chapter seven attributable...

Chapter Seven

Attributable Responsibility [Duty, Scope of Liability,

Proximate/Legal Causation]

A. INTRODUCTION

This chapter focuses on limitations on the attribution of legal responsibility for the harmful consequences of negligent or otherwise tortious conduct. Assuming that liability should not extend indefinitely in space and time, what limitations should exist, and why? This issue is usually addressed as the last element in the prima facie case against the defendant (after the legal injury, tortious conduct, and causation elements) and the last element in the defense of plaintiff=s contributory negligence (after the negligent conduct and causation elements). In the United States it traditionally has been referred to as the issue of Aproximate@ or Alegal@ causation.@ The same terms have been used in other countries, as well as Aremoteness@ (in the British Commonwealth) or Aadequacy@ (in civil law countries).

To be a Aproximate@ or Alegal@ cause of some injury, the conduct at issue not only must have been a cause of the injury, but also must not be subject to any limitation on attributable responsibility. As we will see in section B, both terms, by failing to clearly distinguish the causation issue from the attributable responsibility issue, have created considerable confusion, not only by students but also by practicing lawyers and judges. Recently, in an attempt to distinguish and clarify the two quite different issues, a number of courts have rejected the traditional terms. The Restatement Third also rejects the traditional terms and for the first time clearly distinguishes the causation issue, which it refers to as Afactual causation,@ from the attributable responsibility issue, which it refers to as the Ascope of liability.@

As was mentioned in section B.2 of Chapter Three and is discussed extensively in section E of this chapter, during the first half of the twentieth century in the United States a risk-related limitation on legal responsibility was proposed and adopted in the Restatement and by some courts. It was usually adopted as a limitation on a person=s duty to exercise reasonable care, which is part of the first (duty-breach) negligent conduct element in the prima face case for negligence liability, rather than after the negligent conduct and causation analyses as a limitation on the scope of liability for negligently caused injuries. While some version of the risk-related limitation is now generally accepted, debate continues regarding the proper version and whether it should be treated as a limitation on duty rather than the scope of liability.

Prior to exploring this debate, and as necessary background for understanding its development and current state, we first examine, in section B, the confusion created by the various concepts and terminology that have been and continue to be employed when discussing the limitations on attributable responsibility and, in sections C and D, respectively, the Ano worse off@ and Asuperseding cause@ limitations on scope of liability. Each of the limitations will be discussed primarily in the context of the negligence action.

562 Chapter Seven. Attributable Responsibility Some of the limitations may not apply or may apply less broadly to some intentional torts or some strict liability actions.

A good argument can be made that, once the plaintiff has established that the defendant=s tortious conduct was a cause of the plaintiff=s harm, any limitation on the defendant=s scope of liability should be treated as a defense to be raised and proved by the defendant or, to the same effect, that the burden of proof on this element of the prima facie case should be shifted to the defendant (as is sometimes done on the causation issue, as we saw in chapter 6). The argument is strongest for the no-worse-off and superseding cause limitations, which limit a defendant=s legal responsibility due to the existence of other actual or would-be causes of the plaintiff=s injury. Requiring a plaintiff to prove the absence of any such other causes is more burdensome than requiring the tortfeasor to identify and prove their existence.

Thus, as is discussed in section C, the courts often treat the no-worse-off limitation as a defense that must be raised and proved by the defendant. Cf. Restatement Third: Physical and Emotional Harm ' 27 comment d reporters= note (stating that the burden of proof for any no-worse-off limitation should be placed on the defendant). At least some jurisdictions similarly treat the superseding cause limitation as a defense. See, e.g., Judicial Council of California Civil Jury Instructions [CACI] No. 432, Sources and Authorities (2010) (citing Maupin v. Widling, 237 Cal. Rptr. 521 (Cal. App. 1987), and Paverud v. Niagara Machine and Tool Works, 234 Cal. Rptr. 585 (Cal. App. 1987)); Richard W. Wright, The Grounds and Extent of Legal Responsibility, 40 San Diego L. Rev. 1425, 1427-28 (2003) (discussing courts= treatment of an intervening Aact of God@ as an affirmative defense). More generally, the California jury instructions state that the only required elements for a prima facie case of negligence are (1) negligence by the defendant, (2) harm to the plaintiff, and (3) that the defendant=s negligence was a substantial factor in causing the plaintiff=s harm. Judicial Council of California Civil Jury Instructions [CACI] No. 400 (2010).

The Restatement Third takes an intermediate position, apparently suggesting that the defendant may have to raise (but not bear the burden of proving?) a limitation on the scope of liability:

Although scope of liability is an element of a prima facie case, facts beyond those established for the other elements of the tort are almost never involved. Ordinarily the plaintiff=s harm is self-evidently within the defendant=s scope of liability and requires no further attention. Thus, scope of liability functions as a limitation on liability in a select group of cases, operating more like an affirmative defense, although it is not one.

Restatement Third: Physical and Emotional Harm ' 29 comment a.

B. Concepts and Terminology 563

B. CONCEPTS AND TERMINOLOGY

MITCHELL V. GONZALES Supreme Court of California

54 Cal. 3d 1041, 819 P.2d 872 (1991)

LUCAS, Chief Justice. In this case we decide whether BAJI [Board of Approved Jury Instructions] No. 3.75, the so-called proximate cause instruction, which contains a Abut for@ test of cause in fact, should continue to be given in this state, or whether it should be disapproved in favor of BAJI No. 3.76, the so-called legal cause instruction, which employs the Asubstantial factor@ test of cause in fact.1

Plaintiffs James and Joyce Mitchell, the parents of 12-year-old Damechie Mitchell, who drowned in Lake Gregory on July 4, 1985, sued defendants Jose L. Gonzales, Matilde Gonzales, and Mrs. Gonzales=s son Luis (hereinafter defendants) for damages, claiming defendants= negligence caused Damechie=s death. By special verdict, the jury found that defendants were negligent, i.e., they had breached a duty, but that the negligence was not a proximate cause of the death.

The Court of Appeal concluded that, under the facts, the trial court erred when it denied plaintiffs= request to instruct the jury pursuant to BAJI No. 3.76 and instead instructed under BAJI No. 3.75. After reviewing both instructions, the Court of Appeal concluded that BAJI No. 3.75 is potentially misleading and should not have been given, and that the trial court committed prejudicial error when it refused to give BAJI No. 3.76.

We granted review in this case to determine whether courts should continue to instruct juries on cause in fact using BAJI No. 3.75 in light of the frequent criticism of that instruction. We conclude that the Court of Appeal was correct and that BAJI No. 3.75 should be disapproved.

I. FACTS

Damechie, 12 years old, standing 4 feet 11 inches tall, and weighing 90 pounds, had a tag-along little-brother relationship with his friend Luis [Gonzales], who was 14 years old, 5 feet 4 inches tall, and weighed 190 pounds. The Gonzaleses invited Damechie 1BAJI No. 3.75, requested by defendants and given by the trial court, provides: AA proximate cause of [injury] [damage] [loss] [or] [harm] is a cause which, in natural and continuous sequence, produces the [injury] [damage] [loss] [or] [harm] and without which the [injury] [damage] [loss] [or] [harm] would not have occurred.@ Because of the Awithout which@ language, courts often refer to this instruction as the Abut for@ instruction of causation. BAJI No. 3.76, requested by plaintiffs and refused by the trial court, provides: AA legal cause of [injury] [damage] [loss] [or] [harm] is a cause which is a substantial factor in bringing about the [injury] [damage] [loss] [or] [harm].@ We emphasize that despite the use of the terms proximate cause and legal cause, BAJI Nos. 3.75 and 3.76 are instructions on cause in fact. Issues that are properly referred to as questions of proximate or legal cause are contained in other instructions. (See, e.g., BAJI No. 3.79 [superseding causes].)

564 Chapter Seven. Attributable Responsibility to accompany them to Lake Gregory for the Fourth of July. [Mrs. Mitchell testified that she had told Mrs. Gonzales and her children, Luis and Yoshi Gonzales, that Damechie could not swim and that Mrs. Gonzales had agreed that the children would only play in the shallow edge of the lake. The Gonzaleses denied having been told that Damechie could not swim.]

[Mrs. Gonzales told the children not to go into water over their heads. However, neither she nor Mr. Gonzales, who stated that he relied upon the lifeguards, paid much attention to the children=s whereabouts. In the morning, the children obtained money from Mrs. Gonzales to rent two paddleboards, which they used in water that was not over their heads. After lunch, when neither Mr. or Mrs. Gonzales was aware of where the children had gone, they rented a single paddleboard and used it to cross the lake. The return trip back across the lake began with Luis pushing the board, upon which Damechie and Yoshe sat. After they had gone about 100 feet from shore, into deep water, Luis stated that he was tired and wanted to get on the board, Damechie reminded Luis that he, Damechie, could not swim and asked Luis to be careful. Luis said that he would be and would save Damechie if he fell off. However, after Luis climbed on the children, according to witnesses, engaged in Arowdy@ horseplay, with Luis being the rowdiest. Although Damechie was very scared and asked Luis not to do so, Luis rocked the board, causing it to tip over. The paddleboard rental employee testified AYou have to work at it@ to get it to tip. Damechie and Luis fell into the water. Damechie first grabbed Luis=s shorts and then Luis=s ankles, but in each instance Luis shook him off in order to get to the surface and climb on the board. Witnesses testified that it was quiet for several minutes, and that neither Luis nor Yoshe called for help, but appeared to be whispering. When the witnesses realized that a child was missing, they called to the lifeguards for help. Damechie drowned.]

II. DISCUSSION

As explained below, we conclude the Court of Appeal correctly determined that the trial court prejudicially erred when it refused BAJI No. 3.76 and instead gave BAJI No. 3.75. Our discussion proceeds in two steps. We begin by determining whether instructional error occurred. Our analysis focuses on whether conceptual and grammatical flaws in BAJI No. 3.75 may confuse jurors and lead them to improperly limit their findings on causation, and whether BAJI No. 3.76 is a superior alternative instruction. Because we find error, we next analyze prejudice and conclude that there is a reasonable probability that BAJI No. 3.75 misled the jurors into finding that defendants= negligence was not a Aproximate cause@ of Damechie=s death and that a result more favorable to plaintiffs would have occurred if the jury had been instructed under BAJI No. 3.76. Accordingly, we affirm the Court of Appeal=s decision reversing the judgment of the trial court.

As Dean Prosser observed over 40 years ago, AProximate cause remains a tangle and a jungle, a palace of mirrors and a maze.@ Cases Aindicate that >proximate cause= covers a multitude of sins, that it is a complex term of highly uncertain meaning under which other rules, doctrines and reasons lie buried.@ (Prosser, Proximate Cause in California (1950) 38 Cal.L.Rev. 369.)


One of the concepts included in the term proximate cause is cause in fact, also referred to as actual cause. Indeed, for purposes of BAJI No. 3.75, Aso far as a jury is concerned >proximate cause= only relates to causation in fact.@ (Com. to BAJI No. 3.75, italics added.)4 AThere are two widely recognized tests for establishing cause in fact. The >but for= or >sine qua non= rule, unfortunately labeled >proximate cause= in BAJI No. 3.75, asks whether the injury would not have occurred but for the defendant=s conduct. The other test, labeled >legal cause= in BAJI No. 3.76, asks whether the defendant=s conduct was a substantial factor in bringing about the injury.@ [Citation omitted.]

BAJI Nos. 3.75 and 3.76 are alternative instructions that should not be jointly given in a single lawsuit. . . . It has generally been recognized that the Abut for@ test contained in BAJI No. 3.75 should not be used when two Acauses concur to bring about an event and either one of them operating alone could have been sufficient to cause the result. In those few situations, where there are concurrent causes, our law provides that one cannot escape responsibility for his negligence on the ground that identical harm would have occurred without it. The proper rule for such situations is that the defendant=s conduct is a cause of the event because it is a material element and a substantial factor in bringing it about.@ [Citations omitted.] The foregoing authorities conclude that in such a situation BAJI No. 3.76 should be given.

This case presents the issue of whether BAJI No. 3.75 should be given in any

negligence action.

Criticism of the term Aproximate cause@ has been extensive. . . . AThe word >proximate= is a legacy of Lord Chancellor Bacon, who in his time committed other sins. The word means nothing more than near or immediate; and when it was first taken up by the courts it had connotations of proximity in time and space which have long since disappeared. It is an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness.@ (Prosser & Keeton on Torts, supra, ' 42, at page 273, fn. omitted.)

It is reasonably likely that when jurors hear the term Aproximate cause@ they may misunderstand its meaning or improperly limit their discussion of what constitutes a cause in fact. Prosser and Keeton=s concern that the word Aproximate@ improperly imputes a spatial or temporal connotation is well founded. Webster=s Third New International Dictionary (1981) page 1828, defines proximate as Avery near,@ Anext,@ Aimmediately preceding or following.@ Yet, A[p]roximity in point of time or space is no part of the definition [of proximate cause] ... except as it may afford evidence for or against proximity of causation.@ [Citation omitted.] . . .

4Although the dissent embarks upon a general discussion of proximate cause, the discussion is misplaced. We do not dispute the dissent=s claim that there is more than one concept included in the term Aproximate cause.@ For purposes of this case, however, we focus on the jury=s consideration of BAJI No. 3.75 as it relates to cause in fact.

566 Chapter Seven. Attributable Responsibility

The misunderstanding engendered by the term Aproximate cause@ has been documented. In a scholarly study of 14 jury instructions, BAJI No. 3.75 produced proportionally the most misunderstanding among laypersons. Charrow, Making Legal Language Understandable: A Psycholinguistic Study of Jury Instructions (1979) 79 Colum.L.Rev. 1306, 1353). The study noted two significant problems with BAJI No. 3.75. First, because the phrase Anatural and continuous sequence@ precedes Athe verb it is intended to modify, the construction leaves the listener with the impression that the cause itself is in a natural and continuous sequence. Inasmuch as a single >cause= cannot be in a continuous sequence, the listener is befuddled.@ Second, in one experiment, Athe term >proximate cause= was misunderstood by 23% of the subjects.... They interpreted it as >approximate cause,= >estimated cause,= or some fabrication.@ . . .

We believe the foregoing authorities properly criticize BAJI No. 3.75 for being conceptually and grammatically deficient. The deficiencies may mislead jurors, causing them, if they can glean the instruction=s meaning despite the grammatical flaws, to focus improperly on the cause that is spatially or temporally closest to the harm.

In contrast, the Asubstantial factor@ test, incorporated in BAJI No. 3.76 and developed by the Restatement Second of Torts, section 431 (com. to BAJI No. 3.76) has been comparatively free of criticism and has even received praise. AAs an instruction submitting the question of causation in fact to the jury in intelligible form, it appears impossible to improve on the Restatement=s >substantial factor [test.]=@ Prosser, Proximate Cause in California, supra. It is Asufficiently intelligible to any layman to furnish an adequate guide to the jury, and it is neither possible nor desirable to reduce it to lower terms.@7

Moreover, the Asubstantial factor@ test subsumes the Abut for@ test. AIf the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries.@ [Citation omitted.]

Not only does the substantial factor instruction assist in the resolution of the problem of independent [sufficient] causes, as noted above, but A[i]t aids in the disposition ... of two other types of situations which have proved troublesome. One is that where a similar, but not identical result would have followed without the defendant=s act; the other where one defendant has made a clearly proved but quite insignificant contribution to the result, as where he throws a lighted match into a forest fire. But in the great majority of cases, it produces the same legal conclusion as the but-for test. Except in the classes of cases indicated, no case has been found where the defendant=s act could be called a 7Although the dissent recognizes that BAJI No. 3.76 (embodying the Asubstantial factor@ test) is Aessentially a cause-in-fact instruction,@ it criticizes the test on grounds unrelated to its use with regard to cause-in-fact considerations. . . . Without articulating any reason to believe the test would be so applied, the dissent claims the test does not work well for the liability limiting considerations that are distinct from a finding of cause-in-fact. Although the dissent further details the shortcomings of the Asubstantial factor@ test when the test is used for other purposes, it does not demonstrate any deficiencies of the Asubstantial factor@ test when used for cause-in-fact determinations.

B. Concepts and Terminology 567 substantial factor when the event would have occurred without it; nor will cases very often arise where it would not be such a factor when it was so indispensable a cause that without it the result would not have followed.@ Prosser & Keeton on Torts, supra, ' 41. Thus, A[t]he substantial factor language in BAJI No. 3.76 makes it the preferable instruction over BAJI No. 3.75.@ [Citation omitted.]

We recognize that BAJI No. 3.76 is not perfectly phrased. The term Alegal cause@ may be confusing. As part of the psycholinguistic study referred to above, the experimenters rewrote BAJI No. 3.75 to include the term Alegal cause.@8 The study found that A25% of the subjects who heard >legal cause= misinterpreted it as the opposite of an >illegal cause.= We would therefore recommend that the term >legal cause= not be used in jury instructions; instead, the simple term >cause= should be used, with the explanation that the law defines >cause= in its own particular way.@9

Moreover, Aadvocates, judges, and scholars [have] capitalized upon the ambiguities and nuances of >substantial=@ and have created new uses for the instruction. (Prosser & Keeton on Torts (5th ed., 1988 supp.) ' 41, p. 45). One such use is Ain cases in which a defendant=s conduct is clearly a >but for= cause of plaintiff=s harm, and defense counsel contends that defendant=s conduct made such an insubstantial contribution to the outcome that liability should not be imposed. [&] . . . Used in this way, the >substantial factor= test becomes an additional barrier to liability.@ Such a use of the Asubstantial factor@ test undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby. We are confident, however, that proper argument by counsel and instruction by the court will prevent any confusion from occurring.10

The continued use of BAJI No. 3.75 as an instruction on cause in fact is unwise. The foregoing amply demonstrates that BAJI No. 3.75 is grammatically confusing and conceptually misleading. Continued use of this instruction will likely cause needless appellate litigation regarding the propriety of the instructions in particular cases. Use of BAJI No. 3.76 will avoid much of the confusion inherent in BAJI No. 3.75. It is intelligible and easily applied. We therefore conclude that BAJI No. 3.75, the so-called proximate cause instruction, should be disapproved and that the court erred when it refused to give BAJI No. 3.76 and instead gave BAJI No. 3.75. . . .

. . . It seems that the jury did follow BAJI No. 3.75 but was misled by the instruction=s flaws: Having found the defendants negligent, it is illogical and inconsistent 8The modified instruction read: AA legal cause of an injury is something that triggers a natural chain of events that ultimately produces the injury. [&] Without the legal cause, the injury would not occur.@ 9Although we need not decide whether BAJI No. 3.76 should be rewritten to eliminate the term Alegal cause,@ we do suggest that the Committee on Standard Jury Instructions consider whether the instruction could be improved by adopting the suggestion of the Psycholinguistic Study or by otherwise modifying the instruction. 10Although we disapprove BAJI No. 3.75, nothing in this opinion should be read to discourage the Committee on Standard Jury Instructions from drafting a new and proper Abut for@ instruction.

568 Chapter Seven. Attributable Responsibility on this record to conclude that they were not a cause in fact of Damechie=s death. Accordingly, we conclude it is reasonably probable that the jury was confused by BAJI No. 3.75 and overemphasized the Abut for@ nature of the instruction, improperly focusing on the factor operative at the closest temporal proximity to the time of death, Damechie=s inability to swim.

. . . [D]efense counsel=s closing argument contributed to the instruction=s misleading effect. The closing argument was replete with references to Damechie=s inability to swim, his own knowledge that he could not swim, and his decision nevertheless to venture out on the lake. Counsel also argued that Damechie=s parents knew he could not swim, yet they permitted him to go with the Gonzaleses without determining whether the Gonzaleses intended to take the children swimming, and argued that but for these facts, Damechie would not have drowned. [&] The argument thus highlighted the condition temporally closest to the death, Damechie=s inability to swim, and factors related to it. As discussed above, BAJI No. 3.75 improperly emphasizes temporal and spatial proximity. . . . It is reasonably probable that if the jury had received the substantial factor instruction, counsel=s argument would not have misled the jury.

