because proximate\ncausation fails.\nUnforeseeable Type of Harm\nNow, let us assume we have a foreseeable plaintiff \xe2\x80\x93 meaning a\nplaintiff who could be foreseeably harmed by the defendant\xe2\x80\x99s\nconduct, but let\xe2\x80\x99s suppose that the type of harm suffered is a surprise.\nDoes the unforeseeability of the type of harm cause a failure of\nproximate causation? Probably the best that can be said about this is\nthat there is really no general rule; instead, courts look at this on a\ncase-by-case basis.\n\n329\n\n\x0cExample: Bonked by a Shotgun \xe2\x80\x93 Suppose the defendant\nnegligently leaves an old rifle, loaded and with the safety off,\nlying in the backyard of her house with a group of three-yearold children. When one kid plays with it, banging it against a\nrock, the wooden stock comes apart and drives splinters deep\ninto another child\xe2\x80\x99s hand, causing nerve damage. Some harm\nin such a scenario is foreseeable \xe2\x80\x93 in particular, a gunshot\nwound. But nerve damage caused by splinters? That is not\nforeseeable. So, is there proximate causation? Courts would\ndiffer.\n\nUnforeseeable Manner of Harm\nLet\xe2\x80\x99s now assume that we have a foreseeable plaintiff, injured by a\nforeseeable type of harm, but the manner of the harm is somehow\nsurprising and unforeseeable. The general rule in such cases is that an\nunforeseeable manner of harm does not preclude recovery on the\nbasis of proximate causation. There is, however, some give in the\ndoctrine. If the manner of harm is truly extraordinary then the\nproximate causation limitation might be engaged.\n\nExample:\n\nThe\n\nLucky/Unlucky\n\nMotorist\n\n\xe2\x80\x93\n\nThe\ndefendant\xe2\x80\x99s negligent driving causes the plaintiff\xe2\x80\x99s car to skid\noff the road. Luckily, the plaintiff is fine. But the car is stuck\nin the mud. Although the car is undamaged, the plaintiff\ncannot drive it out and will need to seek help. Walking to a\nnearby town to get help, the plaintiff is struck by a car driven\nby a third person. In a suit by the plaintiff against the driver\nwho rode the plaintiff\xe2\x80\x99s car off the road, is proximate\ncausation satisfied? The plaintiff was clearly foreseeable, since\ndriving a car negligently exposes nearby motorists and\npedestrians to danger. The type of harm \xe2\x80\x93 getting struck by a\ncar \xe2\x80\x93 is perfectly foreseeable. The manner of harm, however,\nis unforeseeable. Who would have guessed that the plaintiff\nwould be hurt not by the defendant\xe2\x80\x99s car, but by someone\nelse\xe2\x80\x99s car? Yet a court could find proximate causation to be\nestablished. Since the plaintiff and the type of harm were\nforeseeable, and since the manner of harm was not truly\nextraordinary, proximate cause may be satisfied.\n\n330\n\n\x0cUnforeseeable Extent of Harm\nWhat if it is the extent of the harm that is unforeseeable? Suppose\nsomeone in the cafeteria, horsing around, throws a small bottled\nwater to a friend. A bystander is struck and killed. Did the thrower\nproximately cause the bystander\xe2\x80\x99s death? The general rule is that an\nunforeseeable extent of harm will not cause a failure of proximate\ncausation. Alternatively stated, under the eyes of the law, the extent\nof the harm, no matter how great, is considered to be foreseeable \xe2\x80\x93\neven if it really is not. This doctrine is called the eggshell-plaintiff\nrule, named for a hypothetical plaintiff who has a skull as thin as an\neggshell, for whom a slight rap on the head could cause massive brain\ndamage. This doctrine is quite strictly applied in personal injury cases.\nWith property damage, however, there is some loosening of the rule,\nso that foreseeability and harm-within-the-risk tests might be applied\nto provide a proximate-cause limitation on liability \xe2\x80\x93 even in cases\nwhere the causal connection is tight.\nSuperseding Causes\nSince the direct test of proximate causation is no longer the\nprevailing law, intervening causes are generally not a problem.\nHowever, a remnant of the direct test remains in the doctrine\nregarding \xe2\x80\x9csuperseding causes.\xe2\x80\x9d By definition, a superseding cause\nis an intervening cause that breaks the proximate-cause relationship.\nThe term is conclusory \xe2\x80\x93 a court does not determine whether or not\nsomething is a superseding cause in order to find out whether it\nbreaks the proximate-cause connection. Rather, a court decides\nwhether or not an intervening cause breaks the proximate-cause\nrelationship, and, if it does, then it is dubbed a superseding cause.\nThe doctrine of superseding cause comes up when, after the\ndefendant has undertaken some negligent conduct, something else\ncomes along that gives the court or jury the sense that the something\nelse is \xe2\x80\x9cthe\xe2\x80\x9d cause of the plaintiff\xe2\x80\x99s injury. Technically, as we\ndiscussed with regard to actual causation, there is no such thing as\n\xe2\x80\x9cthe\xe2\x80\x9d cause. Every event has a virtually infinite number of causes, so\nno single one can be \xe2\x80\x9cthe\xe2\x80\x9d cause. Nonetheless, the doctrine of\n\n331\n\n\x0csuperseding cause is invoked when circumstances exist such that it\njust seems wrong to leave the defendant holding the bag.\nA classic example comes from the facts of Loftus v. Dehail, 133 Cal.\n214 (Cal. 1901). In that case, Isaac and Alice Dehail owned a lot in a\nbusy section of Los Angeles. A house had been standing on the lot,\nbut the Dehails had it demolished, leaving an open cellar. The\nDehails left the lot in this condition, making no effort to fence off\nthe open pit. Seven-year-old Bessie May Loftus was injured when she\nfell in. The court held that the Dehails\xe2\x80\x99 failure to fence in the pit was\nnot \xe2\x80\x9cthe\xe2\x80\x9d proximate cause. Why? It turns out Bessie was pushed. The\nsuperseding cause in this instance was Bessie\xe2\x80\x99s four-year-old brother\nwho, \xe2\x80\x9cin a fit of temper,\xe2\x80\x9d tipped her into the pit. \xe2\x80\x9cHis act was the\nproximate cause of the injury,\xe2\x80\x9d the court concluded. (It should be\nnoted that while Loftus is a good example of the concept, the Loftus\ncase itself almost certainly could come out differently today.)\nJurisdictions differ with regard to what kinds of actions can rise to\nthe level of a superseding cause. There are some general observations\nthat can be made, however. First, negligence is not normally\nsuperseded by someone else\xe2\x80\x99s negligence. Suppose a careless driver,\nwho has passenger in the car, loses control on a mountain road and\nskids to a stop such that the car is teetering over the edge of a cliff. A\ncareless trucker, driving too fast, fishtails around the bend and nicks\nthe car, causing it to tip off the cliff. The passenger is injured by the\nfall. The carelessness the driver of the car will be deemed a proximate\ncause of the injury, notwithstanding the intervening force of the\nfishtailing truck.\nA particular recurring situation is where injuries are made worse by\nmedical malpractice committed in the course of the treatment of the\noriginal injury. The rule on this is quite clear: Medical malpractice is\nalways considered foreseeable. In other words, incompetent medical\ntreatment will not be considered a superseding force. Suppose a\ncareless restaurant worker burned a patron while flamb\xc3\xa9ing cherries\ntableside for a dessert dish. If the injuries had been treated\ncompetently, the patron would have recovered entirely in a couple\nweeks. Unfortunately the patient received substandard burn care,\nwhich led to an infection that necessitated an amputation. The\n\n332\n\n\x0crestaurant\xe2\x80\x99s carelessness in this case will be considered a proximate\ncause of the amputation injury. The same applies to ambulance\naccidents.\nOn the other hand, criminal interveners are usually superseding\ncauses. If a sociopath breaks into the hospital and puts poison in an\nIV, the inept flamb\xc3\xa9er will not be liable for the poisoning. Note that\nthere is an important exception to the rule that criminal intervenors\nare superseding causes: If an intervening criminal act was foreseeable,\nor if the defendant otherwise had a duty to protect the plaintiff from\na criminal act, then the criminal act will not be considered a\nsuperseding cause. If a negligently installed door lock on an\napartment in high-crime area allows an assailant to enter a plaintiff\xe2\x80\x99s\napartment, the criminal act is not considered a superseding cause, and\nthe landlord\xe2\x80\x99s negligence will be held a proximate cause of the\nplaintiff\xe2\x80\x99s injury.\nCase: Ryan v. New York Central Railroad\nThe following case provides an additional venue to think about\nproximate causation issues. It is also a fascinating vehicle for thinking\nabout the interaction of law and industrial progress.\n\nRyan v. New York Central Railroad\nCourt of Appeals of New York\nMarch 1866\n35 N.Y. 210. James Ryan v. New York Central Railroad\nCompany. Hunt, J., De Grey, Ch. J.\nJudge WARD HUNT:\nOn the 15th day of July, 1854, in the city of Syracuse, the\ndefendant, by the careless management, or through the\ninsufficient condition, of one of its engines, set fire to its\nwoodshed, and a large quantity of wood therein. The plaintiff\xe2\x80\x99s\nhouse, situated at a distance of one hundred and thirty feet from\nthe shed, soon took fire from the heat and sparks, and was\nentirely consumed, notwithstanding diligent efforts were made\nto save it. A number of other houses were also burned by the\nspreading of the fire. The plaintiff brings this action to recover\n\n333\n\n\x0cfrom the railroad company the value of his building thus\ndestroyed. The judge at the Circuit nonsuited the plaintiff, and\nthe General Term of the fifth district affirmed the judgment.\nThe question may be thus stated: A house in a populous city\ntakes fire, through the negligence of the owner or his servant;\nthe flames extend to and destroy an adjacent building: Is the\nowner of the first building liable to the second owner for the\ndamage sustained by such burning?\nIt is a general principle that every person is liable for the\nconsequences of his own acts. He is thus liable in damages for\nthe proximate results of his own acts, but not for remote\ndamages. It is not easy at all times to determine what are\nproximate and what are remote damages. In Thomas v. Winchester\n(2 Seld., 408) Judge Ruggles defines the damages for which a\nparty is liable, as those which are the natural or necessary\nconsequences of his acts. Thus, the owner of a loaded gun, who\nputs it in the hands of a child, by whose indiscretion it is\ndischarged, is liable for the injury sustained by a third person\nfrom such discharge (5 Maule & Sel., 198.) The injury is a\nnatural and ordinary result of the folly of placing a loaded gun in\nthe hands of one ignorant of the manner of using it, and\nincapable of appreciating its effects. The owner of a horse and\ncart, who leaves them unattended in the street, is liable for an\ninjury done to a person or his property, by the running away of\nthe horse, for the same reason. The injury is the natural result of\nthe negligence. If the party thus injured had, however, by the\ndelay or confinement from his injury, been prevented from\ncompleting a valuable contract, from which he expected to make\nlarge profits, he could not recover such expected profits from\nthe negligent party, in the cases supposed. Such damages would\nnot be the necessary or natural consequences, nor the results\nordinarily to be anticipated, from the negligence committed. (6\nHill, 522; 13 Wend., 601; 3 E. D. Smith, 144.) So if an engineer\nupon a steamboat or locomotive, in passing the house of A., so\ncarelessly manages its machinery that the coals and sparks from\nits fires fall upon and consume the house of A., the railroad\ncompany or the steamboat proprietors are liable to pay the value\nof the property thus destroyed. Thus far the law is settled and\n\n334\n\n\x0cthe principle is apparent. If, however, the fire communicates\nfrom the house of A. to that of B., and that is destroyed, is the\nnegligent party liable for his loss? And if it spreads thence to the\nhouse of C., and thence to the house of D., and thence\nconsecutively through the other houses, until it reaches and\nconsumes the house of Z., is the party liable to pay the damages\nsustained by these twenty-four sufferers? The counsel for the\nplaintiff does not distinctly claim this, and I think it would not\nbe seriously insisted that the sufferers could recover in such\ncase. Where, then, is the principle upon which A. recovers and\nZ. fails?\nIt has been suggested that an important element exists in the\ndifference between an intentional firing and a negligent firing\nmerely; that when a party designedly fires his own house or his\nown fallow land, not intending, however, to do any injury to his\nneighbor, but a damage actually results, that he may be liable for\nmore extended damages than where the fire originated in\naccident or negligence. It is true that the most of the cases\nwhere the liability was held to exist, were cases of an intentional\nfiring. The case, however, of Vaughn v. Menlove (32 Eng. C. L.,\n613) was that of a spontaneous combustion of a hay-rick. The\nrick was burned, the owner\xe2\x80\x99s buildings were destroyed, and\nthence the fire spread to the plaintiff\xe2\x80\x99s cottage, which was also\nconsumed. The defendant was held liable. Without deciding\nupon the importance of this distinction, I prefer to place my\nopinion upon the ground that, in the one case, to wit, the\ndestruction of the building upon which the sparks were thrown\nby the negligent act of the party sought to be charged, the result\nwas to have been anticipated the moment the fire was\ncommunicated to the building; that its destruction was the\nordinary and natural result of its being fired. In the second, third\nor twenty-fourth case, as supposed, the destruction of the\nbuilding was not a natural and expected result of the first firing.\nThat a building upon which sparks and cinders fall should be\ndestroyed or seriously injured must be expected, but that the fire\nshould spread and other buildings be consumed, is not a\nnecessary or an usual result. That it is possible, and that it is not\nunfrequent, cannot be denied. The result, however, depends, not\n\n335\n\n\x0cupon any necessity of a further communication of the fire, but\nupon a concurrence of accidental circumstances, such as the\ndegree of the heat, the state of the atmosphere, the condition\nand materials of the adjoining structures and the direction of the\nwind. These are accidental and varying circumstances. The party\nhas no control over them, and is not responsible for their\neffects.\nMy opinion, therefore, is, that this action cannot be sustained,\nfor the reason that the damages incurred are not the immediate\nbut the remote result of the negligence of the defendants. The\nimmediate result was the destruction of their own wood and\nsheds; beyond that, it was remote.\nJudgment affirmed.\n\nThoughts About Ryan in Historical Context\nThe Ryan case has never been explicitly overruled by the New York\ncourts, although in 1890 a trial court stated that the authority of Ryan\nhad been \xe2\x80\x9cconsiderably shaken by subsequent cases.\xe2\x80\x9d Nary v. New\nYork, O. & W. Ry. Co., 55 Hun 612, 9 N.Y.S. 153 (Sup. Ct. 1890).\nOne way of viewing Ryan is that it represents a particular historical\nmoment when the industrial revolution was rapidly building wealth\nfor society, and the courts felt an urge to protect firms, such as\nrailroads, that were the engines of progress. Justice Leibson of the\nSupreme Court of Kentucky wrote in 1984, \xe2\x80\x9cIt may well be that the\n19th century judicial mind perceived of the need for courts to tilt the\nscales of justice in favor of defendants \xe2\x80\x98to keep the liabilities of\ngrowing industry within some bounds.\xe2\x80\x99\xe2\x80\x9d Hilen v. Hays, 673 S.W.2d\n713, 718 (Ky.1984), quoting Prosser, The Law of Torts.\nIf courts once regularly bent the law to protect industry, Palsgraf may\nrepresent a point of transition, when the courts became less solicitous\nof corporate defendants, who, it might be thought, were capable of\nfending for themselves.\nSome people would say that today\xe2\x80\x99s era is one of renewed judicial\ndeference to corporate interests. Others, of course, have the exact\nopposite view.\n\n336\n\n\x0c9. Existence of an Injury\n\xe2\x80\x9cNo harm, no foul.\xe2\x80\x9d\n\xe2\x80\x93 Chick Hearn, sportscaster for the L.A. Lakers, circa 1960\xe2\x80\x932000\n\nIn General\nThe existence of an injury is an element of the prima facie case for\nnegligence. Even if a defendant had a duty and breached a duty, there\nis no negligence claim unless there is some compensable harm.\nAnother way of stating the same idea is that \xe2\x80\x9cdamages\xe2\x80\x9d is an essential\nelement of the prima facie case for negligence.\nNot all causes of action require an injury or damages. For instance,\nthe intentional tort of trespass to land has no such requirement. If\nsomeone trespasses on your land, you can sue them whether or not\nthey caused you any sort of loss. So, if someone trespasses by walking\non your land, and then walks off, having not disturbed even a stalk of\ngrass, you can win a lawsuit against them. In such a lawsuit, you\nwould be entitled to \xe2\x80\x9cnominal damages\xe2\x80\x9d \xe2\x80\x93 meaning damages in name\nonly \xe2\x80\x93 commonly a single dollar. So why would anyone pursue such a\nlawsuit? Except under rare circumstances, there\xe2\x80\x99s no point. Yet, if\nthey want to, they can.\nNegligence is not like that. There must be damages in order to form a\nprima facie case. And the damages must be of a certain kind.\nGenerally speaking, they must be compensatory damages occasioned\nby physical damage \xe2\x80\x9cto person or property,\xe2\x80\x9d meaning to a person\xe2\x80\x99s\nbody or a person\xe2\x80\x99s tangible property.\nIn the context of damages, \xe2\x80\x9ccompensatory\xe2\x80\x9d means damages that\ncompensate someone for an actual loss. It is not possible, for\ninstance, to sue someone for negligence just out of a desire to punish\nthem for being careless. Punitive damages will not suffice to make\nout a prima facie case for negligence. (Assuming you have\ncompensatory damages, and thus can make out a prima facie case for\nnegligence, you can then argue for punitive damages as a way of\n\n337\n\n\x0cincreasing the amount of the award \xe2\x80\x93 but that\xe2\x80\x99s a subject for later in\nthis book.)\nThe requirement that the damages be for physical injury to the\nperson or property excludes many possible claims. Notably, mental\nanguish, by itself, is not the kind of injury that is sufficient to\nestablish a negligence case. Also, purely economic damages will not\nsuffice. So, if someone\xe2\x80\x99s carelessness causes you to not get a job,\nthen, without more, there is no negligence case. Now, if you lose\nyour job because you are in the hospital, and if you are in the hospital\nthanks to a car accident for which you can establish all the elements\nof negligence, then you can recover for both the lost job as well as\nthe hospital bills. But without the physical injury that sends you to\nthe hospital, you have no case in negligence.\nThe doctrine regarding the existence of a compensable injury in the\nnegligence case is sometimes put under the heading of whether there\nis a duty of care \xe2\x80\x93 that is, the first prima facie element of negligence\nwe dealt with in this book. Whether courts look at it as a question of\nduty or as a separate element of the negligence case, the point is that\nwithout proving harm \xe2\x80\x93 and harm of the right kind \xe2\x80\x93 the plaintiff has\nnot put forth a complete claim.\nIt should be emphasized that, as a practical matter, almost no one\nwould want to pursue a lawsuit unless there is the prospect of\nsubstantial damages. Lawsuits are expensive, after all. The amount of\ndamages, however, is a subject for a later chapter. For now, the\nquestion is whether there is an injury sufficient to establish a prima\nfacie case.\nBear in mind that most of the time the existence of a compensable\ninjury is a slamdunk in a negligence case. If it\xe2\x80\x99s not, then the only\nremaining questions are usually factual, not legal. For instance, a\nplaintiff in an automobile accident case might allege a \xe2\x80\x9csoft tissue\ninjury\xe2\x80\x9d \xe2\x80\x93 one in which no bones were broken. How to prove such an\ninjury can be a thorny problem for plaintiffs\xe2\x80\x99 attorneys in the trial\ncourt. But such situations do not present any tricky matters of legal\ndoctrine. This chapter concerns the relatively rare situations in which\nthere is a legal question on the matter of the existence of an injury.\n\n338\n\n\x0cAhead, we will first look at so-called \xe2\x80\x9closs of a chance\xe2\x80\x9d situations, in\nwhich there is room to argue whether an injury actually exists. Then\nwe will look briefly at cases of pure economic harm and cases of pure\nemotional harm.\n\nLoss-of-a-Chance Situations\nThe following case looks at a situation in which the injury inquiry\nturns into something of a philosophical question \xe2\x80\x93 where the injury,\nif there is one, is a change in the odds.\nCase: Herskovits v. Group Health\nThe following case looks at an unusual but occasionally recurring\nsituation in which the existence of an injury becomes a\nphilosophically challenging question, one that is not answerable\nmerely by uncovering facts.\n\nHerskovits v. Group Health\nSupreme Court of Washington\nMay 26, 1983\n99 Wn.2d 609. Edith E. Herskovits, as Personal Representative,\nAppellant, v. Group Health Cooperative of Puget Sound,\nRespondent. No. 48034-6. En Banc. Dore, J. Rosellini, J.,\nconcurs. Pearson, J. (concurring). Williams, C.J., and Stafford\nand Utter, JJ., concur with Pearson, J. Brachtenbach, J.\n(dissenting). Dimmick, J., concurs with Brachtenbach, J.\nDolliver, J. (dissenting).\nJustice FRED H. DORE:\nThis appeal raises the issue of whether an estate can maintain an\naction for professional negligence as a result of failure to timely\ndiagnose lung cancer, where the estate can show probable\nreduction in statistical chance for survival but cannot show\nand/or prove that with timely diagnosis and treatment, decedent\nprobably would have lived to normal life expectancy.\nBoth counsel advised that for the purpose of this appeal we are\nto assume that the respondent Group Health Cooperative of\nPuget Sound and its personnel negligently failed to diagnose\nHerskovits\xe2\x80\x99 cancer on his first visit to the hospital and\n\n339\n\n\x0cproximately caused a 14 percent reduction in his chances of\nsurvival. It is undisputed that Herskovits had less than a 50\npercent chance of survival at all times herein.~\nThe complaint alleged that Herskovits came to Group Health\nHospital in 1974 with complaints of pain and coughing. In early\n1974, chest X-rays revealed infiltrate in the left lung. Rales and\ncoughing were present. In mid-1974, there were chest pains and\ncoughing, which became persistent and chronic by fall of 1974.\nA December 5, 1974, entry in the medical records confirms the\ncough problem. Plaintiff contends that Herskovits was treated\nthereafter only with cough medicine. No further effort or\ninquiry was made by Group Health concerning his symptoms,\nother than an occasional chest X-ray. In the early spring of 1975,\nMr. and Mrs. Herskovits went south in the hope that the warm\nweather would help. Upon his return to the Seattle area with no\nimprovement in his health, Herskovits visited Dr. Jonathan\nOstrow on a private basis for another medical opinion. Within 3\nweeks, Dr. Ostrow\xe2\x80\x99s evaluation and direction to Group Health\nled to the diagnosis of cancer. In July of 1975, Herskovits\xe2\x80\x99 lung\nwas removed, but no radiation or chemotherapy treatments\nwere instituted. Herskovits died 20 months later, on March 22,\n1977, at the age of 60.~\nOther jurisdictions have~ generally [held] that unless the plaintiff\nis able to show that it was more likely than not that the harm was\ncaused by the defendant\xe2\x80\x99s negligence, proof of a decreased\nchance of survival is not enough to take the proximate cause\nquestion to the jury. These courts have concluded that the\ndefendant should not be liable where the decedent more than\nlikely would have died anyway.\nThe ultimate question raised here is whether the relationship\nbetween the increased risk of harm and Herskovits\xe2\x80\x99 death is\nsufficient to hold Group Health responsible. Is a 36 percent\n(from 39 percent to 25 percent) reduction in the decedent\xe2\x80\x99s\nchance for survival sufficient evidence of causation to allow the\njury to consider the possibility that the physician\xe2\x80\x99s failure to\ntimely diagnose the illness was the proximate cause of his death?\nWe answer in the affirmative. To decide otherwise would be a\n\n340\n\n\x0cblanket release from liability for doctors and hospitals any time\nthere was less than a 50 percent chance of survival, regardless of\nhow flagrant the negligence.~\n[O]nce a plaintiff has demonstrated that defendant\xe2\x80\x99s acts or\nomissions~ have increased the risk of harm to another, such\nevidence furnishes a basis for the fact finder to go further and\nfind that such increased risk was in turn a substantial factor in\nbringing about the resultant harm. The necessary proximate\ncause will be established if the jury finds such cause. It is not\nnecessary for a plaintiff to introduce evidence to establish that\nthe negligence resulted in the injury or death, but simply that the\nnegligence increased the risk of injury or death. The step from\nthe increased risk to causation is one for the jury to make.~\nWhere percentage probabilities and decreased probabilities are\nsubmitted into evidence, there is simply no danger of\nspeculation on the part of the jury. More speculation is involved\nin requiring the medical expert to testify as to what would have\nhappened had the defendant not been negligent.~\nWe reject Group Health\xe2\x80\x99s argument that plaintiffs must show that\nHerskovits \xe2\x80\x9cprobably\xe2\x80\x9d would have had a 51 percent chance of\nsurvival if the hospital had not been negligent. We hold that\nmedical testimony of a reduction of chance of survival from 39\npercent to 25 percent is sufficient evidence to allow the\nproximate cause issue to go to the jury.\nCausing reduction of the opportunity to recover (loss of chance)\nby one\xe2\x80\x99s negligence, however, does not necessitate a total\nrecovery against the negligent party for all damages caused by\nthe victim\xe2\x80\x99s death. Damages should be awarded to the injured\nparty or his family based only on damages caused directly by\npremature death, such as lost earnings and additional medical\nexpenses, etc.\nWe reverse the trial court and reinstate the cause of action.\nJustice JAMES M. DOLLIVER, dissenting:\nThe majority states the variations from 39 percent to 25 percent\nin the decedent\xe2\x80\x99s chance for survival are sufficient evidence to\n\xe2\x80\x9cconsider the possibility\xe2\x80\x9d that the failure of the physician to\n\n341\n\n\x0cdiagnose the illness in a timely manner was the \xe2\x80\x9cproximate cause\nof his death.\xe2\x80\x9d This reasoning is flawed. Whether the chances\nwere 25 percent or 39 percent decedent would have survived for\n5 years, in both cases, it was more probable than not he would\nhave died. Therefore, I cannot conclude that the missed\ndiagnosis was the proximate cause of death when a timely\ndiagnosis could not have made it more probable the decedent\nwould have survived. \xe2\x80\x9c\xe2\x80\x98It is legally and logically impossible for it\nto be probable that a fact exists, and at the same time probable\nthat it does not exist.\xe2\x80\x99\xe2\x80\x9d Cooper v. Sisters of Charity, Inc., 27 Ohio St.\n2d 242, 253 (1971).\nJustice VERNON ROBERT PEARSON, concurring:\nI agree with the majority that the trial court erred in granting\ndefendant\xe2\x80\x99s motion for summary judgment. I cannot, however,\nagree with the majority\xe2\x80\x99s reasoning in reaching this decision.~ In\nan effort to achieve a fair result by means of sound analysis, I\noffer the following approach.~\nThe issue before the court, quite simply, is whether Dr.\nOstrow\xe2\x80\x99s testimony~ established that the act complained of (the\nalleged delay in diagnosis) \xe2\x80\x9cprobably\xe2\x80\x9d or \xe2\x80\x9cmore likely than not\xe2\x80\x9d\ncaused Mr. Herskovits\xe2\x80\x99 subsequent disability. In order to make\nthis determination, we must first define the \xe2\x80\x9csubsequent\ndisability\xe2\x80\x9d suffered by Mr. Herskovits. Therein lies the crux of\nthis case, for it is possible to define the injury or \xe2\x80\x9cdisability\xe2\x80\x9d to\nMr. Herskovits in at least two different ways. First, and most\nobviously, the injury to Mr. Herskovits might be viewed as his\ndeath. Alternatively, however, the injury or disability may be\nseen as the reduction of Mr. Herskovits\xe2\x80\x99 chance of surviving the\ncancer from which he suffered.\nTherefore, although the issue before us is primarily one of\ncausation, resolution of that issue requires us to identify the\nnature of the injury to the decedent. Our conception of the\ninjury will substantially affect our analysis. If the injury is\ndetermined to be the death of Mr. Herskovits, then under the\nestablished principles of proximate cause plaintiff has failed to\nmake a prima facie case. Dr. Ostrow was unable to state that\nprobably, or more likely than not, Mr. Herskovits\xe2\x80\x99 death was\n\n342\n\n\x0ccaused by defendant\xe2\x80\x99s negligence. On the contrary, it is clear\nfrom Dr. Ostrow\xe2\x80\x99s testimony that Mr. Herskovits would have\nprobably died from cancer even with the exercise of reasonable\ncare by defendant. Accordingly, if we perceive the death of Mr.\nHerskovits as the injury in this case, we must affirm the trial\ncourt, unless we determine that it is proper to depart\nsubstantially from the traditional requirements of establishing\nproximate cause in this type of case.\nIf, on the other hand, we view the injury to be the reduction of\nMr. Herskovits\xe2\x80\x99 chance of survival, our analysis might well be\ndifferent. Dr. Ostrow testified that the failure to diagnose cancer\nin December 1974 probably caused a substantial reduction in\nMr. Herskovits\xe2\x80\x99 chance of survival. The~ standard of proof is\ntherefore met.\n~I\n\nturn to consider how other jurisdictions have dealt with\nsimilar cases.\nOne approach, and that urged by defendant, is to deny recovery\nin wrongful death cases unless the plaintiff establishes that\ndecedent would probably have survived but for defendant\xe2\x80\x99s\nnegligence. This approach is typified by Cooper v. Sisters of Charity,\nInc., 27 Ohio St. 2d 242 (1971). The court in that case affirmed a\ndirected verdict for defendant where the only evidence of\ncausation was that decedent had a chance \xe2\x80\x9cmaybe some place\naround 50%\xe2\x80\x9d of survival had defendant not been negligent. The\ncourt said: \xe2\x80\x9cIn an action for wrongful death, where medical\nmalpractice is alleged as the proximate cause of death, and\nplaintiff\xe2\x80\x99s evidence indicates that a failure to diagnose the injury\nprevented the patient from an opportunity to be operated on,\nwhich failure eliminated any chance of the patient\xe2\x80\x99s survival, the\nissue of proximate cause can be submitted to a jury only if there\nis sufficient evidence showing that with proper diagnosis,\ntreatment and surgery the patient probably would have\nsurvived.\xe2\x80\x9d\nOn the other hand, plaintiff cites seven cases in support of her\nposition.~ To summarize, in Hicks v. United States the decedent\nwas deprived of a probability of survival; in Jeanes v. Milner, 428\nF.2d 598 (8th Cir. 1970), the decedent\xe2\x80\x99s chance of survival was\n\n343\n\n\x0creduced from 35 percent to 24 percent; in O\xe2\x80\x99Brien v. Stover, 443\nF.2d 1013 (8th Cir. 1971), the decedent\xe2\x80\x99s 30 percent chance of\nsurvival was reduced by an indeterminate amount; in McBride v.