Finally we consider the effect of other instructions in remedying the error. BAJI No. 3.77 was requested by both parties and given by the court.11 This instruction did not remedy the confusion caused by instructing the jury under BAJI No. 3.75. By frequently repeating the term Aproximate cause@ and by emphasizing that a cause must be operating at the moment of injury, the instruction buttressed rather [than] counteracted the restrictions on time and place inherent in the word Aproximate.@ . . .

. . . Accordingly, the decision of the Court of Appeal reversing the judgment in favor of defendants is affirmed.

KENNARD, Associate Justice, dissenting.

The majority invalidates a jury instruction on proximate causeCan essential element of every tort caseCthat has been used in this state for some 50 years and embodies well-established law. And, by delegating responsibility for defining proximate cause to the Committee on Standard Jury Instructions, the majority neglects its duty to provide guidance to trial courts and litigants. This court should give guidance to the committee, not seek guidance from it.

. . . [P]roximate cause includes two elements: an element of physical or logical causation, known as cause in fact, and a more normative or evaluative element, which the term Aproximate@ imperfectly conveys. The majority concedes that the concept of

11BAJI No. 3.77 provides: AThere may be more than one [proximate] [legal] cause of an injury. When negligent conduct of two or more persons contributes concurrently as [proximate] [legal] causes of an injury, the conduct of each of said persons is a [proximate] [legal] cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. . . .@ As read, the instruction included the term Aproximate@ and the last sentence.

B. Concepts and Terminology 569 proximate cause includes these two distinct elements, yet it limits its discussion of BAJI No. 3.75 to that instruction Aas it relates to cause in fact.@ Having found BAJI No. 3.75 fatally deficient, the majority suggests that another instruction, BAJI No. 3.76, provides a satisfactory alternative instruction on cause in fact. Yet the majority does not embrace this other instruction as an adequate expression of the second, more elusive element of proximate cause. Because BAJI No. 3.75 addresses both elements of proximate cause, the majority=s decision leaves a significant unanswered question: Is there now a standard jury instruction that trial courts can use to convey the second element? . . .

The majority asserts that disapproval of BAJI No. 3.75 is justified because Aissues that are properly referred to as questions of proximate or legal cause are contained in other instructions. (See e.g., BAJI No. 3.79 [superseding causes].)@ But a review of the relevant instructions (BAJI Nos. 3.77, 3.78, 3.79, and 3.80) shows that each addresses a specialized situation.1 None attempts a general definition of the social evaluative process element of proximate cause, and thus none will fill the void resulting from the proscribing of BAJI No. 3.75. . . .

When the Asubstantial factor@ test of BAJI No. 3.76 is used as a means of setting limits on liability, it is no better than the Abut for@ test of BAJI No. 3.75, the instruction invalidated by the majority, and it is just as problematic as the word Aproximate@ in BAJI No. 3.75. As Prosser and Keeton observed: AA number of courts have [used substantial factor as a test of proximate cause, not just cause in fact], apparently accepting the phrase as the answer to all prayers and some sort of universal solvent. As applied to the fact of causation alone, the test though not ideal, may be thought useful. But when the >substantial factor= is made to include all the ill-defined considerations of policy which go to limit liability once causation in fact is found, it has no more definite meaning than >proximate cause,= and it becomes a hindrance rather than a help.@ Prosser & Keeton on Torts, supra, ' 42, p. 278. . . .

It is easy, as the majority has done, to find fault with existing formulations of proximate cause. It is quite another matter, however, to actually address and resolve the subtle and complex issues presented by the concept of proximate cause. The Committee on Standard Jury Instructions will necessarily be in the same situation as are trial judges: AThe trial judge is in the dilemma that a failure to instruct at all on proximate cause is very likely to be error, while any instruction he [or she] gives runs the risk of being so complicated and vulnerable to attack in its ideas or language that it invites appeal.@ (Prosser, Proximate Cause in California, supra).

1BAJI No. 3.77 states that there may be concurrent causes. BAJI No. 3.78 says that a defendant is not relieved of liability when there are two independent causes. BAJI No. 3.79 explains that a defendant is not relieved of liability by the negligence of a third party if the defendant should have realized that the third party might act as it did, or a reasonable person would not have regarded the third party=s acts as highly extraordinary, or the conduct of the third party was not extraordinarily negligent and was a normal consequence of the situation created by the defendant. BAJI No. 3.80 addresses the situation when all of the defendants were negligent but the plaintiff cannot prove causation.

570 Chapter Seven. Attributable Responsibility NOTES

1. The proper test(s) for causation. Both the majority and the dissent in Mitchell state that it is important to distinguish the causation issue from the attributable responsibility issue. The majority states that BAJI Nos. 3.75 and 3.76 were meant to focus solely on the causation issue. Do you agree? BAJI No. 3.75 incorporates the but-for test. BAJI No. 3.76 incorporates the Asubstantial factor@ test. According to the majority, when should one rather than the other test (Abut for@ or Asubstantial factor@) be used? Which test was the proper test given the facts in this case? If the Abut for@ test is usually the proper test and perhaps even the proper test in this case, why does the majority reject the use of BAJI No. 3.75 not only in this case but in any case?

2. BAJI No. 3.75: Aproximate cause.@ Why does the majority in Mitchell object to the Aproximate cause@ language in BAJI No. 3.75? Does it object to the use of Aproximate cause@ language when discussing the causation issue? When discussing the attributable responsibility issue? As the majority indicates, the term Aproximate cause@ goes back at least to Francis Bacon=s Maxims, in which he stated:

Reg. I. In jure non remota causa sed proxima spectatur. [In law not the remote cause but the proximate is looked to.] It were infinite for the law to judge the causes, and their impulsions of one another; therefore it contenteth it selfe with the immediate cause, and judgeth of acts by that, without looking to any further degree.

Despite considerable criticism, the term Aproximate cause@ continues to be used by many courts and commentators. However, other courts, like the California Supreme Court in Mitchell, have condemned it as being confusing and misleading and have declared that it should no longer be used. See, e.g., Texas, Oregon, Montana [add case cites]. 3. BAJI No. 3.76: Alegal cause@ defined as a Asubstantial factor.@ Do the terms Alegal cause@ and Asubstantial factor@ sufficiently distinguish the attributable responsibility issue from the causation issue? Are they any less misleading than the term Aproximate cause@? BAJI No. 3.76 adopts the language employed in the first and second Restatements, which declined to use the term Aproximate cause@ due to its misleading nature. Restatement Second ' 431 states: AThe actor=s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability.@ As the court noted in June v. Union Carbide Corp., which we discussed in section C.3 of Chapter 6, the terms Alegal cause@ and Asubstantial factor@ were meant to encompass attributable responsibility as well as causation. Restatement Second ' 431 comment a states:

The word 'substantial' is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using the word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called >philosophic sense,= which includes every one of the great number of events without which any happening would not have occurred.


Restatement Second ' 433 lists a number of considerations as being important in determining whether an actor=s conduct has been a substantial factor in bringing about some harm:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor=s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time.

According to the majority in Mitchell, what sorts of problems does the substantial

factor test help to resolve, and how does it help to resolve them? Do the situations in which the majority in Mitchell states that the substantial factor test is appropriate and helpful involve solely the causation issue, or also or instead the attributable responsibility issue? Can the use of the test to address attributable responsibility issues, which the majority and dissent agree is inappropriate, be avoided as easily as the majority assumes?

4. The Asubstantial factor@ test as a test of causation. Is the Asubstantial factor@ language in BAJI No. 3.76 helpful as a test of causation? As we discussed in sections C.2 and C.3 of Chapter 6, Restatement Second ' 432 states that an actor=s negligent conduct is not a substantial factor in bringing about some harm if it was neither (1) a necessary condition for the occurrence of the harm nor (2) one of two actively operating conditions, each of which was independently sufficient to bring about the harm. Does BAJI No. 3.76 contain this elaboration of the substantial factor language, or any other elaboration? Does the Mitchell majority provide any elaboration? How helpful is the test without any such elaboration? On the other hand, does putting the Asubstantial factor@ label on top of the necessary or independently sufficient condition tests aid or confuse the causation inquiry?

5. The history of the Asubstantial factor@ test. The substantial factor test was initially proposed not as a test of causation but as a supposedly useful test or guide for resolving attributable responsibility issues. The originator of the test, Jeremiah Smith, was content with the but-for test as a test of cause-in-fact, with the usual exception for simultaneous independently sufficient conditions. He wanted to devise a practical alternative to the natural-and-probable and foreseeable-consequences tests for determining the extent of responsibility for actually caused harm, since he believed that those tests were unsound and inconsistent with the results in many cases. He proposed the following formula: ADefendant=s tort must have been a substantial factor in producing the damage complained of.@ The accompanying explanation made it clear that the defendant=s tort could not be a substantial factor unless it satisfied the but-for test (with an exception for simultaneous independently sufficient causes), but that in addition it would have to be an appreciable and continuously effective or efficient factor in producing the harm, up to the time of occurrence of the harm. See Jeremiah Smith, Legal Cause in Actions of Tort (pts. 1-3), 25 Harv L. Rev. 103, 223, 303 (1911-1912). Smith=s approach was adopted essentially intact in the first Restatement, and it was retained in the Restatement Second

572 Chapter Seven. Attributable Responsibility despite efforts by leading torts scholars such as William Prosser and Leon Green to confine the term Asubstantial factor@ to the causation issue.

6. Rejection of the Asubstantial factor@ test. Although the majority in Mitchell states that the substantial factor test Ahas been comparatively free of criticism and has even received praise@ (primarily from Prosser and Green), the test has received considerable criticism as being unhelpful and misleading on both the causation issue and the attributable responsibility issue, as even Prosser and Green eventually seemed to recognize. See Richard W. Wright, Causation in Tort Law, 73 Calif. L. Rev. 1735, 1781-84 (1985). As we previously discussed in section C.3 of Chapter 6, the Restatement Third strongly criticizes the Asubstantial factor@ test and no longer uses Asubstantial factor@ or Alegal cause@ terminology. Instead, it attempts to clearly distinguish and separately discuss the causation issue, which it calls Afactual causation,@ and the attributable-responsibility issue, which it callsAscope of responsibility.@ See Restatement Third: Physical and Emotional Harm '' 26B36.

7. Subsequent developments. After the Mitchell case, BAJI No. 3.76 was revised in accordance with the suggestion in footnote 9 of the Mitchell court=s opinion: AThe law defines cause in its own particular way. A cause of injury is something that is a substantial factor in bringing about an injury.@ The revised BAJI No. 3.76, unlike the Restatement Second but as in former BAJI No. 3.76, does not contain any elaboration of what constitutes a Asubstantial factor@. In 2003, the Judicial Council of California published an alternative Aplain language@ ACACI@ set of jury instructions, in which causation is defined as follows:

Causation: Substantial Factor A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]

Judicial Council of California Civil Jury Instructions No. 430 (2010). The accompanying Directions for Use state:

The Abut for@ test of the last optional sentence does not apply to concurrent independent causes, which are multiple forces operating at the same time and independently, each of which would have been sufficient by itself to bring about the same harm. [Citations.] Accordingly, do not include the last sentence in a case involving concurrent independent causes.

Id., Directions for Use (citing Viner v. Sweet, 70 P.3d 1046 (Cal. 2003)). Does either the new BAJI 3.76 or CACI No. 430 succeed in focusing solely on the issue of causation, or do they continue to confuse causation with attributable responsibility? Which provides better guidance on the causation issue? Which is least likely to confuse the causation issue with the attributable responsibility issue?

C. The No Worse Off Limitation 573

In 2017, a California appellate court, relying on the Restatement Third=s discussion of factual causation in a case involving a decedent who died from lung cancer as a result of smoking cigarettes made by several different manufacturers, held that Amultiple sufficient causes exist not only when there are two causes each of which is sufficient to cause the harm, but also when there are more than two causes, partial combinations of which are sufficient to cause the harm@ [the NESS analysis]. Major v. R.J. Reynolds Tobacco Co., 222 Cal. Rptr. 563, 582 (Cal. App. 2017).

C. THE NO WORSE OFF LIMITATION

This limitation, although widely applied by the courts, is not as yet widely recognized as a distinct categorical limitation on attributable responsibility. This is likely due to several reasons. First, it has often been confused with the necessary condition (but-for) criterion for proof of actual causation, which is improperly used to deny liability even when causation exists, rather than acknowledging that causation exists and denying liability based on the no-worse-off limitation. Second, it often overlaps situations involving unusual intervening causes, which are treated (properly or improperly) as superseding causes. Third, some have questioned it as a proper limitation on attributable responsibility.

However, as is illustrated by the cases in this section, what is referred to here as the Ano worse off@ limitation is widely (but not always) applied by the courts, either through an erroneous application of the but-for test of causation in situations involving overdetermined causation or through a recognition that tort liability is unjustified because the plaintiff clearly would have suffered the same injury anyway as a result of non-responsible conditions and thus has not been adversely affected by wrongful conduct, as is required for imposition of liability as a matter of interactive justice. See Richard W. Wright, The Grounds and Extent of Legal Responsibility, 40 San Diego L. Rev. 1425, 143467 (2003).

The first and second Restatements contributed to the confusion of the no-worse-off limitation with the but-for test of causation by erroneously using the facts of the Piqua case that is included in this section as a supposed example of lack of causation due to failure to satisfy the but-for test. See Restatement Second ' 432(1) illustration 2. Furthermore, section 432(2) comment d, which allowed independently sufficient conditions to be treated as Asubstantial factors@ and thus as Alegal causes@ even if the relevant injury would have occurred anyway as a result of non-responsible conditions, could be and has been interpreted as rejecting any no-worse-off limitation if it is interpreted as addressing the issue of attributable responsibility as well as causation. The Restatement Third clearly distinguishes between the causation and attributable responsibility issues and punts on the latter issue, suggesting that any attributable responsibility limitation should be implemented (in a presumed subsequent project) as a limitation on damages rather than the scope of liability. See Restatement Third ' 27 comment d and reporters= note. For criticism of the reporters= analysis of the cases, see Wright, supra.


KINGSTON V. CHICAGO & NORTHWESTERN RAILWAY CO. Supreme Court of Wisconsin

191 Wis. 610, 211 N.W. 913 (1927)

OWEN, J. . . . The northeast fire was set by sparks emitted from defendant=s locomotive. This fire, according to the finding of the jury, constituted a proximate cause of the destruction of plaintiff=s property. This finding we find to be well supported by the evidence. We have the northwest fire, of unknown origin. This fire, according to the finding of the jury, also constituted a proximate cause of the destruction of the plaintiff=s property. This finding we also find to be well supported by the evidence. We have a union of these two fires 940 feet north of plaintiff=s property, from which point the united fire bore down upon and destroyed the property. We therefore have two separate, independent, and distinct agencies, each of which constituted the proximate cause of plaintiff=s damage, and either of which, in the absence of the other, would have accomplished such result.

It is settled in the law of negligence that any one of two or more joint tortfeasors, or one of two or more wrongdoers whose concurring acts of negligence result in injury, are each individually responsible for the entire damage resulting from their joint or concurrent acts of negligence. This rule also obtains Awhere two causes, each attributable to the negligence of a responsible person, concur in producing an injury to another, either of which causes would produce it regardless of the other, . . . because, whether the concurrence be intentional, actual, or constructive, each wrongdoer, in effect, adopts the conduct of his co-actor, and for the further reason that it is impossible to apportion the damage or to say that either perpetrated any distinct injury that can be separated from the whole. The whole loss must necessarily be considered and treated as an entirety.@ Cook v. M., St. P. & S.S.M.R. Co., 74 N.W. 561, 566 (Wis. 1898). That case presented a situation very similar to this. One fire, originating by sparks emitted from a locomotive, united with another fire of unknown origin and consumed plaintiffs= property. There was nothing to indicate that the fire of unknown origin was not set by some human agency. In that case it was held that the railroad company which set one fire was not responsible for the damage committed by the united fires because the origin of the other fire was not identified. In that case a rule of law was announced, which is stated in the syllabus prepared by the writer of the opinion as follows:

AA fire started by defendant=s negligence, after spreading one mile and a quarter to the northeast, near plaintiffs= property, met a fire having no responsible origin, coming from the northwest. After the union, fire swept on from the northwest to and into plaintiffs= property, causing its destruction. Either fire, if the other had not existed, would have reached the property and caused its destruction at the same time. Held:

A(1) That the rule of liability in case of joint wrongdoers does not apply. A(2) That the independent fire from the northwest became a superseding cause, so

that the destruction of the property could not, with reasonable certainty, be attributed in whole or in part to the fire having a responsible origin; that the chain of responsible causation was so broken by the fire from the northwest that the negligent fire, if it reached the property at all, was a remote and not the proximate cause of the loss.@


Emphasis is placed upon the fact, especially in the opinion, that one fire had Ano responsible origin.@ At other times in the opinion the fact is emphasized that it had no Aknown responsible origin.@ The plain inference from the entire opinion is that if both fires had been of responsible origin, or of known responsible origin, each wrongdoer would have been liable for the entire damage. The conclusion of the court exempting the railroad company from liability seems to be based upon the single fact that one fire had no responsible origin or no known responsible origin. It is difficult to determine just what weight was accorded to the fact that the origin of the fire was unknown. If the conclusion of the court was founded upon the assumption that the fire of unknown origin had no responsible origin, the conclusion announced may be sound and in harmony with well settled principles of negligence.

From our present consideration of the subject we are not disposed to criticise the doctrine which exempts from liability a wrongdoer who sets a fire which unites with a fire originating from natural causes, such as lightning, not attributable to any human agency, resulting in damage. It is also conceivable that a fire so set might unite with a fire of so much greater proportions, such as a raging forest fire, as to be enveloped or swallowed up by the greater holocaust, and its identity destroyed, so that the greater fire could be said to be an intervening or superseding cause. But we have no such situation here. These fires were of comparatively equal rank. . . .

According to well settled principles of negligence, it is undoubted that if the proof disclosed the origin of the northwest fire, even though its origin be attributed to a third person, the railroad company, as the originator of the northeast fire, would be liable for the entire damage. There is no reason to believe that the northwest fire originated from any other than human agency. It was a small fire. It had traveled over a limited area. It had been in existence but for a day. For a time it was thought to have been extinguished. It was not in the nature of a raging forest fire. The record discloses nothing of natural phenomena which could have given rise to the fire. It is morally certain that it was set by some human agency.

Now the question is whether the railroad company, which is found to have been responsible for the origin of the northeast fire, escapes liability because the origin of the northwest fire is not identified, although there is no reason to believe that it had any other than human origin. An affirmative answer to the question would certainly make a wrongdoer a favorite of the law at the expense of an innocent sufferer. The injustice of such a doctrine sufficiently impeaches the logic upon which it is founded. Where one who has suffered damage by fire proves the origin of a fire and the course of that fire up to the point of the destruction of his property, one has certainly established liability on the part of the originator of the fire. Granting that the union of that fire with another of natural origin, or with another of much greater proportions, is available as a defense, the burden is on the defendant to show that by reason of such union with a fire of such character the fire set by him was not the proximate cause of the damage. No principle of justice requires that the plaintiff be placed under the burden of specifically identifying the origin of both fires in order to recover the damages for which either or both fires are responsible.

. . .


1. The no-worse-off limitation. The issue raised in Kingston was also the main focus of the court=s analysis in the Anderson case in section C.2 of Chapter 6, discussion of which we postponed to this point. The Anderson court, like the Cook court, did not clearly distinguish between situations in which the other fire was known to be of no responsible origin or, instead, had an unknown origin. The Kingston court states that the defendant escapes liability only if it clearly proves that the injury would have happened anyway as a result of other condition(s) that are known to be non-responsible. This is the general position. See Richard W. Wright, The Grounds and Extent of Legal Responsibility, 40 San Diego L. Rev. 1425, 1434-67 (2003). Although both the Cook court and the Kingston court referred to a non-responsible condition that would have caused the injury anyway as possibly being a Asuperseding cause,@ it often would not satisfy the usual requirements for being a superseding cause, which are discussed in the next section.