\nUnited States, 462 F.2d 72 (9th Cir. 1972), the decedent was\ndeprived of the probability of survival; in Kallenberg v. Beth Israel\nHosp., 45 A.D.2d 177 (N.Y. App. Div. 1974), the decedent was\ndeprived of a 20 percent to 40 percent chance of survival; in\nHamil v. Bashline the decedent was deprived of a 75 percent\nchance of survival; and in James v. United States, 483 F. Supp. 581\n(N.D. Cal. 1980), the decedent was deprived of an indeterminate\nchance of survival, no matter how small.\nThe three cases where the chance of survival was greater than 50\npercent (Hicks, McBride, and Hamil) are unexceptional in that\nthey focus on the death of the decedent as the injury, and they\nrequire proximate cause to be shown beyond the balance of\nprobabilities. Such a result is consistent with existing principles\nin this state, and with cases from other jurisdictions cited by\ndefendant.\nThe remaining four cases allowed recovery despite the plaintiffs\xe2\x80\x99\nfailure to prove a probability of survival. Three of these cases\n(Jeanes, O\xe2\x80\x99Brien, and James) differ significantly from the Hicks,\nMcBride, and Hamil group in that they view the reduction in or\nloss of the chance of survival, rather than the death itself, as the\ninjury. Under these cases, the defendant is liable, not for all\ndamages arising from the death, but only for damages to the\nextent of the diminished or lost chance of survival. The fourth\nof these cases, Kallenberg, differs from the other three in that it\nfocuses on the death as the compensable injury. This is clearly a\ndistortion of traditional principles of proximate causation. In\neffect, Kallenberg held that a 40 percent possibility of causation\n(rather than the 51 percent required by a probability standard)\nwas sufficient to establish liability for the death. Under this\nloosened standard of proof of causation, the defendant would\nbe liable for all damages resulting from the death for which he\nwas at most 40 percent responsible.\nMy review of these cases persuades me that the preferable\napproach to the problem before us is that taken (at least\n\n344\n\n\x0cimplicitly) in Jeanes, O\xe2\x80\x99Brien, and James. I acknowledge that the\nprincipal predicate for these cases is the passage of obiter\ndictum in Hicks, a case which more directly supports the\ndefendant\xe2\x80\x99s position. I am nevertheless convinced that these\ncases reflect a trend to the most rational, least arbitrary, rule by\nwhich to regulate cases of this kind.~\nThese reasons persuade me that the best resolution of the issue\nbefore us is to recognize the loss of a less than even chance as\nan actionable injury. Therefore, I would hold that plaintiff has\nestablished a prima facie issue of proximate cause by producing\ntestimony that defendant probably caused a substantial\nreduction in Mr. Herskovits\xe2\x80\x99 chance of survival.~\nI would remand to the trial court for proceedings consistent\nwith this opinion.\n\nQuestions to Ponder About Herskovits\nA. Do you agree with the implication of Justice Dolliver\xe2\x80\x99s dissent that\nJustice Dore\xe2\x80\x99s doctrinal prescription is fundamentally illogical?\nB. According to both Justice Dore and Justice Pearson, the\nHerskovits estate should be able to prevail against Group Health\ndespite it being the case that Mr. Herskovits would likely have died\nregardless. But the two justices look at the issue as funneling down to\ndifferent elements of the prima facie case. For Justice Dore, this is a\nmatter of causation. (Although Justice Dore says \xe2\x80\x9cproximate\ncausation,\xe2\x80\x9d he is actually referring to a question posed by the but-for\ntest of actual causation.) For Justice Pearson, this is a question of the\nexistence of an injury. Which do you think is the better way to look at\nit and why?\n\nThe Thorny Question of Calibrating Damages in Herskovits,\nand Some More Questions to Ponder\nAssuming there should be recovery, what should be the measure of\ndamages? Justice Dore\xe2\x80\x99s opinion is ambiguous on this point.\nWe will discuss the question of the measurement of compensatory\ndamages in general later in the book. But the Herskovits case presents\n\n345\n\n\x0ca unique question about calibrating damages, so it\xe2\x80\x99s worth pondering\nfor a moment how it might be done.\nPerhaps the simplest thing that a court could do is to award the\nHerskovits estate damages in the same way as would be done for a\n\xe2\x80\x9cnormal\xe2\x80\x9d wrongful death case. So if Mr. Herskovits had been killed\nby a negligently dropped anvil, for instance, and if the damages in\nthat case were $1 million, then the damages in this case would be\n$1 million as well. Let\xe2\x80\x99s call this the unreduced approach.\nJustice Dore\xe2\x80\x99s opinion, however, seems to invite some reduction in\nthe amount of damages, although his opinion is ambiguous on how\nthis would be accomplished.\nLet\xe2\x80\x99s consider some alternatives of how damages could be reduced.\nOne approach \xe2\x80\x93 let\xe2\x80\x99s call this the percentage-difference approach \xe2\x80\x93 would\nbe to start with the number that would be the compensatory damages\nfor death in a \xe2\x80\x9cnormal\xe2\x80\x9d case. Let\xe2\x80\x99s again assume that is $1 million.\nBased on expert testimony, Mr. Herskovits\xe2\x80\x99s chance of survival\nwould have been 39% with a timely diagnosis, 25% without. So we\ncould say that since the best-case scenario was 39%, then the baseline\nfigure for damages should be 39% of $1 million, or $390,000. Given\nthe negligent delay in diagnosis, the chance of survival dropped to\n25%, which is equivalent to $250,000. The difference between the\nbaseline case and the negligence case is $140,000. (Notice that this is\nthe same as subtracting 25% from 39%, which gives 14%, and then\nmultiplying this by $1 million.) So, under this approach, the measure\nof damages would be $140,000.\nAnother approach would be to ask the hypothetical question of how\nmuch would someone be willing to pay for the increased chance of\nsurvival. In this approach, we don\xe2\x80\x99t worry at all about the $1 million\nbaseline figure. Let\xe2\x80\x99s call this the what-would-you-pay approach. We know\nthat the negligence scenario left Mr. Herskovits with a 25% chance of\nsurvival. Had he been diagnosed earlier, he would have had a 39% of\nsurvival. From Mr. Herskovits\xe2\x80\x99s perspective, if he could somehow\nmagically pay for the removal of the negligence, his chances of\nsurviving would increase 56%. (That is, 39% is 56% higher than\n\n346\n\n\x0c25%.) So the question is, how much would a person pay for a 56%\nincreased chance of surviving cancer?\nAnother approach \xe2\x80\x93 we can call this the unguided approach \xe2\x80\x93 would be\nto just tell the jury that they can reduce damages as they find\nappropriate.\nThe trial court could dictate an approach in the form of jury\ninstructions. Or, in the absence of specific instructions, the attorneys\ncould argue these approaches to the jury.\nSome questions to ponder on these approaches:\nA. Should damages in cases such as Herskovits be susceptible to\nreduction?\nB. Which of the approaches outlined above seems, as an abstract\nmatter, to be more fair?\nC. Can you think of any other ways to reduce damages?\nD. If you were the court, would you dictate one of these measures of\ndamages, or would you leave the matter to the attorneys\xe2\x80\x99 arguments\nbefore the jury and the jury\xe2\x80\x99s deliberations?\nE. If you were the plaintiff\xe2\x80\x99s attorney, and the jury instructions said\nnothing about the question of reducing damages, what would you\nargue to the jury about damages?\nF. Assuming the judge instructed the jury that damages must be\nreduced, but didn\xe2\x80\x99t specify how, what would you argue to the jury?\nG. If you were the defendant\xe2\x80\x99s attorney, and the jury instructions said\nnothing about the question of reducing damages, what would you\nargue to the jury about damages?\nNow here\xe2\x80\x99s a more philosophical question:\nH. If it is sensible to reduce damages in a Herskovits-type situation,\nthen why not in \xe2\x80\x9cnormal\xe2\x80\x9d negligence cases? Remember that the\ndilemma of Herskovits is that if the injury is death, then the estate\ncannot satisfy the but-for test by a preponderance of the evidence in\norder to prove actual causation, since the death probably would have\nhappened even if the breach of the duty of care (the \xe2\x80\x9cnegligence\xe2\x80\x9d)\n\n347\n\n\x0chad not happened. If it has been shown that it was slightly more\nlikely than not that an earlier diagnosis would have saved Mr.\nHerskovits (say 50.0000001%), then the defendant would be liable\nfor the full measure of damages for his death. So, why not reduce\ndamages in that situation as well. Couldn\xe2\x80\x99t the case be made that\nanytime the jury is not 100% sure that an injury was caused, then\ndamages should be reduced by the percentage by which they jury is\nunsure? Why not do this for every element of the prima facie case? In\nfact, why not throw out the preponderance of the evidence standard\naltogether, and just have the jury assign a percentage by which they\nare sure of each element, and then adjust damages accordingly?\n\nPure Economic Loss\nIn general, pure economic loss \xe2\x80\x93 that is, unaccompanied by any\nphysical damage to the plaintiff\xe2\x80\x99s person or property \xe2\x80\x93 will not suffice\nas an injury to create a prima facie case for negligence.\n\nExample: A Tale of Two Factories \xe2\x80\x93 A couple of\nbillionaire balloon enthusiasts negligently allow their balloon\nto become entangled in electric power lines, causing a\nmassive power outage to two factories. One factory makes\npopsicles. The other factory makes lugnuts. Both factories\nlose money because of the loss of productivity during the\nblackout, but only the popsicle factory suffers physical\ndamage \xe2\x80\x93 namely the melting of its inventory of popsicles. In\nthis case, the popsicle factory can recover, but the lugnut\nfactory cannot. There are also workers, at both factories, who\nlose out on wages while the factories are closed during the\nblackout. The losses suffered by these workers are purely\neconomic, and so they cannot recover.\nDespite the general rule, which is very robust, there are occasional\nsituations in which the courts have allowed recovery for pure\neconomic loss.\nOne somewhat ad hoc approach that has been used\njurisdictions to allow negligence plaintiffs to recover\neconomic loss is an idea of particular foreseeability.\nExpress Airlines, Inc. v. Consolidated Rail Corp., 495 A.2d\n\nin a few\nfor pure\nIn People\n107 (N.J.\n\n348\n\n\x0c1985), the defendant railroad negligently caused a fire that forced the\nevacuation of an airport terminal, resulting in a slew of cancelled\nflights. The court allowed the airline to recover from the railroad for\nthe financial loss suffered on account of the cancelled flights because\nthe airline, as a plaintiff, was \xe2\x80\x9cparticularly foreseeable.\xe2\x80\x9d The same\ncourt rejected claims from everyone else \xe2\x80\x93 including travelers who\nlost business deals. Even though such losses were foreseeable, they\nwere not, in the view of the court, particularly foreseeable.\nAnother situation in which courts have allowed negligence claims for\npure economic loss is against accountants. An accountancy\xe2\x80\x99s client\ncan sue for a negligent audit, for example, even though the only\nlosses are economic. Moreover, third parties who relied on\ninformation provided by accountants are sometimes able to recover\nunder a negligence theory. This type of suit can arise when a nonclient makes an investment decision based on the client\xe2\x80\x99s negligently\naudited books. The extent to which such non-clients can recover for\npure economic loss from differs by jurisdiction and circumstance.\nFinally, attorneys can be sued for negligence \xe2\x80\x93 professional\nmalpractice, that is \xe2\x80\x93 when clients suffer purely economic losses. In\naddition, third parties can also sometimes recover from an attorney,\ndespite the lack of a client relationship. A common situation for such\nrecovery is in the context of a negligently handled will. If it is clear\nthat a person was intended as a beneficiary, and would, but for the\nattorney\xe2\x80\x99s negligence, have received a bequest, the intended\nbeneficiary is often able to recover from the attorney. Without\nallowing non-clients a cause of action in situations like this, attorneys\ndrafting wills could effectively have total immunity from malpractice,\nsince it is virtually always the case that the client will be deceased\nwhen the malpractice is uncovered. Outside of the will context, it is\nrare that non-clients can recover against attorneys. You may learn\nmore about attorney liability for professional malpractice in a\nseparate course called Professional Responsibility.\n\nMental Anguish and Emotional Distress\nThe general rule is that emotional or mental distress will not suffice\nas an injury for purposes of pleading a prima facie case for\n\n349\n\n\x0cnegligence. There are myriad exceptions, however. Much of the\ndevelopment of doctrine of allowing claims for pure emotional\ndistress involve parents seeking compensation for emotional distress\nrelated to the death or grievous bodily injury of a child. Pregnancy\nand childbirth are recurrent contexts as well. Much of the impetus for\nthe development of doctrine in this area likely has to do with the fact\nthat the death of a child \xe2\x80\x93 for reasons to be explored later \xe2\x80\x93 will\nordinarily give rise to little or nothing in damages under the common\nlaw of torts.\nAt the outset, it is important to keep in mind that mental suffering is\ngenerally recoverable if it is occasioned by a physical injury. The loss\nof a limb, for instance, may cause compensable emotional harm. That\nmuch is clear. Our question here is to what extent can a\nmental/emotional harm itself provide the injury that is required for a\nprima facie case for negligence.\nHistorically, the courts loosened the requirement of a physical injury\nin cases of severe emotional distress to allow lawsuits where, despite\nthe lack of a physical injury, there was at least a physical impact\nassociated with the event that gave rise to the emotional distress.\nRequiring an impact, however, led to results such as the one in\nMicthell v. Rochester Railway Co., 45 N.E 354 (N.Y. 1896), where a\nwoman was denied recovery \xe2\x80\x93 for lack of an impact \xe2\x80\x93 where a team\nof runaway horses almost trampled her, though never touched her,\nand the stress of the event resulted in her having a miscarriage.\nLater courts became willing to allow a claim for emotional distress\nwhere accompanied by some physical manifestation of the stress.\nAnd some courts broadened the impact exception to embrace\nsituations where there was some risk of impact to the plaintiff, or\nwhere the plaintiff was within the \xe2\x80\x9czone of danger\xe2\x80\x9d of an incident.\nEither of these rules, of course, would have aided the plaintiff in\nMitchell.\nToday, many cases support what can be thought of as an\nindependent tort of negligently inflicted emotional distress \xe2\x80\x93\nsometimes abbreviated \xe2\x80\x9cNIED.\xe2\x80\x9d Particularly influential in this regard\nwas the case of Dillon v. Legg, 68 Cal. 2d 728 (Cal. 1968), which\n\n350\n\n\x0callowed recovery to a person not within the zone of danger. In that\ncase, Margery M. Dillon witnessed her daughter Erin be fatally struck\nby an automobile negligently driven by the defendant. Erin, who was\nfive, had started out ahead of her mother, legally crossing a road,\nwhen hit. The Dillon court set out three factors to be considered:\n\xe2\x80\x9c(1) Whether plaintiff was located near the\nscene of the accident as contrasted with one\nwho was a distance away from it. (2) Whether\nthe shock resulted from a direct emotional\nimpact upon plaintiff from the sensory and\ncontemporaneous observance of the accident,\nas contrasted with learning of the accident from\nothers after its occurrence. (3) Whether plaintiff\nand the victim were closely related, as\ncontrasted with an absence of any relationship\nor the presence of only a distant relationship.\xe2\x80\x9d\n\nUnder Dillon, these were only factors to be considered \xe2\x80\x93 that is, they\nwere guidelines for assessing whether the plaintiff\xe2\x80\x99s emotional trauma\nwould be considered legally \xe2\x80\x9cforeseeable.\xe2\x80\x9d Many states followed\nCalifornia\xe2\x80\x99s lead, recognizing some form of NIED in the mold of\nDillon, often with various tweaks.\nMeanwhile, two decades later, in the case of Thing v. La Chusa, 48\nCal.3d 644 (Cal. 1989), the California Supreme Court narrowed the\nscope of the NIED action it had pioneered by recasting its own\nDillon guidelines into hard rules:\n\xe2\x80\x9c[A] plaintiff may recover damages for\nemotional distress caused by observing the\nnegligently inflicted injury of a third person if,\nbut only if, said plaintiff: (1) is closely related to\nthe injury victim; (2) is present at the scene of\nthe injury-producing event at the time it occurs\nand is then aware that it is causing injury to the\nvictim; and (3) as a result suffers serious\nemotional distress \xe2\x80\x93 a reaction beyond that\nwhich would be anticipated in a disinterested\nwitness and which is not an abnormal response\nto the circumstances.\xe2\x80\x9d\n\nHere are the facts of Thing v. La Chusa, as recited by the court:\n\n351\n\n\x0c\xe2\x80\x9cOn December 8, 1980, John Thing, a minor,\nwas injured when struck by an automobile\noperated by defendant James V. La Chusa. His\nmother, plaintiff Maria Thing, was nearby, but\nneither saw nor heard the accident. She became\naware of the injury to her son when told by a\ndaughter that John had been struck by a car. She\nrushed to the scene where she saw her bloody\nand unconscious child, who she believed was\ndead, lying in the roadway. Maria sued\ndefendants, alleging that she suffered great\nemotional disturbance, shock, and injury to her\nnervous system as a result of these events, and\nthat the injury to John and emotional distress\nshe suffered were proximately caused by\ndefendants\xe2\x80\x99 negligence.\xe2\x80\x9d\n\nIn Thing, the California Supreme Court denied recovery on the basis\nof the test it articulated:\n\xe2\x80\x9cThe undisputed facts establish that plaintiff\nwas not present at the scene of the accident in\nwhich her son was injured. She did not observe\ndefendant\xe2\x80\x99s conduct and was not aware that her\nson was being injured. She could not, therefore,\nestablish a right to recover for the emotional\ndistress she suffered when she subsequently\nlearned of the accident and observed its\nconsequences. The order granting summary\njudgment was proper.\xe2\x80\x9d\n\nToday, there is great variation across jurisdictions as to whether tort\nlaw allows any claim at all for pure emotional harm or for NIED.\nEven in jurisdictions were claims are allowed, the differences among\ncourts are considerable.\n\n352\n\n\x0c10. Affirmative Defenses to\nNegligence\n\xe2\x80\x9cOffense sells tickets, but defense wins championships.\xe2\x80\x9d\n\xe2\x80\x93 attributed to Paul William \xe2\x80\x9cBear\xe2\x80\x9d Bryant\n\nIn General\nThere are three ways for a defendant to win a negligence case. First,\nand easiest, the defendant can just stand by as the plaintiff fails to put\non evidence to prove each of the prima facie elements. If that\nhappens at trial, the defendant can successfully move for a directed\nverdict \xe2\x80\x93 thereby winning the case without putting on a single witness\nor, theoretically, even without asking a single question of any of the\nplaintiff\xe2\x80\x99s witnesses. Assuming the plaintiff puts on a prima facie\ncase, the second way for a defendant to win is to make out a rebuttal\ndefense. A rebuttal defense is established by offering evidence to\nrebut the plaintiff\xe2\x80\x99s evidence for one or more of the prima facie\nelements established by the plaintiff. But the defendant need not\nrebut a prima facie case: The third and final way for a defendant to\nwin is to prove an affirmative defense.\nEven if a plaintiff makes out a prima facie case, and even if the\ndefendant has no rebuttal evidence whatsoever, the defendant can\nstill obtain victory by proving an affirmative defense. Sometimes an\naffirmative defense will effect a complete victory for the defendant.\nOther times, an affirmative defense will effect a partial victory,\nshielding the defendant from some portion of the damages.\nWhen it comes to affirmative defenses, the burden of proof is on the\ndefendant. That is why it is called an \xe2\x80\x9caffirmative\xe2\x80\x9d defense \xe2\x80\x93 proving\nit up is the affirmative obligation of the defendant. In comparison,\nthe first two ways for defendants to win \xe2\x80\x93 pointing out the failure of\nproof on the prima facie case or rebutting an element \xe2\x80\x93 can be\nthought of as \xe2\x80\x9cnegative\xe2\x80\x9d defenses. There, the defense is premised on\nwhat the plaintiff lacks. With an affirmative defense, the defendant\n\n353\n\n\x0chas to burden of putting all the needed evidence in front of the\nfactfinder.\nThe standard of proof for an affirmative defense is the same as for\nthe plaintiff\xe2\x80\x99s prima facie case \xe2\x80\x93 preponderance of the evidence. And,\nlike a cause of action, an affirmative defense may be broken down\ninto elements. Where an affirmative defense is structured as a series\nof elements, the defendant will have to prove each one of the\nelements by a preponderance of the evidence.\nKeep in mind that an affirmative defense trumps the plaintiff\xe2\x80\x99s prima\nfacie case. Even if a plaintiff went far beyond its burden of proving\nevery element by a mere preponderance of the evidence \xe2\x80\x93 suppose,\nfor instance that a plaintiff proved every element to a 100% certainty\n\xe2\x80\x93 it only takes an affirmative defense with each element proved by a\nmere preponderance of the evidence to block the plaintiff\xe2\x80\x99s recovery.\nThere are three main affirmative defenses that are particular for\nnegligence claims: contributory negligence, comparative negligence,\nand assumption of the risk. They are the subject of this chapter.\nThe first two affirmative defenses \xe2\x80\x93 contributory negligence and\ncomparative negligence \xe2\x80\x93 work by pointing the finger back at the\nplaintiff and blaming the plaintiff\xe2\x80\x99s injury on the plaintiff\xe2\x80\x99s own\nnegligence. Contributory negligence and comparative negligence are\nalternatives to one another. Most jurisdictions have the defense of\ncomparative negligence. The few that do not have the contributory\nnegligence defense.\nThe defense of assumption of the risk is just what it sounds like: The\nplaintiff agreed to shoulder the risk that something would go wrong,\nso when it does, the plaintiff cannot come to the defendant for\ncompensation.\n\nPlaintiff\xe2\x80\x99s Negligence\nIf the plaintiff\xe2\x80\x99s own negligence worked to bring about the harm the\nplaintiff complains about, then the defendant can use the plaintiff\xe2\x80\x99s\nnegligence as a defense. Depending on the jurisdiction, the defense\nwill either be of the contributory-negligence type or the comparative-\n\n354\n\n\x0cnegligence type. Within either type, there are a myriad of possible\ndifferences between jurisdictions.\nAll of tort law is subject to differences from one jurisdiction to\nanother. But there is probably no more important and fundamental\nset of differences in common-law doctrine than those having to do\nwith the affirmative defense premised on the plaintiff\xe2\x80\x99s negligence. If\nyou were a personal-injury attorney or an insurance-defense attorney\nmoving to a new state, the first thing you would want to learn is how\nthe law regards the plaintiff\xe2\x80\x99s negligence as a defense.\nThe first and most important distinction is whether the jurisdiction\nrecognizes the comparative negligence defense or the contributory\nnegligence defense. Contributory negligence is the older doctrine, and\nit is more defendant friendly. Comparative negligence \xe2\x80\x93 also called\n\xe2\x80\x9ccomparative fault\xe2\x80\x9d \xe2\x80\x93 is the newer doctrine, and it is more plaintiff\nfriendly. Under contributory negligence, if the plaintiff was a little bit\nnegligent, then the plaintiff loses. Under comparative negligence, the\nplaintiff\xe2\x80\x99s negligence is not necessarily a bar to recovery, but it will at\nleast serve to reduce the total amount of the award.\nContributory Negligence\nThe doctrine of contributory negligence holds that if the defendant\ncan prove that the plaintiff\xe2\x80\x99s own negligence contributed to the injury\nthat the plaintiff complains of, then the defendant is not liable. To be\nmore exact, proving a case for contributory negligence involves\nproving that the plaintiff\xe2\x80\x99s conduct fell below the standard of care a\nperson is expected adhere to for one\xe2\x80\x99s own good, and that such\nconduct was an actual and proximate cause of the injury that the\nplaintiff is suing on.\nTo break the defense of contributory negligence into elements, we\ncan start with the elements of negligence. To review, those are: owing\na duty, breaching the duty, actual causation, proximate causation, and\nthe existence of an injury. For purposes of contributory negligence,\nwe can throw a couple of those elements out. It generally goes\nwithout saying that a person owes a duty to one\xe2\x80\x99s self, so there is no\nneed to have the existence of duty as an element. Similarly, there is\nno point in discussing the existence of an injury, since the occasion\n\n355\n\n\x0cfor asserting the defense will never come up unless there is an injury.\nSo we can break contributory negligence down into three elements:\n(1) breach of the duty of care, (2) actual causation, and (3) proximate\ncausation. In practice, issues of contributory negligence generally\nrevolve around the breach element.\nContributory negligence was once available as a defense everywhere.\nNow it exists only in five American jurisdictions \xe2\x80\x93 Maryland, the\nDistrict of Columbia, Virginia, North Carolina, and Alabama.\nCuriously, you\xe2\x80\x99ll note, all of those jurisdictions are contiguous except\nAlabama. And interestingly enough, the state of Tennessee \xe2\x80\x93 which\nconnects Alabama to Virginia and North Carolina \xe2\x80\x93 is the most\nrecent convert from contributory negligence to comparative fault.\nTennessee broke the contiguous swath when it switched in 1992.\nThe reason for the decline in contributory negligence is that it is\nperceived as being too harsh on plaintiffs. With the defense of\ncontributory negligence, a plaintiff who is found to have been even\nslightly negligent will be completely barred from any recovery, even\nagainst a defendant who was colossally negligent. Imagine that it\xe2\x80\x99s\nlate at night on a stretch of two-lane highway. The driver of a car\nmomentarily takes his eyes off the road while adjusting his car\xe2\x80\x99s air\nconditioning vents, and at that moment is hit head on by an\noverloaded truck with no lights whose driver was simultaneously\nunder the heavy influence of alcohol, cocaine, and heroin, and \xe2\x80\x93 at\nthe moment of the collision \xe2\x80\x93 was attempting to learn juggling by\nwatching an instructional video on a laptop set on the dashboard and\npracticing the moves with a set of steak knives. The collision causes\nthe driver of the car to be grievously injured and permanently\ndisabled, while the truck driver walks away without a scratch. What is\nthe result in a contributory negligence jurisdiction? No recovery for\nthe plaintiff.\nCase: Coleman v. Soccer Association\nThe following case shows contributory negligence in action and\nfleshes out the debate over its continued existence.\n\n356\n\n\x0cColeman v. Soccer Association of Columbia\nCourt of Appeals of Maryland\nJuly 9, 2013\n432 Md. 679. James COLEMAN v. SOCCER ASSOCIATION\nOF COLUMBIA. No. 9, Sept. Term, 2012. ELDRIDGE, J.\n(Retired, Specially Assigned); GREENE, J., wrote a concurrence\njoined by BATTAGLIA, McDONALD and RAKER (Retired,\nSpecially Assigned), JJ.; HARRELL, J., dissented.\nJudge JOHN C. ELDRIDGE:\nThirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295\nMd. 442, 444 (1983), this Court issued a writ of certiorari to\ndecide \xe2\x80\x9cwhether the common law doctrine of contributory\nnegligence should be judicially abrogated in Maryland and the\ndoctrine of comparative negligence adopted in its place as the\nrule governing trial of negligence actions in this State.\xe2\x80\x9d In a\ncomprehensive opinion by then Chief Judge Robert C. Murphy,\nthe Court in Harrison, declined to abandon the doctrine of\ncontributory negligence in favor of comparative negligence,\npointing out that such change \xe2\x80\x9cinvolves fundamental and basic\npublic policy considerations properly to be addressed by the\nlegislature.\xe2\x80\x9d\nThe petitioner in the case at bar presents the same issue that was\npresented in Harrison, namely whether this Court should change\nthe common law and abrogate the defense of contributory\nnegligence in certain types of tort actions. After reviewing the\nissue again, we shall arrive at the same conclusion that the Court\nreached in Harrison.~\nThe petitioner and plaintiff below, James Kyle Coleman, was an\naccomplished soccer player who had volunteered to assist in\ncoaching a team of young soccer players in a program of the\nSoccer Association of Columbia, in Howard County, Maryland.\nOn August 19, 2008, Coleman, at the time 20 years old, was\nassisting the coach during the practice of a team of young soccer\nplayers on the field of the Lime Kiln Middle School. While the\nSoccer Association of Columbia had fields of its own, it did not\nhave enough to accommodate all of the program\xe2\x80\x99s young soccer\n\n357\n\n\x0cplayers; the Association was required to use school fields for\npractices. At some point during the practice, Coleman kicked a\nsoccer ball into a soccer goal. As he passed under the goal\xe2\x80\x99s\nmetal top rail, or crossbar, to retrieve the ball, he jumped up and\ngrabbed the crossbar. The soccer goal was not anchored to the\nground, and, as he held on to the upper crossbar, Coleman fell\nbackwards, drawing the weight of the crossbar onto his face. He\nsuffered multiple severe facial fractures which required surgery\nand the placing of three titanium plates in his face. Coleman\ninstituted the present action by filing a complaint, in the Circuit\nCourt for Howard County, alleging that he was injured by the\ndefendants\xe2\x80\x99 negligence. \xef\x81\x81In his first amended complaint,\nColeman named four defendants: the Soccer Association of\nColumbia, the Columbia Soccer Club, the Howard County\nGovernment, and the Howard County Board of Education. On\nAugust 16, 2010, Coleman filed a notice of voluntary dismissal\nas to the Howard County Government. Subsequently, on\nOctober 5, 2011, the parties stipulated to dismissal with\nprejudice of the Columbia Soccer Club. On October 24, 2011,\nthe Howard County Board of Education was also dismissed\nwith prejudice from the suit, leaving the Soccer Association of\nColumbia as the sole remaining defendant during the trial.\xef\x81\x80 The\ndefendant and respondent, the Soccer Association of Columbia,\nasserted the defense of contributory negligence.\nAt the ensuing jury trial, the soccer coach who had invited\nColeman to help coach the soccer players testified that he had\nnot inspected or anchored the goal which fell on Coleman. The\ncoach also testified that the goal was not owned or provided by\nthe Soccer Association, and he did not believe that it was his\nresponsibility to anchor the goal. During the trial, the parties\ndisputed whether the goal was located in an area under the\nsupervision and control of the Soccer Association and whether\nthe Soccer Association was required to inspect and anchor the\ngoal. The Soccer Association presented testimony tending to\nshow that, because the goal was not owned by the Soccer\nAssociation, the Soccer Association owed no duty to Coleman.\nThe Soccer Association also presented testimony that the\ncondition of the goal was open and obvious to all persons. The\n\n358\n\n\x0cAssociation maintained that the accident was caused solely by\nColeman\xe2\x80\x99s negligence.\nTestimony was provided by Coleman to the effect that players\ncommonly hang from soccer goals and that his actions should\nhave been anticipated and expected by the Soccer Association.\nColeman also provided testimony that anchoring goals is a\nstandard safety practice in youth soccer.\nAt the close of evidence, Coleman\xe2\x80\x99s attorney proffered a jury\ninstruction on comparative negligence.\n\xef\x81\x81\n\nThe proffered jury instruction read as follows:\n\xe2\x80\x9cA. Comparative Negligence\xe2\x80\x94Liability\n\xe2\x80\x9cIf you find that more than one party has\nestablished his/her burden of proof as to\nnegligence, as defined by the court, you must\nthen compare the negligence of those parties.\nThe total amount of negligence is 100%. The\nfigure that you arrive at should reflect the total\npercentage of negligence attributed to each\nparty with respect to the happening of the\naccident. A comparison of negligence is made\nonly if the negligence of more than one party\nproximately caused the accident.\xe2\x80\x9d\xef\x81\x80\n\nThe judge declined to give Coleman\xe2\x80\x99s proffered comparative\nnegligence instruction and, instead, instructed the jury on\ncontributory negligence.\nThe jury was given a verdict sheet posing several questions. The\nfirst question was: \xe2\x80\x9cDo you find that the Soccer Association of\nColumbia was negligent?\xe2\x80\x9d The jury answered \xe2\x80\x9cyes\xe2\x80\x9d to this\nquestion. The jury also answered \xe2\x80\x9cyes\xe2\x80\x9d to the question: \xe2\x80\x9cDo you\nfind that the Soccer Association of Columbia\xe2\x80\x99s negligence\ncaused the Plaintiff\xe2\x80\x99s injuries?\xe2\x80\x9d Finally, the jury answered \xe2\x80\x9cyes\xe2\x80\x9d\nto the question: \xe2\x80\x9cDo you find that the Plaintiff was negligent\nand that his negligence contributed to his claimed injuries?\xe2\x80\x9d\nIn short, the jury concluded that the Soccer Association of\nColumbia was negligent and that the Soccer Association\xe2\x80\x99s\nnegligence caused Coleman\xe2\x80\x99s injuries. The jury also found that\n\n359\n\n\x0cColeman was negligent, and that his negligence contributed to\nhis own injuries. Because of the contributory negligence finding,\nColeman was barred from any recovery. The trial court denied\nColeman\xe2\x80\x99s motion for judgment notwithstanding the verdict and\nsubsequently entered judgment in favor of the Soccer\nAssociation of Columbia.~\nThe General Assembly\xe2\x80\x99s repeated failure to pass legislation\nabrogating the defense of contributory negligence is very strong\nevidence that the legislative policy in Maryland is to retain the\nprinciple of contributory negligence.~ For this Court to change\nthe common law and abrogate the contributory negligence\ndefense in negligence actions, in the face of the General\nAssembly\xe2\x80\x99s repeated refusal to do so, would be totally\ninconsistent with the Court\xe2\x80\x99s long-standing jurisprudence.\nJUDGMENT OF THE CIRCUIT COURT FOR HOWARD\nCOUNTY AFFIRMED. COSTS TO BE PAID BY THE\nAPPELLANT JAMES COLEMAN.\nJudge GLENN T. HARRELL, JR., dissenting:\nPaleontologists and geologists inform us that Earth\xe2\x80\x99s Cretaceous\nperiod (including in what is present day Maryland) ended\napproximately 65 million years ago with an asteroid striking\nEarth (the Cretaceous\xe2\x80\x93Paleogene Extinction Event), wiping-out,\nin a relatively short period of geologic time, most plant and\nanimal species, including dinosaurs. As to the last premise, they\nare wrong. A dinosaur roams yet the landscape of Maryland (and\nVirginia, Alabama, North Carolina and the District of\nColumbia), feeding on the claims of persons injured by the\nnegligence of another, but who contributed proximately in some\nway to the occasion of his or her injuries, however slight their\nculpability. The name of that dinosaur is the doctrine of\ncontributory negligence. With the force of a modern asteroid\nstrike, this Court should render, in the present case, this\ndinosaur extinct. It chooses not to do so. Accordingly, I dissent.\nMy dissent does not take the form of a tit-for-tat trading of\nthrusts and parries with the Majority opinion. Rather, I write for\na future majority of this Court, which, I have no doubt, will\n\n360\n\n\x0crelegate the fossilized doctrine of contributory negligence to a\njudicial tar pit at some point.~\nUnder the doctrine of contributory negligence, a plaintiff who\nfails to exercise ordinary care for his or her own safety, and thus\ncontributes proximately to his or her injury, \xe2\x80\x9cis barred from all\nrecovery, regardless of the quantum of a defendant\xe2\x80\x99s primary\nnegligence.\xe2\x80\x9d Harrison v. Montgomery Cnty. Bd. of Ed., 295 Md. 442,\n451 (1983). Contributory negligence is the \xe2\x80\x9cneglect of duty\nimposed upon all men to observe ordinary care for their own\nsafety,\xe2\x80\x9d Potts v. Armour & Co., 183 Md. 483, 490 (1944), and\nrefers not to the breach of a duty owed to another, but rather to\nthe failure of an individual to exercise that degree of care\nnecessary to protect him or her self. An \xe2\x80\x9call-or-nothing\xe2\x80\x9d\ndoctrine, contributory negligence operates in application as a\ntotal bar to recovery by an injured plaintiff.\nThe doctrine is of judicial \xe2\x80\x9cBig Bang\xe2\x80\x9d origin, credited generally\nto the 1809 English case of Butterfield v. Forrester (1809) 103 Eng.\nRep. 926 (K.B.). In Butterfield, the court considered whether a\nplaintiff, injured while \xe2\x80\x9cviolently\xe2\x80\x9d riding his horse on a roadway,\nby a pole negligently placed in the roadway, could recover\ndamages. Denying recovery, Lord Ellenborough penned the first\nrecognized incantation of contributory negligence, declaring,\n\xe2\x80\x9cOne person being in fault will not dispense with another\xe2\x80\x99s\nusing ordinary care for himself. Two things must concur to\nsupport this action, an obstruction in the road by the fault of the\ndefendant, and no want of ordinary care to avoid it on the part\nof the plaintiff.\xe2\x80\x9d.~\nWhatever the initial justifications attributed to its birth,\ncontributory negligence has been a mainstay of Maryland law\nsince its adoption in Irwin v. Sprigg, 6 Gill 200 (1847). Since that\ntime, Maryland courts applied the doctrine of contributory\nnegligence to bar recovery in negligence actions by at-fault\nplaintiffs. Exceptions evolved, however, to allow recovery in\nspecific instances. For example, the defense of contributory\nnegligence is not available against claimants under five years of\nage, in strict liability actions, and in actions based on intentional\nconduct. Additionally, the doctrine of last clear chance\n\n361\n\n\x0cdeveloped, to allow a plaintiff to recover, despite his or her\ncontributory negligence, if he or she establishes \xe2\x80\x9csomething new\nor sequential, which affords the defendant a fresh opportunity\n(of which he fails to avail himself) to avert the consequences of\nhis original negligence.\xe2\x80\x9d\nThe all-or-nothing consequences of the application of\ncontributory negligence have long been criticized nationally by\nscholars and commentators. See, e.g., Hilen v. Hays, 673 S.W.2d\n713, 717 (Ky.1984) (\xe2\x80\x9cA list of the critics of contributory\nnegligence as a complete bar to a plaintiff\xe2\x80\x99s recovery reads like a\ntort hall of fame. The list includes, among others, Campbell,\nFleming, Green, Harper and James, Dreton, Leflar, Malone,\nPound and Prosser.\xe2\x80\x9d); Prosser, Comparative Negligence, supra,\nat 469 (\xe2\x80\x9cCriticism of the denial of recovery was not slow in\ncoming, and it has been with us for more than a century.\xe2\x80\x9d); 2\nDan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of\nTorts, \xc2\xa7 218 at 763 (2d ed. 2011) (\xe2\x80\x9cThe traditional contributory\nnegligence rule was extreme not merely in results but in\nprinciple. No satisfactory reasoning has ever explained the\nrule.\xe2\x80\x9d).~\nRespondent and its Amici count as a strength of the doctrine of\ncontributory negligence its inflexibility in refusing to\ncompensate any, even marginally, at-fault plaintiff. They argue\nthat, in so doing, contributory negligence encourages personal\nresponsibility by foreclosing the possibility of recovery for\npotential, negligent plaintiffs, and thus cannot possibly be\noutmoded. To the contrary, that the doctrine of contributory\nnegligence grants one party a windfall at the expense of the\nother is, as courts and commentators alike have noted, unfair\nmanifestly as a matter of policy. See, e.g., Kaatz v. State, 540 P.2d\n1037, 1048 (Alaska 1975) (\xe2\x80\x9cThe central reason for adopting a\ncomparative negligence system lies in the inherent injustice of\nthe contributory negligence rule.\xe2\x80\x9d); Hoffman v. Jones, 280 So.2d\n431, 436 (Fla.1973) (\xe2\x80\x9cWhatever may have been the historical\njustification for [the rule of contributory negligence], today it is\nalmost universally regarded as unjust and inequitable to vest an\nentire accidental loss on one of the parties whose negligent\nconduct combined with the negligence of the other party to\n\n362\n\n\x0cproduce the loss.\xe2\x80\x9d); Lande & MacAlister, supra, at 4 (\xe2\x80\x9cThe \xe2\x80\x98all or\nnothing\xe2\x80\x99 system [of contributory negligence], disconnected from\na party\xe2\x80\x99s degree of fault, is unfair and counterintuitive.\xe2\x80\x9d);\nProsser, Comparative Negligence, supra, at 469 (characterizing\ncontributory negligence as \xe2\x80\x9coutrageous\xe2\x80\x9d and an \xe2\x80\x9cobvious\ninjustice\xe2\x80\x9d that \xe2\x80\x9c[n]o one has ever succeeded in justifying ..., and\nno one ever will\xe2\x80\x9d). Moreover, if contributory negligence\nencourages would-be plaintiffs to exercise caution with respect\nto themselves, then so too does the doctrine of comparative\nfault by reducing the plaintiff\xe2\x80\x99s recoverable damages. Unlike\ncontributory negligence, however, comparative fault deters also\nnegligence on the part of the defendant by holding him or her\nresponsible for the damages that he or she inflicted on the\nplaintiff. See Lande & MacAlister, supra, at 5\xe2\x80\x936 (noting that,\nalthough contributory negligence systems \xe2\x80\x9cburden[ ] only\nplaintiffs with the obligation to take precautions,\xe2\x80\x9d comparative\nnegligence provides a \xe2\x80\x9cmixture of responsibility\xe2\x80\x9d that is \xe2\x80\x9cthe\nbest way to prevent most accidents\xe2\x80\x9d); Prosser, Comparative\nNegligence, supra, at 468 (\xe2\x80\x9c[T]he assumption that the speeding\nmotorist is, or should be meditating on the possible failure of a\nlawsuit for his possible injuries lacks all reality, and it is quite as\nreasonable to say that the rule promotes accidents by\nencouraging the negligent defendant.\xe2\x80\x9d). Thus, Respondent\xe2\x80\x99s\ncontention that contributory negligence encourages personal\nresponsibility, and is therefore preferable to comparative\nnegligence, is unpersuasive.~\nAs noted above, the widespread acceptance of contributory\nnegligence as a complete defense is attributed principally to (1)\nthe desire to protect the nations\xe2\x80\x99 newly-developing industry\nfrom liability and plaintiff-minded juries,~ and (2) \xe2\x80\x9cthe concept\nprevalent at the time that a plaintiff\xe2\x80\x99s irresponsibility in failing to\nuse due care for his own safety erased whatever fault could be\nlaid at defendant\xe2\x80\x99s feet for contributing to the injury.\xe2\x80\x9d Scott v.\nRizzo, 96 N.M. 682 (1981). Neither of these justifications,\nhowever, carry weight in present-day Maryland. In today\xe2\x80\x99s\nsociety, there has been no need demonstrated to protect any\n\xe2\x80\x9cnewly-developing\xe2\x80\x9d industry at the expense of injured litigants.\nIndustry generally in this nation is no longer fledgling or so\n\n363\n\n\x0cprone to withering at the prospect of liability. See, e.g., Alvis v.\nRibar, 85 Ill.2d 1, 52 Ill.Dec. 23, (1981) (\xe2\x80\x9cThere is no longer any\njustification for providing the protective barrier of the\ncontributory negligence rule for industries of the nation at the\nexpense of deserving litigants.\xe2\x80\x9d); Frummer v. Hilton Hotels Int\xe2\x80\x99l,\nInc., 60 Misc.2d 840, (N.Y.Sup.1969) (\xe2\x80\x9cCourts now do not feel\nany need to act as a protector of our nation\xe2\x80\x99s infant industries,\nfor their infancy has long since passed.... In an age where a\ndefendant may through various means, such as insurance, readily\nprotect himself from a ruinous judgment, the solicitude of\nnineteenth century courts for defendants is certainly out of\nplace....\xe2\x80\x9d). Moreover, tilting the scales to favor industry is\ninconsistent with modern conceptions of justice, which focus\ninstead on proportional responsibility and fundamental fairness.\nSee Hilen v. Hays, 673 S.W.2d 713, 718 (Ky.1984) (\xe2\x80\x9cIt may well\nbe that the 19th century judicial mind perceived of the need for\ncourts to tilt the scales of justice in favor of defendants to keep\nthe liabilities of growing industry within some bounds. But\nassuming such a rule was ever viable, certainly it no longer\ncomports to present day morality and concepts of fundamental\nfairness.\xe2\x80\x9d~ Rather, the array of Amici lined up in support of the\ncontinuation of contributory negligence is populated by the\nentrenched and established business interests who seek to\nmaintain an economic advantage.~\nOur statements in Harrison did not circumscribe, however, our\nauthority to alter judicially-created common law rules in the face\nof repeated legislative inaction on the subject. Although we have\ndeclined frequently to effect changes in decisional doctrine upon\nobserving repeated legislative inaction, see, e.g., Potomac Valley\nOrthopaedic Assocs. v. Md. State Bd. of Physicians, 417 Md. 622, 639\xe2\x80\x93\n40 (2011) (\xe2\x80\x9cOur conclusion is confirmed by the fact that, in\n2007, 2008, 2009, and 2010, the General Assembly \xe2\x80\x98rejected\nefforts to achieve legislatively that which we [are being] asked to\ngrant judicially.\xe2\x80\x99\xe2\x80\x9d~); Moore v. State, 388 Md. 623, 641 (2005)\n(\xe2\x80\x9cLegislative inaction is very significant where bills have\nrepeatedly been introduced in the General Assembly to\naccomplish a particular result, and where the General Assembly\nhas persistently refused to enact such bills.\xe2\x80\x9d), we determined, on\n\n364\n\n\x0cmultiple occasions, that legislative inaction may not be a\nsufficient premise from which to draw a positive legislative\nintent in certain situations. See, e.g., City of Balt. Dev. Corp. v.\nCarmel Realty Assocs., 395 Md. 299, 329 (2006) (cautioning against\ndrawing a positive inference from legislative inaction because\n\xe2\x80\x9cthe General Assembly may well have ... decided not to enact\nthe amendment for a myriad of other reasons\xe2\x80\x9d); Goldstein v. State,\n339 Md. 563, 570 (1995) (\xe2\x80\x9c[T]he mere fact that the General\nAssembly has declined to adopt a particular proposal does not\npreclude this Court from incorporating the substance of that\nproposal into the common law....\xe2\x80\x9d); Automobile Trade Assoc. of\nMd., Inc. v. Ins. Comm\xe2\x80\x99r, 292 Md. 15, 24 (1981) (\xe2\x80\x9c[T]he fact that a\nbill on a specific subject fails of passage in the General\nAssembly is a rather weak reed upon which to lean in\nascertaining legislative intent.\xe2\x80\x9d); Cicoria v. State, 89 Md.App. 403,\n428 n. 9 (1991) (noting that \xe2\x80\x9c[t]rying to determine what the\nlegislature intended (or did not intend) by rejecting those bills is\nno easy assignment\xe2\x80\x9d and declining to draw either a positive or\nnegative inference from the rejected bills).\nAlthough the Harrison court opted to defer to the Legislature,\nthe opinion in that case gives no indication that such deference\nwas unlimited. No acknowledgment was advanced that we lack\nthe authority to alter a long-standing common law rule where\nthe Legislature declines to enact proposed legislation.~ Further,\nwe did not characterize the inaction of the General Assembly as\na conclusive, definitive declaration of public policy \xe2\x80\x93 to the\ncontrary, we specifically stated that legislative inaction is \xe2\x80\x9cnot\nconclusive\xe2\x80\x9d and merely \xe2\x80\x9cindicative of an intention to retain the\ndoctrine of contributory negligence.\xe2\x80\x9d~\nDeclining to perpetuate unmindful deference to the Legislature\non such a topic would not be without precedent. For example,\nas noted above, this Court stated repeatedly its intention to\ndefer to legislative action on the topic of interspousal immunity\nbefore acting. Decades later, after noting the Legislature\'s\ncontinued stasis on the subject, we rescinded our deference and\nmodernized an outdated common law rule.~\nC.J. Bell has authorized me to state he joins in this opinion.\n\n365\n\n\x0cQuestions to Ponder About Coleman v. Soccer Association\nA. What should be made of the Maryland legislature not providing\nfor a system of comparative negligence by statute? Are you persuaded\nthat this is a good reason for the court not to act? Should drawing an\ninference from legislative inaction depend on particulars \xe2\x80\x93 such as\nhow often bills were introduced, whether committee hearings were\never held, or whether there was a floor vote?\nB. If the Maryland courts adopted a comparative negligence rule, the\nMaryland legislature could overrule it with a simple statute. Is this a\npersuasive reason to disregard the legislature\xe2\x80\x99s prior inaction in\ndeciding whether the Maryland courts should overrule themselves?\nC. From the perspective of people favoring comparative negligence,\ndo you think this case was a good vehicle for trying overturn\nMaryland law?\nD. What qualities, in general, would make a case a good vehicle for\nattempting to effect a change in the law?\n\nLast Clear Chance Doctrine\nContributory negligence can be harsh. But the bare doctrine of\ncontributory negligence doctrine is not the whole story. Perhaps\nbecause of its harshness, various subversions have evolved ameliorate\ncontributory negligence in favor of plaintiffs in certain circumstances.\nThe most important of these, mentioned in Coleman, is the doctrine\nof last clear chance.\nThe idea of last clear chance is that if, despite the plaintiff\xe2\x80\x99s\nnegligence, the defendant has a last clear chance to avoid the injury,\nthen the defendant must seize that chance to prevent the harm. If the\ndefendant doesn\xe2\x80\x99t, the defendant will be liable, the plaintiff\xe2\x80\x99s\nnegligence notwithstanding.\nLast clear chance applies when there is a particular temporal sequence\nto the plaintiff\xe2\x80\x99s and defendant\xe2\x80\x99s negligence: First, the plaintiff does\nsomething negligent, creating some perilous situation. Next, the\ndefendant has a chance to avoid injury to the plaintiff by being\ncareful. Then, the defendant omits to take the precaution, and injury\n\n366\n\n\x0cresults. This chronological order is essential \xe2\x80\x93 without it, last clear\nchance doctrine will not apply.\nA good example of last clear chance is the case credited with\nintroducing it: Davies v. Mann, 152 Eng. Rep. 588 (Court of\nExchequer 1842). In Davies, a donkey was left in a highway fettered\nby its fore feet. This means of tying up the animal \xe2\x80\x93 called \xe2\x80\x9can illegal\nact\xe2\x80\x9d in the opinion \xe2\x80\x93 prevented the animal from being able to get out\nof the way of traffic. The defendant, driving a horse-drawn wagon\nalong the highway at a high rate of speed, ran over and killed the\ndonkey. The court held:\n\xe2\x80\x9c[A]lthough the ass may have been wrongfully\nthere, still the defendant was bound to go along\nthe road at such a pace as would be likely to\nprevent mischief. Were this not so, a man might\njustify the driving over goods left on a public\nhighway, or even over a man lying asleep there,\nor the purposely running against a carriage\ngoing on the wrong side of the road.\xe2\x80\x9d\n\nKeep in mind that last clear chance doctrine is relevant only in a\njurisdiction following contributory negligence. In a comparative fault\njurisdiction, the more blameworthy kind of negligence involved when\na tortfeasor disregards an opportunity to avoid harm is swept up into\nthe general comparative fault rubric of apportioning blame.\nOther Subversions of Contributory Negligence\nIn addition to last clear chance doctrine, there are other subversions\nto contributory negligence that are favorable to plaintiffs. Some of\nthese, recognized in Maryland, are discussed in Judge Harrell\xe2\x80\x99s dissent\nin Coleman. Common subversion are that contributory negligence is\nnot available against very young plaintiffs (in Maryland, under five\nyears of age), in cases of willful, wanton or reckless negligence, or in\ncases of intentional conduct. Also, while the reasonable-person\nstandard of care is not generally adjusted downward for persons with\nmental illness of cognitive limitations when those persons are\ndefendants, the standard may be lowered in the context of the\ncontributory negligence defense to prevent the defense from barring\nrecovery. Along the same lines, negligence actions based on\n\n367\n\n\x0cnegligence per se doctrine may be impervious to a defense of\ncontributory negligence if the statute upon which the suit is based is\none specifically designed to protect persons who are unable to\nprotect themselves \xe2\x80\x93 such as children, intoxicated persons, or\npersons with mental illness or cognitive disabilities.\nComparative Negligence\nAt the time of this writing, 46 states have overturned the commonlaw doctrine of contributory negligence in favor of some form of\ncomparative negligence. About a dozen have done so as the result of\na court decision, with the remainder having introduced comparative\nnegligence by way of a statutory reform.\nComparative negligence \xe2\x80\x93 also commonly called \xe2\x80\x9ccomparative fault\xe2\x80\x9d\nbecause it has applications in tort law beyond negligence claims \xe2\x80\x93 is a\npartial defense. It allows a defendant to escape some portion of the\ndamages under certain circumstances on account of the plaintiff\xe2\x80\x99s\nnegligence. Generally the jury is required to determine the relative\nfault between the parties in the form of percentages. The reduction in\ndamages is then done by multiplying the total damages by the\nrelevant percentage. So if a jury finds that the plaintiff is 1% at fault,\nthat the defendant is 99% at fault, and that the plaintiff suffered\n$100,000 in damages, then the plaintiff\xe2\x80\x99s recovery will be reduced by\n$1,000, meaning that the defendant will be liable for $99,000.\nThat is a simple example, but comparative negligence gets much\nmore complicated. The complications arise from the many variables\nthat allow the doctrine to be very different from one jurisdiction to\nthe next. As a result, there are myriad versions of comparative\nnegligence.\nThe first and most important variable is whether there is a threshold\nquantum of the plaintiff\xe2\x80\x99s negligence beyond which the defendant has\na complete, rather than partial, defense. The version called pure\ncomparative negligence has no threshold. This approach is\nfollowed in 12 states. Whatever percentage the plaintiff is negligent,\nthat is the percentage by which the plaintiff\xe2\x80\x99s recovery is reduced. For\ninstance, if the plaintiff is determined to be 99% negligent, then the\nrecovery is reduced by 99%, and the plaintiff can only recover 1% of\n\n368\n\n\x0cthe compensatory damages from the defendant. In such a case, the\nplaintiff is, in the judgment of the factfinder, almost entirely to blame\nfor her or his own injury, yet a small amount of recovery is still\npossible.\nThe perception among some courts and lawmakers that it would be\nunfair to allow recovery in such a situation \xe2\x80\x93 where the plaintiff is\nmostly to blame \xe2\x80\x93 has led to a form of the doctrine known as\nmodified comparative negligence (also known as \xe2\x80\x9cpartial\ncomparative negligence.\xe2\x80\x9d) In this form, if the plaintiff\xe2\x80\x99s negligence\nmeets or exceeds some threshold, then the plaintiff is entirely barred\nfrom any recovery. In essence, there is a reversion to contributory\nnegligence. How this threshold works differs greatly among\njurisdictions.\nIn some jurisdictions the plaintiff is allowed recovery \xe2\x80\x93 subject to\nreduction \xe2\x80\x93 so long as the plaintiff\xe2\x80\x99s fault is not more than the\ndefendant\xe2\x80\x99s fault. Other jurisdictions say that the plaintiff is allowed\nrecovery \xe2\x80\x93 subject to reduction \xe2\x80\x93 so long as the plaintiff\xe2\x80\x99s fault is less\nthan the defendant\xe2\x80\x99s fault. Notice that either way, the threshold is\n50%. The difference is what happens in the event of a tie, where the\njury determines that both the plaintiff and the defendant are each\nequally at fault, assigning 50% of the responsibility to each.\nThe more popular version of modified comparative negligence is the\nmore plaintiff-friendly one \xe2\x80\x93 the one in which the plaintiff can still\nrecover if fault is apportioned 50/50. By one count, 22 states use this\nversion. The more defendant-friendly rule \xe2\x80\x93 where equal fault means\nthe plaintiff is denied all recovery \xe2\x80\x93 is the choice of 11 states.\nSo we have two main versions of modified comparative negligence,\ndistinguished by what happens in the event that the plaintiff and the\ndefendant are equally at fault. What are these alternative versions\ncalled? Putting labels on the rules is a potential source of extreme\nconfusion. Some sources use the label \xe2\x80\x9c50% rule\xe2\x80\x9d to refer to the rule\nwhere defendant wins a complete victory in the event of tie.\nIndubitably it makes sense to call this the \xe2\x80\x9c50% rule,\xe2\x80\x9d since the\nplaintiff is barred from recovering if adjudged 50% at fault. But other\nsources use the label \xe2\x80\x9c50% rule\xe2\x80\x9d to denote the rule that allows a\n\n369\n\n\x0cplaintiff recovery in the event of a tie. This too makes perfect sense,\nsince under the rule the plaintiff can be up to 50% at fault without\nbeing barred.\nUnfortunately, it is very hard to know what someone is talking about\nwhen they use the phrase \xe2\x80\x9c50% rule\xe2\x80\x9d (or, for that matter, \xe2\x80\x9c49% rule,\xe2\x80\x9d\nor \xe2\x80\x9c51% rule\xe2\x80\x9d). You might distinguish them by calling one the \xe2\x80\x9c50%\nbar rule\xe2\x80\x9d and the other the \xe2\x80\x9c50% allowed rule.\xe2\x80\x9d The safest way to\ndistinguish the two, however, may be to call them the plaintiff-winsthe-tie rule and the defendant-wins-the-tie rule. It\xe2\x80\x99s inelegant, but\nunambiguous.\nNone of this would matter much if ties were rare. But they are not. If\nyou ask a jury to assign proportional blame between two negligent\nparties, the easiest and most obvious answer will often be to say that\nthey are both equally at fault. So what happens in the event of a tie\nmay amount to a huge difference in the overall effect of tort law in a\ngiven jurisdiction.\nEven once the labels are straightened out, there is still a problem\ngrouping states together in this way. One of the 22 states counted in\nthe plaintiff-wins-in-tie rule was Michigan. But in Michigan, under\nMichigan Compiled Laws \xc2\xa7 600.2959, a plaintiff who is more to\nblame than the defendant is barred just from noneconomic damages.\nSo a more-than-half negligent plaintiff in Michigan could recover a\npercentage of medical bills and lost wages while being barred from all\npain-and-suffering damages.\nBut wait. There are yet more complications. Up to this point, we have\nspoken only of situations in which there is one defendant. What if\nthere are multiple defendants? Is the negligence threshold applied by\ncomparing the plaintiff to each individual defendant, or to all\ndefendants considered collectively? You will not be surprised to find\nout that jurisdictions differ. Most states consider defendants\ncollectively \xe2\x80\x93 employing the threshold by comparing the plaintiff\xe2\x80\x99s\npercentage of the blame to the percentage of all the defendant\xe2\x80\x99s\nconsidered collectively. A few states apply the threshold on a\ndefendant-by-defendant basis.\n\n370\n\n\x0cStatutes: Comparative Negligence\nThe following statutes show some of the variety of implementations\nof the comparative negligence defense.\n\nKentucky Revised Statues\nTitle XXXVI, Chapter 411\n411.182 Allocation of fault in tort actions \xe2\x80\x93 Award of damages \xe2\x80\x93\nEffect of release.\n(1) In all tort actions, including products liability actions,\ninvolving fault of more than one (1) party to the action,\nincluding third-party defendants and persons who have been\nreleased under subsection (4) of this section, the court, unless\notherwise agreed by all parties, shall instruct the jury to answer\ninterrogatories or, if there is no jury, shall make findings\nindicating:\n(a) The amount of damages each claimant would be entitled to\nrecover if contributory fault is disregarded; and\n(b) The percentage of the total fault of all the parties to each\nclaim that is allocated to each claimant, defendant, third-party\ndefendant, and person who has been released from liability\nunder subsection (4) of this section.\n(2) In determining the percentages of fault, the trier of fact shall\nconsider both the nature of the conduct of each party at fault\nand the extent of the causal relation between the conduct and\nthe damages claimed.\n(3) The court shall determine the award of damages to each\nclaimant in accordance with the findings, subject to any\nreduction under subsection (4) of this section, and shall\ndetermine and state in the judgment each party\xe2\x80\x99s equitable share\nof the obligation to each claimant in accordance with the\nrespective percentages of fault.\n(4) A release, covenant not to sue, or similar agreement entered\ninto by a claimant and a person liable, shall discharge that\nperson from all liability for contribution, but it shall not be\nconsidered to discharge any other persons liable upon the same\n\n371\n\n\x0cclaim unless it so provides. However, the claim of the releasing\nperson against other persons shall be reduced by the amount of\nthe released persons\xe2\x80\x99 equitable share of the obligation,\ndetermined in accordance with the provisions of this section.\n\nMinnesota Statutes\nChapter 604, Section 01\n604.01 COMPARATIVE FAULT; EFFECT.\nSubdivision 1. Scope of application. Contributory fault does not\nbar recovery in an action by any person or the person\'s legal\nrepresentative to recover damages for fault resulting in death, in\ninjury to person or property, or in economic loss, if the\ncontributory fault was not greater than the fault of the person\nagainst whom recovery is sought, but any damages allowed must\nbe diminished in proportion to the amount of fault attributable\nto the person recovering. The court may, and when requested by\nany party shall, direct the jury to find separate special verdicts\ndetermining the amount of damages and the percentage of fault\nattributable to each party and the court shall then reduce the\namount of damages in proportion to the amount of fault\nattributable to the person recovering.\nSubd. 1a. Fault. "Fault" includes acts or omissions that are in\nany measure negligent or reckless toward the person or property\nof the actor or others, or that subject a person to strict tort\nliability. The term also includes breach of warranty,\nunreasonable assumption of risk not constituting an express\nconsent or primary assumption of risk, misuse of a product and\nunreasonable failure to avoid an injury or to mitigate damages,\nand the defense of complicity under section 340A.801. Legal\nrequirements of causal relation apply both to fault as the basis\nfor liability and to contributory fault. The doctrine of last clear\nchance is abolished.\nEvidence of unreasonable failure to avoid aggravating an injury\nor to mitigate damages may be considered only in determining\nthe damages to which the claimant is entitled. It may not be\nconsidered in determining the cause of an accident.\n\n372\n\n\x0cSubd. 2. Personal injury or death; settlement or payment.\nSettlement with or any payment made to an injured person or to\nothers on behalf of such injured person with the permission of\nsuch injured person or to anyone entitled to recover damages on\naccount of injury or death of such person shall not constitute an\nadmission of liability by the person making the payment or on\nwhose behalf payment was made.