Note that the no-worse-off limitation logically cannot apply if the defendant=s conduct was a necessary condition for (but-for cause of) the loss. However, it will apply even if the non-liability-generating condition that would have caused the loss anyway did not actually contribute to the loss, due to its being preempted by the causal process set in motion by the defendant=s tortious conductCfor example, in Kingston, if the other fire was started by lightning and arrived after the plaintiff=s property had already been destroyed by the fire negligently started by the defendant. Although the lightning fire was preempted, the no-worse-off limitation still applies, since in the absence of the defendant=s fire the plaintiff=s property would have been destroyed anyway by the lightning fire, so the plaintiff is no worse off as a result of the defendant=s fire. (If, in the absence of the first fire, the plaintiff would have been able toand would haveremoved some personal property from the house before the lightning fire arrived, he would be worse off with respect to such personal property and the defendant would be liable for its loss.)

2. Burden of proof. Once the plaintiff has proved that the negligent aspect of the defendant=s conduct was a cause of his injury, the Kingston court shifts the burden of proof to the defendant to establish that, if the defendant had not been negligent, the plaintiff still would have suffered the injury as the result of one or more legally nonresponsible conditions. See also the Piqua case, below, in which the existence of an independently sufficient nonresponsible conditionCthe extraordinary nature of the rainfall and resulting floodCwas also treated as a defense that the defendant had to allege and prove. Moreover, a defendant who tortiously caused the plaintiff=s injury should not be able to avoid liability upon a mere possibility, or even a probability, that the injury would have happened anyway as a result of some nontortious condition. Rather, the defendant should be able to avoid liability only if the injury almost certainly would have happened anyway as a result of some legally nonresponsible condition(s). The principle for concurrent conditions is the same as the one that has been stated for future conditions: A[W]e must take into account risks of future harm from other sources only if those risks >are so far advanced and so nearly certain at the time of the accident that any attempt to ignore their functional identity with pre-existing conditions would seem dishonest.=@ Dobbs ' 177 at 434 (quoting David W. Robertson, The Common Sense of Cause in Fact,

C. The No Worse Off Limitation 577 75 Tex. L. Rev. 1765, 1798 (1997)); see David A. Fischer, Successive Causes and the Enigma of Duplicated Harm, 66 Tenn. L. Rev. 1127, 1136, 1142B43 (1999).

3. Underlying principles. What underlying principles support the no-worse-off limitation on attributable responsibility? Efficient deterrence? Efficient compensation? Interactive justice? Distributive justice?

4. Legally responsible conditions: tortious conditions and nontortious insured-against conditions. Legally responsible conditions include not only tortious conditions but also nontortious conditions that were insured against and thus for which the insurer is contractually responsible. For example, assume that the defendant=s negligently constructed dam burst during an ordinary storm, the resulting flood destroyed the plaintiff=s house, but the house would have been destroyed in the absence of the flood by a fire set by lightning that had almost reached the house but which the flood extinguished. The defendant=s negligence was a cause of the destruction of the house and the lightning fire was a noncausal preempted condition. If the plaintiff had no insurance against such fires, the plaintiff would have suffered a noncompensable loss even in the absence of the defendant=s negligence, and the defendant should avoid liability under the no-worse-off limitation. But the limitation should not apply if the plaintiff had insurance against such fire damage, because the fire would then be a liability-generating condition, contractually, for the fire insurer. Although the plaintiff=s house would have been destroyed by the fire if the defendant had not been negligent, the plaintiff would have been compensated for his loss by the fire insurer. In this case, unlike the situation when the plaintiff had no fire insurance, the defendant=s negligence has made the plaintiff worse off, and thus the no-worse-off limitation is not applicable.

An early example of this type of situation is the Tithe Case, Y.B. Trin., 21 Hen. 7, f. 27, pl. 5 (1506), reprinted in C.H.S. Fifoot, History and Sources of the Common Law: Tort and Contract 197-98 (1949). The defendant removed corn, which had been set aside by a third party in the third party=s field as tithe to the plaintiff parson, to the plaintiff=s barn to prevent it from being eaten by trespassing cattle. The corn perished from unspecified but apparently nonresponsible causes. The owner of the trespassing cattle would have been strictly liable for any damage the cattle caused to the corn. The court, while recognizing the defendant=s good intentions, held him liable in trespass for the value of the corn, since he had made the plaintiff worse off by moving the corn from a situation where any damage to the corn caused by the trespassing cattle would have been legally compensable to a situation in which the corn was at risk of, and suffered, noncompensable loss.

5. The scope of the no-worse-off limitation. Consider a situation in which two firesCone tortious, the other nontortiousCwere each independently sufficient to cause the destruction of a bridge, and a drunk driver negligently failed to notice that the bridge was gone and drove into the canyon formerly spanned by the bridge, causing injury to a sleeping passenger in the driver=s car. The no-worse-off limitation clearly would not apply in a suit by the passenger against the drunk driver, since the driver=s tortious conduct was a necessary condition for (but-for cause of) the passenger=s injury. Should the limitation apply in a suit by the passenger against the person who tortiously caused one of the two

578 Chapter Seven. Attributable Responsibility fires? It is not true that, in the absence of all the liability-generating conditions (the tortious fire and the drunken driving), the passenger would still have been injured. However, it is true that the immediate consequence of the tortious fire, the missing bridge, would still have occurred anyway due to a non-responsible condition: the non-tortious fire. If liability seems inappropriate in such situations, the no-worse-off limitation should be stated more broadly: tortious conduct of the defendant that was a cause of the plaintiff=s loss will not be treated as a legally responsible (Aproximate@) cause of the loss if the loss, or the immediate consequence of the defendant=s tortious conduct, would have occurred anyway due to a non-responsible condition.

6. Comparative law. The no-worse-off limitation explains the different results in two English successive-injury cases that are often described as irreconcilable. Compare Jobling v. Associated Dairies, 1982 A.C. 794, 820-21 (H.L. 1981) (holding the defendant not liable for a tortiously caused disability beyond the time when such disability would have occurred anyway due to a nontortious injury or illness), with Baker v. Willoughby, 1970 A.C. 467, 494 (H.L. 1969) (holding the defendant liable for the plaintiff=s permanent disability caused by the defendant=s tortiously injuring the plaintiff=s leg, despite subsequent amputation of the leg necessitated by a thief=s subsequent shooting of the same leg).

7. Intentional injury. Should the no-worse-off limitation apply to intentional torts? Should it matter which type of intent is involved, purpose or knowledge of a near certainty? To what extent is the limitation likely to apply to dignitary injury rather than actual harm?

8. Offsetting benefits. If the defendant=s tortious conduct creates a legally cognizable injury to the plaintiff but at the same time creates a benefit to the plaintiff of the same kind as the harm suffered (e.g., a monetary loss but also a monetary gain), the defendant may be able to use the value of those benefits to offset the damages due for the harm. However, if the benefit does not offset the specific harm, the defendant will be liable for that harm without any offset by or required restitution for the unsolicited benefit. A common example is a plaintiff who suffered a physical injury due to the defendant=s negligence that prevented the plaintiff from taking a planned trip on a plane or ship that crashed or sunk with no survivors. Although the plaintiff may have benefitted, by avoiding death, due to the defendant=s negligence, she nevertheless has suffered a tortiously inflicted injury to her person, with consequent economic and noneconomic harm, for which she is entitled to be compensated, and one generally is not required to compensate others for unsolicited benefits, especially when there was no opportunity to reject the benefit. See Dobbs ' 29 at 54-55, ' 50 at 95-96; Dan B. Dobbs, Handbook on the Law of Remedies ' 3.6 at 182, '4.9 at 298-99 (1973); David A. Fischer, Successive Causes and the Enigma of Duplicated Harm, 66 Tenn. L. Rev. 1127, 1160-62 (1999).

9. The trivial contribution limitation. The Kingston opinion refers to another limitation on attributable responsibility:

It is also conceivable that a [tortiously set fire] might unite with a fire of so much greater proportions . . . as to be enveloped or swallowed up by


the greater holocaust, and its identity destroyed, so that the greater fire could be said to be an intervening or superseding cause.

The described situation does not necessarily involve a superseding cause. See section D below. However, there is a distinct limitation, recognized in the Restatement Third, that might apply. Section 36 excludes liability for a non-necessary trivial contribution to some injury. See Restatement Third: Physical and Emotional Harm ' 36. This limitation is built into California=s elaboration of the Asubstantial factor@ test in jury instruction CACI No. 430, which is quoted in the notes following the Mitchell case in section B of this chapter. Necessary conditions are not considered to be trivial, no matter how slight their relative contribution may seem. Id. ' 36 comments a & b. Moreover, the evaluation of triviality is done Aby comparison to the other contributions@ considered separately, rather than in the aggregate. Id. ' 36 comment b. For example, if each of 100 defendants contributed 2 percent of the pollution necessary to harm the plaintiff=s property, none of their contributions should be considered to be trivial, even though none of them were individually necessary or sufficient. Otherwise no one would be liable, even though each tortiously contributed to the plaintiff=s injury. Recall Warren v. Parkhurst, which was discussed in section C.3 of chapter 6. Nor should independently sufficient conditions be deemed trivial, no matter how many such conditions there might be. CITY OF PIQUA V. MORRIS Supreme Court of Ohio 98 Ohio St. 42, 120 N.E. 300 (1918)

The [plaintiffs] brought a suit . . . against the city of Piqua to recover damages for its negligence in flooding and injuring their farm by washing away soil and gravel and destroying a roadway, gates and fences, by the breaking of a [30-foot high pond embankment] opposite the farm and from the rush of a large volume of water down and over it. . . . [&] A jury in the common pleas court returned a verdict for the defendant, and the judgment entered on this verdict was, on proceedings in error, reversed by the court of appeals for errors in the charge of the court. . . .

JOHNSON, J. The verdict of the jury was generalCall of the issues made by the pleadings were resolved in favor of the defendant. This finding of course embraced the issue tendered in the second defenseCthat in the exercise of due diligence and extraordinary care the defendant was unable [due to an Aact of God,@ an unprecedented heavy rainfall] to prevent the embankment . . . from breaking away; . . . and that the damages to plaintiffs, if any, were occasioned by an act of God, without any fault or neglect of defendant, its officers or servants.

The downfall of water in March, 1913, has passed into the history of the state as its most extraordinary and disastrous flood. The damage and suffering it caused throughout this and adjoining states is a matter of general knowledge. . . . [&] [In a prior] case the wholly unusual and unprecedented character of the flood was recognized and stated to be a matter of general knowledge.


The court of appeals in reversing the judgment of the common pleas in the case at bar held that there was error in the giving of defendant=s charges Nos. 1, 2 and 6, hereinafter set forth, which were given before argument to the jury, . . . and in ignoring in charge 6 the possibility of contributing causes. . . . Before the giving of the charges requested by defendant the court had given a number of special charges requested by the plaintiffs, the first of which is as follows:

AThe term <Act of God= in its legal significance, means any irresistible disaster, the result of natural causes, such as earthquakes, violent storms, lightning and unprecedented floods. It is such a disaster arising from such causes, and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause without human intervention. . . . If the injury is caused by the agency of man cooperating with the violence of nature or the force of the elements, it is not the <Act of God.= . . . If the injury is in part occasioned by the wrongful act or the negligent act of any person concurring therein and contributing thereto, such person will be liable therefor and this applies to a municipal corporation as well as to a natural person.@ . . .

Plaintiffs= charge No. 1, as above set out, is a correct and comprehensive statement of the law on the subject. . . .

It is equally well settled that if the vis major is so unusual and overwhelming as to do the damage by its own power, without reference to and independently of any negligence by defendant, there is no liability. [&] In 1 Shearman & Redfield on Negligence (6 ed.), Section 39, it is said: AIt is also agreed that, if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff=s damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage. But if the superior force would have produced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury.@ . . . [&] These general principles . . . are in keeping with the clear and plain dictates of justice. They hold a property owner to the performance of every proper duty to his neighbor, but they do not offend conscience by requiring the impossible. . . .

In substance the charges of negligence against the city are that it failed to provide adequate outlets for the outflow of water in times of heavy rains; [and] that it failed to keep existing outlets open as it should have done under the circumstances which involved probable danger . . . .

The special charges given by the trial court and held to be erroneous by the court of appeals are as follows:

A1. Defendant before argument requests the court to charge the jury that if they believe from the testimony that an unprecedented rainfall and flood which could not have been reasonably anticipated by an ordinarily cautious person, was the efficient cause, the

C. The No Worse Off Limitation 581 one cause that necessarily set in operation said causes contributing to plaintiffs= injury, that plaintiff cannot recover.

A2. Where an act of God intervenes between the wrongful conduct of the defendant and the injury complained of, this will relieve the defendant from liability, if the act of God appears to be the proximate cause of the loss or injury.

A6. Where the injury was proximately caused by the act of God, the law does not concern itself with duties, the observance or breach of which had nothing to do with the damage.@ . . .

. . . [T]he court in its general charge, after fully and clearly stating the issues made by the pleadings, and defining the term AAct of God@ substantially as it had been defined in the charge given at the request of plaintiffs before argument, explained to the jury the nature of instances in which acts of negligence of the nature of those alleged to have occurred in this case would or would not be the proximate cause of injury, and charged that the burden of sustaining its defense that the AAct of God@ was the direct and proximate cause of the injury rested on the defendant. . . .

Now, in this case we think it clear that the only possible meaning which the jury could have given to charge No. 1 was that if they found that an unprecedented rainfall and flood, which could not have been reasonably anticipated, was the sole cause of plaintiffs= injury, plaintiffs could not recover. As to Nos. 2 and 6, when considered by the jury in the light of the general charge, we can not conceive that they could fail to understand fully the meaning of the terms Aproximate@ and Aproximately,@ which were used in those charges, or that any prejudice could have resulted to the plaintiffs therefrom. . . . [T]he question as to what was the proximate cause of injury in a case such as this is one of fact for the determination of the jury. . . .

An apt illustration which has been suggested is that if a river levee had been maintained at the height of 10 feet, and the custodians of the levee had been warned that flood waters might require a levee 16 feet in height, and they neglected to so increase the height of the levee, and an unprecedented flood should ensue, during which it should appear that a levee 26 feet in height would not have held the flood waters, the parties responsible for the levee would not be liable for negligence in failing to maintain a 16-foot levee when a 26-foot levee would have been unavailing.

The answer in this case in effect tendered the clear issue that the damages to the plaintiffs= property were caused solely by the AAct of God.@ We think the finding of the jury amply justified by the record. [&] [T]he judgment of the court of appeals will be reversed and that of the common pleas will be affirmed.

NOTES

1. Causation versus attributable responsibility. The extraordinary flood situation exemplified by Piqua is often cited as an example of the use of the necessary-condition (but-for) test of causation. See, e.g., Restatement Second ' 432(1) illustration 2. Did the

582 Chapter Seven. Attributable Responsibility trial court or the supreme court in Piqua focus on causation (causal contribution) or on attributable responsibility (Aproximate@ causation)?

2. Causation: a reprise on active versus passive conditions. Did the defendant=s negligence actually contribute to the plaintiff=s injury in Piqua? Was it a necessary condition? Was it necessary for the occurrence of the plaintiff=s injury at the time that it occurred? Was it an independently sufficient condition? Part of the instantiation of an actually completed causal generalization or story (a NESS condition)?

3. Attributable responsibility. Assuming the defendant=s negligence was a cause of (contributed to) the plaintiff=s injury in Piqua, is the no-worse-off limitation applicable? Was there a non-liability-generating condition that would have caused the same injury to the plaintiff even if the defendant had not been negligent? Did the court refer, explicitly or implicitly, to this limitation on attributable responsibility? If it did, and if this was an issue in the case, who bore the burden of proof on the issue? DILLON V. TWIN STATES GAS & ELECTRIC CO. Supreme Court of New Hampshire 85 N.H. 449, 163 A. 111 (1932)

Action for negligently causing the death of the plaintiff=s intestate, a boy of 14. A jury trial resulted in a disagreement.

. . . The defendant maintained wires to carry electric current over a public bridge in Berlin. In the construction of the bridge there were two spans of girders on each side between the roadway and footway. In each span the girders at each end sloped upwards towards each other from the floor of the bridge until connected by horizontal girders about nineteen feet above the floor. [&] The wires were carried above the framework of the bridge between the two rows of girders. To light the footway of the bridge at its center a lamp was hung from a bracket just outside of one of the horizontal girders and crossing over the end of the girder near its connection with a sloping girder. Wires ran from a post obliquely downward to the lamp and crossed the horizontal girder a foot or more above it. . . . The wires were insulated for weather protection but not against contact.

The decedent and other boys had been accustomed for a number of years to play on the bridge in the daytime, habitually climbing the sloping girders to the horizontal ones, on which they walked and sat and from which they sometimes dived into the river. No current passed through the wires in the daytime except by chance. [&] The decedent, while sitting on a horizontal girder at a point where the wires from the post to the lamp were in front of him or at his side, and while facing outwards from the side of the bridge, leaned over, lost his balance, instinctively threw out his arm, and took hold of one of the wires with his right hand to save himself from falling. The wires happened to be charged with a high voltage current at the time and he was electrocuted [and fell back upon the girder]. . .

ALLEN, J. . . . The use of the girders brought the wires leading to the lamp close to those making the use [the boys], and as to them it was in effect the same as though the wires were near the floor of the bridge. While the current in the wires over the bridge was

C. The No Worse Off Limitation 583 mechanically shut off during the daytime, other wires carried a commercial current, and there was a risk from many causes of the energizing of the bridge wires at any time. It is claimed that these causes could not be overcome or prevented. If they could not, their consequences might be. Having notice of the use made of the girders, and knowing the chance of the wires becoming charged at any time, the defendant may not say that it was not called upon to take action until the chance happened. Due care demanded reasonable measures to forestall the consequences of a chance current if the chance was too likely to occur to be ignored.

The evidence tended to show that changes in the construction and arrangement of the lamp and its wires were practical. So that the wires running from the post to the lamp would be out of the way of one of the girders, a bracket carrying the wires inside it and specially insulated wires running down from a post to be set up on the outer side of the girder were testified to as suitable measures and devices which would avoid or lessen the danger of contact. The evidence to the contrary is not conclusive. . . .

The circumstances of the decedent=s death give rise to an unusual issue of its cause. In leaning over from the girder and losing his balance he was entitled to no protection from the defendant to keep from falling. Its only liability was in exposing him to the danger of charged wires. If but for the current in the wires he would have fallen down on the floor of the bridge or into the river, he would without doubt have been either killed or seriously injured. Although he died from electrocution, yet, if by reason of his preceding loss of balance he was bound to fall except for the intervention of the current, he either did not have long to live or was to be maimed. In such an outcome of his loss of balance, the defendant deprived him, not of a life of normal expectancy, but of one too short to be given pecuniary allowance, in one alternative, and not of normal, but of limited, earning capacity, in the other.

If it were found that he would have thus fallen with death probably resulting, the defendant would not be liable, unless for conscious suffering found to have been sustained from the shock. In that situation his life or earning capacity had no value. To constitute actionable negligence there must be damage, and damage is limited to those elements the statute prescribes.

If it should be found that but for the current he would have fallen with serious injury, then the loss of life or earning capacity resulting from the electrocution would be measured by its value in such injured condition. Evidence that he would be crippled would be taken into account in the same manner as though he had already been crippled.

His probable future but for the current thus bears on liability as well as damages. Whether the shock from the current threw him back on the girder or whether he would have recovered his balance, with or without the aid of the wire he took hold of, if it had not been charged, are issues of fact, as to which the evidence as it stands may lead to different conclusions. [&] Exception [to denial of defendant=s motion for a directed verdict] overruled. .


1. Defendant=s negligence. What was the defendant=s (alleged) negligence in Dillon? What should the defendant have done differently, considering the foreseeable risks to others? What type of situation was it, and what is the criterion of reasonable care for that type of situation?

2. Causation. What actually caused the boy=s death in Dillon? Was the defendant=s negligence a cause of the boy=s death? To simplify the analysis, assume that the negligence was the failure to insulate the wire and that, if the boy had fallen off the bridge, he would have died as a result of the fall, rather than merely being seriously injured. Was the defendant=s negligence a necessary condition for the boy=s death? Was it necessary for his death at the time that he died? Was it an independently sufficient condition? Part of the instantiation of an actually completed causal generalization or story (a NESS condition)?

3. Attributable responsibility. Is the no-worse-off limitation applicable? Was there a (duplicative or preempted) non-liability-generating condition that would have caused his death (or at least a serious injury) even if the defendant had not been negligent? If so, what was it? Gravity? But what caused the beginning of his fall? Would the boy=s own contributory negligence be a non-liability-generating condition? What if he lost his balance due to his being negligently pushed by one of his companions? What is or should be the legal effect of his contributory negligence in being on top of the bridge in the first place?

4. Alternative doctrines for limiting attributable responsibility: Aproximate@ causation, damages (legal injury), and duty. As is suggested by the Dillon case, the limitations on attributable responsibility may appear under various doctrinal guises. Although ordinarily analyzed as a Aproximate@ cause issue, they may sometimes be analyzed also or instead as a damages issue or (as we shall soon see) as a duty issue. D. THE SUPERSEDING CAUSE LIMITATION 1. SUPERSEDING CAUSES

A defendant=s (or plaintiff=s) legal responsibility for the plaintiff=s injury will be cut off by a superseding cause. See Restatement Second ' 440. We generally will discuss the superseding cause limitation in the context of the prima facie case against the defendant. The same analysis applies when discussing the plaintiff=s contributory negligence.

The rationale for the superseding cause limitation is the converse of the rationale for the no-worse-off limitation. The no-worse-off limitation relieves a person of legal responsibility for the harmful consequences of her negligent or otherwise tortious conduct because the plaintiff would have suffered the same harm anyway as a result of one or more non-liability-generating conditions. The superseding cause limitation relieves a person of legal responsibility for the harmful consequences of her negligent or otherwise tortious

D. The Superseding Cause Limitation 585 conduct when those consequences would not have occurred if not for the highly unexpected intervention of some condition or event:

A superseding cause is (1) a necessary (Abut for@) cause of the plaintiff=s injury that (2) intervened between the defendant=s tortious conduct (or the plaintiff=s negligence) and the plaintiff=s injury and (3) was extraordinary or highly unexpected.

The requirement that the intervening cause be highly unexpected is explicit in the

Restatement and most cases. Less often mentioned, but also generally required, is the requirement that the intervening cause must have been a necessary (Abut-for@) cause of the plaintiff=s injury. For example, the Restatement states:

An intervening operation of a force of nature without which the other=s harm would not have resulted from the actor=s negligent conduct prevents the actor from being liable for the harm, if (a) the operation of the force of nature is extraordinary, and (b) the harm resulting from it is of a kind different from that the likelihood of which made the actor=s conduct negligent.

Restatement Second ' 451 (emphasis added).

The following considerations are of importance in determining whether an intervening force is a superseding cause of harm to another: (a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor=s negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (c) the fact that the intervening force is operating independently of any situation created by the actor=s negligence, or, on the other hand, is or is not a normal result of such a situation . . . .@

Id. ' 442 (emphasis added).

Unforeseeable, unusual, or highly culpable intervening acts. In some cases, the risk that makes [a person=s] conduct tortious . . . is one that exists independently of [another person=s] human intervention, although causes in addition to the defendant=s tortious conduct are required for the harm to occur. When those other causesCintervening actsCare unforeseeable, unusual, or highly culpable they may bear on whether the harm is within the scope of the risk.

Restatement Third: Physical and Emotional Harm ' 34 comment e (emphasis added).

The analysis of unexpectedness focuses on the expectations regarding the occurrence of the intervening cause, rather than the occurrence of the final result (the plaintiff=s injury). Moreover, the focus is on the occurrence of an intervening cause of the

586 Chapter Seven. Attributable Responsibility same general class or type, rather than the particular details of the intervening cause as it actually occurred.

A distinction is commonly made between Aindependent@ and Adependent@ intervening causes. See, e.g, Restatement Second ' 442(c), quoted above. Literally, an independent intervening cause is one which occurred completely independently of the situation created by the defendant=s tortious conduct, while a dependent intervening cause is one which occurred as a response or reaction to the situation created by the defendant=s tortious conduct. See Restatement Second ' 441 comment c.

Human or animal conduct generally is treated as an intervening cause whether it is causally independent of or dependent on the risky situation that was tortiously created by the defendant. On the other hand, natural physical events, such as the sequence of physical events that was triggered by the dropping of the plank in the Polemis case in section D.2, below, usually are not treated as intervening causes unless their occurrence is causally independent of the risky situation tortiously created by the defendant. NOTES

1. Intentional torts. The superseding cause limitation applies to all tort actions, including the intentional torts. However, it does not apply to the intentional tort of conversion or to the similar tortious exercise of dominion and control over persons or land. A defendant is treated as an insurer with regard to harm that occurs to intentionally misappropriated property (or persons), and thus is liable no matter how unexpected the intervening cause. For example, a defendant who steals a car for a joy ride is legally responsible for any damage that occurs to it (but not for damage to some other car with which it non-negligently collides), no matter how unforeseeable the damage to the stolen carCe.g., the car=s malicious destruction or vandalism by some third party, or, as stated in a hypothetical by Clarence Morris, the car=s being squashed by a runaway circus elephant. Clarence Morris, Morris on Torts 178 (1953).

2. The general effect of moral culpability. The more wrongful a defendant=s tortious conduct, the more reluctant courts and jurors will be to apply any of the limitations on attributable responsibility. As one court stated,

In determining how far the law will trace causation and afford a remedy, the facts as to the defendant=s intent, his imputable knowledge, or his justifiable ignorance are often taken into account. The moral element is here the factor that has turned close cases one way or the other. For an intended injury the law is astute to discover even remote causation. For one which defendant ought merely to have anticipated it has often stopped at an earlier stage of the investigation of causal connection. And as to those where there was neither knowledge nor duty to foresee, it has usually limited accountability to direct and immediate results.

Derosier v. New England Tel. & Tel. Co., 130 A. 145 (N.H. 1925). See also Restatement Third: Physical and Emotional Harm ' 33 (AAn actor who intentionally or recklessly

D. The Superseding Cause Limitation 587 causes harm is subject to liability for a broader range of harms than the harms for which that actor would be liable if only acting negligently.@); Restatement Second ' 501(2) and comment a (extent of liability for unexpected consequences is broader for reckless conduct than for ordinary negligence); id. ' 435B and comment a (extent of liability, including liability for unintended consequences, is broader for intentional tortious conduct than for negligence); id. illustration 1 (AA intentionally hits B on the head. B is taken to the hospital where, by a gross and not expectable error, a nurse gives him a poison instead of a medicine, as a result of which he is seriously harmed. It may be found that A is liable for the harm caused by the poison@).

3. Ultrahazardous activities. As is further discussed in chapter 8, under the better view (not followed in all U.S. jurisdictions) the defendant is liable for the escape or loss of control of an ultrahazardous entity or activity no matter how unexpected the cause of the escape or loss of control. See, e.g., Baker v. Snell, [1908] 2 K.B. 825 (wild animals); Restatement Second ' 510 (same); Fletcher v. Rylands, L.R. 1 Ex. 265 (1866) (Blackburn, J.), aff=d, Rylands v. Fletcher, L.R. 3 H.L. 330 (1868) (storing large bulk accumulations of water); Restatement Second ' 522 (ultrahazardous activities). But see Restatement Second ' 504(3)(c) and comment i (strict liability for trespassing livestock does not extend to intrusions Abrought about by the unexpectable operation of a force of nature, action of another animal or intentional, reckless or negligent conduct of a third person@). In each type of situation, however, the defendant should be able to avoid liability if a superseding cause occurred after the escape or loss of control. Liability for harm caused by ultrahazardous activities is discussed in chapter 8.

2. NO INTERVENING CAUSE (ADIRECT CONSEQUENCES@) IN RE POLEMIS & FURNESS, WITHY & CO. Court of Appeal of England [1921] 3 K.B. 560, [1921] All E.R. 40

BANKES L.J. . . . [T]he respondents chartered their vessel to the appellants. . . . The vessel was employed by the charterers to carry a cargo to Casablanca in Morocco. The cargo included a quantity of [tins of] benzine or petrol in cases [which had suffered damage in transit and leaked, so that there was a considerable amount of petrol vapour in the hold]. While discharging at Casablanca a heavy plank fell into the hold in which the petrol was stowed, and caused an explosion, which set fire to the vessel and completely destroyed her. The owners claimed the value of the vessel from the charterers, alleging that the loss of the vessel was due to the negligence of the charterers= servants. The charterers contended . . . that the damages were too remote. The claim was referred to arbitration, and the arbitrators stated a special case for the opinion of the Court. Their findings of fact are as follows.

A(a) That the ship was lost by fire. A(b) That the fire arose from a spark igniting petrol vapour in the hold. A(c) That the spark was caused by the falling board coming into contact with some substance in the hold.


A(d) That the fall of the board was caused by the negligence of the Arabs (other than the winchman) engaged in the work of discharging. A(e) That the said Arabs were employed by the charterers or their agents . . . and that the said Arabs were the servants of the charterers. A(f) That the causing of the spark could not reasonably have been anticipated from the falling of the board, though some damage to the ship might reasonably have been anticipated. A(g) There was no evidence before us that the Arabs chosen were known or likely to be negligent.@

Then they stated the damages, 196,165l. 1s. 11d. Those findings are no doubt intended to raise the question whether the view taken, or said to have been taken, by Pollock C.B. in Rigby v. Hewitt [5 Ex. 243] and Greenland v. Chaplin [5 Ex. 248], or the view taken by Channel B. and Blackburn J. in Smith v. London and South Western Ry. Co. [L.R. 6 C.P. 21], is the correct one. . . . Assuming the Chief Baron to have been correctly reported in the Exchequer Reports, the difference between the two views is this: According to the one view [Smith], the consequences which may reasonably be expected to result from a particular act are material only in reference to the question whether the act is or is not a negligent act; according to the other view [Rigby and Greenland], those consequences are the test whether the damages resulting from the act, assuming it to be negligent, are or are not too remote to be recoverable. . . .

In two recent judgments dealing with the question, the view taken by the Court in Smith v. London and South Western Ry. Co. has been adopted . . . . In H.M.S. London [[1914] P. 72, 76], the Lord President [Sir Samuel Evans] said: A. . . The tortious actCi.e., the negligence of the defendants, which imposes on them a liability in law for damages, is admitted. This gets rid at once of an element which requires consideration in a chain of causation in testing the question of legal liabilityCnamely, the foresight or anticipation of the reasonable man. In Smith v. London and South Western Ry. Co. Channel B. said: <Where there is no direct evidence of negligence, the question of what a reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not . . . . but when it has once been determined that there is evidence of negligence, the person guilty of it is equally liable for the consequences, whether he could have foreseen them or not.= And Blackburn J. in the same case said: <What the defendants might reasonably anticipate is only material with reference to the question, whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence.=@ . . .

In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendants= servants. The fire appears to me to have been directly caused by the falling of the plank. Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The appellants= junior counsel sought to draw a distinction between the anticipation of the extent of damage resulting from a negligent act, and the anticipation of the type of damage resulting from such an act. He admitted that it would not lie in the mouth of a person whose negligent act had caused damage to say that he could not reasonably have foreseen the extent of the damage, but he contended that the

D. The Superseding Cause Limitation 589 negligent person was entitled to rely upon the fact that he could not reasonably have anticipated the type of damage which resulted from his negligent act. I do not think that the distinction can be admitted. Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to me to be irrelevant. I consider that the damages claimed are not too remote. . . .

WARRINGTON L.J. . . . [T]he law on this point is, in my opinion, correctly stated in Beven on Negligence, 3rd ed., vol. i., p. 85. . . . [&] The result may be summarized as follows: The presence or absence of reasonable anticipation of damage determines the legal quality of the act as negligent or innocent. If it be thus determined to be negligent, then the question whether the particular damages are recoverable depends only on the answer to the question whether they are the direct consequence of the act. Sufficient authority for the proposition is afforded by Smith v. London and South Western Ry. Co. [L.R. 6 C.P. 14], in the Exchequer Chamber, and particularly in the judgments of Channel B. and Blackburn J. . . . In the present case it is clear that the act causing the plank to fall was in law a negligent act, because some damage to the ship might reasonably be anticipated. If this is so then the appellants are liable for the actual loss, that being on the findings of the arbitrators the direct result of the falling board . . . .

SCRUTTON L.J. . . . The second defence is that the damage is too remote from the negligence, as it could not be reasonably foreseen as a consequence. On this head we were referred to a number of well known cases in which vague language, which I cannot think to be really helpful, has been used in an attempt to define the point at which damage becomes too remote from, or not sufficiently directly caused by, the breach of duty, which is the original cause of action, to be recoverable. For instance, I cannot think it useful to say the damage must be the natural and probable result. This suggests that there are results which are natural but not probable, and other results which are probable but not natural. I am not sure what either adjective means in this connection; if they mean the same thing, two need not be used; if they mean different things, the difference between them should be defined. And as to many cases of fact in which the distinction has been drawn, it is difficult to see why one case should be decided one way and one another. . . . To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act should cause damage; if he would not, the act is not negligent. But if the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial. [Citations omitted.] In the present case it was negligent in discharging cargo to knock down the planks of the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.


1. Attributable responsibility. What argument did the defendant in Polemis make for limiting the extent of its liability? Did the court agree with that argument? If not, how far along the chain or network of causation would the court extend the defendant=s liability?

2. The Adirect consequences@ rule. According to the judges in Polemis, what is a Adirect@ causal sequence or a Adirect consequence@? Although the term is sometimes used more broadly, it is useful (and more consistent with the cases) to define a Adirect consequence@ as a consequence that occurs without the operation of any intervening cause. The rule holding a negligent defendant liable for such direct consequences, whether or not those consequences or their manner of occurrence were foreseeable ex ante, has enjoyed widespread support in the United States and elsewhere. See, e.g., Christianson v. Chicago, St. P., M. & O. Ry. Co., 69 N.W. 640 (Minn. 1896) (Aconsequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act are natural and proximate@). Were there any intervening causes in Polemis?

3. The@set stage@ doctrine. It is often stated that, to be an intervening cause, the conduct or event under consideration must have intervened temporally, that is, after the time of occurrence of the defendant=s tortious conduct. See, e.g., Restatement Second ' 441(1). All conditions existing at the time of the defendant=s tortious conduct, whether or not known or foreseeable at that time, are said to be treated as part of the Aset stage@ upon which the defendant=s tortious conduct plays itself out, rather than as intervening causes. However, there is an exception for pre-existing Aforces@ (conditions?) that did not become Aoperative@ until after the occurrence of the defendant=s tortious conduct. See id. comment a:

It is not necessary that an intervening force have been set in motion subsequent to the time when the actor=s negligent conduct was committed. A force set in motion at an earlier time is an intervening force if it first operates after the actor lost control of the situation and the actor neither knew nor should have known of its existence at the time of his negligent conduct.

Is the Aset stage@ concept, with this exception, a workable or even understandable proposition? How does a Aforce set in motion at an earlier time@ not become Aoperative@ until later? Does it not become Aoperative@ until it affects the chain of events set in motion by the actor=s negligent conduct? If so, won=t this be true of all conditions, regardless of when they were set in place or in motion? The critical issue seems to be the one mentioned at the end of comment a: whether the physical intervention of the other condition, however it is time-stamped, was highly unexpected at the time of the actor=s conduct.

4. An egg-shell plaintiff case? Some scholars, who support the foreseeable consequence limitation on attributable responsibility that was rejected in Polemis, have suggested that the egg-shell plaintiff rule, which (as we will see in section E of this chapter) is a universally recognized exception to the foreseeable consequence limitation,

D. The Superseding Cause Limitation 591 explains the holding in Polemis. E.g., Warren A. Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv. L. Rev. 372, ___ (1939). However, the eggshell plaintiff rule applies to the unforeseeable extension or enlargement of a foreseeable type of legal injury as a result of some condition internal to the person or property foreseeably injured. This was not the situation in Polemis, as the defendant=s attorney recognized. He argued that, unlike the rule regarding unforeseeable extent of injury, there should not be liability for unforeseeable types of injury, as in Polemis (damage due to fires and explosions rather than physical force). His attempt to distinguish between the foreseeable type and extent of harm was explicitly rejected by Lord Justice Bankes. 3. NON-AMELIORATIVE INTERVENING CAUSES (FORESIGHT

ANALYSIS) WATSON V. KENTUCKY & INDIANA BRIDGE & R.R. CO. Court of Appeals of Kentucky 137 Ky. 619, 126 S.W. 146 (1910)

SETTLE, J. This action was instituted by the appellant, John Watson, in the court below against the appellees, Kentucky & Indiana Bridge & Railroad Company [and others] to recover $20,000 damages for injuries sustained to his person on the night of June 14, 1907, from an explosion of gas caused, as alleged, by the negligence of the appellees. It was, in substance, alleged in the petition as amended that while a tank car, . . . filled with a highly explosive substance known as gasoline, was being transported through a populous section of the city of Louisville over the roadbed of the appellee Bridge & Railroad Company, it was derailed and its valve broken, thereby causing all the gasoline to escape and flow in large quantities on the street and into the gutters; that from the gasoline thus flowing and standing in pools upon the street and gutters there arose and spread over the neighborhood of the place of derailment and into the houses of the residents thereof, great quantities of highly explosive and combustible gas which, three hours after the derailment of the tank car, exploded with force from contact with a lighted match thrown on the street by one Chas. Duerr, who claimed to have used it in igniting a cigar; that the explosion threw appellant from his bed and almost demolished his house, from the ruins of which he was taken unconscious and bleeding with a fractured jaw and one cheek nearly torn from his face. . . . At the conclusion of appellant=s evidence, the appellees moved the court peremptorily to instruct the jury to find for them. The motion was overruled, but being renewed by appellees after the introduction of all the evidence, it was sustained . . . .

There is no contrariety of proof as to the fact that Charles Duerr lighted the match that caused the explosion. Indeed, the act was admitted by him, but he testified that when it was done he and Miller, a companion, were standing on Madison street in front of the Warner residence a square from the derailed car, talking with the two Warner girls, the four having just returned from Shawnee Park; that he took a cigar and match from his pockets, struck a light from the match, and ignited the cigar; that the explosion followed before the match reached the ground; and that he was knocked down by the explosion. He further testified that at the time of lighting the match he had just returned from Shawnee Park and knew nothing of the derailment of the tank car, or of the existence of the gas

592 Chapter Seven. Attributable Responsibility arising from the escaping gasoline, and that he did not intend to cause the explosion, nor did he know that the lighting of the match would cause it. Duerr was corroborated by Miller and one of the Warner girls . . . . R.W. Polly, a witness for appellees, testified that he was across the street and within 60 feet of Duerr, Miller, and the Warner girls at the time of the explosion; that there was an electric light burning just above where they were standing and he could see them plainly; that neither of the young men had a cigar or pipe; that he saw Duerr strike a match against the fence and throw it into the plainly visible vapor arising from the gasoline and that the explosion immediately followed.

Appellees were permitted to prove that Duerr, who had been a telegraph operator in the employ of the appellee Bridge & Railroad Company, was on the morning of the day of the explosion discharged from its service, and that 20 minutes before the explosion Duerr remarked to his companion, in the hearing of Giacometti and Darnall, ALet us go and set the damn thing on fire.@ The foundation for the introduction of the testimony of Giacometti and Darnall was laid by first obtaining from Duerr a denial that he had made the statement. . . . The peremptory instruction was granted by the trial court upon the theory that though the Bridge & Railroad Company may have been guilty of negligence in permitting the tank car to be derailed, such negligence was not the proximate cause of the appellant=s injuries, but that the act of Duerr in lighting and throwing the match, which the court declared was done purposely and in a spirit of wantonness, malice, or mischief, was the proximate cause thereof. . . .

The lighting of the match by Duerr having resulted in the explosion, the question is, was that act merely a contributing cause, or the efficient and, therefore, proximate cause of appellant=s injuries? The question of proximate cause is a question for the jury. In holding that Duerr in lighting or throwing the match acted maliciously or with intent to cause the explosion, the trial court invaded the province of the jury. There was, it is true, evidence tending to prove that the act was wanton or malicious, but also evidence conducing to prove that it was inadvertently or negligently done by Duerr. It was therefore for the jury and not the court to determine from all the evidence whether the lighting of the match was done by Duerr inadvertently or negligently, or whether it was a wanton and malicious act.