\nSubd. 3. Property damage or economic loss; settlement or\npayment. Settlement with or any payment made to a person or\non the person\'s behalf to others for damage to or destruction of\nproperty or for economic loss does not constitute an admission\nof liability by the person making the payment or on whose\nbehalf the payment was made.\nSubd. 4. Settlement or payment; admissibility of evidence.\nExcept in an action in which settlement and release has been\npleaded as a defense, any settlement or payment referred to in\nsubdivisions 2 and 3 shall be inadmissible in evidence on the\ntrial of any legal action.\nSubd. 5. Credit for settlements and payments; refund. All\nsettlements and payments made under subdivisions 2 and 3 shall\nbe credited against any final settlement or judgment; provided\nhowever that in the event that judgment is entered against the\nperson seeking recovery or if a verdict is rendered for an\namount less than the total of any such advance payments in\nfavor of the recipient thereof, such person shall not be required\nto refund any portion of such advance payments voluntarily\nmade. Upon motion to the court in the absence of a jury and\nupon proper proof thereof, prior to entry of judgment on a\nverdict, the court shall first apply the provisions of subdivision 1\nand then shall reduce the amount of the damages so determined\nby the amount of the payments previously made to or on behalf\nof the person entitled to such damages.\n\nMaine Revised Statutes\nTitle 14, \xc2\xa71\n\xc2\xa7156. Comparative negligence\n\n373\n\n\x0cWhen any person suffers death or damage as a result partly of\nthat person\'s own fault and partly of the fault of any other\nperson or persons, a claim in respect of that death or damage\nmay not be defeated by reason of the fault of the person\nsuffering the damage, but the damages recoverable in respect\nthereof must be reduced to such extent as the jury thinks just\nand equitable having regard to the claimant\'s share in the\nresponsibility for the damage.\nWhen damages are recoverable by any person by virtue of this\nsection, subject to such reduction as is mentioned, the court\nshall instruct the jury to find and record the total damages that\nwould have been recoverable if the claimant had not been at\nfault, and further instruct the jury to reduce the total damages by\ndollars and cents, and not by percentage, to the extent\nconsidered just and equitable, having regard to the claimant\'s\nshare in the responsibility for the damages, and instruct the jury\nto return both amounts with the knowledge that the lesser figure\nis the final verdict in the case.\nFault means negligence, breach of statutory duty or other act or\nomission that gives rise to a liability in tort or would, apart from\nthis section, give rise to the defense of contributory negligence.\nIf such claimant is found by the jury to be equally at fault, the\nclaimant may not recover.\nIn a case involving multiparty defendants, each defendant is\njointly and severally liable to the plaintiff for the full amount of\nthe plaintiff\'s damages. However, any defendant has the right\nthrough the use of special interrogatories to request of the jury\nthe percentage of fault contributed by each defendant. If a\ndefendant is released by the plaintiff under an agreement that\nprecludes the plaintiff from collecting against remaining parties\nthat portion of any damages attributable to the released\ndefendant\'s share of responsibility, then the following rules\napply.\n1. General rule. The released defendant is entitled to be\ndismissed with prejudice from the case. The dismissal bars all\n\n374\n\n\x0crelated claims for contribution assertable by remaining parties\nagainst the released defendant.\n2. Post-dismissal procedures. The trial court must preserve for\nthe remaining parties a fair opportunity to adjudicate the liability\nof the released and dismissed defendant. Remaining parties may\nconduct discovery against a released and dismissed defendant\nand invoke evidentiary rules at trial as if the released and\ndismissed defendant were still a party.\n3. Binding effect. To apportion responsibility in the pending\naction for claims that were included in the settlement and\npresented at trial, a finding on the issue of the released and\ndismissed defendant\'s liability binds all parties to the suit, but\nsuch a finding has no binding effect in other actions relating to\nother damage claims.\n\nSome Problems on Applying Comparative Negligence\nStatutes\nFor the following problems, apply what you have learned from the\nforegoing statutes as well as from the case of Coleman v. Soccer\nAssociation of Columbia.\nA. The law firm of Lorisbarn & Lindern has built a successful\nboutique litigation practice representing plaintiffs on a contingency\nfee basis in personal-injury negligence actions arising from accidents\ninvolving personal all-terrain vehicles or ATVs. In the kinds of cases\nL&L takes on, the plaintiff\xe2\x80\x99s negligence is often an issue and there are\noften multiple defendants. The firm is now considering opening up\nan office in a new state. The firm has determined that Kentucky,\nMaine, Maryland, and Minnesota all represent approximately equal\nopportunities in terms of the saturation of the market for\ncontingency-fee plaintiff\xe2\x80\x99s representation and financially lucrative\ncases. The firm has decided that a key factor in its determination of\nwhere to open a new practice will be the state\xe2\x80\x99s doctrine regarding\nthe impact of the plaintiff\xe2\x80\x99s negligence on the recovery of damages.\nAll else being equal, how would you rank the states in order of\ndesirability for L&L? To support your conclusion, how would you\n\n375\n\n\x0cdescribe the differences among those states in terms of their\ntreatment of a plaintiff\xe2\x80\x99s negligence?\nB. Suppose a jury privately determines, in the course of deliberations,\nthat the total amount of damages suffered by a plaintiff is $100,000,\nand that the apportionment of fault among the parties is as follows:\nPlaintiff: 50%; Defendant: 50%. The jury then returns a verdict in\naccordance with that determination \xe2\x80\x93 including filling out any special\ninterrogatories or verdict forms as instructed. How much will the\nplaintiff receive from the defendant in Kentucky? In Maine? In\nMaryland? In Minnesota?\nC. Suppose a jury privately determines, in the course of deliberations,\nthat the total amount of damages suffered by a plaintiff is $100,000,\nand that the apportionment of fault among the parties is as follows:\nPlaintiff: 40%; Defendant X: 20%; Defendant Y: 20%; Defendant Z:\n20%. The jury then returns a verdict in accordance with that\ndetermination \xe2\x80\x93 including filling out any special interrogatories or\nverdict forms as instructed. How much will the plaintiff receive from\nDefendant X in Kentucky? In Maine? In Maryland? In Minnesota?\n\nAssumption of the Risk\nThe affirmative defense of assumption of the risk provides that\ndefendants can avoid liability where plaintiffs have voluntarily taken\nthe chance that they might get hurt. One way to think about\nassumption of the risk is in relation to the prima facie elements of a\nnegligence claim. Where plaintiffs assume the risk, they relieve\ndefendants of their duty of due care.\nImplied vs. Express Assumption of the Risk\nThe label \xe2\x80\x9cassumption of the risk\xe2\x80\x9d is applied by courts to many\ndifferent situations, and it may differentially engage different\nrequirements and limitations. There are two broad categories,\nhowever, that form an important division: implied and express.\nImplied assumption of the risk comes about when plaintiffs, by their\nconduct or actions, show that they have assumed the risk. Express\nassumption of the risk results from an explicit agreement in words \xe2\x80\x93\nwritten or oral \xe2\x80\x93 assuming the risk.\n\n376\n\n\x0cThe Elements of Assumption of the Risk\nAssumption of the risk \xe2\x80\x93 whether of the implied or express type \xe2\x80\x93\ncan be broken down into two elements: (1) The plaintiff must know\nand appreciate the risk, including its nature and severity. (2) The\nplaintiff must take on the risk in an entirely voluntary way.\nThese requirements are quite strict.\nKnowledge \xe2\x80\x93 To show knowledge it is generally not enough for the\ndefendant to show that the plaintiff should have known about the\nrisk. There generally must be proof that the plaintiff actually knows\nabout the risk. And it is not just knowledge that is required, but real\nunderstanding and appreciation. In other words, plaintiffs have to\nreally know what they are getting into. To put it in more formal\nterms, the standard is a subjective one \xe2\x80\x93 looking at what the person\nactually understood, rather than an objective one, which would look\nat what the person should have understood given the circumstances.\nContrast the doctrine of assumption of the risk with the objective\nreasonable person standard in the prima face case for negligence. The\nreasonable person standard, being objective, will not bend to a\ndefendant\xe2\x80\x99s lack of understanding or awareness. So, it is readily\npossible for an inattentive or hapless person to blunder into\nnegligence liability. In fact, the more inattentive you are, the most\nlikely negligence liability becomes. By contrast, the more witless you\nare, the harder it is to assume the risk. A plaintiff, who, because of a\nlack of experience or intelligence is incapable of understanding the\nrisk, cannot assume it.\nThere are limits to the subjectivity of assumption of the risk. In the\nsports context, there is less tolerance for claims of ignorance.\nPlaintiffs hit by foul balls as spectators at baseball games tend to be\nheld to a more objective standard. The same goes for participants in\nsports activities.\nVoluntariness \xe2\x80\x93 The standard for voluntariness is quite strict as well.\nThere must be a genuine choice if a plaintiff is to be held to having\nassumed the risk. If it is the case that the plaintiff was compelled by\ncircumstance and had no reasonable choice other than to confront\n\n377\n\n\x0cthe risk, then it does not count as voluntary for purposes of\nassumption-of-the-risk doctrine. Similarly, if a plaintiff\xe2\x80\x99s only choice\nto avoid the risk is to forego a legal right \xe2\x80\x93 such as enjoying one\xe2\x80\x99s\nown property \xe2\x80\x93 then the there is no voluntariness. In the celebrated\ncase of Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974), a plaintiff who\nwas attacked and bitten by his neighbor\xe2\x80\x99s boar was held not to have\nassumed the risk by walking out of his own house.\nRelationship with Contributory and Comparative\nNegligence\nThere is considerable practical and conceptual overlap between the\ndefense of assumption of the risk and the defenses of contributory or\ncomparative negligence. But assumption of the risk is conceptually\ndistinguishable in that a plaintiff that assumes the risk might be acting\nreasonably. By definition, in a contributory/comparative negligence\nsituation, the plaintiff is not acting reasonably. On the other hand,\nplaintiffs might be quite reasonable in assuming the risk if they have\ndetermined that rewards outweigh the downside of the potential for\ninjury.\nSince the move from contributory negligence to the flexible system\nof comparative fault, many courts have held that the assumption of\nthe risk doctrine is absorbed to some extent into comparative fault\ndoctrine. The extent of the continuing viability of assumption of the\nrisk depends in large part about whether we are talking about implied\nor express assumption of the risk. The trend has been to abrogate the\ndefense of implied assumption the risk. On the other hand, express\nassumption of the risk generally remains viable as a defense.\nCase: Murphy v. Steeplechase Amusement Co.\nThe following case is an example of implied assumption of the risk.\n\nMurphy v. Steeplechase Amusement Co.\nCourt of Appeals of New York\nApril 16, 1929\n250 N.Y. 479. James Murphy, an Infant, by John Murphy, His\nGuardian ad Litem, Respondent, v. Steeplechase Amusement\nCo., Inc., Appellant. Submitted March 25, 1929. Decided April\n\n378\n\n\x0c16, 1929. Court below: Appellate Division of the Supreme Court\nin the First Judicial Department affirmed judgment for plaintiff\nentered upon a verdict. Murphy v. Steeplechase Amusement\nCo., Inc., 224 App. Div. 832 (1928). This court: Counsel:\nGardiner Conroy and Reginald S. Hardy for appellantdefendant. Charles Kennedy for respondent-plaintiff. Judges:\nCardozo, Ch. J. Pound, Crane, Lehman, Kellogg and Hubbs, JJ.,\nconcur; O\xe2\x80\x99Brien, J., dissents.\nChief Judge BENJAMIN N. CARDOZO:\nThe defendant, Steeplechase Amusement Company, maintains\nan amusement park at Coney Island, New York.\nOne of the supposed attractions is known as \xe2\x80\x9cThe Flopper.\xe2\x80\x9d It\nis a moving belt, running upward on an inclined plane, on which\npassengers sit or stand. Many of them are unable to keep their\nfeet because of the movement of the belt, and are thrown\nbackward or aside. The belt runs in a groove, with padded walls\non either side to a height of four feet, and with padded flooring\nbeyond the walls at the same angle as the belt. An electric\nmotor, driven by current furnished by the Brooklyn Edison\nCompany, supplies the needed power.\nPlaintiff, a vigorous young man, visited the park with friends.\nOne of them, a young woman, now his wife, stepped upon the\nmoving belt. Plaintiff followed and stepped behind her. As he\ndid so, he felt what he describes as a sudden jerk, and was\nthrown to the floor. His wife in front and also friends behind\nhim were thrown at the same time. Something more was here, as\nevery one understood, than the slowly-moving escalator that is\ncommon in shops and public places. A fall was foreseen as one\nof the risks of the adventure. There would have been no point\nto the whole thing, no adventure about it, if the risk had not\nbeen there. The very name above the gate, the Flopper, was\nwarning to the timid. If the name was not enough, there was\nwarning more distinct in the experience of others. We are told\nby the plaintiff\xe2\x80\x99s wife that the members of her party stood\nlooking at the sport before joining in it themselves. Some\naboard the belt were able, as she viewed them, to sit down with\ndecorum or even to stand and keep their footing; others jumped\n\n379\n\n\x0cor fell. The tumbling bodies and the screams and laughter\nsupplied the merriment and fun. \xe2\x80\x9cI took a chance,\xe2\x80\x9d she said\nwhen asked whether she thought that a fall might be expected.\nPlaintiff took the chance with her, but, less lucky than his\ncompanions, suffered a fracture of a knee cap. He states in his\ncomplaint that the belt was dangerous to life and limb in that it\nstopped and started violently and suddenly and was not properly\nequipped to prevent injuries to persons who were using it\nwithout knowledge of its dangers, and in a bill of particulars he\nadds that it was operated at a fast and dangerous rate of speed\nand was not supplied with a proper railing, guard or other device\nto prevent a fall therefrom. No other negligence is charged.\nWe see no adequate basis for a finding that the belt was out of\norder. It was already in motion when the plaintiff put his foot\non it. He cannot help himself to a verdict in such circumstances\nby the addition of the facile comment that it threw him with a\njerk. One who steps upon a moving belt and finds his heels\nabove his head is in no position to discriminate with nicety\nbetween the successive stages of the shock, between the jerk\nwhich is a cause and the jerk, accompanying the fall, as an\ninstantaneous effect. There is evidence for the defendant that\npower was transmitted smoothly, and could not be transmitted\notherwise. If the movement was spasmodic, it was an\nunexplained and, it seems, an inexplicable departure from the\nnormal workings of the mechanism. An aberration so\nextraordinary, if it is to lay the basis for a verdict, should rest on\nsomething firmer than a mere descriptive epithet, a summary of\nthe sensations of a tense and crowded moment. But the jerk, if it\nwere established, would add little to the case. Whether the\nmovement of the belt was uniform or irregular, the risk at\ngreatest was a fall. This was the very hazard that was invited and\nforeseen.\nVolenti non fit injuria. One who takes part in such a sport accepts\nthe dangers that inhere in it so far as they are obvious and\nnecessary, just as a fencer accepts the risk of a thrust by his\nantagonist or a spectator at a ball game the chance of contact\nwith the ball. The antics of the clown are not the paces of the\n\n380\n\n\x0ccloistered cleric. The rough and boisterous joke, the horseplay\nof the crowd, evokes its own guffaws, but they are not the\npleasures of tranquillity. The plaintiff was not seeking a retreat\nfor meditation. Visitors were tumbling about the belt to the\nmerriment of onlookers when he made his choice to join them.\nHe took the chance of a like fate, with whatever damage to his\nbody might ensue from such a fall. The timorous may stay at\nhome.\nA different case would be here if the dangers inherent in the\nsport were obscure or unobserved, or so serious as to justify the\nbelief that precautions of some kind must have been taken to\navert them. Nothing happened to the plaintiff except what\ncommon experience tells us may happen at any time as the\nconsequence of a sudden fall. Many a skater or a horseman can\nrehearse a tale of equal woe. A different case there would also\nbe if the accidents had been so many as to show that the game\nin its inherent nature was too dangerous to be continued\nwithout change. The president of the amusement company says\nthat there had never been such an accident before. A nurse\nemployed at an emergency hospital maintained in connection\nwith the park contradicts him to some extent. She says that on\nother occasions she had attended patrons of the park who had\nbeen injured at the Flopper, how many she could not say. None,\nhowever, had been badly injured or had suffered broken bones.\nSuch testimony is not enough to show that the game was a trap\nfor the unwary, too perilous to be endured. According to the\ndefendant\xe2\x80\x99s estimate, two hundred and fifty thousand visitors\nwere at the Flopper in a year. Some quota of accidents was to be\nlooked for in so great a mass. One might as well say that a\nskating rink should be abandoned because skaters sometimes\nfall.\nThere is testimony by the plaintiff that he fell upon wood, and\nnot upon a canvas padding. He is strongly contradicted by the\nphotographs and by the witnesses for the defendant, and is\nwithout corroboration in the testimony of his companions who\nwere witnesses in his behalf. If his observation was correct,\nthere was a defect in the equipment, and one not obvious or\nknown. The padding should have been kept in repair to break\n\n381\n\n\x0cthe force of any fall. The case did not go to the jury, however,\nupon any such theory of the defendant\xe2\x80\x99s liability, nor is the\ndefect fairly suggested by the plaintiff\xe2\x80\x99s bill of particulars, which\nlimits his complaint. The case went to the jury upon the theory\nthat negligence was dependent upon a sharp and sudden jerk.\nThe judgment of the Appellate Division and that of the Trial\nTerm should be reversed, and a new trial granted, with costs to\nabide the event.\n\nQuestions to Ponder About Murphy v. Steeplechase\nA. Amusement parks in the in the Roaring 20s seem to be more\ndangerous places than the amusement parks of today. Do you think\nan amusement park today would have a ride like the Flopper?\nAssuming it did, and the facts of Murphy came to pass, do you think\nthe case would come out the same way these days?\nB. Judge Cardozo seems to say that risk was necessary for the\nFlopper to be fun: \xe2\x80\x9cThere would have been no point to the whole\nthing, no adventure about it, if the risk had not been there.\xe2\x80\x9d Do you\nagree?\nC. Generally speaking, assumption of the risk requires not only that\nthe plaintiff knows about the risk, but that the plaintiff understands\nthe nature of the risk. Clearly James Murphy appreciated the risk that\nhe might fall. But do you think James Murphy appreciated the fact\nthat he might suffer a broken kneecap from the Flopper?\nCase: Hulsey v. Elsinore Parachute Center\nThe following case explores express assumption of the risk and\nconsiders under what circumstances a release will be enforceable.\n\nHulsey v. Elsinore Parachute Center\nCourt of Appeal of California, Fourth Appellate District,\nDivision Two\nMay 16, 1985\nANTHONY HULSEY, Plaintiff and Appellant, v. ELSINORE\nPARACHUTE CENTER, Defendant and Respondent. No.\nE000643. Court ofdozo Appeal of California, Fourth Appellate\n\n382\n\n\x0cDistrict, Division Two. Opinion by McDaniel, J., with Kaufman,\nActing P.J., and Rickles, J., concurring.\nJudge FRANKLIN DOUGLAS McDANIEL:\nIn this appeal, we are called upon to review the propriety of a\nsummary judgment entered for defendant in a sports risk case.\nThe action in the trial court was to recover for personal injuries\nsuffered by plaintiff at the time of his first parachute jump, one\nattempted under the auspices of defendant. At the hearing of\nthe motion for summary judgment, no disputed issues of fact\nwere raised in connection~ with the count based on negligence~.\nAs a consequence, the trial court was concerned generally with~\nwhether the agreement and release of liability signed by plaintiff\nat the time of the instructional preparation for his first parachute\njump is enforceable against him.~ In our view, the trial court\ncorrectly ruled that the release is enforceable.~\nAfter the case was at issue and defendant had taken plaintiff\xe2\x80\x99s\ndeposition, defendant noticed a motion for summary judgment.\nThe supporting papers included the declaration of counsel for\ndefendant, Peter James McBreen, the principal purpose of\nwhich was to authenticate certain documentary evidence he\nwished to place before the court: (1) Exhibit \xe2\x80\x9cA,\xe2\x80\x9d a copy of\nplaintiff\xe2\x80\x99s deposition; (2) exhibit \xe2\x80\x9cB,\xe2\x80\x9d a copy of the \xe2\x80\x9cRegistration\nCard\xe2\x80\x9d signed by plaintiff several hours before he took off on his\nmisadventure; and (3) exhibit \xe2\x80\x9cC,\xe2\x80\x9d a copy of the \xe2\x80\x9cAgreement of\nRelease of Liability,\xe2\x80\x9d also signed by plaintiff at the same time he\nfilled out the \xe2\x80\x9cRegistration Card\xe2\x80\x9d on the reverse side.\nAs established by plaintiff\xe2\x80\x99s deposition, he went to defendant\xe2\x80\x99s\nplace of business, the Elsinore Parachute Center (EPC), in the\ncompany of three friends, two of whom had had previous\nexperience in sport parachuting. Upon arriving at EPC, plaintiff\nenrolled in the \xe2\x80\x9cFirst Jump Course\xe2\x80\x9d offered by defendant.\nAlthough plaintiff stated he had no recollection of filling out or\nsigning the \xe2\x80\x9cParachute Center Adult Registration Form,\xe2\x80\x9d he did\nadmit that the written inscriptions, the initials and the signature\non the form were his.\n\n383\n\n\x0cContinuing, plaintiff also disclaimed any recollection of reading\nor signing the \xe2\x80\x9cAgreement & Release of Liability,\xe2\x80\x9d but he did\nadmit once again that the signature and the initials on the\nagreement were his. Plaintiff admitted that he voluntarily\nenrolled in the first-jump course and was not coerced in any way\nduring the registration process.~\nDuring the classroom training, the instructor advised the class\nthat students occasionally break their legs while jumping. In\naddition, canopy control was discussed and plaintiff received\ninstruction on the proper procedure to be followed in\nmaneuvering the parachute for landing. Plaintiff admitted that\nhe understood the information provided and felt he was one of\nthe better students in the class.~\nPlaintiff\xe2\x80\x99s actual jump was postponed several hours because of\nwind. At approximately 6:30 p.m., plaintiff boarded the aircraft\nfor his first jump. Plaintiff recalled that the wind was \xe2\x80\x9cstill\xe2\x80\x9d or\n\xe2\x80\x9cvery calm\xe2\x80\x9d when he boarded the aircraft.\nPlaintiff\xe2\x80\x99s exit from the aircraft was normal. Plaintiff testified\nthat he attempted to steer toward the target area but was unable\nto reach it. Plaintiff attempted to land in a vacant lot but\ncollided with electric power lines as he neared the ground. As he\ndrifted into the wires, plaintiff saw a bright flash. Plaintiff\xe2\x80\x99s next\nrecollection was of regaining consciousness on the ground.\nDespite the extreme risk to which he was thereby exposed,\nplaintiff sustained only a broken wrist.\nAs for other items before the court, exhibit "B" and exhibit "C,"\nattached to Attorney McBreen\'s declaration,~ are included\nherein~. These items are copies of the registration card and the\nrelease reproduced here~.\n\n384\n\n\x0c385\n\n\x0c386\n\n\x0c~In\n\npursuing his appeal, plaintiff makes four substantive\ncontentions. They are that: (1) on the undisputed factual\nscenario there was no clear and comprehensive notice to\nplaintiff of what the legal consequences of the release would be;\n(2) such releases are against public policy; (3) the release is\nunenforceable because unconscionable in that it did not\ncomport with plaintiff\xe2\x80\x99s reasonable expectations~.\n[B]efore proceeding to a discussion of the~ issues of substance\nnoted, we must also note in passing that we are not at all\npersuaded that plaintiff should be relieved of the legal\nconsequences of the things he signed because he did not realize\nwhat he was signing or that somehow he was distracted or\nmisled from a fair realization of what was involved. It is well\nestablished, in the absence of fraud, overreaching or excusable\nneglect, that one who signs an instrument may not avoid the\nimpact of its terms on the ground that he failed to read the\ninstrument before signing it. On the record here, there is no\nindication whatsoever of fraud or other behavior by defendant\nwhich would otherwise have made the [usual] rule inapplicable.\nAnother aspect of this preliminary inquiry into the\ncircumstances surrounding plaintiff\xe2\x80\x99s filling out the registration\ncard and signing the release involves the size of the type used in\nprinting the release. In the case of Conservatorship of Link (1984)\n158 Cal.App.3d 138, the court held the purported exculpatory\ndocuments unenforceable for several reasons, including the fact\nthat they were printed in five and one half point type and thus\ncould not easily be read by persons of ordinary vision. (Id., at pp.\n141-142.) Actually, as observed in Link, \xe2\x80\x9cThe five and one-half\npoint print is so small that one would conclude defendants\nnever intended it to be read \xe2\x80\xa6 the lengthy fine print seems\ncalculated to conceal and not to warn the unwary.\xe2\x80\x9d\nThe type size contained in Link is not present here. As appears\nfrom the actual size reproduction in the appendix, the release is\nin 10-point type, both caps and lower case letters. This size\ncomports with a number of minimums prescribed by statute.\n\xef\x81\x81\nExamples: Civil Code sections 1630 [eight to ten-point:\nparking lots]; 1677 [eight-point bold red or ten-point bold:\n\n387\n\n\x0cliquidated damages provision in realty purchase contract]; 1803.1\nand 1803.2 [eight to fourteen-point: retail installment sales];\n1812.85 [ten-point bold: health studio services]; 1812.205 and\n1812.209 [ten to sixteen-point bold: seller assisted marketing\nplan]; 1812.302 and 1812.303 [ten-point bold: membership\ncamping]; 1812.402 [ten-point: disability insurance]; 1861.8 [tenpoint bold: innkeepers]; 1916.5 and 1916.7 [ten-point bold: loan\nof money]; 2924c [twelve to fourteen-point bold: mortgage\ndefault notice]; 2982.5 and 2983.2 [eight to ten-point bold:\nautomobile sales finance]; 2985.8, 2986.2 and 2986.4 [six to tenpoint bold: vehicle leasing act]; 3052.5 [ten-point bold: service\ndealer lien].\xe2\x80\x9d (Conservatorship of Link, supra, 158 Cal.App.3d\n138, 141.)\xef\x81\x80\nAs appears from a copy of the agreement reproduced in actual\nsize and attached as an appendix, the second paragraph recites\nin bold-faced type: \xe2\x80\x9cI Am Aware That Parachute Instruction\nAnd Jumping Are Hazardous Activities, And I Am Voluntarily\nParticipating In These Activities With Knowledge Of The\nDanger Involved And Hereby Agree To Accept Any And All\nRisks Of Injury Or Death. Please Initial.\xe2\x80\x9d Plaintiff affixed his\ninitials.\nThe third paragraph recites that the subscriber will not sue EPC\nor its employees \xe2\x80\x9cfor injury or damage resulting from the\nnegligence or other acts, howsoever caused, by any employee,\nagent or contractor of [EPC] or its affiliates, as a result of my\nparticipation in parachuting activities.\xe2\x80\x9d That paragraph goes on\nto recite that the subscriber will \xe2\x80\x9crelease and discharge\xe2\x80\x9d EPC\nand its employees \xe2\x80\x9cfrom all actions, claims or demands \xe2\x80\xa6 for\ninjury or damage resulting from [the subscriber\xe2\x80\x99s] participation\nin parachuting activities.\xe2\x80\x9d\nThe fourth paragraph, also in bold-faced type, recites that: \xe2\x80\x9cI\nHave Carefully Read This Agreement And Fully Understand Its\nContents. I Am Aware That This Is A Release Of Liability And\nA Contract Between Myself And Elsinore Parachute Center\nAnd/Or Its Affiliated Organizations And Sign It Of My Own\nFree Will.\xe2\x80\x9d Plaintiff\xe2\x80\x99s signature was thereto subscribed.\nI\n\n388\n\n\x0cPlaintiff\xe2\x80\x99s first contention involves an inquiry into whether\nplaintiff could reasonably have been expected to understand its\nlegal consequences for him. In substance, plaintiff argues that\nthe agreement was not sufficiently explicit or unambiguous to be\nenforceable against him~.\nFerrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147\nCal.App.3d 309 refused to enforce an exculpatory agreement\nbetween a race car driver and race sponsor. The operative\nlanguage used in the agreement there in issue provided that the\ndriver would \xe2\x80\x9csave harmless and keep indemnified\xe2\x80\x9d (Id., at p.\n312) the race sponsor. The court reasoned that such language\ncould not be reasonably expected to alert a layperson to the\nsignificance of the agreement and, therefore, that it was not\nsufficiently clear and explicit.\nIn contrast to the agreement in Ferrell, the one here was phrased\nin language clear to anyone. We have already quoted the\npertinent provision, and it would be hard to imagine language\nmore clearly designed to put a layperson on notice of the\nsignificance and legal effect of subscribing it. The flaws which\nthe Ferrell court found in the agreement it had before it are not\npresent here. Instead of disguising the operative language in\nlegalese, the defendant prepared its agreement in simple, clear\nand unambiguous language understandable to any layperson. In\nsum, we hold that the language of the agreement here falls well\nwithin the Ferrell rule, i.e., that it was effectively drafted so as\n\xe2\x80\x9cclearly [to] notify the prospective releasor or indemnitor of the\neffect of signing the agreement.\xe2\x80\x9d (Ferrell v. Southern Nevada OffRoad Enthusiasts, Ltd., supra, 147 Cal.App.3d 309, 318.)\nII\nTurning to plaintiff\xe2\x80\x99s second contention, namely that releases of\nthe type here used are against public policy, we note first that\nsuch agreements as this are arguably contemplated by section\n1668 of the Civil Code. That section provides: \xe2\x80\x9cAll contracts\nwhich have for their object, directly or indirectly, to exempt\nanyone from the responsibility for his own fraud, or willful\ninjury to the person or property of another, or violation of law,\nwhether willful or negligent, are against the policy of the law.\xe2\x80\x9d\n\n389\n\n\x0cWhatever it proscribes, this section does not invalidate contracts\nwhich seek to except one from liability for simple negligence or\nstrict liability.