. . . If the presence on Madison street in the city of Louisville of the great volume of loose gas that arose from the escaping gasoline was caused by the negligence of the appellee Bridge & Railroad Company, it seems to us that the probable consequences of its coming in contact with fire and causing an explosion was too plain a proposition to admit of doubt. Indeed, it was most probable that some one would strike a match to light a cigar or for other purposes in the midst of the gas. In our opinion, therefore, the act of one lighting and throwing a match under such circumstances cannot be said to be the efficient cause of the explosion. . . . This conclusion, however, rests upon the theory that Duerr inadvertently or negligently lighted and threw the match in the gas. . . .

If, however, the act of Duerr in lighting the match and throwing it into the vapor or gas arising from the gasoline was malicious, and done for the purpose of causing the explosion, we do not think appellees would be responsible, for while the appellee Bridge & Railroad Company=s negligence may have been the efficient cause of the presence of

D. The Superseding Cause Limitation 593 the gas in the street, and it should have understood enough of the consequences thereof to have foreseen that an explosion was likely to result from the inadvertent or negligent lighting of a match by some person who was ignorant of the presence of the gas or of the effect of lighting or throwing a match in it, it could not have foreseen or deemed it probable that one would maliciously or wantonly do such an act for the evil purpose of producing the explosion. Therefore, if the act of Duerr was malicious, we quite agree with the trial court that it was one which the appellees could not reasonably have anticipated or guarded against, and in such case the act of Duerr, and not the primary negligence of the appellee Bridge & Railroad Company, in any of the particulars charged, was the efficient or proximate cause of appellant=s injuries. The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the defendant guilty of the primary negligence from liability, but if the intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable, and certainly he is not bound to anticipate the criminal acts of others by which damage is inflicted and hence is not liable therefor. . . .

For the reasons indicated, the judgment is . . . reversed as to the Bridge & Railroad Company, and cause remanded for a new trial consistent with the opinion. NOTES

1. Intervening inadvertent or negligent conduct. Assuming that Duerr=s throwing of the match was merely inadvertent or negligent, was it a superseding cause? Was it an intervening cause? Was it a necessary (but-for) cause of the plaintiff=s injury? Was it highly unexpected? In general, as the Watson opinion indicates, ordinary negligence is deemed to be foreseeable or at least not highly unexpected or extraordinary as is required for a a superseding cause:

The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor=s negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a negligent person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal consequence of the situation created by the actor=s conduct and the manner in which it is done is not extraordinarily negligent.

Restatement Second ' 447. Gross negligence, recklessness, Awilful and wanton@ conduct, and even criminal conduct may or may not be highly unexpected. See note 2 below.

2. Intervening criminal conduct. Assuming Duerr=s throwing of the match was maliciously intended to start a fire, was it a superseding cause? Even intervening criminal conduct will be treated as a superseding cause only if it was highly unexpected. See Restatement Second '' 448, 449; cf. id. ' 302B. This principle is affirmed by a recent Kentucky case, Britton v. Wooten, 817 S.W.2d 443 (1991), which is sometimes described

594 Chapter Seven. Attributable Responsibility as having overruled the Watson case, but which actually only rejected the dicta in Watson that seemed to suggest (contrary to the Watson court=s general emphasis that a superseding cause must have been highly unexpected) that intervening criminal conduct is always a superseding cause. The Britton case cites and follows the Restatement=s position, and notes the large number of cases supporting this position. See, e.g., Brauer v. New York Central & H.R.R., 103 A. 166 (N.J. 1918) (train=s negligent collision with the plaintiff=s wagon was a proximate cause of the foreseeable theft by third parties of goods spilled from the wagon as a result of the collision); Hines v. Garrett, 108 S.E. 690 (Va. 1921) (railroad=s negligent carrying of the 19-year old plaintiff almost a mile past her stop in an unsettled area at night was a proximate cause of her foreseeably being raped by a soldier and a hobo as she walked back to the stop); cf. Bigbee v. Pacific Tel. & Tel. Co., 665 P.2d 947 (1983) (negligent placement of a telephone booth in a parking lot 15 feet from a major thoroughfare, where it had previously been hit by a car backing up in the lot, coupled with negligent maintenance so that the door was difficult to open, was a proximate cause of the plaintiff=s being injured when a car negligently or recklessly driven by a third party foreseeably careened out of control and struck the booth, which the plaintiff was unable to escape in time due to the jammed door.).

3. The intervening occurrence of a risk that made the defendant=s conduct negligent. If the intervening human conduct is the hazard, or one of the hazards, the foreseeability of which made the defendant=s conduct negligent in the first place, its occurrence obviously will not be treated as a superseding cause, even if it is deliberate or criminal in nature. See, e.g., Weirum v. RKO General, Inc., 539 P.2d 36 (Cal. 1975); Restatement Second ' 449. In Weirum the defendant radio station=s star disc jockey, AThe Real Don Steele,@ broadcast messages from his car giving his location and offering a prize to the first person to approach him and answer a simple question. The plaintiff was seriously injured when his car was forced off the freeway by two youths who, having just missed Steele at his prior broadcast location, were competing at high speeds to be the first to reach him at the new broadcast location. The court held the defendant owed a duty to those such as the plaintiff who were foreseeably put at risk by the defendant=s conduct and that the breach of that duty was a legally responsible cause of the plaintiff=s injury. 4. AMELIORATIVE INTERVENING CAUSES (HINDSIGHT ANALYSIS)

LYNCH V. FISHER Court of Appeal of Louisiana

34 So. 2d 513 (1947)

HARDY, Judge. This matter comes before us on appeal from judgment of the Eleventh Judicial District Court of Louisiana sustaining exceptions of no cause or right of action filed on behalf of all defendants and dismissing plaintiff=s action as of nonsuit.

The allegations of the petition which are placed at issue as to their sufficiency in setting forth the cause of action . . . may be summarized as follows: That about 9:00 p.m. on July 3, 1945, an employee of the defendants, Wheless and Fisher, (whose insurer is the defendant, Lumbermen=s Mutual Casualty Company of Chicago, Ill.) at the time engaged within the general scope and course of his employment, parked a pulpwood truck which

D. The Superseding Cause Limitation 595 he was driving on the right-hand side of highway No. 171, some twelve miles north of Mansfield, De Soto Parish, Louisiana; That, while said truck was thus parked, a passenger car owned and driven by [Robert Joe Gunter] collided violently with the rear end thereof; That the driver of the parked truck was guilty of negligence, imputable to his employers, on numerous grounds, specifically in parking the truck entirely on the highway without leaving a clearance of fifteen feet on the pavement; in failing to have warning lights on the parked truck; in leaving the truck parked on the highway, thereby constituting a menace to traffic, and in failing to set out flares, or to have same available and ready for service. . . .

That plaintiff seeing the collision ran to the scene thereof, succeeded in opening the doors of the badly damaged Gunter car, and, with the aid of another party, extricated both Mrs. Gunter and [Robert Joe Gunter] from the automobile, which had meanwhile caught fire; That, in the effort to further assist the fatally injured Mrs. Gunter, plaintiff attempted to pull a floor mat out of the car to be used as a cushion for her head as she lay upon the roadside; that in the performance of this act plaintiff found a pistol on the floor of the car and handed the same to [Robert Joe] Gunter, who, being delirious and temporarily mentally deranged by reason of the shock of the accident, fired the pistol at plaintiff, the bullet passing through plaintiff=s left ankle and inflicting serious injuries, for which damages are claimed in this action.

Defendant=s exceptions, as directed at plaintiff=s petition, are based upon the following points: (1). That . . . no actionable negligence has been alleged. (2). That the alleged negligence of the driver of the truck, employee of the defendants, Wheless and Fisher, was not the proximate cause of the injury to plaintiff. (3). That the act of [Robert Joe] Gunter, which caused plaintiff=s injury, was an independent, intervening cause which broke the causal chain flowing from the original negligence of the driver of the truck. (4). That the injuries suffered by plaintiff were not reasonably to be foreseen or anticipated as a normal result of the alleged negligence of the driver of the truck. . . .

Determination of the issue of proximate cause must of necessity be considered with relation to the allied doctrine of intervening cause which is clearly material under the alleged facts of this case. [&] It is quite true, as contended by learned counsel for defendants, as a general proposition of law that only that negligence which directly causes the injury is deemed to be proximate. But a resolution of this point must perforce depend upon the particular facts of each case. [&] In the matter before us there are three elements that must be determined:

(a). Did the original negligence of the driver of the parked truck set in motion a chain of circumstances following consecutively one upon the other which led to plaintiff=s injury?

(b). Was the act of original negligence superseded by an intervening act breaking the chain of causation leading to plaintiff=s injury?

(c). Is the fact that plaintiff=s injuries resulted from an improbable and unforeseeable incident sufficient to eliminate the original act of negligence from consideration as a proximate cause?


The answer to these queries will dispose of all the claims based upon the doctrines of proximate and intervening causes and foreseeability.

Upon the basis of the allegations there is no room for any reasonable contravention of the proposition that the circumstances following the negligent parking of the truck down to the removal of the pistol from the car by plaintiff were natural, probable and reasonably to be expected. But at this point an imponderable enters into consideration. The rescuer hands a pistol to the rescued and is shot by the latter. Certainly under the general rule, this action could not be within the reasonable contemplation of any normal individual and the specific incident therefore could not be imputed to the negligent truck driver as a probable result flowing from his negligence. But, unfortunately, the proposition does not admit of being disposed of so easily, for it is well established in the jurisprudence of the State of Louisiana and a majority of other jurisdictions that the general rule must yield to specific instances.

Of course, no Court could reasonably hold that the driver of a vehicle, no matter how gross his negligence, could have contemplated the shooting of a third party as a normal and natural result of such negligence. Nor, indeed, could the rescuer himself be held to have assumed the risk of such a strange, unnatural and unusual result flowing from his gallant efforts. [&] But, if the results of accidents were normal, usual and predictable, the burden of both Bar and Bench would be made immeasurably lighter.

. . . Let us assume that plaintiff in this cause, rushing to the aid of helpless parties occupying the automobile involved in the collision, in the darkness of night, and wrenching open the door of the vehicle, had been severely bitten by a dog which was accompanying the occupants of the car and which had been so frightened or injured by the shock of the collision as to have lost its accustomed gentleness. Could it be said that such a result was proximately caused by the negligence of the truck driver because such a possibility was normally an expectable or foreseeable result of such negligence? The answer is obvious. Scores of cars might have collided with the rear end of this particular truck on this particularly well-traveled main highway without producing such a result.

Similarly, the laws of probability were overwhelmingly against the occurrence of the character and nature of the incident and resulting injury to plaintiff under the actual facts of this case. But, certainly, plaintiff is without fault, and, certainly, the negligence of some party or the concurrent negligence of several parties combined to set up the unfortunate situation which resulted in his injury.

In our opinion the general doctrine of [superseding] cause cannot be applied under the alleged facts and chain of circumstances herein presented. Under the tenor of the allegations it is quite clear that plaintiff would not have been shot if originally the truck driver had not negligently parked his truck in such manner as to constitute a menace and hazard to vehicles rightfully traveling the highway. [&] The proximate cause of the injury to one who voluntarily interposes to save the lives of persons imperiled by the negligence of others is the negligence which causes the peril.

D. The Superseding Cause Limitation 597

In determining the question as to the efficiency of the intervening act, that is, in this case, the shooting of plaintiff by one of the defendants, we must consider the well established principle that an intervening cause is not necessarily a superseding cause. The intervening cause, in order to supersede original negligence, must have alone produced injury. . . .

In the instant case there is no question but that in tracing back from the point of the actual injury to plaintiff we would ordinarily be compelled to conclude that the shooting by one of the defendants was unquestionably a superseding cause were it not for the allegation that the defendant inflicting the injury at the time was temporarily insane by reason of shock resulting from the collision caused by the initial negligence of the truck driver. [&] Section 455 of the Restatement of the Law of Torts submits the principle: AIf the actor=s negligent conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity (a) prevents him from realizing the nature of his act * * *.@ [&] We think it must logically and inevitably follow that under such circumstances the actor is not only liable for harm done in a fit of delirium or insanity by such deranged person to himself, but also for any harm caused by him to another. . . .

In every consideration of the point which has come to our attention in the study of this case, the qualities of the relieving or superseding act are repeatedly and unfailingly designated as being intervening and voluntary, by a person responsible for his acts.

Since we must accept the well pleaded allegations of the petition as being true for the purpose of determining the exception, we are constrained to hold that plaintiff has met the requirements established by these several factors and has negatived the possibility that the act which immediately resulted in the harm was the voluntary action of a person responsible for his acts. [&] Under the allegations of the petition it is inescapable that plaintiff has properly alleged that the defendant Gunter was mentally deranged and rendered temporarily insane as the result of the collision of his car with the parked truck. Plaintiff by his allegations has further definitely asserted that such a condition was brought about by the concurrent negligence of the several defendants. In order to affirm the holding of the lower court it would be necessary for us to find that the temporary insanity of the defendant Gunter, which led to the shooting, was not caused by the collision. Clearly, this is a question of fact to be determined by trial on the merits, and, meanwhile, any conclusion must be governed by the plain allegations of the petition.

Any attempt to determine at what point, with relation to the actual injury to plaintiff, the negligence of the original actor, namely, the driver of the truck, ceased and a new and independent tortious act intervened and superseded the original negligence, conclusively impresses us with the impossibility of such a severance of causes. The chain is complete and whole, link by link, and though tested with the utmost care no break is revealed in the succession of circumstances. [&] The consecutive order of the related circumstances and events may be briefly outlined: (1). Negligence of the truck driver in parking his truck on the highway, resulting in (2). Collision, superinduced by the concurrent negligence of the defendant Gunter, resulting in (3). (a). attempted rescue by the plaintiff. (b). Temporary mental derangement of the defendant Gunter as a result of the

598 Chapter Seven. Attributable Responsibility shock of the collision, resulting in (4). The shooting of plaintiff and the injury sustained thereby. [&] If there is any break in the continuity of the incidents flowing from the original act of negligence, we are unable to point out such a circumstance.

Finally, consideration must be given to the application vel non of the general rule that one is not responsible for those particular injurious consequences which are unforeseen, improbable and not reasonably to have been expected to result from the original act of negligence. [&] We think it is well established that the general doctrine of foreseeability is not applicable to the extent of relieving one who sets in motion, through the agency of a negligent act, a chain of circumstances leading to the final resultant injury. In Payne v. Georgetown Lumber Co., 42 So. 475, 477 (La.), the Court said: AThat the particular injurious consequence was <improbable= or <not to be reasonably expected= is no defense. Wharton, Law of Negligence (2d Ed.) ' 77.@ The same writer says: AThe fact is, that the consequences of negligence are almost invariably surprises. A man may be negligent in a particular matter a thousand times without mischief; yet, though the chance of mischief is only one in a thousand, we would continue to hold that the mischief, when it occurs, is imputable to the negligence.@ . . .

We make no attempt to minimize the unusual and improbable character of the incident which is alleged to have occurred in the case before us. [&] The facts set forth are additional evidence of the truth of the adage that Atruth is stranger than fiction@.

We do not believe that the theory of foreseeability is applicable to the facts of this case. Referring again to the Restatement of the Law of Torts, we find in Section 435 a plain and unambiguous statement of the principle which refutes the requirement of foreseeability: AIf the actor=s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.@

In our opinion the original act of negligence alleged upon is so inextricably interwoven with the subsequent occurrences involved that it cannot be disassociated from any of them. Nor can we consider, in the light of the authorities cited, the act of a temporarily insane or deranged person as being such a character of an independent, voluntary and responsible action as would stand alone as the proximate cause of plaintiff=s injury. . ..

For the reasons assigned, the judgment appealed from is reversed and set aside, and there is now judgment overruling the exceptions of no cause or right of action filed on behalf of all defendants and remanding this cause to the District Court for further proceedings. . . NOTES

1. Subsequent history. In a subsequent opinion, Lynch v. Fisher, 41 So. 2d 692 (La. 1949), the Louisiana Court of Appeals affirmed a judgment against the trucking company and its insurer and increased the damages awarded to the rescuer, Lynch, but

D. The Superseding Cause Limitation 599 held that defendant Robert Gunter, the driver of the car, had not been negligent in failing to see the truck in time to avoid hitting it.

2. A superseding cause? Was the shooting of Lynch, the rescuer, by Mr. Gunter, the rescuee, an intervening cause? A necessary (but-for) cause of the plaintiff=s injury? Was it an independent or a dependent cause? Ameliorative or exploitative? Highly unexpected, using foresight? Highly unexpected, using hindsight? Did the court in Lynch use foresight or hindsight to decide whether the causal sequence from the defendant=s negligence to the plaintiff=s injury was highly unexpected?

3. The hindsight analysis of ameliorative dependent intervening causes. When the intervening cause is an ameliorative attempt to avoid or reduce the risks tortiously created by the defendant, the courts generally employ a step-by-step hindsight analysis, rather than a foresight analysis, to decide whether the occurrence of the intervening cause was highly unexpected. The step-by-step hindsight analysis employed in Lynch is described and employed in Restatement Second ' 435(2) and its comment d, which were adopted a year after Lynch was decided in a 1948 Supplement to the first Restatement and retained in the Restatement Second. Restatement [First] ' 435, which is quoted in Lynch, was re-numbered as ' 435(1). Section 435(2) states:

The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.

Comment d explains:

. . . The court=s judgment as to whether the harm is a highly extraordinary result is made after the event with the full knowledge of all that has happened. This includes those surroundings of which at the time the actor knew nothing but which the course of events discloses to the court. . . . [T]he court knows not only the stage setting which existed at the time of the defendant=s negligence and which may or may not have persisted throughout, but it also follows the effects of the actor=s negligence as it passes from phase to phase until it results in harm to the plaintiff. In advance, the actor may not have any reason to expect that any outside force would subsequently operate and change the whole course of events from that which it would have taken but for its intervention. None the less, the court, knowing that such a force has intervened, may see nothing extraordinary either in its intervention or in the effect which it has upon the further development of the injurious results of the defendant=s conduct. This is particularly important where the intervening force is supplied by the act of a human being or animal, which is itself a reaction to the stimulus of a situation for which the actor is responsible. . . .

See also ' 443 and comments a, b, c. As the Lynch case illustrates, the hindsight analysis of Ahighly unexpected@ takes into account everything that actually occurred from the time

600 Chapter Seven. Attributable Responsibility of the defendant=s tortious conduct to the actual injury, while the foresight analysis takes into account only what was known or foreseeable at the time of the defendant=s tortious conduct. The hindsight analysis is applied step-by-step to each step in the actual causal sequence, while the foresight analysis is applied to the causal sequence as a whole. Under the hindsight analysis, an intervening cause is deemed to be a superseding cause that will prevent the defendant from being liable only if the occurrence of the intervening cause seems highly extraordinary given knowledge of all the prior steps in the actual causal sequence. Note that, as in all analyses of intervening and superseding causes, the analysis focuses on the ordinary versus (highly) extraordinary nature of the occurrence of the intervening cause, rather than on the foreseeability of the ultimate injury.

4. Intervening ameliorative animal conduct. In Brown v. Travelers Indemnity Co., 28 N.W.2d 306 (Wis. 1947), the plaintiff=s husband negligently failed to keep a proper lookout while driving and struck a cow on the highway. The cow, severely injured and unconscious, lay upon the highway. The plaintiff, an uninjured passenger in the car, left the car to inform the farm family of the injury to the cow. When she returned to the road, the cow, which had regained consciousness but was still stunned, arose and attacked her or ran into her while trying to get away, causing her serious injury. The trial court held that the cow=s running into or attacking the plaintiff Awas a normal response of an injured animal@ and thus not a superseding cause. Id. at 307. The Supreme Court of Wisconsin affirmed: AIt was not necessary to create liability on the part of [Mr.] Brown that he should have anticipated the precise course of events which followed as a result of his negligent act. Being negligent, if his negligent act caused the injuries complained of in a natural sequence, the mere fact that the injured cow unexpectedly regained consciousness and in an attempt to escape from the place injured the plaintiff is not a superseding cause of the harm which resulted from the collision. . . . [Similarly,] the act of the plaintiff in leaving the car to notify the family of the accident was a natural and probable result of the collision which was due to [Mr.] Brown=s negligence.@ Id. at 309. See Restatement Second ' 443 comment b: AWhen a negligently driven automobile hits a cow, it is scarcely to be regarded as usual, customary, or foreseeable in the ordinary sense in which that word is used in negligence cases, that the cow, after lying stunned in the highway for five minutes, will recover, take fright, and make a frantic effort to escape, and that in the course of that effort it will charge into a bystander, knock [her] down, and injure [her]. But in retrospect, after the event, this is not at all an abnormal consequence of the situation which the driver has created. It is to be classified as normal [i.e., not extraordinary], and it will not operate as a superseding cause which relieves the driver of liability.@

5. ANatural,@ Aordinary,@ and Aprobable@ consequences. When deciding whether some intervening cause was a superseding cause, courts often focus on whether the occurrence of the intervening cause was a Anatural,@ Anormal,@ Aordinary@ or Aprobable@ consequence of the defendant=s tortious conduct. As Lord Justice Scrutton noted in Polemis, the phrases Anatural and probable@ or Anatural and ordinary@ are, at best, unenlightening. Moreover, the results of the cases demonstrate that these words should not be interpreted literally. As is stated in Restatement Second ' 443 comment b, Athe word >normal= is not used . . . in the sense of what is usual, customary, foreseeable, or to be expected. It denotes rather the antithesis of abnormal, of extraordinary.@ In cases involving ameliorative intervening causes, the courts using these or other phrases generally employ

D. The Superseding Cause Limitation 601 the hindsight approach rather than the foresight approach to determine whether the occurrence of the intervening cause was highly unexpected.

6. Causally dependent natural events. In section D.1 above, we noted that causally dependent natural events, such as those that occurred in the Polemis case, usually are not treated as intervening causes, and thus cannot be superseding causes. However, some courts might treat a sequence of causally dependent natural events or some instance of nonvolitional human or animal movement as an intervening cause. If so, they generally would evaluate the expected versus unexpected nature of the intervening cause using the step-by-step hindsight approach that is discussed in note 3 above. Under the step-by-step hindsight approach, such causally dependent natural or nonvolitional events will always seem Anatural and probable@ rather than highly unexpected or extraordinary, and thus will not be treated as superseding causes. In sum, regardless of the analytic approach, the result is the same.

7. Danger invites rescue. The intervention of a rescuer, no matter how unforeseeable ex ante, is almost never deemed to be so extraordinary, in hindsight or foresight, as to be a superseding cause of any resulting injury to the rescuer or the person in peril. Perhaps the best known case is Wagner v. International Ry. Co., 133 N.E. 437 (N.Y. 1921). Judge Cardozo wrote the opinion for the New York Court of Appeals:

Plaintiff and his cousin Herbert boarded a car at a station near the bottom of one of the trestles. Other passengers, entering at the same time, filled the platform, and blocked admission to the aisle. The platform was provided with doors, but the conductor did not close them. Moving at from six to eight miles an hour, the car, without slackening, turned the [sharp] curve [from a trestle onto a bridge]. There was a violent lurch, and Herbert Wagner was thrown out, near the point where the trestle changes to a bridge. The cry was raised, AMan overboard.@ The car went on across the bridge, and stopped near the foot of the incline. Night and darkness had come on. Plaintiff walked along the trestle, a distance of four hundred and forty-five feet, until he arrived at the bridge, where he thought to find his cousin=s body. He says that he was asked to go there by the conductor. He says, too, that the conductor followed with a lantern. Both these statements the conductor denies. Several other persons, instead of ascending the trestle, went beneath it, and discovered under the bridge the body they were seeking. As they stood there, the plaintiff=s body struck the ground beside them. Reaching the bridge, he had found upon a beam his cousin=s hat, but nothing else. About him, there was darkness. He missed his footing, and fell.

The trial judge held that negligence toward Herbert Wagner would

not charge the defendant with liability for injuries suffered by the plaintiff unless two other facts were found: First, that the plaintiff had been invited by the conductor to go upon the bridge; and second, that the conductor had followed with a light. Thus limited, the jury found in favor of the


defendant. Whether the limitation may be upheld, is the question to be answered.

Danger invites rescue. The cry of distress is the summons to relief.

The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. . . . The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had. . . .

Whether Herbert Wagner=s fall was due to the defendant=s negligence,

and whether plaintiff in going to the rescue, as he did, was foolhardy or reasonable in the light of the emergency confronting him, were questions for the jury. [&] The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

See also Talbert v. Talbert, 199 N.Y.S.2d 212 (Misc. 1960) (defendant=s attempting suicide by locking himself in a garage and turning the motor on foreseeably and unreasonably put others at risk who might be expected to attempt to rescue him, and thus was negligent, and such negligence was a legal cause of injury to his son who was injured while attempting to rescue him).

8. Negligent aid. Ameliorative intervention, even if negligent, will not be deemed a superseding cause of any additional harm caused to the person in peril unless the intervenor=s conduct went beyond mere negligence to (highly) extraordinary, rash, or reckless conduct. A frequent type of situation is one in which the defendant negligently causes an accident and the injured plaintiff suffers further injury as a result of negligent operation of an ambulance used to take the plaintiff to a hospital or negligent treatment of the plaintiff in the hospital. See, e.g., Atherton v. Devine, 602 P.2d 634 (Okla. 1979); Restatement Second ' 457; Restatement Third: Physical and Emotional Harm ' 35.

9. Injuries inflicted on self or others as a result of insanity, emotional distress, or fear caused by defendant=s tortious conduct. The Lynch court relied on Restatement ' 455, which states: AIf the actor=s [tortious] conduct so brings about the delirium or insanity of another as to make the actor liable for it, the actor is also liable for harm done by the other to himself while delirious or insane, if his delirium or insanity (a) prevents him from realizing the nature of his act and the certainty or risk of harm involved therein, or (b) makes it impossible for him to resist an impulse caused by his insanity which deprives him of his capacity to govern his conduct in accordance with reason.@ See also id. ' 444: AAn act done by another in response to fear or emotional disturbance to which the actor=s negligent conduct is a substantial factor in subjecting the other is not a superseding cause of harm done by the other=s act to himself or a third person@ (emphasis added).

D. The Superseding Cause Limitation 603

Early cases routinely treated a person=s suicide as an unforeseeable independent intervening cause, and hence as a superseding cause which barred the negligent defendant=s liability. See, e.g., Scheffer v. Railroad Co., 105 U.S. 249 (1881). Restatement Second ' 455 comments c and d and illustration 3 state that an attempt to commit suicide while under the Airresistible impulse@ of an insane delusion or Asuicidal mania@ will not constitute a superseding cause, but that a person=s deliberate effort Aduring a lucid interval . . . to terminate his life because of the dread of the increasingly frequent recurrence of [such] attacks@ will. Recent cases have questioned or stretched the Airresistible impulse@ requirement. See, e.g., Fuller v. Preis, 322 N.E.2d 263 (N.Y. 1974), in which the plaintiff=s decedent, a 43-year old surgeon, was negligently injured by the defendant in an automobile accident. He suffered a head injury which resulted in recurring seizures.

Then ensued a period of deterioration and gradual contraction of his professional and private activities. Meanwhile, his wife, partially paralyzed as a result of an old poliomyelitis, suffered Anervous exhaustion@ and his mother became ill with cancer. [&] On July 7, 1967, the day he learned of his mother=s illness, decedent executed his will. On July 9, after experiencing three seizures that day, he went to the bathroom of his home, closed the door and shot himself in the head. He died the following day. Just before the gunshot, his wife heard him say to himself, AI must do it, I must do it@, or words to that effect.

Two suicide notes, both dated July 9, 1967, were found next to the

body. One, addressed to his wife, professed his love. The other, addressed to the family, contained information about a bank account and the location of his will and requested discreet disposition of certain personal property. He warned that the note Amust never be seen by anyone except the three of you as it would alter the outcome of the <case=Ci.e., it=s worth a million dollars to you all [in life insurance which would be forfeited in case of suicide].@ And he went on to say that AI am perfectly sane in mind@ and AI know exactly what I am doing@. Alluding to the accident, the loss of his office and practice, his mother=s and his wife=s illnesses, the imposition caused thereby to his children, and his mounting responsibilities, he professed inability to continue. . . .

The only authentic issue is whether the suicide was an Airresistible

impulse@ caused by traumatic organic brain damage. The issue is limited on this appeal because of the theory of the case based on the traditional but not entirely satisfactory concept of the Airresistible impulse@. Medical and legal lore have developed an incisive critique of that concept but its evolution or clarification must await another day and another case. It has been cogently argued that it ought to be sufficient to accept mental illness, traumatic in origin, as a substantial cause of particular behavior, including suicide. . . .

A suicide is a strange act and no rationalistic approach can fit the act

into neat categories of rationality or irrationality. When the suicide is


preceded by a history of trauma, brain damage, epileptic seizures, aberrational conduct, depression and despair, it is at the very least a fair issue of fact whether the suicide was the rational act of a sound mind or the irrational act or irresistible impulse of a deranged mind evidenced by a physically damaged brain. It would be illogical to conclude otherwise. Consequently, although the Appellate Division in exercise of its supervisory power to review the facts could set the jury verdict aside, it was impermissible for it to dismiss the complaint.

Id. at 265-69. See also Stafford v. Neurological Medicine, Inc., 811 F.2d 470 (8th Cir. 1987) (it was a jury question whether plaintiff=s suicide after receiving a diagnosis from the defendant medical group, which falsely stated that she had an incurable brain tumor, was an Airresistible impulse@ which would not be a superseding cause and thus would not bar defendant=s liability).

10. Plaintiff=s (possibly negligent) intervening ameliorative conduct. In City of Lincoln, 15 P.D. 15 (1889), the defendant, who had negligently disabled the plaintiff=s ship, attempted to argue that the captain=s unsuccessful efforts to steer the ship to safety should be treated as a superseding cause of the loss of the ship. The court held that Athe [natural and] ordinary course of things includes at least the reasonable conduct of those . . . seeking to save loss [threatened by the defendant=s tortious conduct].@ In these types of cases, in which the plaintiff is attempting to avert a risk tortiously created by the defendant, unreasonable conduct by the plaintiff or its agents might not only be contributory negligence, which used to be a complete defense (at least in non-admiralty cases), but also (if highly extraordinary) be a superseding cause, which would undermine the prima facie case against the defendant. On both issues, judges and juries tended to be quite lenient in assessing the reasonableness of the plaintiff=s conduct. See, e.g., a case cited in City of Lincoln: Jones v. Boyce, 171 Eng. Rep. 540, 541 (K.B. 1816) (defendant is liable to plaintiff who would not have been hurt if he had not jumped off defendant=s out-of-control coach, unless the plaintiff=s act Aresulted from a rash apprehension of danger, which did not exist, and the injury which he sustained is to be attributed to rashness and imprudence@); see also Tuttle v. Atlantic City R.R., 49 A. 450 (1901). Now that the plaintiff=s contributory negligence is no longer a complete defense, judges and juries might be more willing to find that the plaintiff was contributorily negligent, while still finding that the plaintiff=s negligence did not supersede the defendant=s negligence (and thus undermine the prima facie case against the defendant) unless it was Arash@ rather than mere Aordinary@ negligence. See Restatement Second ' 443 comments a, b, c.

11. Failures to intervene. The failure of a third person to intervene to attempt to alleviate the risks tortiously created by the defendant will not be deemed a superseding cause relieving the defendant of liability unless the third person, because of a special relationship or otherwise, had a duty to intervene and such duty is deemed, through express agreement or otherwise, to relieve the defendant of her original duty. See Restatement Second ' 452 and comment b: AIf the third person is under a duty to the [plaintiff] to take such [ameliorative] action, his failure to do so will subject him to liability for his own negligence, which is concurrent with that of the actor, for the resulting harm which he has failed to prevent; but his failure to perform the duty does not relieve

D. The Superseding Cause Limitation 605 the original actor of liability for the results of [her] own negligence. . . . [There are some] exceptional cases in which all responsibility has been shifted to the third person.@

A case with striking facts is Clark v. E.I. Du Pont de Nemours Powder Co., 146 P. 320 (Kan. 1917), which also illustrates the nonliteral nature of the Aproximate@ cause requirement. The defendant=s negligence was held to be a proximate cause of the plaintiffs= injuries although those injuries were quite remote in both time and space from the defendant=s negligent conduct. The defendant=s agent used solidified nitroglycerin to shoot an oil well on a farm and afterward negligently left about a quart of solidified nitroglycerine at the well site. An employee of the contractor who was boring the well, who was a son of the owner of the farm, fearing that the nitroglycerine would cause injury to himself or his fellow workmen, took it home with him at the dinner hour. His mother protested its being kept on the premises, so he immediately took it to an abandoned graveyard on the farm at some considerable distance from his home. He placed the dynamite in a stone fence near the ground and laid another stone in front of the recess in the fence, partially covering the explosive. It remained there for over two years, when it was found by several boys who were passing that way. They did not know what it was and,, after handling it for awhile, they left it at the graveyard, but a couple of them returned with another boy the next morn, while out hunting. One of them picked it up and hit it with a rock to break off a piece to take home, which caused an explosion that injured each boy. The court declared:

No new power of doing mischief was communicated to the solidified gylcerine by the acts of young McDowell. The power of doing mischief was inherent in the glycerine all the time. That some terrible accident was likely to happen in letting it out of the close custody of some one skilled in its use was not only natural and probable, but almost inevitable. McDowell had no skill or experience in handling the dangerous article. He did the best he could to prevent the damage impending on account of Van Gray=s negligence. That he attempted to prevent its doing damage, but failed on account of lack of sufficient knowledge to dispose of it effectively, does not amount to an unrelated and efficient agency to shift the proximate cause from the delict of the powder company to a new proximate cause of his own making. . . .

Id. at _____.

A controversial Aexceptional@ case finding that a third party=s failure to intervene was a superseding cause is Pittsburgh Reduction Co. v. Horton, 113 S.W. 647 (Ark. 1908). The defendant company negligently discarded an unexploded dynamite cap on its unenclosed plant premises near a public school. Ten-year old Charlie Copple picked it up and brought it home, where he sometimes played with it and other caps that he kept in a box. His father, a miner, denied knowing that Charlie had the caps. His mother, who said she did not know what they were or what they contained, picked the caps up and put them away for Charlie when he left them on the floor. After about a week, Charlie traded the cap to 13-year old Jack Horton for some writing paper. Jack, who thought the cap was an expended .22 cartridge shell, was injured when the cap exploded when he was picking dirt

606 Chapter Seven. Attributable Responsibility out of it with a match. The court, declaring that Charlie=s parents both were familiar with the nature of explosives, and that Charlie=s mother knew at least that the caps were shells for some kind of explosives, held that the parents= letting Charlie play with the caps and take them to school was a superseding cause of Jack=s injury: ACharlie Copple=s parents having permitted him to retain possession of the caps, his further acts in regard to them must be attributable to their permission, and were wholly independent of the original negligence of appellants.@

E. THE FORESEEABLE RISK LIMITATIONS

Although foreseeable risk to others generally is necessary (but not sufficient) for a defendant=s conduct to be tortious, tort liability traditionally has not depended on foreseeability of the actual consequences of the defendant=s tortious conduct. Recall the statements and facts in the Vosburg case in chapter 2 and the Polemis, Lynch, Brown, and Clark cases in the preceding section of this chapter. See also Spade v. Lynn & Boston R.R., 52 N.E. 747, 748 (Mass. 1899) (Holmes, J.) (AThe measure of the defendant=s duty in determining whether a wrong has been committed is one thing; the measure of liability when a wrong has been committed is another.@); Christianson v. Chicago, St. P., M. & O. Ry., 69 N.W. 640, 641 (Minn. 1896) (AConsequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.@); Cooley v. Public Service Co., 10 A.2d 673, ____ (N.H. 1940) (AThe duty to take precautions rests upon the rule of reasonable anticipation, even though that rule does not prevail as to damages once the duty appears.@); Leon Green, Rationale of Proximate Cause 177B85 (1927); Jeremiah Smith, Legal Cause in Actions of Tort (pts. 1B3), 25 Harv. L. Rev. 103, 105, 114, 127B28, 223, 223B52, 303, 308B09, 321B27 (1911B1912).

An exception existed under the negligence per se doctrine, which, as we discussed in section B.2 of chapter 4, treats the violation of a governmental safety mandate as negligence only if the particular mandate was meant to protect persons like the plaintiff from the type of harm or hazard that actually occurred. Both the rationale for the doctrine and the conclusive nature (in most jurisdictions) of the presumption of negligence provide strong grounds for these requirements for treating the violation of the mandate as negligence. Yet, even in this context, courts have often strained to identify subsidiary statutory purposes that would bring the plaintiff=s injury within the statute=s reach and, in some cases, have ignored the statutory purpose in order to hold the defendant liable. Recall, for example, Kernan v. American Dredging Co., 355 U.S. 426 (1958), discussed in section B of Chapter 6.

The situation changed dramatically during the second quarter of the twentieth century, when leading academics argued that tort liability in general should be limited to the foreseeable risks that made the defendant=s conduct tortious. See, e.g., Warren A. Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv. L. Rev. 372, 386 (1939) (APrima facie at least, the reasons for creating liability should limit it.@). Their arguments bore fruit in two closely related developments: the first Restatement of Torts, which was published in 1934, and the decision of the New York Court of Appeals in Palsgraf v. Long

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 607 Island R.R. Co., 162 N.E. 99 (1928), both of which applied the limitations on liability built into the negligence per se doctrine to tort liability in general, but as a limitation on a defendant=s duty to exercise reasonable care rather than as a limitation on the scope of liability for negligently caused consequences. 1. THE FORESEEABLE CONSEQUENCE (HARM MATCHES THE RISK)

LIMITATION PALSGRAF V. LONG ISLAND R.R. CO. Court of Appeals of New York 248 N.Y. 339, 162 N.E. 99 (1928)

CARDOZO, Ch. J. Plaintiff was standing on a platform of defendant=s railroad [on August 24, 1924] after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some [large] scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing [serious] injuries for which she sues.

The conduct of the defendant=s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. AProof of negligence in the air, so to speak, will not do.@ [Citations omitted.] . . . If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else. AIn every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury.@ [Citations omitted.] . . . The plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.

. . . In this case, the rights that are said to have been violated, the interests said to have been invaded, are not even of the same order. The man was not injured in his person nor even put in danger. The purpose of the act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which may very well be doubted, it was a wrong to a property interest only, the safety of his package. Out of this wrong to property, which threatened injury to nothing else, there has passed, we are told, to the plaintiff by

608 Chapter Seven. Attributable Responsibility derivation or succession a right of action for the invasion of an interest of another order, the right to bodily security. The diversity of interests emphasizes the futility of the effort to build the plaintiff=s right upon the basis of a wrong to some one else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one=s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.

The argument for the plaintiff is built upon the shifting meanings of such words as Awrong@ and Awrongful,@ and shares their instability. What the plaintiff must show is Aa wrong@ to herself, i.e., a violation of her own right, and not merely a wrong to some one else, nor conduct Awrongful@ because unsocial, but not Aa wrong@ to any one. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path. AIt was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.@ [Citations omitted.] Some acts, such as shooting, are so imminently dangerous to any one who may come within reach of the missile, however unexpectedly, as to impose a duty of prevision not far from that of an insurer. Even today, and much oftener in earlier stages of the law, one acts sometimes at one=s peril. Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A resulting by misadventure in injury to B. These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional. The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff=s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. . . . If the harm was not willful, [the plaintiff] must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong. . . . The

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 609 victim does not sue derivatively, or by right of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause of action is to ignore the fundamental difference between tort and crime. He sues for breach of a duty owing to himself.

The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary. There is room for argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforseeable invasion of an interest of another order, as, e.g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong.

The judgment of the Appellate Division and that of the Trial Term should be

reversed, and the complaint dismissed, with costs in all courts.

ANDREWS, J. (dissenting). . . . [May the plaintiff] recover the damages she has suffered in an action brought against the [defendant]? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative conceptCthe breach of some duty owing to a particular person or to particular persons? Or where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.

Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect oneself from the dangers resulting from such acts. . . .