\nCivil Code section 1668 refers to limitations which are described\nas against the policy of the law. Such policy is the aggregate of\njudicial pronouncements on a given issue, and in this context\ndeal with the concept characterized as \xe2\x80\x9cthe public interest.\xe2\x80\x9d This\nconcept calls up for discussion Tunkl v. Regents of University of\nCalifornia (1963) 60 Cal.2d 92.\nTunkl is a case in which the plaintiff signed an agreement that\nrelieved the defendant hospital from liability for the wrongful\nacts of the defendant\xe2\x80\x99s employees. The plaintiff was required to\nsign the agreement to gain admission into the defendant\xe2\x80\x99s\nhospital. Thereafter, the plaintiff brought suit against the\nhospital claiming that he was injured as a result of the negligence\nof hospital employees. The trial court upheld the release. On\nappeal, the California Supreme Court invalidated the release\nagreement on the grounds that it affected the \xe2\x80\x9cpublic interest.\n\xe2\x80\x9cThe court set forth the following six factors which it deemed\nrelevant in determining whether a contract affects the public\ninterest: (1) It concerns a business of a type generally thought\nsuitable for public regulation; (2) the party seeking exculpation is\nengaged in performing a service of great importance to the\npublic, which is often a matter of practical necessity for some\nmembers of the public; (3) the party holds himself out as willing\nto perform this service for any member of the public who seeks\nit, or at least for any member coming within certain established\nstandards; (4) as a result of the essential nature of the service, in\nthe economic setting of the transaction, the party invoking\nexculpation possesses a decisive advantage of bargaining\nstrength against any member of the public who seeks his\nservices; (5) in exercising a superior bargaining power the party\nconfronts the public with a standardized adhesion contract of\nexculpation, and makes no provision whereby a purchaser may\npay additional reasonable fees and obtain protection against\nnegligence; (6) as a result of the transaction, the person or\nproperty of the purchaser is placed under the control of the\n\n390\n\n\x0cseller, subject to the risk of carelessness by the seller or his\nagent.\nApplying the Tunkl factors to the facts here, several distinctions\nare readily apparent. First, parachute jumping is not subject to\nthe same level of public regulation as is the delivery of medical\nand hospital services. Second, the Tunkl agreement was executed\nin connection with services of great importance to the public\nand of practical necessity to anyone suffering from a physical\ninfirmity or illness. Parachute jumping, on the other hand, in not\nan activity of great importance to the public and is a matter of\nnecessity to no one.\nFinally, because of the essential nature of medical treatment, the\nconsuming party in Tunkl had little or no choice but to accept\nthe terms offered by the hospital. Defendant had no decisive\nadvantage in bargaining power over plaintiff by virtue of any\n\xe2\x80\x9cessential services\xe2\x80\x9d offered by defendant. When referring to\n\xe2\x80\x9cessential services\xe2\x80\x9d the court in Tunkl clearly had in mind\nmedical, legal, housing, transportation or similar services which\nmust necessarily be utilized by the general public. Purely\nrecreational activities such as sport parachuting can hardly be\nconsidered \xe2\x80\x9cessential.\xe2\x80\x9d\nIn sum, measuring the transaction here against the Tunkl factors,\nwe can see no logical reason for extending the \xe2\x80\x9cpublic interest\xe2\x80\x9d\nlimitation on the freedom to contract to the exculpatory\nagreement here relied on by defendant.\nThere are no California cases directly on point dealing with\nexculpatory contracts in the context of high risk sports activities,\nbut there are an ample number on the books in other states.\nJones v. Dressel (Colo. 1981) 623 P.2d 370, a Colorado case, was\ndecided on very similar facts by means of a summary judgment.\nThe case is especially persuasive because the Colorado court\nrelied extensively on Tunkl in arriving at its holding that the\nexculpatory agreement there relied upon by an operator of\nbusiness furnishing sky diving facilities did not fall within the\nambit of agreements proscibed as against the public interest.~\n\n391\n\n\x0cAccordingly, following both logic and the persuasive holdings\ncited from other jurisdictions, we hold that the exculpatory\nagreement here under discussion is not against the \xe2\x80\x9cpublic\ninterest\xe2\x80\x9d so as to bring it within the prohibitions of section 1668\nof the Civil Code because contrary to \xe2\x80\x9cthe policy of the law.\xe2\x80\x9d\nWe come now to the narrower issue of whether the exculpatory\ncontract here relied upon as an affirmative defense by defendant\nshould not be enforced because, as to plaintiff, it would be\n\xe2\x80\x9cunconscionable.\xe2\x80\x9d~ Plaintiff has made the picturesque if not\nludicrous contention that he \xe2\x80\x9cwas led to believe\xe2\x80\x9d that the urgent\nthing confronting him at the time he signed and initialed the\nagreement was to sign up to purchase a photograph, and that as\na consequence he did not realize the significance of the\nagreement when he signed it. He makes this contention despite\nthe fact that his initials appear immediately adjacent to the\ncapitalized words in bold-faced type, \xe2\x80\x9cAgreement & Release of\nLiability.\xe2\x80\x9d It is hard to imagine that plaintiff, after having\ninitialed the agreement in three places and signed it in one could\nhave harbored any reasonable expectations other than what was\nunambiguously recited in the title and text of the agreement.\nBecause the agreement, in both its language and format, was not\none which could even remotely operate to defeat the reasonable\nexpectations of plaintiff and hence be unconscionable if\nenforced, we hold that it did not so operate and hence that its\nenforcement against him was not unconscionable.\n\nCase: Hiett v. Lake Barcroft Community Association\nThe following case shows the flexibility of the public policy doctrine\nto invalidate waivers.\n\nHiett v. Lake Barcroft Community Association\nSupreme Court of Virginia\nJune 5, 1992\nRobert David Hiett v. Lake Barcroft Community Association,\nInc., et al. Record No. 911395. Justice Keenan delivered the\nopinion of the Court.\n\n392\n\n\x0cJustice BARBARA MILANO KEENAN:\nThe primary issue in this appeal is whether a pre-injury release\nfrom liability for negligence is void as being against public\npolicy.\nRobert D. Hiett sustained an injury which rendered him a\nquadriplegic while participating in the \xe2\x80\x9cTeflon Man Triathlon\xe2\x80\x9d\n(the triathlon) sponsored by the Lake Barcroft Community\nAssociation, Inc. (LABARCA). The injury occurred at the start\nof the swimming event when Hiett waded into Lake Barcroft to\na point where the water reached his thighs, dove into the water,\nand struck his head on either the lake bottom or an object\nbeneath the water surface.\nThomas M. Penland, Jr., a resident of Lake Barcroft, organized\nand directed the triathlon. He drafted the entry form which all\nparticipants were required to sign. The first sentence of the form\nprovided:\nIn consideration of this entry being accept[ed]\nto participate in the Lake Barcroft Teflon Man\nTriathlon I hereby, for myself, my heirs, and\nexecutors waive, release and forever discharge\nany and all rights and claims for damages which\nI may have or m[a]y hereafter accrue to me\nagainst the organizers and sponsors and their\nrepresentatives, successors, and assigns, for any\nand all injuries suffered by me in said event.\nEvelyn Novins, a homeowner in the Lake Barcroft subdivision,\nasked Hiett to participate in the swimming portion of the\ntriathlon. She and Hiett were both teachers at a school for\nlearning-disabled children. Novins invited Hiett to participate as\na member of one of two teams of fellow teachers she was\norganizing. During a break between classes, Novins presented\nHiett with the entry form and he signed it.\nHiett alleged in his third amended motion for judgment that\nLABARCA, Penland, and Novins had failed to ensure that the\nlake was reasonably safe, properly supervise the swimming\nevent, advise the participants of the risk of injury, and train\nthem how to avoid such injuries. Hiett also alleged that Penland\n\n393\n\n\x0cand Novins were agents of LABARCA and that Novins\xe2\x80\x99s failure\nto direct his attention to the release clause in the entry form\nconstituted constructive fraud and misrepresentation.\nIn a preliminary ruling, the trial court held that, absent fraud,\nmisrepresentation, duress, illiteracy, or the denial of an\nopportunity to read the form, the entry form was a valid\ncontract and that the pre-injury release language in the contract\nreleased the defendants from liability for negligence. The trial\ncourt also ruled that such a release was prohibited as a matter of\npublic policy only when it was included: (1) in a common\ncarrier\xe2\x80\x99s contract of carriage; (2) in the contract of a public utility\nunder a duty to furnish telephone service; or (3) as a condition\nof employment set forth in an employment contract.\nPursuant to an agreement between the parties, the trial court\nconducted an evidentiary hearing in which it determined that\nthere was sufficient evidence to present to a jury on the issue of\nconstructive fraud and misrepresentation. Additionally, the trial\ncourt ruled that as a matter of law Novins was not an agent of\nLABARCA, and it dismissed her from the case.\nThe remaining parties proceeded to trial solely on the issue\nwhether there was constructive fraud and misrepresentation by\nthe defendants such as would invalidate the waiver-release\nlanguage in the entry form. After Hiett had rested his case, the\ntrial court granted the defendants\xe2\x80\x99 motion to strike the evidence.\nThis appeal followed.\nHiett first argues that the trial court erred in ruling that the preinjury release provision in the entry form did not violate public\npolicy. He contends that since the decision of this Court in\nJohnson\xe2\x80\x99s Adm\xe2\x80\x99x v. Richmond and Danville R.R. Co., 86 Va. 975\n(1890), the law in Virginia has been settled that an agreement\nentered into prior to any injury, releasing a tortfeasor from\nliability for negligence resulting in personal injury, is void\nbecause it violates public policy. Hiett asserts that the later cases\nof this Court have addressed only the release of liability from\nproperty damage or indemnification against liability to third\nparties. Thus, he contends that the holding in Johnson remains\nunchanged. In response, LABARCA and Novins argue that the\n\n394\n\n\x0cdecisions of this Court since Johnson have established that preinjury release agreements such as the one before us do not\nviolate public policy. We disagree with LABARCA and Novins.\nThe case law in this Commonwealth over the past one hundred\nyears has not altered the holding in Johnson. In Johnson, this Court\naddressed the validity of a pre-injury release of liability for future\nnegligent acts. There, the decedent was a member of a firm of\nquarry workers which had entered into an agreement with a\nrailroad company to remove a granite bluff located on the\ncompany\xe2\x80\x99s right of way. The agreement specified that the\nrailroad would not be liable for any injuries or death sustained\nby any members of the firm, or its employees, occurring from\nany cause whatsoever.\nThe decedent was killed while attempting to warn one of his\nemployees of a fast-approaching train. The evidence showed\nthat the train was moving at a speed of not less than 25 miles\nper hour, notwithstanding the railroad company\xe2\x80\x99s agreement\nthat all trains would pass by the work site at speeds not\nexceeding six miles per hour.\nIn holding that the release language was invalid because it\nviolated public policy, this Court stated:\n[T]o hold that it was competent for one party to\nput the other parties to the contract at the\nmercy of its own misconduct \xe2\x80\xa6 can never be\nlawfully done where an enlightened system of\njurisprudence prevails. Public policy forbids it,\nand contracts against public policy are void.\nThis Court emphasized that its holding was not based on the\nfact that the railroad company was a common carrier. Rather,\nthis Court found that such provisions for release from liability\nfor personal injury which may be caused by future acts of\nnegligence are prohibited \xe2\x80\x9cuniversally.\xe2\x80\x9d\nAs noted by Hiett, the cases following Johnson have not eroded\nthis principle. Instead, this Court\xe2\x80\x99s decisions after Johnson have\nbeen limited to upholding the right to contract for the release of\n\n395\n\n\x0cliability for property damage, as well as indemnification from\nliability to third parties for such damage.\nIn C. & O. Ry. Co. v. Telephone Co., 216 Va. 858 (1976), this\nCourt upheld a provision in an agreement entered into by the\nparties to allow the telephone company to place underground\ncables under a certain railway overpass. In the agreement, the\ntelephone company agreed to release the C & O Railway\nCompany from any damage to the wire line crossing and\nappurtenances. In upholding this property damage stipulation,\nthis Court found that public policy considerations were not\nimplicated.~\nOther cases decided by this Court since Johnson have upheld\nprovisions for indemnification against future property damage\nclaims. In none of these cases, however, did the Court address\nthe issue whether an indemnification provision would be valid\nagainst a claim for personal injury.\n[W]e conclude here, based on Johnson, that the pre-injury release\nprovision signed by Hiett is prohibited by public policy and,\nthus, it is void.~\n\nQuestions to Ponder About Hiett v. LABARCA\nA. Does this case mean that a release of liability for parachuting (of\nthe kind found in Hulsey v. Elsinore Parachute Center) would not be\nupheld in Virginia? (A quick search indicates that there is no shortage\nof skydiving centers in Virginia.)\nB. Is it beneficial for triathlon organizers to make entrants sign\nreleases \xe2\x80\x93 even if those releases are doomed to be struck down in\ncourt as against public policy?\nC. If you were an attorney for LABARCA after this case, what would\nyou recommend they do going forward to protect themselves from\nliability?\n\n396\n\n\x0cPublic Policy Exceptions to Express Agreements to Assume\nRisk\nAs is apparent in both Hulsey v. Elsinore Parachute Center and Hiett v.\nLABARCA, courts impose a public policy limitation to agreements\nto waive negligence liability.\nWhere the defendant is providing some kind of service that is\nessential to a normal, modern life, and where there is unequal\nbargaining power between the plaintiff and the defendant, the public\npolicy exception is likely to bar the defendant from using exculpatory\nreleases to avoid liability for negligence. Certain traditional categories\nfor the public-policy exception are hospitals, physicians, dentists,\npublic utilities, professional bailiees (e.g., parking lots), and common\ncarriers (e.g., airlines). It is not hard to imagine that if such releases\nwere allowed for hospitals and physicians, it would be impossible to\nreceive medical treatment without having to release claims for\nnegligence. Indeed, the UCLA Medical Center actually tried this,\nconditioning their treatment on a patient\xe2\x80\x99s waiver of any future claim\nfor negligence. Patients had to sign a document called \xe2\x80\x9cConditions of\nAdmission,\xe2\x80\x9d which included the following:\nRelease: The hospital is a nonprofit, charitable\ninstitution. In consideration of the hospital and\nallied services to be rendered and the rates\ncharged therefor, the patient or his legal\nrepresentative agrees to and hereby releases The\nRegents of the University of California, and the\nhospital from any and all liability for the\nnegligent or wrongful acts or omissions of its\nemployees, if the hospital has used due care in\nselecting its employees.\n\nThis was tested in Tunkl v. Regents of University of California, 60 Cal.2d\n92 (Cal. 1963). Justice Trobriner wrote for the court:\nWhile obviously no public policy opposes\nprivate, voluntary transactions in which one\nparty, for a consideration, agrees to shoulder a\nrisk which the law would otherwise have placed\nupon the other party, the above circumstances\npose a different situation. In this situation the\n\n397\n\n\x0creleasing party does not really acquiesce\nvoluntarily in the contractual shifting of the risk,\nnor can we be reasonably certain that he\nreceives an adequate consideration for the\ntransfer. Since the service is one which each\nmember of the public, presently or potentially,\nmay find essential to him, he faces, despite his\neconomic inability to do so, the prospect of a\ncompulsory assumption of the risk of another\'s\nnegligence. The public policy of this state has\nbeen, in substance, to posit the risk of\nnegligence upon the actor; in instances in which\nthis policy has been abandoned, it has generally\nbeen to allow or require that the risk shift to\nanother party better or equally able to bear it,\nnot to shift the risk to the weak bargainer.\n\nTunkl has been followed just about everywhere. Otherwise, one\nimagines that every hospital would follow UCLA\xe2\x80\x99s lead.\nTheoretically, if a grocery store or hotel tried to make patrons agree\nto such a release, such releases would be invalidated as well. Grocery\nstores and hotels are essential services in modern life.\nBy contrast, skydiving is about as nonessential as a service could be.\nCourts in many states have thus refused to find a public policy\nexception to waivers for parachuting services.\nA good example of a case that would seem to be on the bubble is a\nfitness center. Fitness advocates and physicians like to talk about\nregular exercise as being \xe2\x80\x9cessential.\xe2\x80\x9d But Maryland\xe2\x80\x99s high court held\nthat going to the gym was nonessential, and so no there was no\npublic-policy exception for an express waiver signed by customer. See\nSeigneur v. National Fitness Institute, Inc., 752 A.2d 631 (Md. 2000).\nAnother case that would seem be in the gray zone is a ski resort. In\nVermont, a general exculpatory agreement used by a ski resort was\nfound to be invalid. See Dalury v. S-K-I, Ltd., 164 Vt. 329 (Vt. 1995).\nAnother category of defendants traditionally barred from using\nagreements to avoid negligence liability are manufacturers of\nproducts. Products liability \xe2\x80\x93 a complicated area \xe2\x80\x93 is a subject for\nVolume Two of this casebook. But for now it is enough to know that\n\n398\n\n\x0cmanufacturers and retailers cannot escape liability from property\ndamage and personal injury caused by defective products.\n\n399\n\n\x0cPart III:\nLiability Relating to\nHealthcare\n\n400\n\n\x0c11. Common Law Liability in\nthe Healthcare Context\n\xe2\x80\x9cLike a surgeon \xe2\x80\x93 hey! \xe2\x80\x93 cuttin\xe2\x80\x99 for the very first time.\nLike a surgeon! Here\xe2\x80\x99s a waiver, for you to sign.\xe2\x80\x9d\n\xe2\x80\x93 \xe2\x80\x9cWeird Al\xe2\x80\x9d Yankovic, 1985\n\nIn General\nThe healthcare setting is a fertile one for torts. So many things can go\nwrong in the course of diagnoses, drug treatments, and surgeries. Of\ncourse, automobiles and roadways provide many opportunities for\naccidents as well, but hospitals and physicians tend to have one thing\nthat the average driver does not \xe2\x80\x93 deep pockets. The confluence of\ninjuries to fuel complaints and money to pay judgments makes\nhealthcare a uniquely important setting for tort law.\nAt this point, you have learned the basics of negligence law, and thus\nyou know most of what is relevant to lawsuits against physicians and\nhospitals. But there are a few important things to add. This chapter\ncovers some additional common-law doctrine that applies to\nhealthcare torts. The next chapter concerns the effect of a federal\nstatute, ERISA, which often blocks plaintiffs from suing healthinsurers and HMOs in tort.\nThere are three aspects of the common-law torts in the healthcare\ncontext that are covered in this chapter.\nFirst, in a medical malpractice action for negligence, the standard of\ncare is different. As we saw \xe2\x80\x93 in particular with The T.J. Hooper \xe2\x80\x93 the\ncustom or standard practice of an industry is not dispositive when it\ncomes to determining the standard of care. That is to say, the\nstandard practice of an entire industry can be found unreasonable\nand thus held to fall below the standard of care to which defendants\nare held in negligence actions. That is not the case, however, with\nmedical malpractice. Medical custom \xe2\x80\x93 what physicians generally call\nthe \xe2\x80\x9cstandard practice\xe2\x80\x9d or \xe2\x80\x9cstandard of care\xe2\x80\x9d \xe2\x80\x93 is the benchmark for\ndetermining breach of duty in the context of medical malpractice\n\n401\n\n\x0cnegligence claims. This means that what is called \xe2\x80\x9cstandard of care\xe2\x80\x9d\nin medical jargon ends up dictating what we refer to as the \xe2\x80\x9cstandard\nof care\xe2\x80\x9d in legal jargon.\nSecond, the intentional tort of battery \xe2\x80\x93 to be dealt with in a more\ngeneral way in the second volume of this casebook \xe2\x80\x93 has a unique\nrole in the medical setting. The healthcare version of battery, called\nmedical battery, provides a way for patients to sue physicians who\ntreat them beyond the scope of the patient\xe2\x80\x99s consent. Consistent with\nbattery doctrine, and in distinction to negligence, a medical battery\naction has no requirement of showing damages or an injury.\nThird, there is a kind of claim that is unique to healthcare: the action\nfor informed consent. The informed consent action is generally\navailable where a patient was not apprised of an important risk\nnecessary to make an informed decision about treatment, and the\npatient then suffers the negative consequence associated with the\nundisclosed risk.\n\nThe Standard of Care for Healthcare Professionals in\nNegligence Actions\nBasics\nMost cases falling under the label \xe2\x80\x9cmedical malpractice\xe2\x80\x9d are\nnegligence cases. Examples of medical malpractice negligence actions\nwould include suits arising from an internist who prescribes a drug\ncontraindicated by something in the patient\xe2\x80\x99s history or a radiologist\nwho fails to see a tumor that other radiologists would have seen.\nThere is a key difference between negligence law generally and\nnegligence law as applied to physicians: the standard of care.\nPhysicians are considered professionals, and for professionals, the\nstandard of care is not that of a reasonable person, but is instead the\nknowledge and skill of the minimally competent member of\nthat professional community. Another way of putting this is that\ncustom becomes dispositive in cases of professional negligence. Is it\nthe prevailing custom for neurosurgeons to order an MRI scan\nbefore undertaking a scheduled brain surgery? If so, then failing to do\nis a breach of the duty of care. If not, then there is no breach \xe2\x80\x93 even\n\n402\n\n\x0cif the plaintiff can demonstrate that a practice of doing so would be\nprudent.\nThis way of setting the standard of care works both for and against\nphysicians. On the one hand, hewing to custom keeps a physician\ninsulated from malpractice judgments \xe2\x80\x93 even where the hypothetical\nreasonable physician might be more cautious. On the other hand,\ndeviating from custom \xe2\x80\x93 even when doing so would seem reasonable\n\xe2\x80\x93 exposes the physician to liability.\nThis standard for professional negligence is objective, and it is\ncalibrated in accordance with the community of professionals in the\ndefendant\xe2\x80\x99s practice. If the defendant is a general dentist, then the\nstandard is the minimally qualified member of the relevant\ncommunity of general dentists. If the defendant is a cardiologist, then\nthe standard is the minimally qualified member of the relevant\ncommunity of cardiologists. By saying the standard is objective, we\nmean that it is the same standard for all members of the professional\ncommunity. That is, the standard of care is not adjusted in favor of\nprofessionals who have lower levels of experience, skill, or\nknowledge. Thus, it does not matter whether a physician is just out of\nmedical school or has been in practice for 30 years. Also, the\nstandard of practice will evolve over time. What starts as an obscure\ntechnique may gain enough acceptance to become standard practice.\nThus, negligence law puts the onus on physicians and other\nhealthcare professionals to stay up to date.\nOne thing to bear in mind: The objective standard of care for\nprofessionals applies only when they are accused of negligence in the\ncourse of their professional practice. If an orthopedist drives her car\ninto your mailbox, the standard applied will be that of the\nhypothetical reasonable person and not that of the knowledge and\nskill of the minimally competent orthopedist.\nThe Role of Expert Testimony\nThe fact that the professional standard of care is defined with\nobjective reference to the professional community means that it is\nalmost always the case that expert testimony will be needed to\nestablish the standard of care. In practice, this makes medical\n\n403\n\n\x0cnegligence actions expensive to litigate. It also changes the role of the\njury. Instead of jurors asking themselves what is reasonable, jurors\nare generally left to choose between the competing views of the\nplaintiff\xe2\x80\x99s expert and the defendant\xe2\x80\x99s expert. Thus, a medical\nnegligence case can often come down to whether the plaintiff\xe2\x80\x99s\nexpert or the defendant\xe2\x80\x99s seems more knowledgeable and credible.\nExpert testimony is not always necessary. Some cases can be\nprosecuted based on common knowledge. If a surgeon mistakenly\ncuts off the wrong limb or removes the wrong kidney, no expert\ntestimony is necessary to show that the standard of care has been\nbreached. Another example is leaving foreign objects inside a patient,\nsuch as surgical sponges. In fact, a sponge left inside the body cavity\nis a leading example of the doctrine of res ipsa loquitor in action. One\nway to think about cases such as these is that they really are not\nmedical malpractice cases at all, since medical knowledge and skill are\nnot at issue. Most medical malpractice cases, however, involve a\nquestion of professional judgment. In such cases, the question of\nwhether the physician used appropriate professional judgment is that\ncase will require the testimony of a medical expert.\nHow the Professional Community is Defined\nSince the standard of care is defined by the professional community,\na key question concerns how to define the \xe2\x80\x9ccommunity.\xe2\x80\x9d The\nanalysis of what constitutes the relevant community involves issues\nof both specialty and geography.\nExactly what skills and knowledge a physician is expected to have\ndepends on whether or not the physician has a specialty, and, if so,\nwhat that specialty is. Physicians who are general practitioners are\nheld to a different and lower standard than specialists. If a general\npractitioner prescribes an aerosol inhaler for asthma, the standard is\ndifferent and lower than a pulmonologist who writes the prescription.\nFor the general practitioner, the standard of care is set by the\nknowledge and skill level of a minimally competent general\npractitioner. For the pulmonologist, it is what is the knowledge and\nskill level of a pulmonologist. By the way, holding one\xe2\x80\x99s self out to\n\n404\n\n\x0cthe public as a specialist is generally what counts for being held to the\nhigher standard of knowledge and skill of a specialist.\nGeography may be relevant as well. Historically, professional\ncommunities were conceived of as being local. If the question of\nnegligence concerns a physician practicing in Ridgefield, population\n20,000, then the standard of care is set by the customs, skills, and\nlevel of knowledge of Ridgefield physicians. So the question of\nwhether a physician in a particular town was negligent required\ngetting experts from that city to testify as to the standard practice in\nthat town. Such a requirement, as you might imagine, works greatly\nto the benefit of defendant physicians in small cities and towns. First,\nit allows small-town medical care to be held to a lower standard than\nin the big cities. And the lower the standard, the easier it is for\nphysicians to escape liability. But there is another, sharper advantage\nfor physicians in smaller locales when the standard of care is defined\nlocally. Professionals in small locals are often unwilling to testify\nagainst one another. Without an expert to testify as to the standard of\ncare in the community, the lawsuit may be stopped in its tracks.\nBecause of the recurrent problem of a lack of willing experts, the\ntrend is away from defining professional communities in this way.\nThe more favored alternatives are to use a national standard, or to\nuse a nonparticularized local standard \xe2\x80\x93 that is, define the standard\nwith reference to a similar city or town. The similar-communities\nstandard means that experts for small towns and cities can be found\nacross the country if necessary.\nA typical way for courts to define professional communities is to use\na similar-geographical-place standard for general practitioners and to\nuse a national standard for members of a medical specialty. Thus, a\ncardiothoracic surgeon practicing in a city of a few thousand people\nwill be held to the same standard as cardiothoracic surgeons in a\nmegalopolis of millions.\nProblems for Professional Medical Negligence\nA. Delinda, a medical doctor practicing as a general practitioner, was\ntrying her best when she prescribed sploramoxacin to her patient,\nPerry. Based on lab results, Delinda figured that Perry had a bacterial\n\n405\n\n\x0cinfection that was causing him pain in his lower left side \xe2\x80\x93 around the\nsite of a deep cut he had gotten while hiking. Delinda also knew that\nsploramoxacin was a good broad-spectrum antibiotic. Most\nphysicians would have done exactly what Delinda did. Unknown to\nDelinda, the Nashlanta Journal of Medicine had published an article\nin the previous week showing that sploramoxacin was\ncontraindicated in cases of lower-left-side pain because of a newly\nidentified condition named Lower Left Syndrome. (The Nashlanta\nJournal of Medicine is a relatively obscure journal which few people\nread.) While Lower Left Syndrome presents with all the symptoms of\na bacterial infection, it is in fact caused by a eukaryotic plasmodium.\nGenerally, the body\xe2\x80\x99s natural defenses will destroy the plasmodia in\ntwo to three weeks without treatment. If, however, sploramoxacin is\nadministered in patients with Lower Left Syndrome, the body\xe2\x80\x99s\nnatural defenses against the plasmodium are lowered, and the\nplasmodium will attack the liver, causing liver failure. This is what\nhappened to Perry. Will Perry prevail in a lawsuit against Delinda?\nB. Same as A., but suppose Delinda had happened to have read the\narticle on Lower Left Syndrome before she saw Perry. Different\nresult?\nC. Same as A., but suppose the standard of practice in a case such as\nPerry\xe2\x80\x99s was to use an expensive test that not only indicates infection,\nbut also discerns the difference between a bacterial infection and a\nplasmodial infection. (And note that antibiotics do not work against\nplasmodia.) Different result?\nProfessional Negligence Outside the Healthcare Setting\nThe professional standard of negligence that applies to medical\ndoctors and dentists applies to non-healthcare professionals as well,\nsuch as accountants, architects, engineers, veterinarians, and\nattorneys. That is to say that these professionals, when sued for\nnegligence in the course of their professional practice, are held to a\nstandard of care that is dictated by the custom or standard of practice\nthat prevails in the relevant community of professionals \xe2\x80\x93 what the\nreasonable person would do is irrelevant. (Attorney malpractice is, of\ncourse, an important area of the law for budding lawyers to be\n\n406\n\n\x0cfamiliar with. But we will leave an in-depth treatment of the topic for\nyour professional responsibility course.)\nWhether or not something counts as a \xe2\x80\x9cprofession\xe2\x80\x9d can be a tricky\nquestion. In general, a profession for the purpose of assigning a\nstandard of care in negligence is one that consists primarily of\nintellectual labor and that requires higher education.\nPlumbers, electricians, and carpenters, for instance, are not\nconsidered professionals in the negligence context \xe2\x80\x93 even though\ntheir work requires a great deal of knowledge. Meanwhile, surgeons\nare considered professionals, even though their work might be\nconsidered primarily manual as opposed to intellectual.\n\nMedical Battery\nMedical battery is an intentional tort cause of action that can be\nalleged against a physician or other healthcare provider who performs\na course of treatment without the patient\xe2\x80\x99s consent.\nWhat we are calling \xe2\x80\x9cmedical battery\xe2\x80\x9d is not really a separate tort;\ninstead it is really just a particular factual context for the tort of\nbattery. The intentional torts, including battery, are covered later in\nthis casebook. So, assuming you are proceeding through this\ncasebook in order, and you have not studied battery yet, you will\nneed the basics of the doctrine to be able to understand actions for\nmedical battery.\nThe intentional tort of battery requires that the defendant inflict a\nharmful or offensive touching on the plaintiff\xe2\x80\x99s body. Consent is an\naffirmative defense. To break it down into elements, battery \xe2\x80\x93\nincluding medical battery \xe2\x80\x93 requires: (1) an act; (2) intent; (3) actual\nand proximate causation; (4) a physical touching of the plaintiff\xe2\x80\x99s\nbody; and (5) harmfulness or offensiveness. The fifth element and\nthe affirmative defense of consent are key to preventing the tort of\nbattery from getting out of control. People touch each other\xe2\x80\x99s bodies\nall the time, rarely accruing claims for battery. The reason why most\ntouches do not create liability is that nearly all touches are either not\nharmful or offensive, or else they are consented to.\n\n407\n\n\x0cNow that you understand the basics of battery, you can see some key\ndifferences between the negligence cause of action and the battery\ncause of action. Unlike a prima facie case for negligence, a claim for\nbattery does not require an injury. That makes a battery claim, at least\nin that sense, easier to allege. But there is a tradeoff. Unlike\nnegligence, which works for accidents, a claim for battery requires\nintent. That makes a battery claim harder to allege.\nIn a later chapter on that covers battery in general, we will explore\nmore of what it means for a touching to be \xe2\x80\x9charmful or offensive.\xe2\x80\x9d\nIn the medical context, however, this is not a difficult requirement\nfor plaintiffs to meet. Cutting into someone or introducing a medical\ninstrument into a bodily orifice certainly counts as harmful or\noffensive.\nThe key issue for medical battery is generally whether there was\nconsent. Physicians touch patients all the time, and almost always,\nthat touching is in accordance with the patient\xe2\x80\x99s consent. To be valid,\nconsent does not have to be in writing. It does not even need to\nexpressed orally. Consent can be implied. When a patient opens up\nhis mouth to say \xe2\x80\x9cahh,\xe2\x80\x9d permission to insert a tongue depressor into\nthe patients\xe2\x80\x99 mouth is implied.\nThere is one important and constantly recurring circumstance in\nwhich physicians touch patients without any consent whatsoever: the\nemergency room. When an unconscious patient is brought into an\nemergency room, the consent to touching the patient is said to be\n\xe2\x80\x9cimplied by law.\xe2\x80\x9d This means that even though there is no actual\nconsent, the law will pretend that there is consent for public-policy\nreasons. After all, if every unconscious patient given emergency\ntreatment was able to win a lawsuit for battery, there would be a\nsteep decline in emergency services.\nNow that you have a firmer grasp of when medical battery claims will\nnot arise, you can more readily discern the relatively rare\ncircumstances in which they will arise. In particular, a common\nscenario that creates liability for medical battery is when a physician\ngoes further with a touching than the patient consented to.\n\n408\n\n\x0cCase: Mohr v. Williams\nThe following case is the classic example of how a medical battery\nresults when a physician goes beyond the patient\xe2\x80\x99s scope of consent.\n\nMohr v. Williams\nSupreme Court of Minnesota\nJune 23, 1905\nANNA MOHR v. CORNELIUS WILLIAMS. Nos. 14,312,\n14,360 - (94, 95). Opinion by Brown, J., Jaggard, J. took no part.\nJustice CALVIN L. BROWN:\nDefendant is a physician and surgeon of standing and character,\nmaking disorders of the ear a specialty, and having an extensive\npractice in the city of St. Paul. He was consulted by plaintiff,\nwho complained to him of trouble with her right ear, and, at her\nrequest, made an examination of that organ for the purpose of\nascertaining its condition. He also at the same time examined\nher left ear, but, owing to foreign substances therein, was unable\nto make a full and complete diagnosis at that time. The\nexamination of her right ear disclosed a large perforation in the\nlower portion of the drum membrane, and a large polyp in the\nmiddle ear, which indicated that some of the small bones of the\nmiddle ear (ossicles) were probably diseased. He informed\nplaintiff of the result of his examination, and advised an\noperation for the purpose of removing the polyp and diseased\nossicles. After consultation with her family physician, and one or\ntwo further consultations with defendant, plaintiff decided to\nsubmit to the proposed operation. She was not informed that\nher left ear was in any way diseased, and understood that the\nnecessity for an operation applied to her right ear only. She\nrepaired to the hospital, and was placed under the influence of\nanesthetics; and, after being made unconscious, defendant made\na thorough examination of her left ear, and found it in a more\nserious condition than her right one. A small perforation was\ndiscovered high up in the drum membrane, hooded, and with\ngranulated edges, and the bone of the inner wall of the middle\near was diseased and dead. He called this discovery to the\nattention of Dr. Davis \xe2\x80\x93 plaintiff\xe2\x80\x99s family physician, who\n\n409\n\n\x0cattended the operation at her request \xe2\x80\x93 who also examined the\near and confirmed defendant in his diagnosis. Defendant also\nfurther examined the right ear, and found its condition less\nserious than expected, and finally concluded that the left, instead\nof the right, should be operated upon; devoting to the right ear\nother treatment. He then performed the operation of\nossiculectomy on plaintiff\xe2\x80\x99s left ear; removing a portion of the\ndrum membrane, and scraping away the diseased portion of the\ninner wall of the ear. The operation was in every way successful\nand skilfully performed. It is claimed by plaintiff that the\noperation greatly impaired her hearing, seriously injured her\nperson, and, not having been consented to by her, was wrongful\nand unlawful, constituting an assault and battery; and she\nbrought this action to recover damages therefor.~\nThe trial in the court below resulted in a verdict for plaintiff for\n$14,322.50. Defendant thereafter moved~ for a new trial on the\nground, among others, that the verdict was excessive~. The trial\ncourt~ granted a new trial on the ground, as stated in the order,\nthat the damages were excessive~ appearing to have been given\nunder the influence of passion and prejudice~. [W]hether a new\ntrial upon the ground of excessive or inadequate damages\nshould be granted or refused, or whether the verdict should be\nreduced, rests in the sound judicial discretion of the trial court~.\n[W]e are clear the trial court did not abuse its discretion in\ngranting defendant\xe2\x80\x99s motion for a new trial, and its order on\nplaintiff\xe2\x80\x99s appeal is affirmed.\nWe come then to a consideration of the questions presented by\ndefendant\xe2\x80\x99s appeal from the order denying his motion for\njudgment notwithstanding the verdict. It is contended that final\njudgment should be ordered in his favor for the following\nreasons: (a) That it appears from the evidence received on the\ntrial that plaintiff consented to the operation on her left ear. (b)\nIf the court shall find that no such consent was given, that,\nunder the circumstances disclosed by the record, no consent was\nnecessary. (c) That, under the facts disclosed, an action for\nassault and battery will not lie; it appearing conclusively, as\ncounsel urge, that there is a total lack of evidence showing or\n\n410\n\n\x0ctending to show malice or an evil intent on the part of\ndefendant, or that the operation was negligently performed.\nWe shall consider first the question whether, under the\ncircumstances shown in the record, the consent of plaintiff to\nthe operation was necessary. If, under the particular facts of this\ncase, such consent was unnecessary, no recovery can be had, for\nthe evidence fairly shows that the operation complained of was\nskilfully performed and of a generally beneficial nature. But if\nthe consent of plaintiff was necessary, then the further questions\npresented become important. This particular question is new in\nthis state. At least, no case has been called to our attention\nwherein it has been discussed or decided, and very few cases are\ncited from other courts. We have given it very deliberate\nconsideration, and are unable to concur with counsel for\ndefendant in their contention that the consent of plaintiff was\nunnecessary.\nThe evidence tends to show that, upon the first examination of\nplaintiff, defendant pronounced the left ear in good condition,\nand that, at the time plaintiff repaired to the hospital to submit\nto the operation on her right ear, she was under the impression\nthat no difficulty existed as to the left. In fact, she testified that\nshe had not previously experienced any trouble with that organ.\nIt cannot be doubted that ordinarily the patient must be\nconsulted, and his consent given, before a physician may operate\nupon him.\nIt was said in the case of Pratt v. Davis: \xe2\x80\x9cUnder a free\ngovernment, at least, the free citizen\xe2\x80\x99s first and greatest right,\nwhich underlies all others \xe2\x80\x93 the right to the inviolability of his\nperson; in other words the right to himself \xe2\x80\x93 is the subject of\nuniversal acquiescence, and this right necessarily forbids a\nphysician or surgeon, however skilful or eminent, who has been\nasked to examine, diagnose, advise, and prescribe (which are at\nleast necessary first steps in treatment and care), to violate,\nwithout permission, the bodily integrity of his patient by a major\nor capital operation, placing him under an anaesthetic for that\npurpose, and operating upon him without his consent or\nknowledge.\xe2\x80\x9d\n\n411\n\n\x0c1 KINKEAD TORTS, \xc2\xa7 375, states the general rule on this subject\nas follows: \xe2\x80\x9cThe patient must be the final arbiter as to whether\nhe shall take his chances with the operation, or take his chances\nof living without it. Such is the natural right of the individual,\nwhich the law recognizes as a legal right. Consent, therefore, of\nan individual, must be either expressly or impliedly given before\na surgeon may have the right to operate.\xe2\x80\x9d There is logic in the\nprinciple thus stated, for, in all other trades, professions, or\noccupations, contracts are entered into by the mutual agreement\nof the interested parties, and are required to be performed in\naccordance with their letter and spirit. No reason occurs to us\nwhy the same rule should not apply between physician and\npatient. If the physician advises his patient to submit to a\nparticular operation, and the patient weighs the dangers and\nrisks incident to its performance, and finally consents, he\nthereby, in effect, enters into a contract authorizing his\nphysician to operate to the extent of the consent given, but no\nfurther.\nIt is not, however, contended by defendant that under ordinary\ncircumstances consent is unnecessary, but that, under the\nparticular circumstances of this case, consent was implied; that it\nwas an emergency case, such as to authorize the operation\nwithout express consent or permission.~ The medical profession\nhas made signal progress in solving the problems of health and\ndisease, and they may justly point with pride to the\nadvancements made in supplementing nature and correcting\ndeformities, and relieving pain and suffering~, but we are aware\nof no rule or principle of law which would extend to [a\nphysician] free license respecting surgical operations. Reasonable\nlatitude must, however, be allowed the physician in a particular\ncase; and we would not lay down any rule which would\nunreasonably interfere with the exercise of his discretion, or\nprevent him from taking such measures as his judgment dictated\nfor the welfare of the patient in a case of emergency. If a person\nshould be injured to the extent of rendering him unconscious,\nand his injuries were of such a nature as to require prompt\nsurgical attention, a physician called to attend him would be\njustified in applying such medical or surgical treatment as might\n\n412\n\n\x0creasonably be necessary for the preservation of his life or limb,\nand consent on the part of the injured person would be implied.\nAnd again, if, in the course of an operation to which the patient\nconsented, the physician should discover conditions not\nanticipated before the operation was commenced, and which, if\nnot removed, would endanger the life or health of the patient,\nhe would, though no express consent was obtained or given, be\njustified in extending the operation to remove and overcome\nthem.\nBut such is not the case at bar. The diseased condition of\nplaintiff\xe2\x80\x99s left ear was not discovered in the course of an\noperation on the right which was authorized, but upon an\nindependent examination of that organ, made after the\nauthorized operation was found unnecessary.~\nThe last contention of defendant is that the act complained of\ndid not amount to an assault and battery. This is based upon the\ntheory that~ the absence of a showing that defendant was\nactuated by a wrongful intent, or guilty of negligence, relieves\nthe act of defendant from the charge of an unlawful assault and\nbattery.\nWe are unable to reach that conclusion,~ [i]f the operation was\nperformed without plaintiff\xe2\x80\x99s consent, and the circumstances\nwere not such as to justify its performance without, it was\nwrongful; and, if it was wrongful, it was unlawful. As remarked\nin 1 JAGGARD, TORTS, 437, every person has a right to complete\nimmunity of his person from physical interference of others,\nexcept in so far as contact may be necessary under the general\ndoctrine of privilege; and any unlawful or unauthorized touching\nof the person of another, except it be in the spirit of pleasantry,\nconstitutes an assault and battery. In the case at bar,~ whether\ndefendant\xe2\x80\x99s act in performing the operation upon plaintiff was\nauthorized was a question for the jury to determine. If it was\nunauthorized, then it was, within what we have said, unlawful. It\nwas a violent assault, not a mere pleasantry; and, even though no\nnegligence is shown, it was wrongful and unlawful.~\nThe amount of plaintiff\xe2\x80\x99s recovery, if she is entitled to recover at\nall, must depend upon the character and extent of the injury\n\n413\n\n\x0cinflicted upon her, in determining which the nature of the\nmalady intended to be healed and the beneficial nature of the\noperation should be taken into consideration, as well as the\ngood faith of the defendant.\nOrders affirmed.\n\nCheck-Your-Understanding Questions About Mohr\nA. Would Anna Mohr have been able to sue in negligence? Why or\nwhy not?\nB. Would Mohr have had a cause of action if she had been brought\nto the hospital unconscious and the surgery had been necessary on an\nemergency basis?\nQuestions to Ponder About Mohr\nA. Do you think plaintiffs such as Anna Mohr should have a cause of\naction even in circumstances such as these where no harm is actually\ndone?\nB. If there is an interest in making sure that physicians do not exceed\nthe scope of a patient\xe2\x80\x99s consent, could that be better handled through\nprofessional rules that are enforced by licensing boards? Or is the tort\nsystem a proper tool to use? Why or why not?\n\nInformed Consent\nAn informed-consent action alleges that a patient was harmed by a\nphysician\xe2\x80\x99s failure to disclose risks associated with medical treatment.\nInformed-consent actions are something of a battery-negligence\nhybrid. That is, they have some things in common with the\nintentional tort of battery, and some things in common with the tort\nof negligence. As a matter of pleading, informed-consent actions\nmight be brought as either an intentional tort or as negligence.\nIndeed, whether an informed-consent action is pled as an intentional\ntort or negligence may have important ramifications for what\ndeadline applies for purposes of the statute of limitations (which\ntypically is longer for negligence). Whether an informed-consent\naction is brought as an intentional tort or a negligence claim may also\nbe important for determining whether a judgment would be covered\n\n414\n\n\x0cby insurance (generally insurance covers negligence but not battery).\nBut as a conceptual matter, it is probably best to think of informedconsent actions as a breed of their own.\nIn general, an informed-consent action requires the following to be\nproved:\n1. A risk should have been disclosed.\n2. The risk was not disclosed.\n3. The patient would have made a different\ndecision about treatment if the risk had been\ndisclosed.\n4. The patient was injured as a result.\n\nLet\xe2\x80\x99s look at an example of an easy prima facie case.\n\nExample: Spinal Injection \xe2\x80\x93 Suppose a man went to his\nphysician with a complaint of moderate back pain. The\nphysician suggested injecting a new drug directly into the\nspinal canal. The trials of this drug, used in this way, indicated\na one-in-10 chance that permanent partial paralysis would\nresult. The physician did not, however, disclose this risk. If\nthe physician had disclosed the risk, the patient never would\nhave agreed to the procedure \xe2\x80\x93 especially since the back pain\nwas not severe. But, being ignorant of the risk, the patient\nwas consented to the procedure. Unfortunately, the patient\nsuffered paralysis as a result. Is there a good claim for\ninformed consent? Yes. The patient will prevail in an\ninformed-consent action. Why? There was a risk that should\nhave been disclosed, the risk was not disclosed, the patient\nwould have made a different decision if the risk had been\ndisclosed, and the patient was injured. All the elements are\nmet.\nLet\xe2\x80\x99s discuss the requirements of an informed-consent action in a bit\nmore detail:\n1. The risk should have been disclosed. \xe2\x80\x93 The risk must be of the type that\nshould have been disclosed in order for the patient to make an\ninformed decision about the course of treatment. There are two\n\n415\n\n\x0cschools of thought on how to decide if the risk was of the type that\nshould have been disclosed. One is to judge it by the standard of the\nreasonable physician. If the reasonable physician would have\ndisclosed the risk, then this element of the informed-consent action\nhas been fulfilled. This approach is sometimes called the physician\nrule. The other school of thought that the risk should be disclosed if\nit would be \xe2\x80\x9cmaterial\xe2\x80\x9d to the reasonable patient. The word \xe2\x80\x9cmaterial\xe2\x80\x9d\nhere is related to the word \xe2\x80\x9cmatter.\xe2\x80\x9d A material risk is one that would\nmatter to the patient\xe2\x80\x99s decision. This approach is sometimes called the\npatient rule.\n2. The risk was not disclosed. The physician must omit to disclose the\nrisk at issue. This requirement is generally a question of factual\nevidence to be submitted to the jury. In order to have evidence of the\ndisclosure of risks readily available, it is common for physicians to\nask patients who are about to undergo surgery or other invasive\nprocedures to sign documents acknowledging that the risks have\nbeen explained to them.\n3. The patient would have made a different decision about treatment if the risk\nhad been disclosed. If, despite the risk, the patient would have gone\nahead with the course of treatment anyway, then there is no claim.\nThis requirement is essentially an actual causation requirement. If the\npatient would have had the treatment anyway, then it is not possible\nto say that but for the failure of the physician to disclose the risk, the\npatient would not have suffered the injury. There are two different\napproaches to this causation requirement. Some courts use a\n\xe2\x80\x9csubjective\xe2\x80\x9d standard, asking whether the particular plaintiff who is\nbringing the suit would have made a different decision. Other courts\nuse an \xe2\x80\x9cobjective\xe2\x80\x9d standard, asking whether the hypothetical\nreasonable patient would have made a different decision in awareness\nof the risk. The objective standard represents a slight departure from\nstraightforward but-for causation.\n4. The patient was thereby injured. In general, the patient must have\nsuffered a bad outcome that counts as an injury. It is clear that an\ninjury is required when the informed-consent action is brought as a\nform of negligence. In the absence of an injury, it may be possible to\nallege a claim of informed-consent as a battery action.\n\n416\n\n\x0cCase: Largey v. Rothman\nThe following is a leading case discussing in depth the question of\nwhether informed consent action should use the physicianperspective to determine what risks should be disclosed (the\nphysician rule) or the patient-perspective to determine what risks are\nmaterial (the patient rule). You will notice that this case generally\nrefers to the physician rule as the \xe2\x80\x9c\xe2\x80\x98professional standard\xe2\x80\x99 rule,\xe2\x80\x9d and\nthe patient rule as the \xe2\x80\x9c\xe2\x80\x98prudent patient\xe2\x80\x99 rule.\xe2\x80\x9d\n\nLargey v. Rothman\nSupreme Court of New Jersey\nMay 5, 1988\nJANICE LARGEY AND JOSEPH LARGEY, PLAINTIFFSAPPELLANTS,\nv.\nDONALD\nROTHMAN,\nM.D.,\nDEFENDANT-RESPONDENT. No. A-52. Justices Clifford,\nHandler, Pollock, Garibaldi, and Stein. All for reversal with\nnone opposed.\nPER CURIAM\nThis medical malpractice case raises an issue of a patient\xe2\x80\x99s\ninformed consent to treatment. The jury found that plaintiff\nJanice Largey had consented to an operative procedure\nperformed by the defendant physician. The single question\npresented goes to the correctness of the standard by which the\njury was instructed to determine whether the defendant, Dr.\nRothman, had adequately informed his patient of the risks of\nthat operation.\nThe trial court told the jury that when informing the plaintiff\nJanice Largey of the risks of undergoing a certain biopsy\nprocedure, described below, defendant was required to tell her\n\xe2\x80\x9cwhat reasonable medical practitioners in the same or similar\ncircumstances would have told their patients undertaking the\nsame type of operation.\xe2\x80\x9d By answer to a specific interrogatory\non this point, the jurors responded that defendant had not\n\xe2\x80\x9cfail[ed] to provide Janice Largey with sufficient information so\nthat she could give informed consent\xe2\x80\x9d for the operative\nprocedure. On plaintiffs\xe2\x80\x99 appeal the Appellate Division affirmed\n\n417\n\n\x0cin an unreported opinion, noting that the trial court\xe2\x80\x99s charge on\ninformed consent followed the holding in Kaplan v. Haines, 96\nN.J. Super. 242, 257 (App.Div. 1967), which this Court affirmed\non the basis of the Appellate Division\xe2\x80\x99s opinion, 51 N.J. 404\n(1968).\nPlaintiffs argued below, and repeat the contention here, that the\nproper standard is one that focuses not on what information a\nreasonable doctor should impart to the patient (the\n\xe2\x80\x9cprofessional\xe2\x80\x9d standard) but rather on what the physician\nshould disclose to a reasonable patient in order that the patient\nmight make an informed decision (the \xe2\x80\x9cprudent patient\xe2\x80\x9d or\n\xe2\x80\x9cmateriality of risk\xe2\x80\x9d standard). The latter is the standard\nannounced in Canterbury v. Spence, 464 F.2d 772 (D.C.Cir. 1972).\nThe Appellate Division rejected the Canterbury standard, not\nbecause it disagreed with that standard but because the court felt\nitself bound, correctly, by the different standard of Kaplan,\nwhich represents \xe2\x80\x9cthe latest word\xe2\x80\x9d from this Court.\nOn plaintiffs\xe2\x80\x99 petition we granted certification, to address the\ncorrect standard for informed consent. We now discard Kaplan\xe2\x80\x99s\n\xe2\x80\x9creasonable physician\xe2\x80\x9d standard and adopt instead the Canterbury\n\xe2\x80\x9creasonable patient\xe2\x80\x9d rule. Hence, we reverse and remand for a\nnew trial.\nI\nThe narrow issue before us can be placed in satisfactory context\nby our adopting in pertinent part the Appellate Division\xe2\x80\x99s\nrecitation of the facts. In the quoted passage as well as\nhenceforth in this opinion, the word \xe2\x80\x9cplaintiff\xe2\x80\x9d refers to\nplaintiff Janice Largey.\nIn the course of a routine physical examination\nplaintiff\xe2\x80\x99s gynecologist, Dr. Glassman, detected\na \xe2\x80\x9cvague mass\xe2\x80\x9d in her right breast. The doctor\narranged for mammograms to be taken. The\nradiologist reported two anomalies to the\ndoctor: an \xe2\x80\x9cill-defined density\xe2\x80\x9d in the subareola\nregion and an enlarged lymph node or nodes,\nmeasuring four-by-two centimeters, in the right\naxilla (armpit). The doctor referred plaintiff to\n\n418\n\n\x0cdefendant, a surgeon. Defendant expressed\nconcern that the anomalies on the\nmammograms\nmight\nbe\ncancer\nand\nrecommended a biopsy. There was a sharp\ndispute at trial over whether he stated that the\nbiopsy would include the lymph nodes as well as\nthe breast tissue. Plaintiff claims that defendant\nnever mentioned the nodes.\nPlaintiff submitted to the biopsy procedure after\nreceiving a confirmatory second opinion from a\nDr. Slattery. During the procedure defendant\nremoved a piece of the suspect mass from\nplaintiff\xe2\x80\x99s breast and excised the nodes. The\nbiopsies showed that both specimens were\nbenign. About six weeks after the operation,\nplaintiff developed a right arm and hand\nlymphedema, a swelling caused by inadequate\ndrainage in the lymphatic system. The condition\nresulted from the excision of the lymph nodes.\nDefendant did not advise plaintiff of this risk.\nPlaintiff\xe2\x80\x99s experts testified that defendant should\nhave informed plaintiff that lymphedema was a\nrisk of the operation. Defendant\xe2\x80\x99s experts\ntestified that it was too rare to be discussed with\na patient.\nPlaintiff and her husband, who sued per quod,\nadvanced two theories of liability * * *. They\nclaimed that they were never told that the\noperation would include removal of the nodes\nand therefore that procedure constituted an\nunauthorized battery. Alternatively, they claimed\nthat even if they had authorized the node\nexcision, defendant was negligent in failing to\nwarn them of the risk of lymphedema and\ntherefore their consent was uninformed. The\njury specifically rejected both claims.\nII\nThe origins of the requirement that a physician obtain the\npatient\xe2\x80\x99s consent before surgery may be traced back at least two\ncenturies. See Slater v. Baker & Stapleton, 95 Eng.Rep. 860\n\n419\n\n\x0c(K.B.1767). The doctrine is now well-embedded in our law. In\nSchloendorff v. The Soc\xe2\x80\x99y of the N.Y. Hosp., 211 N.Y. 125 (1914),\nJustice Cardozo announced a patient\xe2\x80\x99s right to be free of\nuninvited, unknown surgery, which constitutes a trespass on the\npatient: \xe2\x80\x9cEvery human being of adult years and sound mind has\na right to determine what shall be done with his own body; and\na surgeon who performs an operation without his patient\xe2\x80\x99s\nconsent commits an assault, for which he is liable in damages.\xe2\x80\x9d\nEarlier case law recognized that theories of fraud and\nmisrepresentation would sustain a patient\xe2\x80\x99s action in battery for\nan unauthorized intervention. Although that cause of action\ncontinues to be recognized in New Jersey, there is no \xe2\x80\x9cbattery\xe2\x80\x9d\nclaim implicated in this appeal because the jury determined as a\nmatter of fact that plaintiff had given consent to the node\nexcision performed by Dr. Rothman.\nAlthough the requirement that a patient give consent before the\nphysician can operate is of long standing, the doctrine of informed\nconsent is one of relatively recent development in our\njurisprudence. It is essentially a negligence concept, predicated\non the duty of a physician to disclose to a patient such\ninformation as will enable the patient to make an evaluation of\nthe nature of the treatment and of any attendant substantial\nrisks, as well as of available options in the form of alternative\ntherapies.\nAn early statement of the \xe2\x80\x9cinformed consent\xe2\x80\x9d rule is found in\nSalgo v. Leland Stanford, Jr. Univ. Bd. of Trustees, 154 Cal.App.2d\n560 (Dist.Ct.App.1957), in which the court declared that \xe2\x80\x9c[a]\nphysician violates his duty to his patient and subjects himself to\nliability if he withholds any facts which are necessary to form the\nbasis of an intelligent consent by the patient to the proposed\ntreatment.\xe2\x80\x9d Salgo recognized that because each patient presents a\n\xe2\x80\x9cspecial problem,\xe2\x80\x9d the physician has a certain amount of\ndiscretion in dismissing the element of risk, \xe2\x80\x9cconsistent, of\ncourse, with the full disclosure of facts necessary to an informed\nconsent.\xe2\x80\x9d\nFurther development of the doctrine came shortly thereafter, in\nNatanson v. Kline, 186 Kan. 393 (1960), which represented one of\n\n420\n\n\x0cthe leading cases on informed consent at that time. In Natanson\na patient sustained injuries from excessive doses of radioactive\ncobalt during radiation therapy. Even though the patient had\nconsented to the radiation treatment, she alleged that the\nphysician had not informed her of the nature and consequences\nof the risks posed by the therapy. Thus, the case sounded in\nnegligence rather than battery. The court concluded that when a\nphysician either affirmatively misrepresents the nature of an\noperation or fails to disclose the probable consequences of the\ntreatment, he may be subjected to a claim of unauthorized\ntreatment. The Natanson court established the standard of care\nto be exercised by a physician in an informed consent case as\n\xe2\x80\x9climited to those disclosures which a reasonable medical\npractitioner would make under the same or similar\ncircumstances.\xe2\x80\x9d At bottom the decision turned on the principle\nof a patient\xe2\x80\x99s right of self-determination:\nAnglo-American law starts with the premise of\nthorough self-determination. It follows that\neach man is considered to be master of his own\nbody, and he may, if he be of sound mind,\nexpressly prohibit the performance of lifesaving surgery, or other medical treatment. A\ndoctor might well believe that an operation or\nform of treatment is desirable or necessary but\nthe law does not permit him to substitute his\nown judgment for that of the patient by any\nform of artifice or deception.