But we are told that Athere is no negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely to others.@ (Salmond Torts [6th ed.], 24.) This, I think too narrow a conception. Where there is the unreasonable act, and some right that may be affected there is negligence whether damage does or does not result. That is immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only to those who happen to be within the radius of danger but to all who might have been thereCa wrong to the public at large. Such is the language of the street. Such the language of the courts

610 Chapter Seven. Attributable Responsibility when speaking of contributory negligence. Such again and again their language in speaking of the duty of some defendant and discussing proximate cause in cases where such a discussion is wholly irrelevant on any other theory. As was said by Mr. Justice HOLMES many years ago, Athe measure of the defendant=s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.@ (Spade v. Lynn & Boston R.R. Co., 172 Mass. 488.) Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or C alone.

It may well be that there is no such thing as negligence in the abstract. AProof of negligence in the air, so to speak, will not do.@ In an empty world negligence would not exist. It does involve a relationship between man and his fellows. But not merely a relationship between man and those whom he might reasonably expect his act would injure. Rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm some one, it harms him a mile away as surely as it does those on the scene.

. . . In the well-known Polemis Case (1921, 3 K.B. 560), SCRUTTON, L.J., said that the dropping of a plank was negligent for it might injure Aworkman or cargo or ship.@ Because of either possibility the owner of the vessel was to be made good for his loss. The act being wrongful the doer was liable for its proximate results. Criticized and explained as this statement may have been, I think it states the law as it should be and as it is.

The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected. Harm to some one being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise. . . . Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt.

If this be so, we do not have a plaintiff suing by Aderivation or succession.@ Her action is original and primary. Her claim is for a breach of duty to herselfCnot that she is subrogated to any right of action of the owner of the parcel or of a passenger standing at the scene of the explosion.

The right to recover damages rests on additional considerations. The plaintiff=s rights must be injured, and this injury must be caused by the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property down stream. We are not liable if all this happened because of some reason other than the insecure foundation. But when injuries do result from our unlawful act we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen and unforeseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former.

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 611

These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet it will be forever the resultant of all causes combined. Each one will have an influence. How great only omniscience can say. You may speak of a chain, or if you please, a net. An analogy is of little aid. Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing.

Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources. No man may say whence any drop of water is derived. Yet for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water stained by its clay bed. The three may remain for a space, sharply divided. But at last, inevitably no trace of separation remains. They are so commingled that all distinction is lost.

. . . What we do mean by the word Aproximate@ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my burning haystack set on fire my house and my neighbor=s. I may recover from a negligent railroad. He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad was not the proximate cause of our neighbor=s fire. Cause it surely was. The words we used were simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot say the stream comes from any one source.

Take the illustration given in an unpublished manuscript by a distinguished and helpful writer on the law of torts. A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration. A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that C may not recover while A may. As to B it is a question for court or jury. We will all agree that the baby might not. Because, we are again told, the chauffeur had no reason to believe his conduct involved any risk of injuring either C or the baby. As to them he was not negligent.

But the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it. C=s injury and that of the baby were directly traceable to the collision. Without that, the injury would not have happened. C

612 Chapter Seven. Attributable Responsibility had the right to sit in his office, secure from such dangers. The baby was entitled to use the sidewalk with reasonable safety.

The true theory is, it seems to me, that the injury to C, if in truth he is to be denied recovery, and the injury to the baby is that their several injuries were not the proximate result of the negligence. And here not what the chauffeur had reason to believe would be the result of his conduct, but what the prudent would foresee, may have a bearing. May have some bearing, for the problem of proximate cause is not to be solved by any one consideration.

It is all a question of expediency. There are no fixed rules to govern our judgment. There are simply matters of which we may take account. We have in a somewhat different connection spoken of Athe stream of events.@ We have asked whether that stream was deflectedCwhether it was forced into new and unexpected channels. This is rather rhetoric than law. There is in truth little to guide us other than common sense.

There are some hints that may help us. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. The court must ask itself whether there was a natural and continuous sequence between cause and effect. Was the one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or by the exercise of prudent foresight could the result be foreseen? Is the result too remote from the cause, and here we consider remoteness in time and space. Clearly we must so consider, for the greater the distance either in time or space, the more surely do other causes intervene to affect the result. When a lantern is overturned the firing of a shed is a fairly direct consequence. Many things contribute to the spread of the conflagrationCthe force of the wind, the direction and width of streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can. . . .

Here another question must be answered. In the case supposed it is said, and said correctly, that the chauffeur is liable for the direct effect of the explosion although he had no reason to suppose it would follow a collision. AThe fact that the injury occurred in a different manner than that which might have been expected does not prevent the chauffeur=s negligence from being in law the cause of the injury.@ But the natural results of a negligent actCthe results which a prudent man would or should foreseeCdo have a bearing upon the decision as to proximate cause. We have said so repeatedly. What should be foreseen? No human foresight would suggest that a collision itself might injure one a block away. On the contrary, given an explosion, such a possibility might be reasonably expected. I think the direct connection, the foresight of which the courts speak, assumes prevision of the explosion, for the immediate results of which, at least, the chauffeur is responsible.

It may be said this is unjust. Why? In fairness he should make good every injury flowing from his negligence. Not because of tenderness toward him we say he need not answer for all that follows his wrong. We look back to the catastrophe, the fire kindled by

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 613 the spark, or the explosion. We trace the consequencesCnot indefinitely, but to a certain point. And to aid us in fixing that point we ask what might ordinarily be expected to follow the fire or the explosion.

This last suggestion is the factor which must determine the case before us. The act upon which defendant=s liability rests is knocking an apparently harmless package onto the platform. The act was negligent. For its proximate consequences the defendant is liable. If its contents were broken, to the owner; if it fell upon and crushed a passenger=s foot, then to him. If it exploded and injured one in the immediate vicinity, to him also as to A in the illustration. Mrs. Palsgraf was standing some distance away. How far cannot be told from the recordCapparently twenty-five or thirty feet. Perhaps less. Except for the explosion, she would not have been injured. We are told by the appellant in his brief Ait cannot be denied that the explosion was the direct cause of the plaintiff=s injuries.@ So it was a substantial factor in producing the resultCthere was here a natural and continuous sequenceCdirect connection. The only intervening cause was that instead of blowing her to the ground the concussion smashed the weighing machine which in turn fell upon her. There was no remoteness in time, little in space. And surely, given such an explosion as here it needed no great foresight to predict that the natural result would be to injure one on the platform at no greater distance from its scene than was the plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken glass, by wreckage of machines or structures no one could say. But injury in some form was most probable.

Under these circumstances I cannot say as a matter of law that the plaintiff=s injuries were not the proximate result of the negligence. That is all we have before us. The court refused to so charge. No request was made to submit the matter to the jury as a question of fact, even would that have been proper upon the record before us.

The judgment appealed from should be affirmed, with costs.

POUND, LEHMAN and KELLOGG, JJ., concur with CARDOZO, Ch. J.; ANDREWS, J., dissents in opinion in which CRANE and O=BRIEN, JJ., concur.

Judgment reversed, etc. NOTES

1. Palsgraf and the Restatement. In the period during which the first Restatement was being drafted, the Palsgraf case was working its way through the New York courts. The facts in Palsgraf apparently did not enter into the drafters= discussions until immediately after Palsgraf was decided by the New York Court of Appeals. However, Chief Judge Benjamin Cardozo, who wrote the 4-to-3 majority opinion in Palsgraf, was an active participant in the discussions of the relevant issues by the reporter and his advisers and a member of the Council (executive committee) of the American Law Institute (ALI), and his opinion in Palsgraf was strongly influenced by the ALI discussions. See Andrew L. Kaufman, Cardozo 173B75, 287B95, 630 nn.48 and 49, 652B54 nn.7 and 14 (1998); 2 Restatement of Torts, Negligence xiiBxiii (1934); Robert E. Keeton, A Palsgraf Anecdote, 56 Tex. L. Rev. 513 (1978). The provisions eventually

614 Chapter Seven. Attributable Responsibility published in the first Restatement in 1934 mirror in almost every detail Cardozo=s positions in Palsgraf, and a variation of the facts in Palsgraf constitutes the third illustration in the first Restatement=s basic section on the negligence cause of action. See Restatement '' 281(b) and comments c, e, g and illustration 3, 430 comments a, b, c. The actual facts in Palsgraf constitute the first illustration in the same section of the Restatement Second. See Restatement Second ' 281 illustration 1.

Although Mrs. Palsgraf won the votes of a majority of the judges who considered her case as it wound through the courts, she lost, barely, in the Court of Appeals, as a result of the application of the foreseeable consequence limitation. Controversy over the existence, scope, and proper doctrinal placement of the foreseeable consequence limitation has continued ever since. Students generally are told that they must understand and apply the views set forth not only by Chief Judge Cardozo in Palsgraf on behalf of the four judges in the majority but also the views set forth by Judge Andrews on behalf of the three dissenting judges.

2. The analysis in the lower courts. For a detailed historical analysis of the Palsgraf case, see William H. Manz, The Palsgraf Case: Courts, Law and Society in 1920s New York (2005). Among other factual inaccuracies in Cardozo=s opinion, it appears that the heavy scale fell on Mrs. Palsgraf not as a direct result of the force of the explosion of the fireworks, but rather as a result of the scale=s being knocked over by people running away upon being frightened by the sound of the fireworks= explosion. As the intermediate appellate court pointed out, the carrying of fireworks was not prohibited by any governmental mandate. 225 N.Y.S. 412, 413 (App. Div. 1927). The jury, the trial judge and a majority of the judges in the Appellate Division would have allowed Mrs. Palsgraf to recover. The majority in the Appellate Division, applying traditional negligence and proximate cause analyses, upheld the jury=s finding of negligence and stated AIt is no answer or defense to [the railroad=s] negligent acts to say that the defendant=s employees were not chargeable with notice that the passenger=s bundle contained an explosive.@ Id. at 413-14. The dissenting judges in the Appellate Division also would not have disturbed the jury=s findings of negligence and causation by the defendant railroad, but they argued that the passenger=s carrying the package containing an explosive (fireworks) as he attempted to board the train was a causally independent intervening cause that was so unforeseeable and unusual as to constitute a superseding cause of the plaintiff=s injury. Id. at 414–15. Was the passenger=s carrying the fireworks highly unexpected? Should hindsight or foresight be used? Does it matter whether the package is better described as Aexplosives@ or Afireworks@?

3. Cardozo=s analysis. How does Cardozo=s analysis differ from that of the judges in the Appellate Division? Does Cardozo find a lack of actual or proximate causation? If so, how does his analysis of those issues differ from the analyses by Andrews and the judges in the Appellate Division? If not, how and why does he rule in favor of the defendant?

4. Duty versus scope of liability. The proponents of the foreseeable consequence limitation on legal liability split on whether it should be an aspect of the duty analysis or the Aproximate cause@ (scope of liability) analysis. See, e.g., the debate between Professors

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 615 Henderson and Thode in 47 Texas L. Rev. 183, 1344 (1969). Is there any practical difference between the two possible placements of the limitation? It is often stated, and now generally accepted, that duty issues are issues of law to be decided by the judge, while Aproximate cause@ (scope of liability) issues are issues of fact to be decided by the jury, if there is a jury. See, e.g., Restatement Third: Physical and Emotional Harm '' 6 comment b, 7 comment f, 29 comment q. Thus, it is often assumed that Cardozo was motivated by a desire to shift power from juries to judges in negligence cases. However, Cardozo apparently thought that the duty issue, like the negligence (breach of duty) and Aproximate cause@ (scope of liability) issues, was an issue for the jury if reasonable minds could differ on the scope of the foreseeable risks. Consider his statement, toward the end of his opinion, when discussing the Arisk reasonably to be perceived [that] defines the duty to be obeyed@:

The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage throughout the station.

Conversely, not all courts treat (all) attributable responsibility issues as issues of fact for the jury. See, e.g., House v. Kellerman, 519 S.W.2d 380, 382 (Ky. 1975) (AThe question of whether an undisputed act or circumstance was or was not a superseding cause is a legal issue for the court to resolve, and not an actual question for the jury.@). If Cardozo was not attempting to shift power from juries to judges, why did he insist on treating the foreseeable consequence limitation as a limitation on duty rather than proximate causation?

5. Andrews= analysis. How does Andrews= analysis differ from Cardozo=s? Although Andrews expresses skepticism about the existence of any definite, articulable rules governing Aproximate causation@ (scope of liability), his stream analogy hints at the Arisk playout@ version of the foreseeable risk limitation that is discussed in section E.2 below. In the end, he seems to employ a fairly standard superseding cause analysis, Atrac[ing] the consequences@ to see if there was any highly unexpected intervening cause and finding a Anatural and continuous [physical] sequenceC[a] direct connection,@ with no volitional or causally independent intervening cause. He also argues that Ainjury in some form@ to someone in the plaintiff=s position was Amost probable.@ Do you agree that injury to someone in the position of the plaintiff was probable, or at least foreseeable, as a result of the defendant=s negligence?

6. Underlying principles. What arguments does Cardozo make for the foreseeable consequence limitation, considered by itself or as an aspect of the duty analysis, and how persuasive are they? Are they based on justice or utilitarian efficiency? What competing arguments does Andrews make for rejecting the foreseeable consequence limitation as an aspect of duty or scope of liability, and how persuasive are they? Can you think of any other arguments on either side? Those who favor Cardozo=s approach often argue that it follows from the proposition that, A[p]rima facie at least, the reasons for creating liability should limit it.@ E.g., Warren A. Seavey, Mr. Justice Cardozo and the Law of Torts, 52

616 Chapter Seven. Attributable Responsibility Harv. L. Rev. 372, 386 (1939). Does acceptance of this proposition require the adoption of a foreseeable consequence limitation? Reconsider this question as you read the materials in section E.2 below.

7. Efficient deterrence. It has been argued that a foreseeable consequence limitation on liability (in either the duty analysis or the scope of liability analysis) is consistent with efficient deterrence, since unforeseeable consequences cannot affect persons= behavior and excluding liability for such consequences will reduce administrative costs. E.g, Guido Calabresi, Concernng Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. L. Rev. 69, 81, 87-88, 91-100 (1975); Mark F. Grady, Proximate Cause and the Law of Negligence, 69 Iowa L. Rev. 363, 440, 449 (1984); William M. Landes & Richard A. Posner, Causation in Tort Law: An Economic Approach, 12 J. Legal Stud. 109, 125-33 (1983). However, the administrative costs of litigating the foreseeability issue in all the cases in which some or all of the adverse consequences are at least arguably foreseeable may well outweigh the administrative costs that are saved when cases are not litigated because of a foreseeable consequence limitation. More importantly, a foreseeable consequence limitation on attributable responsibility creates a disincentive to engage in efficient research on possible risks and to disclose information about known risks, as has occurred in the smoking and asbestos cases and other toxic tort cases. See Richard W. Wright, Actual Causation vs. Probablistic Linkage: The Bane of Economic Analysis, 14 J. Legal Stud. 435, 442-44 (1985).

OVERSEAS TANKSHIP (U.K.) LTD. V. MORTS DOCK & ENGINEERING CO.

(WAGON MOUND (NO. 1)) Privy Council, British Commonwealth [1961] A.C. 388, [1961] 1 All E.R. 404

APPEAL from an order of the Full Court of the Supreme Court of New South Wales dismissing an appeal by the appellants, Overseas Tankship (U.K.), Ltd., from a judgment of Kinsella J. exercising the Admiralty Jurisdiction of that court in an action in which the appellants were defendants and the respondents, Morts Dock & Engineering Co., Ltd., were plaintiffs. [&] In the action the respondents sought to recover from the appellants compensation for the damage which its property known as the Sheerlegs Wharf, in Sydney Harbour, and the equipment thereon had suffered by reason of fire which broke out on November 1, 1951. . . .

The respondents at the relevant time carried on the business of ship-building, ship-repairing and general engineering at Morts Bay, Balmain, in the Port of Sydney. They owned and used for their business the Sheerlegs Wharf, a timber wharf about 400 feet in length and 40 feet wide . . . . [A] vessel known as the Corrimal was moored alongside the wharf and was being refitted by the respondents. Her mast was lying on the wharf and a number of the respondents= employees were working both on it and on the vessel itself, using for that purpose electric and oxy-acetylene welding equipment.

At the same time, the appellants were charterers by demise of the s.s. Wagon Mound, an oil-burning vessel, which was moored at the Caltex Wharf on the northern

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 617 shore of the harbour at a distance of about 600 feet from the Sheerlegs Wharf . . . for the purpose of discharging gasolene products and taking in bunkering oil.

During the early hours of October 30, 1951, a large quantity of bunkering oil was, through the carelessness of the appellants= servants, allowed to spill into the bay, and by 10.30 on the morning of that day it had spread over a considerable part of the bay, being thickly concentrated in some places and particularly along the foreshore near the respondents= property. The appellants made no attempt to disperse the oil. . . .

When the respondents= works manager became aware of the condition of things in the vicinity of the wharf he instructed their workmen that no welding or burning was to be carried on until further orders. He inquired of the manager of the Caltex Oil Co., at whose wharf the Wagon Mound was then still berthed, whether they could safely continue their operations on the wharf or on the Corrimal. The results of this inquiry, coupled with his own belief as to the inflammability of furnace oil in the open, led him to think that the respondents could safely carry on their operations. He gave instructions accordingly, but directed that all safety precautions should be taken to prevent inflammable material falling off the wharf into the oil.

For the remainder of October 30 and until about 2 p.m. on November 1 work was carried on as usual, the condition and congestion of the oil remaining substantially unaltered. But at about that time the oil under or near the wharf was ignited and a fire, fed initially by the oil, spread rapidly and burned with great intensity. The wharf and the Corrimal caught fire and considerable damage was done to the wharf and the equipment on it.

The outbreak of fire was due, as the judge found, to the fact that there was floating in the oil underneath the wharf a piece of débris on which lay some smouldering cotton waste or rag which had been set on fire by molten metal falling from the wharf; that the cotton waste or rag burst into flames; that the flames from the cotton waste set the floating oil afire either directly or by first setting fire to a wooden pile coated with oil, and that after the floating oil became ignited the flames spread rapidly over the surface of the oil and quickly developed into a conflagration which severely damaged the wharf.

The judgment of their Lordships was delivered by VISCOUNT SIMONDS, who stated the facts set out above and continued: The trial judge also made the all-important finding, which must be 3 set out in his own words: AThe raison d=étre of furnace oil is, of course, that it shall burn, but I find the defendant did not know and could not reasonably be expected to have known that it was capable of being set afire when spread on water.@ This finding was reached after a wealth of evidence . . . . An attempt was made before their Lordships= Board to limit in some way the finding of fact, but it is clear that it was intended to cover precisely the event that happened.

One other finding must be mentioned. The judge held that apart from damage by fire the respondents had suffered some damage from the spillage of oil in that it had got upon their slipways and congealed upon them and interfered with their use of the slips. He said: AThe evidence of this damage is slight and no claim for compensation is made in

618 Chapter Seven. Attributable Responsibility respect of it. Nevertheless it does establish some damage, which may be insignificant in comparison with the magnitude of the damage by fire, but which nevertheless is damage which, beyond question, was a direct result of the escape of the oil.@ . . .

It is inevitable that first consideration should be given to the case of In re Polemis and Furness Withy & Co. Ltd.8 which will henceforward be referred to as Polemis. For it was avowedly in deference to that decision and to decisions of the Court of Appeal that followed it that the full court was constrained to decide the present case in favour of the respondents. . . . [&] What, then, did Polemis decide? . . . [&] There can be no doubt that the decision of the Court of Appeal in Polemis plainly asserts that, if the defendant is guilty of negligence, he is responsible for all the consequences whether reasonably foreseeable or not. The generality of the proposition is perhaps qualified by the fact that each of the Lords Justices refers to the outbreak of fire as the direct result of the negligent act. There is thus introduced the conception that the negligent actor is not responsible for consequences which are not Adirect,@ whatever that may mean. . . .