\nAfter Salgo and Natanson the doctrine of informed consent came\nto be adopted and developed in other jurisdictions, which, until\n1972, followed the \xe2\x80\x9ctraditional\xe2\x80\x9d or \xe2\x80\x9cprofessional\xe2\x80\x9d standard\nformulation of the rule. Under that standard, as applied by the\nmajority of the jurisdictions that adopted it, a physician is\nrequired to make such disclosure as comports with the\nprevailing medical standard in the community \xe2\x80\x93 that is, the\ndisclosure of those risks that a reasonable physician in the\ncommunity, of like training, would customarily make in similar\ncircumstances. A minority of the jurisdictions that adhere to the\n\xe2\x80\x9cprofessional\xe2\x80\x9d standard do not relate the test to any kind of\n\n421\n\n\x0ccommunity standard but require only such disclosures as would\nbe made by a reasonable medical practitioner under similar\ncircumstances. In order to prevail in a case applying the\n\xe2\x80\x9ctraditional\xe2\x80\x9d or \xe2\x80\x9cprofessional\xe2\x80\x9d standard a plaintiff would have\nto present expert testimony of the community\xe2\x80\x99s medical\nstandard for disclosure in respect of the procedure in question\nand of the defendant physician\xe2\x80\x99s failure to have met that\nstandard.\nIn both the majority and minority formulations the\n\xe2\x80\x9cprofessional\xe2\x80\x9d standard rests on the belief that a physician, and\nonly a physician, can effectively estimate both the psychological\nand physical consequences that a risk inherent in a medical\nprocedure might produce in a patient. The burden imposed on\nthe physician under this standard is to \xe2\x80\x9cconsider the state of the\npatient\xe2\x80\x99s health, and whether the risks involved are mere remote\npossibilities or real hazards which occur with appreciable\nregularity * * *.\xe2\x80\x9d A second basic justification offered in support\nof the \xe2\x80\x9cprofessional\xe2\x80\x9d standard is that \xe2\x80\x9ca general standard of\ncare, as required under the prudent patient rule, would require a\nphysician to waste unnecessary time in reviewing with the\npatient every possible risk, thereby interfering with the flexibility a\nphysician needs in deciding what form of treatment is best for\nthe patient.\xe2\x80\x9d\nIt was the \xe2\x80\x9cprofessional\xe2\x80\x9d standard that this Court accepted\nwhen, twenty years ago, it made the doctrine of informed\nconsent a component part of our medical malpractice\njurisprudence. See Kaplan v. Haines. In falling into step with those\nother jurisdictions that by then had adopted informed consent,\nthe Court approved the following from the Appellate Division\xe2\x80\x99s\nopinion in Kaplan:\nThe authorities * * * are in general agreement\nthat the nature and extent of the disclosure,\nessential to an informed consent, depends upon\nthe medical problem as well as the patient.\nPlaintiff has the burden to prove what a\nreasonable medical practitioner of the same\nschool and same or similar community, under\nthe same or similar circumstances, would have\n\n422\n\n\x0cdisclosed to his patient and the issue is one for\nthe jury where, as in the case sub judice, a fact\nissue is raised upon conflicting testimony as to\nwhether the physician made an adequate\ndisclosure.\nIn 1972 a new standard of disclosure for \xe2\x80\x9cinformed consent\xe2\x80\x9d\nwas established in Canterbury v. Spence. The case raised a question\nof the defendant physician\xe2\x80\x99s duty to warn the patient\nbeforehand of the risk involved in a laminectomy, a surgical\nprocedure the purpose of which was to relieve pain in plaintiff\xe2\x80\x99s\nlower back, and particularly the risk attendant on a myelogram,\nthe diagnostic procedure preceding the surgery. After several\nsurgical interventions and hospitalizations, plaintiff was still, at\nthe time of trial, using crutches to walk, suffering from urinary\nincontinence and paralysis of the bowels, and wearing a penile\nclamp.\nThe Canterbury court announced a duty on the part of a\nphysician to \xe2\x80\x9cwarn of the dangers lurking in the proposed\ntreatment\xe2\x80\x9d and to \xe2\x80\x9cimpart information [that] the patient has\nevery right to expect,\xe2\x80\x9d as well as a duty of \xe2\x80\x9creasonable disclosure\nof the choices with respect to proposed therapy and the dangers\ninherently and potentially involved.\xe2\x80\x9d The court held that the\nscope of the duty to disclose\nmust be measured by the patient\xe2\x80\x99s need, and\nthat need is the information material to the\ndecision. Thus the test for determining whether\na particular peril must be divulged is its\nmateriality to the patient\xe2\x80\x99s decision: all risks\npotentially affecting the decision must be\nunmasked. And to safeguard the patient\xe2\x80\x99s\ninterest in achieving his own determination on\ntreatment, the law must itself set the standard\nfor adequate disclosure.\nThe breadth of the disclosure of the risks legally to be required\nis measured, under Canterbury, by a standard whose scope is \xe2\x80\x9cnot\nsubjective as to either the physician or the patient,\xe2\x80\x9d; rather, \xe2\x80\x9cit\nremains objective with due regard for the patient\xe2\x80\x99s informational\nneeds and with suitable leeway for the physician\xe2\x80\x99s situation.\xe2\x80\x9d A\n\n423\n\n\x0crisk would be deemed \xe2\x80\x9cmaterial\xe2\x80\x9d when a reasonable patient, in\nwhat the physician knows or should know to be the patient\xe2\x80\x99s\nposition, would be \xe2\x80\x9clikely to attach significance to the risk or\ncluster of risks\xe2\x80\x9d in deciding whether to forego the proposed\ntherapy or to submit to it.\nThe foregoing standard for adequate disclosure, known as the\n\xe2\x80\x9cprudent patient\xe2\x80\x9d or \xe2\x80\x9cmateriality of risk\xe2\x80\x9d standard, has been\nadopted in a number of jurisdictions.\nThe jurisdictions that have rejected the \xe2\x80\x9cprofessional\xe2\x80\x9d standard\nin favor of the \xe2\x80\x9cprudent patient\xe2\x80\x9d rule have given a number of\nreasons in support of their preference. Those include:\n(1) The existence of a discernible custom\nreflecting a medical consensus is open to serious\ndoubt. The desirable scope of disclosure\ndepends on the given fact situation, which\nvaries from patient to patient, and should not be\nsubject to the whim of the medical community\nin setting the standard.\n(2) Since a physician in obtaining a patient\xe2\x80\x99s\ninformed consent to proposed treatment is\noften obligated to consider non-medical factors,\nsuch as a patient\xe2\x80\x99s emotional condition,\nprofessional custom should not furnish the legal\ncriterion for measuring the physician\xe2\x80\x99s\nobligation to disclose. Whether a physician has\nconformed to a professional standard should * *\n* be important [only] where a pure medical\njudgment is involved, e.g. in ordinary\nmalpractice actions, where the issue generally\nconcerns the quality of treatment provided to\nthe patient.\n(3) Closely related to both (1) and (2) is the\nnotion that a professional standard is totally\nsubject to the whim of the physicians in the\nparticular community. Under this view a\nphysician is vested with virtually unlimited\ndiscretion in establishing the proper scope of\ndisclosure; this is inconsistent with the patient\xe2\x80\x99s\nright of self-determination. As observed by the\n\n424\n\n\x0ccourt in Canterbury v. Spence: \xe2\x80\x9cRespect for the\npatient\xe2\x80\x99s right of self-determination * * *\ndemands a standard set by law for physicians\nrather than one which physicians may or may\nnot impose upon themselves.\xe2\x80\x9d\n(4) The requirement that the patient present\nexpert testimony to establish the professional\nstandard has created problems for patients\ntrying to find physicians willing to breach the\n\xe2\x80\x9ccommunity of silence\xe2\x80\x9d by testifying against\nfellow colleagues.\nTaken together, the reasons supporting adoption of the\n\xe2\x80\x9cprudent patient\xe2\x80\x9d standard persuade us that the time has come\nfor us to abandon so much of the decision by which this Court\nembraced the doctrine of informed consent as accepts the\n\xe2\x80\x9cprofessional\xe2\x80\x9d standard. To that extent Kaplan v. Haines is\noverruled.\nAs indicated by the foregoing passages~, the policy\nconsiderations are clear-cut. At the outset we are entirely\nunimpressed with the argument, made by those favoring the\n\xe2\x80\x9cprofessional\xe2\x80\x9d standard, that the \xe2\x80\x9cprudent patient\xe2\x80\x9d rule would\ncompel disclosure of every risk (not just material risks) to any\npatient (rather than the reasonable patient). As Canterbury makes\nclear,\n[t]he topics importantly demanding a\ncommunication of information are the inherent\nand potential hazards of the proposed\ntreatment, the alternatives to that treatment, if\nany, and the results likely if the patient remains\nuntreated. The factors contributing significance\nto the dangerousness of a medical technique are,\nof course, the incidence of injury and the degree\nof harm threatened.\nThe court in Canterbury did not presume to draw a \xe2\x80\x9cbright line\nseparating the significant [risks] from the insignificant\xe2\x80\x9d; rather, it\nresorted to a \xe2\x80\x9crule of reason,\xe2\x80\x9d concluding that \xe2\x80\x9c[w]henever nondisclosure of particular risk information is open to debate by\nreasonable-minded men, the issue is one for the finder of facts.\xe2\x80\x9d\n\n425\n\n\x0cThe point assumes significance in this case because defendant\nargues that the risk of lymphedema from an axillary node biopsy\nis remote, not material. Plaintiff\xe2\x80\x99s experts disagree, contending\nthat she should have been informed of that risk. Thus there will\nbe presented on the retrial a factual issue for the jury\xe2\x80\x99s\nresolution: would the risk of lymphedema influence a prudent\npatient in reaching a decision on whether to submit to the\nsurgery?\nPerhaps the strongest consideration that influences our decision\nin favor of the \xe2\x80\x9cprudent patient\xe2\x80\x9d standard lies in the notion that\nthe physician\xe2\x80\x99s duty of disclosure \xe2\x80\x9carises from phenomena apart\nfrom medical custom and practice\xe2\x80\x9d: the patient\xe2\x80\x99s right of selfdetermination. The foundation for the physician\xe2\x80\x99s duty to\ndisclose in the first place is found in the idea that \xe2\x80\x9cit is the\nprerogative of the patient, not the physician, to determine for\nhimself the direction in which his interests seem to lie.\xe2\x80\x9d In\ncontrast the arguments for the \xe2\x80\x9cprofessional\xe2\x80\x9d standard smack of\nan anachronistic paternalism that is at odds with any strong\nconception of a patient\xe2\x80\x99s right of self-determination.\nAlthough today\xe2\x80\x99s decision marks the first time we have\nconfronted directly the choice between the \xe2\x80\x9cprofessional\xe2\x80\x9d and\n\xe2\x80\x9cprudent patient\xe2\x80\x9d standards, and hence to that extent our stated\npreference for the latter represents a clear break with the past,\nsurely the considerations that we have identified as having\nplayed a significant role in that choice are familiar features of\nour case law. For example, just two terms ago we declared that\n\xe2\x80\x9c[t]he doctrine of informed consent presupposes that the patient\nhas the information necessary to evaluate the risks and benefits\nof all the available options and is competent to do so.\xe2\x80\x9d\nIII\nFinally, we address the issue of proximate cause. As with other\nmedical malpractice actions, informed-consent cases require that\nplaintiff prove not only that the physician failed to comply with\nthe applicable standard for disclosure but also that such failure\nwas the proximate cause of plaintiff\xe2\x80\x99s injuries.\n\n426\n\n\x0cUnder the \xe2\x80\x9cprudent patient\xe2\x80\x9d standard \xe2\x80\x9ccausation must also be\nshown: i.e., that the prudent person in the patient\xe2\x80\x99s position\nwould have decided differently if adequately informed.\xe2\x80\x9d As\nCanterbury observes,\n[t]he patient obviously has no complaint if he\nwould have submitted to the therapy\nnotwithstanding awareness that the risk was one\nof its perils. On the other hand, the very\npurpose of the disclosure rule is to protect the\npatient against consequences which, if known,\nhe would have avoided by foregoing the\ntreatment. The more difficult question is\nwhether the factual issue on causality calls for\nan objective or a subjective determination.\nCanterbury decided its own question in favor of an objective\ndetermination. The subjective approach, which the court\nrejected, inquires whether, if the patient had been informed of\nthe risks that in fact materialized, he or she would have\nconsented to the treatment. The shortcoming of this approach,\naccording to Canterbury, is that it\nplaces the physician in jeopardy of the patient\xe2\x80\x99s\nhindsight and bitterness. It places the factfinder\nin the position of deciding whether a speculative\nanswer to a hypothetical question is to be\ncredited. It calls for a subjective determination\nsolely on testimony of a patient-witness\nshadowed by the occurrence of the undisclosed\nrisk.\nThe court therefore elected to adopt an objective test, as do we.\nBecause we would not presume to attempt an improvement in\nits articulation of the reasons, we quote once again the Canterbury\ncourt:\nBetter it is, we believe, to resolve the causality\nissue on an objective basis: in terms of what a\nprudent person in the patient\xe2\x80\x99s position would\nhave decided if suitably informed of all perils\nbearing significance. If adequate disclosure\ncould reasonably be expected to have caused\n\n427\n\n\x0cthat person to decline the treatment because of\nthe revelation of the kind of risk or danger that\nresulted in harm, causation is shown, but\notherwise not. The patient\xe2\x80\x99s testimony is\nrelevant on that score of course but it would not\nthreaten to dominate the findings. And since\nthat testimony would probably be appraised\ncongruently with the factfinder\xe2\x80\x99s belief in its\nreasonableness, the case for a wholly objective\nstandard for passing on causation is\nstrengthened. Such a standard would in any\nevent ease the fact-finding process and better\nassure the truth as its product.\nIV\nThe judgment of the Appellate Division is reversed. The cause is\nremanded for a new trial consistent with this opinion.\n\nQuestions to Ponder About Largey\nA. Which is better, the physician rule (a/k/a the \xe2\x80\x9c\xe2\x80\x98professional\nstandard\xe2\x80\x99 rule\xe2\x80\x9d) or the patient rule (a/k/a the \xe2\x80\x9c\xe2\x80\x98prudent patient\xe2\x80\x99\nrule\xe2\x80\x9d)? Why?\nB. Assuming that a jurisdiction opts for the patient rule, do you agree\nwith the Largey court that the causation standard should be objective?\nOr should it be subjective? Stated differently, should the plaintiff\nhave a cause of action if the hypothetical prudent patient would have\nmade a different decision had the risk been disclosed? (The objective\ncausation standard.) Or should it only matter whether the particular\nplaintiff would have made a different decision had the risk been\ndisclosed? (The subjective causation standard.)\n\n428\n\n\x0c12. ERISA Preemption\n\xe2\x80\x9cA rule without a penalty is just a suggestion.\xe2\x80\x9d\n\xe2\x80\x93 Unknown\n\nBasics\nThe Employee Retirement Income Security Act of 1974 \xe2\x80\x93 known as\n\xe2\x80\x9cERISA\xe2\x80\x9d \xe2\x80\x93 is a federal statute regulating employee benefits. ERISA\nis important in the negligence context because of its preemptive\neffect.\nFederal laws can trump state laws \xe2\x80\x93 an effect called \xe2\x80\x9cpreemption\xe2\x80\x9d \xe2\x80\x93\nbecause of the Supremacy Clause of the U.S. Constitution in Article\nVI, Clause 2. It provides:\n\xe2\x80\x9cThis Constitution, and the Laws of the United\nStates which shall be made in Pursuance\nthereof; and all Treaties made, or which shall be\nmade, under the Authority of the United States,\nshall be the supreme Law of the Land; and the\nJudges in every State shall be bound thereby,\nany Thing in the Constitution or Laws of any\nState to the Contrary notwithstanding.\xe2\x80\x9d\n\nThis power allows federal statutes to erase state causes of action. As\nyou know, tort law is a matter of state law.\nThe ERISA preemption provision is found in the federal statutes at\n29 U.S.C. \xc2\xa7 1144, but it is better known by its native section number\nas ERISA \xc2\xa7 514. The statute provides:\n\xe2\x80\x9c[T]he provisions of this subchapter and\nsubchapter III of this chapter shall supersede\nany and all State laws insofar as they may now\nor hereafter relate to any employee benefit\nplan[.]\xe2\x80\x9d\n\nThis provision has been interpreted to bar tort lawsuits stemming\nfrom wrongfully withheld benefits. So if an employee is entitled to\nmedical care under the employer\xe2\x80\x99s health plan, and that medical care\nis wrongfully denied, a common-law contract or tort lawsuit will not\n\n429\n\n\x0cbe allowed. This has the effect of providing a substantial level of\nimmunity for healthcare decisions made in the context of employeebenefit program. The ERISA preemption effect is especially sharply\nfelt in the context of decisions made by health maintenance\norganizations (HMOs).\nAlthough state-law causes of action are not available to employees\nwrongfully denied benefits, ERISA itself provides a cause of action.\nERISA \xc2\xa7 502 creates a special private right of action such that\nemployees wrongfully denied benefits can sue to recover the value of\nthe benefits. The crucial difference between ERISA \xc2\xa7 502 and\ncommon-law causes of action lies in the amount recoverable. ERISA\n\xc2\xa7 502 does not permit recovery for consequential damages or\npunitive damages. So if a person dies because of being wrongfully\ndenied coverage for needed treatment under an employee-benefit\nplan, the recovery is limited to the monetary amount that should have\nbeen disbursed for the treatment. The family may not recover an\namount that would compensate them for the loss of their loved one.\nCritics charge that this gives insurers and HMOs little incentive to\npay the benefits that insureds are legally due. If a health-care\norganization is confronted with an authorization request for a lifesaving surgery that will cost $75,000, the organization can authorize\nthe surgery, in which case it will be out $75,000, or the organization\ncan withhold authorization, in which case it faces a potential liability\n\xe2\x80\x93 assuming a \xc2\xa7 502 action is brought \xe2\x80\x93 of $75,000. This means that\nhealth-care organizations have little to lose by withholding treatment\nauthorizations. Of course, if a health-care organization is chronically\nuncooperative, it can expect to lose customers. Since, however, the\nhealth-care organizations\xe2\x80\x99 true customer is the employer \xe2\x80\x93 not the\ncovered employees \xe2\x80\x93 the organization may find that it wins more\nbusiness by keeping costs low rather than through excellent service.\nIt is important to keep in mind what causes of action ERISA does\nnot bar.\nERISA does not bar state tort law suits against health-insurers or\nHMOs that are not providing services as part of an employee benefit\nprogram. The vast majority of people with health insurance get that\n\n430\n\n\x0cinsurance through an employee-benefit program. But where an\nindividual contracts directly with a health-care insurer, ERISA does\nnot apply. This point is particularly important, since the number of\nindividuals getting insurance outside the employment context is\nincreasing because of \xe2\x80\x9cObamacare\xe2\x80\x9d \xe2\x80\x93 the Patient Protection and\nAffordable Care Act of 2010.\nMoreover, ERISA does not bar suits against physicians who commit\nmalpractice. Similarly, ERISA does not bar medical negligence\nlawsuits against hospitals. This is true even when the physicians\xe2\x80\x99 bills\nand hospital bills are being paid by an employee-benefit plan.\nMoreover, courts have often allowed suits against HMOs where the\nphysician is directly employed by the HMO and where the basis of\nthe claim is one of vicarious liability for employing the malpracticecommitting physician.\n\nCase: Corcoran v. United Healthcare\nThe following leading case shows the power of ERISA preemption in\naction and indicates the extent of its effect on common-law torts.\n\nCorcoran v. United Healthcare\nUnited States Court of Appeals for the Fifth Circuit\nJune 26, 1992\n965 F.2d 1321. FLORENCE B. CORCORAN Wife of/and\nWAYNE D. CORCORAN, Plaintiffs-Appellants, v. UNITED\nHEALTHCARE, INC., and BLUE CROSS and BLUE\nSHIELD OF ALABAMA, INC., Defendants-Appellees. No.\n91-3322. THORNBERRY, KING, and DeMOSS, Circuit\nJudges.\nJudge CAROLYN DINEEN KING:\nThis appeal requires us to decide whether ERISA pre-empts a\nstate-law malpractice action brought by the beneficiary of an\nERISA plan against a company that provides \xe2\x80\x9cutilization\nreview\xe2\x80\x9d services to the plan. We also address the availability\nunder ERISA of extracontractual damages. The district court\ngranted the defendants\xe2\x80\x99 motion for summary judgment, holding\nthat ERISA both pre-empted the plaintiffs\xe2\x80\x99 medical malpractice\n\n431\n\n\x0cclaim and precluded them from recovering emotional distress\ndamages. We affirm.\nI. BACKGROUND\nThe basic facts are undisputed. Florence Corcoran, a long-time\nemployee of South Central Bell Telephone Company (Bell),\nbecame pregnant in early 1989. In July, her obstetrician, Dr.\nJason Collins, recommended that she have complete bed rest\nduring the final months of her pregnancy. Mrs. Corcoran\napplied to Bell for temporary disability benefits for the\nremainder of her pregnancy, but the benefits were denied. This\nprompted Dr. Collins to write to Dr. Theodore J. Borgman,\nmedical consultant for Bell, and explain that Mrs. Corcoran had\nseveral medical problems which placed her \xe2\x80\x9cin a category of\nhigh risk pregnancy.\xe2\x80\x9d Bell again denied disability benefits.\nUnbeknownst to Mrs. Corcoran or Dr. Collins, Dr. Borgman\nsolicited a second opinion on Mrs. Corcoran\xe2\x80\x99s condition from\nanother obstetrician, Dr. Simon Ward. In a letter to Dr.\nBorgman, Dr. Ward indicated that he had reviewed Mrs.\nCorcoran\xe2\x80\x99s medical records and suggested that \xe2\x80\x9cthe company\nwould be at considerable risk denying her doctor\xe2\x80\x99s\nrecommendation.\xe2\x80\x9d As Mrs. Corcoran neared her delivery date,\nDr. Collins ordered her hospitalized so that he could monitor\nthe fetus around the clock. \xef\x81\x81This was the same course of action\nDr. Collins had ordered during Mrs. Corcoran\xe2\x80\x99s 1988 pregnancy.\nIn that pregnancy, Dr. Collins intervened and performed a\nsuccessful Caesarean section in the 36th week when the fetus\nwent into distress.\xef\x81\x80\nMrs. Corcoran was a member of Bell\xe2\x80\x99s Medical Assistance Plan\n(MAP or \xe2\x80\x9cthe Plan\xe2\x80\x9d). MAP is a self-funded welfare benefit plan\nwhich provides medical benefits to eligible Bell employees. It is\nadministered by defendant Blue Cross and Blue Shield of\nAlabama (Blue Cross) pursuant to an Administrative Services\nAgreement between Bell and Blue Cross. The parties agree that\nit is governed by ERISA \xef\x81\x81Employee Retirement Income\nSecurity Act of 1974, Pub. L. No. 93-406, 88 Stat. 829, 29 U.S.C.\n\xc2\xa7\xc2\xa7 1001-1461.\xef\x81\x80\n\n432\n\n\x0cUnder a portion of the Plan known as the \xe2\x80\x9cQuality Care\nProgram\xe2\x80\x9d (QCP), participants must obtain advance approval for\novernight hospital admissions and certain medical procedures\n(\xe2\x80\x9cpre-certification\xe2\x80\x9d), and must obtain approval on a continuing\nbasis once they are admitted to a hospital (\xe2\x80\x9cconcurrent review\xe2\x80\x9d),\nor plan benefits to which they otherwise would be entitled are\nreduced.\nQCP is administered by defendant United HealthCare (United)\npursuant to an agreement with Bell. United performs a form of\ncost-containment service that has commonly become known as\n\xe2\x80\x9cutilization review.\xe2\x80\x9d See Blum, An Analysis of Legal Liability in\nHealth Care Utilization Review and Case Management, 26 Hous. L.\nRev. 191, 192-93 (1989) (Utilization review refers to \xe2\x80\x9cexternal\nevaluations that are based on established clinical criteria and are\nconducted by third-party payors, purchasers, or health care\norganizers to evaluate the appropriateness of an episode, or\nseries of episodes, of medical care.\xe2\x80\x9d). The Summary Plan\nDescription (SPD) explains QCP as follows:\nThe Quality Care Program (QCP), administered\nby United HealthCare, Inc., assists you and your\ncovered dependents in securing quality medical\ncare according to the provisions of the Plan\nwhile helping reduce risk and expense due to\nunnecessary hospitalization and surgery. They\ndo this by providing you with information\nwhich will permit you (in consultation with your\ndoctor) to evaluate alternatives to surgery and\nhospitalization when those alternatives are\nmedically appropriate. In addition, QCP will\nmonitor any certified hospital confinement to\nkeep you informed as to whether or not the stay\nis covered by the Plan.\nTwo paragraphs below, the SPD contains this statement: When\nreading this booklet, remember that all decisions regarding\nyour medical care are up to you and your doctor. It goes on\nto explain that when a beneficiary does not contact United or\nfollow its pre-certification decision, a \xe2\x80\x9cQCP Penalty\xe2\x80\x9d is applied.\nThe penalty involves reduction of benefits by 20 percent for the\n\n433\n\n\x0cremainder of the calendar year or until the annual out-of-pocket\nlimit is reached. Moreover, the annual out-of-pocket limit is\nincreased from $ 1,000 to $ 1,250 in covered expenses, not\nincluding any applicable deductible. According to the QCP\nAdministrative Manual, the QCP penalty is automatically applied\nwhen a participant fails to contact United. However, if a\nparticipant complies with QCP by contacting United, but does\nnot follow its decision, the penalty may be waived following an\ninternal appeal if the medical facts show that the treatment\nchosen was appropriate.\nA more complete description of QCP and the services provided\nby United is contained in a separate booklet. Under the heading\n\xe2\x80\x9cWHAT QCP DOES\xe2\x80\x9d the booklet explains:\nWhenever your doctor recommends surgery or\nhospitalization for you or a covered dependent,\nQCP will provide an independent review of\nyour condition (or your covered dependent\xe2\x80\x99s).\nThe purpose of the review is to assess the need\nfor surgery or hospitalization and to determine\nthe appropriate length of stay for a\nhospitalization, based on nationally accepted\nmedical guidelines. As part of the review\nprocess, QCP will discuss with your doctor the\nappropriateness\nof\nthe\ntreatments\nrecommended and the availability of alternative\ntypes of treatments \xe2\x80\x93 or locations for treatment\n\xe2\x80\x93 that are equally effective, involve less risk, and\nare more cost effective.\nThe next paragraph is headed \xe2\x80\x9cINDEPENDENT,\nPROFESSIONAL REVIEW\xe2\x80\x9d and states:\nUnited Health Care, an independent\nprofessional medical review organization, has\nbeen engaged to provide services under QCP.\nUnited\xe2\x80\x99s staff includes doctors, nurses, and\nother medical professionals knowledgeable\nabout the health care delivery system. Together\nwith your doctor, they work to assure that you\nand your covered family members receive the\nmost appropriate medical care.\n\n434\n\n\x0cAt several points in the booklet, the themes of \xe2\x80\x9cindependent\nmedical review\xe2\x80\x9d and \xe2\x80\x9creduction of unnecessary risk and\nexpense\xe2\x80\x9d are repeated. Under a section entitled \xe2\x80\x9cTHE\nQUALITY CARE PROGRAM \xe2\x80\xa6 AT A GLANCE\xe2\x80\x9d the\nbooklet states that QCP \xe2\x80\x9cProvides independent, professional\nreview when surgery or hospitalization is recommended \xe2\x80\x93 to\nassist you in making an enlightened decision regarding your\ntreatment.\xe2\x80\x9d QCP \xe2\x80\x9c[p]rovides improved quality of care by\neliminating medically unnecessary treatment,\xe2\x80\x9d but beneficiaries\nwho fail to use it \xe2\x80\x9cmay be exposed to unnecessary health risks.\n\xe2\x80\xa6\xe2\x80\x9d Elsewhere, in the course of pointing out that studies show\none-third of all surgery may be unnecessary, the booklet explains\nthat programs such as QCP \xe2\x80\x9chelp reduce unnecessary and\ninappropriate care and eliminate their associated costs.\xe2\x80\x9d Thus,\n\xe2\x80\x9cone important service of QCP will help you get a second\nopinion when your doctor recommends surgery.\xe2\x80\x9d\nThe booklet goes on to describe the circumstances under which\nQCP must be utilized. When a Plan member\xe2\x80\x99s doctor\nrecommends admission to the hospital, independent medical\nprofessionals will review, with the patient\xe2\x80\x99s doctor, the medical\nfindings and the proposed course of treatment, including the\nmedically necessary length of confinement. The Quality Care\nProgram may require additional tests or information (including\nsecond opinions), when determined necessary during\nconsultation between QCP professionals and the attending\nphysician.\nWhen United certifies a hospital stay, it monitors the continuing\nnecessity of the stay. It also determines, for certain medical\nprocedures and surgeries, whether a second opinion is\nnecessary, and authorizes, where appropriate, certain alternative\nforms of care. Beneficiaries are strongly encouraged to use QCP\nto avoid loss of benefits: \xe2\x80\x9c\xe2\x80\x98fully using\xe2\x80\x99 QCP means following the\ncourse of treatment that\xe2\x80\x99s recommended by QCP\xe2\x80\x99s medical\nprofessionals.\xe2\x80\x9d\nIn accordance with the QCP portion of the plan, Dr. Collins\nsought pre-certification from United for Mrs. Corcoran\xe2\x80\x99s\nhospital stay. Despite Dr. Collins\xe2\x80\x99s recommendation, United\n\n435\n\n\x0cdetermined that hospitalization was not necessary, and instead\nauthorized 10 hours per day of home nursing care.\nMrs. Corcoran entered the hospital on October 3, 1989, but,\nbecause United had not pre-certified her stay, she returned\nhome on October 12. On October 25, during a period of time\nwhen no nurse was on duty, the fetus went into distress and\ndied.\nMrs. Corcoran and her husband, Wayne, filed a wrongful death\naction in Louisiana state court alleging that their unborn child\ndied as a result of various acts of negligence committed by Blue\nCross and United. Both sought damages for the lost love,\nsociety and affection of their unborn child. In addition, Mrs.\nCorcoran sought damages for the aggravation of a pre-existing\ndepressive condition and the loss of consortium caused by such\naggravation, and Mr. Corcoran sought damages for loss of\nconsortium. The defendants removed the action to federal court\non grounds that it was pre-empted by ERISA and that there was\ncomplete diversity among the parties. \xef\x81\x81See Metropolitan Life Ins.\nCo. v. Taylor, 481 U.S. 58, 66 (1987) (because ERISA preemption is so comprehensive, pre-emption defense provides\nsufficient basis for removal to federal court notwithstanding\n\xe2\x80\x9cwell-pleaded complaint\xe2\x80\x9d rule).\xef\x81\x80\nShortly thereafter, the defendants moved for summary\njudgment. They argued that the Corcorans\xe2\x80\x99 cause of action,\nproperly characterized, sought damages for improper handling\nof a claim from two entities whose responsibilities were simply\nto administer benefits under an ERISA-governed plan. They\ncontended that their relationship to Mrs. Corcoran came into\nexistence solely as a result of an ERISA plan and was defined\nentirely by the plan. Thus, they urged the court to view the\nclaims as \xe2\x80\x9crelating to\xe2\x80\x9d an ERISA plan, and therefore within the\nbroad scope of state law claims pre-empted by the statute. In\ntheir opposition to the motion, the Corcorans argued that \xe2\x80\x9cthis\ncase essentially boils down to one for malpractice against United\nHealthCare. \xe2\x80\xa6 \xe2\x80\x9d They contended that under this court\xe2\x80\x99s analysis\nin Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan\nEnterprises, Inc., 793 F.2d 1456 (5th Cir. 1986), their cause of\n\n436\n\n\x0caction must be classified as a state law of general application\nwhich involves an exercise of traditional state authority and\naffects principal ERISA entities in their individual capacities.\nThis classification, they argued, together with the fact that preemption would contravene the purposes of ERISA by leaving\nthem without a remedy, leads to the conclusion that the action is\npermissible notwithstanding ERISA.\nThe district court, relying on the broad ERISA pre-emption\nprinciples developed by the Supreme Court and the Fifth\nCircuit, granted the motion. The court noted that ERISA preemption extends to state law claims \xe2\x80\x9c\xe2\x80\x98of general application,\xe2\x80\x99\nincluding tort claims where ERISA ordinarily plays no role in\nthe state law at issue.\xe2\x80\x9d The court found that the state law claim\nadvanced by the Corcorans \xe2\x80\x9crelated to\xe2\x80\x9d the employee benefit\nplan (citing the statutory pre-emption clause, ERISA \xc2\xa7 514(a)),\nand therefore was pre-empted, because\nbut for the ERISA plan, the defendants would\nhave played no role in Mrs. Corcoran\xe2\x80\x99s\npregnancy; the sole reason the defendants had\nanything to do with her pregnancy is because\nthe terms of the ERISA plan directed Mrs.\nCorcoran to the defendants (or at least to\nUnited HealthCare) for approval of coverage of\nthe medical care she initially sought.\nThe court held that, because the ERISA plan was the source of\nthe relationship between the Corcorans and the defendants, the\nCorcorans\xe2\x80\x99 attempt to distinguish United\xe2\x80\x99s role in paying claims\nfrom its role as a source of professional medical advice was\nunconvincing.\nThe Corcorans filed a motion for reconsideration under Rule 59\nof the Federal Rules of Civil Procedure. They did not ask the\ndistrict court to reconsider its pre-emption ruling, but instead\ncontended that language in the district court\xe2\x80\x99s opinion had\nimplicitly recognized that they had a separate cause of action\nunder ERISA\xe2\x80\x99s civil enforcement mechanism, \xc2\xa7 502(a)(3). \xef\x81\x81The\ndistrict court had stated that \xe2\x80\x9cbecause the plaintiffs concede that\nthe defendants have fully paid any and all medical expenses that\n\n437\n\n\x0cMrs. Corcoran actually incurred that were covered by the plan,\nthe plaintiffs have no remaining claims under ERISA.\xe2\x80\x9d In a\nfootnote, the court indicated that Mrs. Corcoran could have (1)\nsued under ERISA, before entering the hospital, for a\ndeclaratory judgment that she was entitled to hospitalization\nbenefits; or (2) gone into the hospital, incurred out-of-pocket\nexpenses, and sued under ERISA for these expenses.\xef\x81\x80 They\nargued that the Supreme Court\xe2\x80\x99s decision in Massachusetts Mutual\nLife Ins. Co. v. Russell, 473 U.S. 134 (1985), did not foreclose the\npossibility that compensatory damages such as they sought\nconstituted \xe2\x80\x9cother appropriate equitable relief\xe2\x80\x9d available under \xc2\xa7\n502(a)(3) for violations of ERISA or the terms of an ERISA\nplan. The district court denied the motion. Although the court\nrecognized that there was authority to the contrary, it pointed\nout that \xe2\x80\x9cthe vast majority of federal appellate courts have \xe2\x80\xa6\nheld that a beneficiary under an ERISA health plan may not\nrecover under section 509(a)(3) [sic] of ERISA compensatory or\nconsequential damages for emotional distress or other claims\nbeyond medical expenses covered by the plan.\xe2\x80\x9d (citations\nomitted). Moreover, the court pointed out, a prerequisite to\nrecovery under \xc2\xa7 502(a)(3) is a violation of the terms of ERISA\nitself. ERISA does not place upon the defendants a substantive\nresponsibility in connection with the provision of medical advice\nwhich, if breached, would support a claim under \xc2\xa7 502(a)(3).\nThe court entered final judgment in favor of Blue Cross and\nUnited, and this appeal followed.\nII. STANDARD OF REVIEW\nBecause this case is on appeal from the district court\xe2\x80\x99s grant of\nsummary judgment, our review is plenary. We view the evidence\nin the light most favorable to the nonmoving party~.\nIII. PRE-EMPTION OF THE STATE LAW CAUSE OF\nACTION\nA. The Nature of the Corcorans\xe2\x80\x99 State Law Claims\nThe Corcorans\xe2\x80\x99 original petition in state court alleged that acts\nof negligence committed by Blue Cross and United caused the\ndeath of their unborn child. Specifically, they alleged that Blue\n\n438\n\n\x0cCross wrongfully denied appropriate medical care, failed\nadequately to oversee the medical decisions of United, and failed\nto provide United with Mrs. Corcoran\xe2\x80\x99s complete medical\nbackground. They alleged that United wrongfully denied the\nmedical care recommended by Dr. Collins and wrongfully\ndetermined that home nursing care was adequate for her\ncondition. It is evident that the Corcorans no longer pursue any\ntheory of recovery against Blue Cross~, they challenge only the\ndistrict court\xe2\x80\x99s conclusion that ERISA pre-empts their state law\ncause of action against United.~\nThe claims against United arise from a relatively recent\nphenomenon in the health care delivery system \xe2\x80\x93 the\nprospective review by a third party of the necessity of medical\ncare. Systems of prospective and concurrent review, rather than\ntraditional retrospective review, were widely adopted throughout\nthe 1980s as a method of containing the rapidly rising costs of\nhealth care. Blum, supra, at 192; Furrow, Medical Malpractice and\nCost Containment: Tightening the Screws, 36 Case Western L. Rev.\n985, 986-87 (1986). Under the traditional retrospective system\n(also commonly known as the fee-for-service system), the\npatient obtained medical treatment and the insurer reviewed the\nprovider\xe2\x80\x99s claims for payment to determine whether they were\ncovered under the plan. Denial of a claim meant that the cost of\ntreatment was absorbed by an entity other than the one designed\nto spread the risk of medical costs \xe2\x80\x93 the insurer.\nCongress\xe2\x80\x99s adoption in 1983 of a system under which hospitals\nare reimbursed for services provided to Medicare patients based\nupon average cost calculations for patients with particular\ndiagnoses spurred private insurers to institute similar programs\nin which prospective decisions are made about the appropriate\nlevel of care. Although plans vary, the typical prospective review\nsystem requires some form of pre-admission certification by a\nthird party (e.g., the HMO if an HMO-associated doctor\nprovides care; an outside organization such as United if an\nindependent physician provides care) before a hospital stay.\nConcurrent review involves the monitoring of a hospital stay to\ndetermine its continuing appropriateness. See generally, Blum,\nsupra, at 192-93; Tiano, The Legal Implications of HMO Cost\n\n439\n\n\x0cContainment Measures, 14 Seton Hall Legis. J. 79, 80 (1990). As the\nSPD makes clear, United performs this sort of prospective and\nconcurrent review (generically, \xe2\x80\x9cutilization review\xe2\x80\x9d) in\nconnection with, inter alia, the hospitalization of Bell employees.\nThe Corcorans based their action against United on Article 2315\nof the Louisiana Civil Code, which provides that \xe2\x80\x9cevery act\nwhatever of man that causes damage to another obliges him by\nwhose fault it happened to repair it.\xe2\x80\x9d Article 2315 provides\nparents with a cause of action for the wrongful death of their\nunborn children, and also places liability on health care\nproviders when they fail to live up to the applicable standard of\ncare.~\nB. Principles of ERISA Pre-emption\nThe central inquiry in determining whether a federal statute preempts state law is the intent of Congress. In performing this\nanalysis we begin with any statutory language that expresses an\nintent to pre-empt, but we look also to the purpose and\nstructure of the statute as a whole.\nERISA contains an explicit pre-emption clause, which provides,\nin relevant part:\nExcept as provided in subsection (b) of this\nsection, the provisions of this subchapter and\nsubchapter III of this chapter shall supersede\nany and all State laws insofar as they may now\nor hereafter relate to any employee benefit plan\ndescribed in section 1003(a). \xe2\x80\xa6\nERISA \xc2\xa7 514(a). It is by now well-established that the\n\xe2\x80\x9cdeliberately expansive\xe2\x80\x9d language of this clause, Pilot Life Ins. Co.\nv. Dedeaux, 481 U.S. 41, 46 (1987), is a signal that it is be\nconstrued extremely broadly. See FMC Corp., (\xe2\x80\x9cthe pre-emption\nclause is conspicuous for its breadth\xe2\x80\x9d). The key words \xe2\x80\x9crelate\nto\xe2\x80\x9d are used in such a way as to expand pre-emption beyond\nstate laws that relate to the specific subjects covered by ERISA,\nsuch as reporting, disclosure and fiduciary obligations. Thus,\nstate laws \xe2\x80\x9crelate[] to\xe2\x80\x9d employee benefit plans in a much broader\nsense \xe2\x80\x93 whenever they have \xe2\x80\x9ca connection with or reference to\n\n440\n\n\x0csuch a plan.\xe2\x80\x9d Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97\n(1983). This sweeping pre-emption of state law is consistent\nwith Congress\xe2\x80\x99s decision to create a comprehensive, uniform\nfederal scheme for the regulation of employee benefit plans.\nThe most obvious class of pre-empted state laws are those that\nare specifically designed to affect ERISA-governed employee\nbenefit plans. But a law is not saved from pre-emption merely\nbecause it does not target employee benefit plans. Indeed, much\npre-emption litigation involves laws of general application\nwhich, when applied in particular settings, can be said to have a\nconnection with or a reference to an ERISA plan. See Pilot Life,\n481 U.S. at 47-48 (common law tort and contract causes of\naction seeking damages for improper processing of a claim for\nbenefits under a disability plan are pre-empted); Shaw, 463 U.S.\nat 95-100 (statute interpreted by state court as prohibiting plans\nfrom discriminating on the basis of pregnancy is pre-empted);\nChristopher v. Mobil Oil Corp., 950 F.2d 1209, 1218 (5th Cir. 1992)\n(common law fraud and negligent misrepresentation claims that\nallege reliance on agreements or representations about the\ncoverage of a plan are pre-empted). On the other hand, the\nCourt has recognized that not every conceivable cause of action\nthat may be brought against an ERISA-covered plan is preempted. \xe2\x80\x9cSome state actions may affect employee benefit plans\nin too tenuous, remote or peripheral a manner to warrant a\nfinding that the law \xe2\x80\x98relates to\xe2\x80\x99 the plan.\xe2\x80\x9d Thus, \xe2\x80\x9crun-of-the-mill\nstate-law claims such as unpaid rent, failure to pay creditors, or\neven torts committed by an ERISA plan\xe2\x80\x9d are not pre-empted.\nC. Pre-emption of the Corcorans\xe2\x80\x99 Claims\nInitially, we observe that the common law causes of action\nadvanced by the Corcorans are not that species of law\n\xe2\x80\x9cspecifically designed\xe2\x80\x9d to affect ERISA plans, for the liability\nrules they seek to invoke neither make explicit reference to nor\nare premised on the existence of an ERISA plan. Rather, applied\nin this case against a defendant that provides benefit-related\nservices to an ERISA plan, the generally applicable negligencebased causes of action may have an effect on an ERISA-\n\n441\n\n\x0cgoverned plan. In our view, the pre-emption question devolves\ninto an assessment of the significance of these effects.\n1. United\xe2\x80\x99s position \xe2\x80\x93 it makes benefit determinations, not\nmedical decisions\nUnited\xe2\x80\x99s argument in favor of pre-emption is grounded in the\nnotion that the decision it made concerning Mrs. Corcoran was\nnot primarily a medical decision, but instead was a decision\nmade in its capacity as a plan fiduciary about what benefits were\nauthorized under the Plan. All it did, it argues, was determine\nwhether Mrs. Corcoran qualified for the benefits provided by\nthe plan by applying previously established eligibility criteria.\nThe argument\xe2\x80\x99s coup de grace is that under well-established\nprecedent, participants may not sue in tort to redress injuries\nflowing from decisions about what benefits are to be paid under\na plan. One commentator has endorsed this view of lawsuits\nagainst providers of utilization review services, arguing that,\nbecause medical services are the \xe2\x80\x9cbenefits\xe2\x80\x9d provided by a\nutilization review company, complaints about the quality of\nmedical services (i.e., lawsuits for negligence) \xe2\x80\x9ccan therefore be\ncharacterized as claims founded upon a constructive denial of\nplan benefits.\xe2\x80\x9d Chittenden, Malpractice Liability and Managed\nHealth Care: History & Prognosis, 26 Tort & Ins. Law J. 451, 489\n(1991).\nIn support of its argument, United points to its explanatory\nbooklet and its language stating that the company advises the\npatient\xe2\x80\x99s doctor \xe2\x80\x9cwhat the medical plan will pay for, based on a\nreview of [the patient\xe2\x80\x99s] clinical information and nationally\naccepted medical guidelines for the treatment of [the patient\xe2\x80\x99s]\ncondition.\xe2\x80\x9d It also relies on statements to the effect that the\nultimate medical decisions are up to the beneficiary\xe2\x80\x99s doctor. It\nacknowledges at various points that its decision about what\nbenefits would be paid was based on a consideration of medical\ninformation, but the thrust of the argument is that it was simply\nperforming commonplace administrative duties akin to claims\nhandling.\nBecause it was merely performing claims handling functions\nwhen it rejected Dr. Collins\xe2\x80\x99s request to approve Mrs.\n\n442\n\n\x0cCorcoran\xe2\x80\x99s hospitalization, United contends, the principles of\nPilot Life and its progeny squarely foreclose this lawsuit. In Pilot\nLife, a beneficiary sought damages under various state-law tort\nand contract theories from the insurance company that\ndetermined eligibility for the employer\xe2\x80\x99s long term disability\nbenefit plan. The company had paid benefits for two years, but\nthere followed a period during which the company terminated\nand reinstated the beneficiary several times. The Court made\nclear, however, that ERISA pre-empts state-law tort and\ncontract actions in which a beneficiary seeks to recover damages\nfor improper processing of a claim for benefits. United suggests\nthat its actions here were analogous to those of the insurance\ncompany in Pilot Life, and therefore urges us to apply that\ndecision.\n2. The Corcorans\xe2\x80\x99 position \xe2\x80\x93 United makes medical decisions,\nnot benefit determinations\nThe Corcorans assert that Pilot Life and its progeny are\ninapposite because they are not advancing a claim for improper\nprocessing of benefits. Rather, they say, they seek to recover\nsolely for United\xe2\x80\x99s erroneous medical decision that Mrs.\nCorcoran did not require hospitalization during the last month\nof her pregnancy. This argument, of course, depends on viewing\nUnited\xe2\x80\x99s action in this case as a medical decision, and not merely\nan administrative determination about benefit entitlements.\nAccordingly, the Corcorans, pointing to the statements United\nmakes in the QCP booklet concerning its medical expertise,\ncontend that United exercised medical judgment which is\noutside the purview of ERISA pre-emption.\nThe Corcorans suggest that a medical negligence claim is\npermitted under the analytical framework we have developed for\nassessing pre-emption claims. Relying on Sommers Drug Stores Co.\nEmployee Profit Sharing Trust v. Corrigan Enterprises, Inc., 793 F.2d\n1456 (5th Cir. 1986), they contend that we should not find the\nstate law under which they proceed pre-empted because it (1)\ninvolves the exercise of traditional state authority and (2) is a law\nof general application which, although it affects relations\n\n443\n\n\x0cbetween principal ERISA entities in this case, is not designed to\naffect the ERISA relationship.\n3. Our view \xe2\x80\x93 United makes medical decisions incident to\nbenefit determinations\nWe cannot fully agree with either United or the Corcorans.\nUltimately, we conclude that United makes medical decisions \xe2\x80\x93\nindeed, United gives medical advice \xe2\x80\x93 but it does so in the\ncontext of making a determination about the availability of\nbenefits under the plan. Accordingly, we hold that the Louisiana\ntort action asserted by the Corcorans for the wrongful death of\ntheir child allegedly resulting from United\xe2\x80\x99s erroneous medical\ndecision is pre-empted by ERISA.\nTurning first to the question of the characterization of United\xe2\x80\x99s\nactions, we note that the QCP booklet and the SPD lend\nsubstantial support to the Corcorans\xe2\x80\x99 argument that United\nmakes medical decisions. United\xe2\x80\x99s own booklet tells\nbeneficiaries that it \xe2\x80\x9cassesses the need for surgery or\nhospitalization and \xe2\x80\xa6 determines the appropriate length of stay\nfor a hospitalization, based on nationally accepted medical\nguidelines.\xe2\x80\x9d United \xe2\x80\x9cwill discuss with your doctor the\nappropriateness of the treatments recommended and the\navailability of alternative types of treatments.\xe2\x80\x9d Further,\n\xe2\x80\x9cUnited\xe2\x80\x99s staff includes doctors, nurses, and other medical\nprofessionals knowledgeable about the health care delivery\nsystem. Together with your doctor, they work to assure that you\nand your covered family members receive the most appropriate\nmedical care.\xe2\x80\x9d According to the SPD, United will \xe2\x80\x9cprovide you\nwith information which will permit you (in consultation with\nyour doctor) to evaluate alternatives to surgery and\nhospitalization when those alternatives are medically\nappropriate.\xe2\x80\x9d\nUnited makes much of the disclaimer that decisions about\nmedical care are up to the beneficiary and his or her doctor.\nWhile that may be so, and while the disclaimer may support the\nconclusion that the relationship between United and the\nbeneficiary is not that of doctor-patient, it does not mean that\nUnited does not make medical decisions or dispense medical\n\n444\n\n\x0cadvice. See Wickline, 239 Cal. Rptr. at 819 (declining to hold\nMedi-Cal liable but recognizing that it made a medical\njudgment); Macaulay, Health Care Cost Containment and Medical\nMalpractice: On a Collision Course, 19 Suffolk U.L. Rev. 91, 106-07\n(1986) (\xe2\x80\x9cAs illustrated in [Wickline], an adverse prospective\ndetermination on the \xe2\x80\x98necessity\xe2\x80\x99 of medical treatment may\ninvolve complex medical judgment.\xe2\x80\x9d) (footnote omitted). In\nresponse, United argues that any such medical determination or\nadvice is made or given in the context of administering the\nbenefits available under the Bell plan. Supporting United\xe2\x80\x99s\nposition is the contract between United and Bell, which\nprovides that \xe2\x80\x9c[United] shall contact the Participant\xe2\x80\x99s physician\nand based upon the medical evidence and normative data\ndetermine whether the Participant should be eligible to receive\nfull plan benefits for the recommended hospitalization and the\nduration of benefits.\xe2\x80\x9d\nUnited argues that the decision it makes in this, the prospective\ncontext, is no different than the decision an insurer makes in the\ntraditional retrospective context. The question in each case is\n\xe2\x80\x9cwhat the medical plan will pay for, based on a review of [the\nbeneficiary\xe2\x80\x99s] clinical information and nationally accepted\nmedical guidelines for the treatment of [the beneficiary\xe2\x80\x99s]\ncondition.\xe2\x80\x9d See QCP Booklet at 4. A prospective decision is,\nhowever, different in its impact on the beneficiary than a\nretrospective decision. In both systems, the beneficiary\ntheoretically knows in advance what treatments the plan will pay\nfor because coverage is spelled out in the plan documents. But\nin the retrospective system, a beneficiary who embarks on the\ncourse of treatment recommended by his or her physician has\nonly a potential risk of disallowance of all or a part of the cost of\nthat treatment, and then only after treatment has been rendered.\nIn contrast, in a prospective system a beneficiary may be\nsquarely presented in advance of treatment with a statement that\nthe insurer will not pay for the proposed course of treatment\nrecommended by his or her doctor and the beneficiary has the\npotential of recovering the cost of that treatment only if he or\nshe can prevail in a challenge to the insurer\xe2\x80\x99s decision. A\nbeneficiary in the latter system would likely be far less inclined\n\n445\n\n\x0cto undertake the course of treatment that the insurer has at least\npreliminarily rejected.\nBy its very nature, a system of prospective decisionmaking\ninfluences the beneficiary\xe2\x80\x99s choice among treatment options to a\nfar greater degree than does the theoretical risk of disallowance\nof a claim facing a beneficiary in a retrospective system. Indeed,\nthe perception among insurers that prospective determinations\nresult in lower health care costs is premised on the likelihood\nthat a beneficiary, faced with the knowledge of specifically what\nthe plan will and will not pay for, will choose the treatment\noption recommended by the plan in order to avoid risking total\nor partial disallowance of benefits. When United makes a\ndecision pursuant, QCP, it is making a medical recommendation\nwhich \xe2\x80\x93 because of the financial ramifications \xe2\x80\x93 is more likely to\nbe followed.~\nAlthough we disagree with United\xe2\x80\x99s position that no part of its\nactions involves medical decisions, we cannot agree with the\nCorcorans that no part of United\xe2\x80\x99s actions involves benefit\ndeterminations. In our view, United makes medical decisions as\npart and parcel of its mandate to decide what benefits are\navailable under the Bell plan. As the QCP Booklet concisely\nputs it, United decides \xe2\x80\x9cwhat the medical plan will pay for.\xe2\x80\x9d\nWhen United\xe2\x80\x99s actions are viewed from this perspective, it\nbecomes apparent that the Corcorans are attempting to recover\nfor a tort allegedly committed in the course of handling a benefit\ndetermination. The nature of the benefit determination is\ndifferent than the type of decision that was at issue in Pilot Life,\nbut it is a benefit determination nonetheless. The principle of\nPilot Life that ERISA pre-empts state-law claims alleging\nimproper handling of benefit claims is broad enough to cover\nthe cause of action asserted here.\nMoreover, allowing the Corcorans\xe2\x80\x99 suit to go forward would\ncontravene Congress\xe2\x80\x99s goals of \xe2\x80\x9censuring that plans and plan\nsponsors would be subject to a uniform body of benefit law\xe2\x80\x9d\nand \xe2\x80\x9cminimizing the administrative and financial burdens of\ncomplying with conflicting directives among States or between\nStates and the Federal Government.\xe2\x80\x9d Thus, statutes that subject\n\n446\n\n\x0cplans to inconsistent regulatory schemes in different states,\nthereby increasing inefficiency and potentially causing the plan\nto respond by reducing benefit levels, are consistently held preempted.~\n[A]lthough imposing liability on United might have the salutary\neffect of deterring poor quality medical decisions, there is a\nsignificant risk that state liability rules would be applied\ndifferently to the conduct of utilization review companies in\ndifferent states. The cost of complying with varying substantive\nstandards would increase the cost of providing utilization review\nservices, thereby increasing the cost to health benefit plans of\nincluding cost containment features such as the Quality Care\nProgram (or causing them to eliminate this sort of cost\ncontainment program altogether) and ultimately decreasing the\npool of plan funds available to reimburse participants. See\nMacaulay, supra, at 105.\n~The\n\nacknowledged absence of a remedy under ERISA\xe2\x80\x99s civil\nenforcement scheme for medical malpractice committed in\nconnection with a plan benefit determination does not alter our\nconclusion. While we are not unmindful of the fact that our\ninterpretation of the pre-emption clause leaves a gap in remedies\nwithin a statute intended to protect participants in employee\nbenefit plans, the lack of an ERISA remedy does not affect a\npre-emption analysis. Congress perhaps could not have\npredicted the interjection into the ERISA \xe2\x80\x9csystem\xe2\x80\x9d of the\nmedical utilization review process, but it enacted a pre-emption\nclause so broad and a statute so comprehensive that it would be\nincompatible with the language, structure and purpose of the\nstatute to allow tort suits against entities so integrally connected\nwith a plan.\n***\nThe result ERISA compels us to reach means that the\nCorcorans have no remedy, state or federal, for what may have\nbeen a serious mistake. This is troubling for several reasons.\nFirst, it eliminates an important check on the thousands of\nmedical decisions routinely made in the burgeoning utilization\nreview system. With liability rules generally inapplicable, there is\n\n447\n\n\x0ctheoretically less deterrence of substandard medical\ndecisionmaking. Moreover, if the cost of compliance with a\nstandard of care (reflected either in the cost of prevention or the\ncost of paying judgments) need not be factored into utilization\nreview companies\xe2\x80\x99 cost of doing business, bad medical\njudgments will end up being cost-free to the plans that rely on\nthese companies to contain medical costs. ERISA plans, in turn,\nwill have one less incentive to seek out the companies that can\ndeliver both high quality services and reasonable prices.\nSecond, in any plan benefit determination, there is always some\ntension between the interest of the beneficiary in obtaining\nquality medical care and the interest of the plan in preserving the\npool of funds available to compensate all beneficiaries. In a\nprospective review context, with its greatly increased ability to\ndeter the beneficiary (correctly or not) from embarking on a\ncourse of treatment recommended by the beneficiary\xe2\x80\x99s\nphysician, the tension between interest of the beneficiary and\nthat of the plan is exacerbated. A system which would, at least in\nsome circumstances, compensate the beneficiary who changes\ncourse based upon a wrong call for the costs of that call might\nease the tension between the conflicting interests of the\nbeneficiary and the plan.\nFinally, cost containment features such as the one at issue in this\ncase did not exist when Congress passed ERISA. While we are\nconfident that the result we have reached is faithful to\nCongress\xe2\x80\x99s intent neither to allow state-law causes of action that\nrelate to employee benefit plans nor to provide beneficiaries in\nthe Corcorans\xe2\x80\x99 position with a remedy under ERISA, the world\nof employee benefit plans has hardly remained static since 1974.\nFundamental changes such as the widespread institution of\nutilization review would seem to warrant a reevaluation of\nERISA so that it can continue to serve its noble purpose of\nsafeguarding the interests of employees. Our system, of course,\nallocates this task to Congress, not the courts, and we\nacknowledge our role today by interpreting ERISA in a manner\nconsistent with the expressed intentions of its creators.\n\n448\n\n\x0cQuestions to Ponder About Corcoran\nA. Do you agree that the language of the ERISA statute requires the\npreemption of medical malpractice suits of the kind brought in the\nCorcoran case?\nB. Putting aside the language of the ERISA statute, do you think\nsuch pre-emption is a good idea? What are the arguments for and\nagainst it as a matter of policy?\n\n449\n\n\x0cAftermatter\nUnmarked Edits Generally\n\n(For both volumes)\nVarious edits are not marked in the text. They have been left\nunmarked because to mark them would have made the text\nsubstantially less readable.\nIn general, whole citations and portions of citations have been\nliberally removed from the readings. Parallel citations have been\nremoved generally. Spaces have been added or deleted in cases where\nthe observed style was unconventional and jarring. In cases where\ncase names were printed in roman type, case names have generally\nbeen italicized. Where quotation marks occurred around a\nblockquote, they have generally been removed. Lengthy portions of\nquoted material have sometimes been re-set as blockquotes. Dashes\nand ellipses have been set in a uniform typographical style regardless\nof how they appeared in the original document. Official headnote\nreferences have been eliminated. In addition, I have sought to\nremove all indicia of additions to any text made by unofficial\npublishers. Footnote references and footnotes have been removed\nwithout notation.\nThe author attributions at the beginning of case material, in general,\nare not attributable to the original source. In various places, the\nspelled-out word \xe2\x80\x9csection\xe2\x80\x9d has been replaced with the \xc2\xa7 symbol,\nincluding in Rowland v. Christian, Beswick v. CareStat, the text discussing\nCalifornia Civil Code \xc2\xa7 847, and Issacs v. Monkeytown, U.S.A.\nTypesetting for citations may have been changed, such as from\nlower-case to small-caps for titles of journals, for example in Tarasoff\nv. UC Regents and Weirum v. RKO.\nCase citations have generally been changed so that where the court\nuses a secondary-reference citation style, if it is the first reference in\nthe case as it appears in edited form in this casebook, the secondaryreference cite has been replaced with the full citation as is appropriate\n\n450\n\n\x0cfor use on first reference. In some cases, punctuation was changed to\naccommodate cites that were eliminated without notation.\n\nIdiosyncratic Unmarked Edits in this Volume\nIdiosyncratic unmarked edits were made as follows:\nMaterial from footnotes was reworked into the body of the text\nwithout notation in the following cases: Georgetown v. Wheeler, Rogers v.\nRetrum, Bruenig v. American Family Insurance, Sindell v. Abbott Labs, and\nCocoran v. United Healthcare. The reworked material does not\nnecessarily appear at the precise point of the omitted footnote\nreference (often done because references were in the middle of\nsentences). Punctuation has in some cases been added or altered to\naccommodate this.\nGeorgetown v. Wheeler: An asterisk has been used to replace a numerical\nreference for a footnote reproduced in the case.\nWeirum v. RKO: Quotation marks have been removed for material\nreformatted as a blockquote.\nBoyd v. Racine Currency Exchange: Some text has been rearranged\nwithout notation. Recited facts are as alleged.\nSouth v. Amtrak: Quotation marks have been removed for material\nreformatted as a blockquote. Underlining has been changed to italics.\nSome brackets have been changed to parentheses. \xe2\x80\x9cAMTRAK\xe2\x80\x9d has\nbeen changed to \xe2\x80\x9cAmtrak\xe2\x80\x9d.\nVaughn v. Menlove: Two periods have been replaced by colons at the\nends of paragraphs introducing the appellate lawyers\xe2\x80\x99 arguments.\nMartin v. Herzog: A colon has been added without notation. Quoted\nmatter re-set as blockquotes. Numbers spelled out in words have\nbeen replaced in appropriate instances with numerals.\nIn the text from Calvillo-Silva v. Home Grocery that follows California\nCivil Code \xc2\xa7 847, spaces after dollar signs have been removed.\nCampbell v. Weathers: Testimony excerpts have been reformatted and\nquotation marks dropped. Other quoted matter has been reformatted\nas blockquotes.\n\n451\n\n\x0cRowland v. Christian: Long quotations have been re-set as block\nquotes.\nIn the T.J. Hooper and United States v. Carroll Towing, single quotes\naround vessel names were removed and vessel names were italicized.\nInconsistent use of a period after \xe2\x80\x9cAnna C\xe2\x80\x9d was corrected to remove\nall such periods except where occurring at the end of sentences. In\nCarroll Towing, a typo \xe2\x80\x9cit it\xe2\x80\x9d was corrected to \xe2\x80\x9cit.\xe2\x80\x9d\nIn Fowler v. Seaton: The errant comma in \xe2\x80\x9cSeptember, 1958\xe2\x80\x9d was\nremoved.\nBeswick v. CareStat: A missing period was supplied. Some quoted\nmatter was re-formatted in blockquote form.\nHerskovits v. Group Health: Roman numeral section headers have been\nremoved. Secondary-reference cites have been altered to be put into\nthe form of first-reference cites, since the locations of the firstreference cites were removed through editing. The order of the\nopinions (concurring and dissenting) has been changed. Blockquotes\nhave been reformatted to be inline quotes.\nHulsey v. Elsinore Parachute Center: Section headers have been removed,\nand case citations have been changed to a full citation on first\nreference.\n\n452\n\n\x0c'