The impression that may well be left on the reader of the scores of cases in which liability for negligence has been discussed is that the courts were feeling their way to a coherent body of doctrine and were at times in grave danger of being led astray by scholastic theories of causation and their ugly and barely intelligible jargon. [Discussion of cases omitted.] [&] Enough has been said to show that the authority of Polemis has been severely shaken, though lip-service has from time to time been paid to it. In their Lordships= opinion it should no longer be regarded as good law. . . .

8[1921] 3 K.B. 560, 37 T.L.R. 940, C.A.

. . . [I]f some limitation must be imposed upon the consequences for which the negligent actor is to be held responsibleCand all are agreed that some limitation there must beCwhy should that test (reasonable foreseeability) be rejected which, since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind, and a test (the Adirect@ consequence) be substituted which leads to nowhere but the never-ending and insoluble problems of causation. AThe lawyer,@ said Sir Frederick Pollock, Acannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause.@ Yet this is just what he has most unfortunately done and must continue to do if the rule in Polemis is to prevail. A conspicuous example occurs when the actor seeks to escape liability on the ground that the Achain of causation@ is broken by a Anova causa@ or Anovus actus interveniens.@ . . .

At an early stage in this judgment their Lordships intimated that they would deal with the proposition which can best be stated by reference to the well-known dictum of Lord Sumner: AThis however goes to culpability not to compensation.@ It is with the greatest respect to that very learned judge and to those who have echoed his words that their Lordships find themselves bound to state their view that this proposition is fundamentally false.

It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 619 breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. Just as (as it has been said) there is no such thing as negligence in the air, so there is no such thing as liability in the air. Suppose an action brought by A for damage caused by the carelessness (a neutral word) of B, for example, a fire caused by the careless spillage of oil. It may, of course, become relevant to know what duty B owed to A, but the only liability that is in question is the liability for damage by fire. It is vain to isolate the liability from its context and to say that B is or is not liable, and then to ask for what damage he is liable. For his liability is in respect of that damage and no other. If, as admittedly it is, B=s liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened B the damage in suit? And if that damage is unforeseeable so as to displace liability at large, how can the liability be restored so as to make compensation payable? . . . NOTES

1. The British Palsgraf case. Wagon Mound (No. 1) has been regarded as a leading case in the United States as well as in the British Commonwealth. The Judicial Committee of the Privy Council, which is appointed by the English monarch, served as the final court of appeal for British Commonwealth cases arising outside of the United Kingdom at the time that Wagon Mound (No. 1) was decided. Nowadays, almost all the British Commonwealth countries, including Australia, reserve the final appeal to their own highest court. Until recently, the highest appellate court for cases arising in the United Kingdom (except for Scottish criminal cases) was a special committee of the House of Lords, most members of which also served on the Judicial Committee of the Privy Council. In 2009, the functions of the Law Lords were transferred from the House of Lords to the new Supreme Court of the United Kingdom.

2. A limitation on duty or attributable responsibliiy? Did the Wagon Mound court treat the foreseeable consequence limitation as a limitation on duty or attributable responsiblity? It would make little practical difference today in the English Commonwealth countries. Most of them have eliminated jury trials in civil cases, so both issues are decided by the judge.

3. The scope of the foreseeable consequence limitation: foreseeable plaintiff and foreseeable type of harm. Was the plaintiff in Wagon Mound (No. 1) a foreseeable plaintiff? Was harm to the wharf foreseeable? If the answer to both questions is yes, in what way was the harm outside the foreseeable risks? Cardozo=s opinion in Palsgraf focuses only on the persons and interests foreseeably put at risk (e.g., interests in bodily security as opposed to the security of one=s real or personal property), which are also the only two aspects of the foreseeable risks with which he was concerned during the relevant discussions of the advisers to the reporter for the first Restatement. See Andrew L. Kaufman, Cardozo 289-93, 299-300 (1998). However, the proponents of the foreseeable consequence limitation, including the drafters of the first and second Restatements, generally insist that the plaintiff must not only have been within the class of persons foreseeably put at risk by the defendant=s tortious conduct, but also must have suffered a

620 Chapter Seven. Attributable Responsibility type of injury the foreseeability of which made the defendant=s conduct tortious. See, e.g., Restatement '' 281 comment e, 430 comment a (1934); Restatement Second '' 281(b) and comments c, e, 430 comment a. But see Restatement Second ' 435(1) comment a (emphasis added): AThe fact that the actor . . . neither realized nor should have realized that [his negligent conduct] might cause harm to another of the particular kind . . . [that] has in fact occurred, is not of itself sufficient to prevent him from being liable for the other=s harm . . . .@

4. The scope of the foreseeable consequence limitation: foreseeable type of interest affected? Comment g to section 281 in the first Restatement echoes Cardozo=s argument in Palsgraf that the risk or hazard encompassed by the duty should be limited to the particular type of interest put at risk, e.g., an Ainterest in personality@ versus an Ainterest in land or chattels.@ The illustration to comment g is a variation on the facts in Palsgraf, in which the risked injury was to the boarding passenger=s packages (which were Aobviously fragile@ and likely to be dropped), and the dropped package (which unbeknownst to the conductor contained fireworks) exploded and injured the boarding passenger=s eyes. This focus on the particular interests foreseeably put at risk seems to underlie the wording of clause (b) of ' 281 in the first Restatement, which states that an actor is liable for an invasion of an interest to another only if, inter alia, A(b) the conduct of the actor is negligent with respect to [the interest invaded] or any other similar interest of the other which is protected against unintentional invasion.@

The Restatement Second acknowledges that this limitation is inappropriate and not followed by the courts. See Restatement Second, Torts, Appendix '' 1-309, ' 281 reporter=s note at 307-08 (1966). The foreseeable type of interest requirement formerly in section 281(b) is replaced by the foreseeable plaintiff requirement; comment g is replaced by comment j, which explicitly rejects the foreseeable interest limitation (AThe plaintiff is not subjected to fragmentation in terms of risk or harm to his foot, his hand, his eye, his chattels, or his land.@); and the prior illustration based on Palsgraf is deleted. Strangely, the Restatement Third reaffirms the position taken in the first Restatement, despite the lack of support for it in the cases, while claiming to Aeschew any principle that it is different interests of a person that are critical.@ See Restatement Third: Physical and Emotional Harm ' 29 comment h. It does so as a further refinement of the foreseeable type of harm requirement, yet supports this fine-grained approach to the type of harm with a hypothetical (the loaded-gun hypothetical discussed in the Di Ponzio case at the end of this chapter) that cannot be properly resolved by focusing on the foreseeable type of interest affected but rather only by focusing on the foreseeable hazards.

5. The scope of the foreseeable consequence limitation: foreseeable manner of occurrence and extent or severity of harm? Most proponents of the foreseeable consequence limitation, including Cardozo and the drafters of the Restatements, exclude from its ambit the manner of occurrence of the injury and the extent or severity of the injury. See, e.g., Restatement Second ' 435(1):

If the actor=s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen


the extent of the harm or the manner in which it occurred does not prevent him from being liable.

Accord, Restatement ' 435. The illustrations in the first and second Restatements primarily involve manner of occurrence. Illustration 1 is based on the Bunting case, which is discussed in note 7 below. The defendant=s liability for an injury that was much greater in extent or severity than could have been foreseen is discussed in note 8 below. These exceptions to the foreseeable consequence limitation are affirmed in the Restatement Third. Restatement Third: Physical and Emotional Harm ' 29 comments o and p, ' 31. Are these exceptions consistent with its underlying rationale, as presented by Cardozo and others? See id. ' 29 comment p (AIt is difficult to reconcile [the eggshell plaintiff rule] with the principle that scope-of-liability limitations are designed to avoid a disparity between degree of culpability and extent of liability.@).

6. Distinguishing the type of harm (hazard) from the manner of occurrence. The distinction between the type of harm and the manner of occurrence may seem less than obvious. For example, in Wagon Mound No. 1, why is the distinction between the damage caused to the plaintiff=s dock by fire and the damage caused to the dock by pollution a distinction in the type of harm, rather than in the manner of occurrence? The distinction seems to be this: the type of harm includes the type of hazard that produced the injury (e.g., fire rather than pollution), while the manner of occurrence refers to the particular way in which that hazard occurred and played outCthe particular route of the causal sequence between the defendant=s negligence and the plaintiff=s ultimate injury. See Restatement Third: Physical and Emotional Harm ' 29 comment o.

Some courts have not only ignored the distinction between the type of harm or hazard and the manner of occurrence, but also have required detailed foreseeability of the manner of occurrence. An infamous example is Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So. 2d 780 (1942). While delivering gasoline to a filling station, the defendant negligently started a fire that rapidly spread to the gasoline tank truck and the filling station itself. People nearby ran away, shouting that the tank truck and the filling station were about to blow up. The plaintiff, who was in her husband=s café about 50 feet away across the street, turned and rushed to her two-year old son to pick him up to flee the expected explosion, but Afell over a misplaced chair@ and subsequently suffered a miscarriage. The Mississippi Supreme Court affirmed a directed verdict for the defendant: AIf appellant didn=t see a chair in her way in her own place of business, it would impose an inadmissible burden upon appellees to say that they should have foreseen from across the street and through the walls of a building on another corner what appellant didn=t see right at her feet and in an immediate situation entirely familiar to her.@

7. Bizarre manner of occurrence. A case involving a bizarre sequence of causally dependent natural events is Bunting v. Hogsett, 21 A. 31 (Pa. 1890), which is the basis for the first illustration of an unforeseeable manner of occurrence in Restatement Second ' 435. Defendant=s engineer was operating a locomotive on a roughly semi-circular track on its plant property which was intersected at two points by a straight track of the South-West Pennsylvania Railroad. The two intersections were 646 feet apart along the railroad=s track. The defendant=s engineer negligently approached the first intersection too fast with

622 Chapter Seven. Attributable Responsibility his view of the railroad track obstructed by a large cinder pile. He did not see the passenger train on the railroad track until it was already in the intersection. In an attempt to avoid or lessen the impact of a collision, the engineer put the locomotive=s engine into reverse and shut off the steam before leaping from the locomotive to avoid serious injury to himself. The coke car being pushed by the locomotive struck the platform of the rear coach of the passenger train, without causing any personal injury or serious damage.

However, the force of the collision jarred the throttle open on the locomotive, which took off in reverse around the arc of the plant track, picking up speed as it went, and struck the middle coach of the passenger train, which had come to a stop at the second intersection. The plaintiff and his wife, passengers in the middle coach, were seriously injured as a result of this second collision. The defendant contended that the bizarre sequence of natural events, which occurred after but as a result of the engineer=s negligence, was a superseding cause that prevented its negligence from being a proximate cause of the plaintiff=s injuries. The court disagreed: AThe [defendant] would be held [liable for] whatever consequences might ensue from [its] negligence, without the intervention of some other independent agency, and . . . would be held for what might, in the nature of things, occur in consequence of that negligence, although, in advance, the actual result might have seemed improbable.@

8. The universally accepted eggshell plaintiff rule. Once tortious actual and Aproximate@ causation of the minimum required legal injury has been established, the defendant is liable for the full extent of the plaintiff=s resulting injury, even though the injury might be much greater than could be anticipated due to the plaintiff=s unknown and unforeseeable preexisting extrasensitive or Aegg-shell@ condition. The defendant Atakes the plaintiff as he finds him.@ See, e.g., the opinions in the Vosburg case in chapter 2. The eggshell plaintiff rule continues to be universally accepted in every jurisdiction, and from the beginning has been accepted by proponents of the foreseeable consequence limitation as an exception to that limitation. See, e.g., Smith v. Leech Brain & Co., [1962] 2 Q.B. 405 (decided a year after Wagon Mound No. 1); Restatement '' 435, 461 and comments a and b; Restatement Second '' 435(1), 461 and comments a and b; Restatement Third: Physical and Emotional Harm ' 29 comment p; see id. ' 31 and comment d (extending the eggshell-plaintiff rule to encompass unforeseeable types as well as unforeseeable extents of injury to persons or property resulting from Aa preexisting physical or mental condition or other characteristic@ of the person or property); Robert Keeton, Legal Cause in the Law of Torts __ (1963); Warren Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv. L. Rev. 372, 384-85 (1939).

Consider the unusual facts in Meeks Motor Freight v. Ham=s Adminiatrator, 193 S.W.2d 745 (Ky. 1945). The defendant=s employee drove over the corner of a large box, approximately 5.5 to 6 feet long and 3 to 4 feet square, as he was slowly driving a delivery truck down a steep driveway. He had seen the box, and may have seen, as his helper did, that there was some movement of or motion in the box. The box was being used by young boys to roll down the driveway. One of the boys inside was crushed and killed. The court, noting that Ahere we are confronted with a specific something that does not fall within the realm of that which could reasonably have been anticipated,@ reversed a jury verdict for the plaintiff that was based on a general jury instruction which focused on foreseeable

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 623 risks to persons in the driveway, but held that the defendant could be liable under a more specific and limited jury instruction that focused on a duty to look out for and to investigate the contents of the box. Might the egg-shell plaintiff doctrine explain the defendant=s potential liability in Meeks Motor Freight, or would it be stretching that rule too far to apply it not only to a more extensive injury to the interest (e.g., person or property) foreseeably put at risk but also to a (more extensive) injury to an entirely different person or interest than the one foreseeably put at risk? Does the Polemis direct-consequences (no superseding cause) doctrine provide a better explanation for the potential liability? Or might the presence of the children in the box constitute a superseding cause?

9. The transferred intent doctrine. The transferred intent doctrine also is inconsistent with the foreseeable consequence limitation, yet also is widely recognized. See, e.g., Restatement Third: Physical and Emotional Harm ' 33 comment c. Cardozo himself, in Palsgraf, listed the transferred intent doctrine as one of the notable and justifiable exceptions to the foreseeable consequence limitation. Is the doctrine consistent with the risk playout limitation? Recall that, under this doctrine, there is liability for trespassory invasions that do not match the consequences tortiously intended by the defendant, as long as the defendant=s intentional conduct was subjectively wrongful, the invasions resulted from the operation of the forces that were intentionally set in motion by the defendant, and there is sufficient literal proximity in space and time between the intended consequence and the actual consequence.

10. Other exceptions. Other exceptions to the foreseeable consequence limitation are noted by CardozoCe.g., liability for the consequences of Aimminently dangerous@ acts (Asuch as shooting@) and, perhaps, liability for the consequences of intentional torts in general. Compare Restatement Third: Physical and Emotional Harm ' 33:

' 33 Scope of Liability for Intentional and Reckless Tortfeasors

(a) An actor who intentionally causes harm is subject to liability for that harm even if it was unlikely to occur.

(b) An actor who intentionally or recklessly causes harm is subject to liability for a broader range of harms than the harms for which the actor would be liable if only acting negligently. . . .

(c) Notwithstanding Subsections (a) and (b), an actor who intentionally or recklessly causes harm is not subject to liability for harm the risk of which was not increased by the actor=s intentional or reckless conduct.

A defendant who trespasses on the plaintiff=s property is legally responsible for

any harm that directly results from her trespass, even if the person injured or type of injury was unforeseeable, but she probably would not be liable if there was a superseding cause. See Restatement Second ' 162: AA trespass on land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the trespass, or to the land or to his things, or to members of his household or to their things, caused by any act done, activity carried on, or condition created by the trespasser, irrespective of whether his conduct is such as would subject him to liability were he not a trespasser.@


Additional exceptions are acknowledged by proponents of the foreseeable consequence limitation. One is the Arescue doctrine,@ which is discussed in a note following the Lynch case in section D.4 above, and which was famously articulated by Cardozo himself a few years prior to Palsgraf in the Wagner case that is discussed and quoted in the notes following the Lynch case in section D.4 above: ADanger invites rescue. . . . The wrongdoer may not have foreseen the coming of a deliverer [who was injured in the rescue attempt]. He is accountable as if he had.@ Wagner v. International Ry. Co., 133 N.E. 437, ____ (N.Y. 1921); see Restatement Third: Physical and Emotional Harm ' 32. Another exception holds persons who negligently injure another liable for further injuries caused to the other by negligent transportation or treatment at a medical facility. See, e.g, Atherton v. Devine, 602 P.2d 634 (Okla. 1979); Restatement Second ' 457; Restatement Third: Physical and Emotional Harm ' 35 comment a.

11. The foreseeable consequence limitation as the exclusive attributable responsibility limitation? Cardozo stated in Palsgraf that the foreseeable consequence limitation on duty did not displace the pre-existing Aproximate cause@ limitations on attributable responsibility. In Wagon Mound (No. 1), the Privy Council mocked the Ascholastic theories of [proximate] causation and their ugly and barely intelligible jargon,@ including references to Adirect causation@ and breaking of the Achain of causation@ by a Anova causa@ or Anovus actus interveniens.@ In comments added to the first Restatement in 1948, the American Law Institute explicitly claimed that the superseding cause limitation on scope of liability should be replaced by the foreseeable consequence limitation on duty:

The problem which is involved in determining whether a particular intervening force is or is not a superseding cause is in reality a problem of determining whether the risk that that force would intervene, (i.e., that the other would be exposed to that hazard) was, at least, one of the reasons for imposing the duty upon the actor to refrain from the negligent conduct. If the duty is designed in part, at least, to protect the other from the risk of being harmed by the intervening force, or by the effect of the intervening force operating on the condition created by the negligent conduct, then that hazard is within the protection of the duty and the intervening force is not a superseding cause. A completely accurate analysis of the hazard element in negligence would require the material on superseding cause in Chapter 16 [on legal cause] to be placed in this chapter [on duty and breach of duty]. However, in the past courts generally have discussed the effect of intervening forces in terms of causation. The proper solution of the problem of determining whether the presence of an intervening force should relieve the actor from liability for harm which his conduct was a substantial factor 3n bringing about is facilitated by an appreciation of the fact that the problem is a Ahazard problem@ rather than a problem of causation.

Restatement of the Law, 1948 Supplement, Torts ' 281 comment ee at 651 (1949); accord, id. ' 435 comment c at 737. These comments were carried forward with minor editing into the Restatement Second. See Restatement Second ' 281 comment h, ' 435 comment c.


Although claiming that the foreseeable consequence limitation on duty should displace all of the Alegal cause@ (scope of liability) limitations, the first and second Restatements nevertheless contained numerous sections elaborating the superseding cause limitation on scope of liability. The Restatement Third is much bolder. It attempts to implement the argument asserted in the first and second Restatements. Although it grudgingly recognizes Athe long history of intervening and superseding causes playing a significant role in limiting the scope of liability@ and Athe substantial body of law on this subject,@ it criticizes that long history and substantial body of law as the product of misguided Alegal scientism@ and Aformalism@ and claims that the terms Aintervening cause@ and Asuperseding cause@ as used in the prior Restatements and by the courts are Aonly conclusory labels.@ Restatement Third: Physical and Emotional Harm ' 34 comments a and b. It replaces the prior Restatements= numerous sections on superseding causes with a single foreseeable-risk limitation (albeit using the Arisk playout@ language discussed in section E.2 below rather than foreseeable-consequences language):

' 34. Intervening Acts and Superseding Causes When a force of nature or an independent act is also a factual cause of

harm, an actor=s liability is limited to those harms that result from the risks that made the actor=s conduct tortious.

Can a foreseeable-risk limitation serve as a complete substitute for the superseding

cause limitation or the no-worse-off limitation, or can it be (at best) only a supplement to them? What would the result be in the Kingston case (in section C above) or the Watson case (in section D.3 above) if the foreseeable consequence limitation were the exclusive limitation principle? Should there be no concern about the particular manner of occurrence of the injury, which is the focus of the superseding cause analysis but which is excluded from consideration under the foreseeable consequence limitation?

The Restatement Third, like the Restatement Second (see note 5 following the In re Guardian case immediately below), slips the superseding cause limitation back in under the guise of a more refined foreseeable risk analysis. Although the particular manner of occurrence supposedly is irrelevant under the foreseeable consequence limitation, the Restatement Third states:

e. Unforeseeable, unusual, or highly culpable intervening acts. In some cases, the risk that makes [a person=s] conduct tortious . . . is one that exists independently of [another person=s] human intervention, although causes in addition to the defendant=s tortious conduct are required for the harm to occur. When those other causesCintervening actsCare unforeseeable, unusual, or highly culpable they may bear on whether the harm is within the scope of the risk.

Restatement Third: Physical and Emotional Harm ' 34 comment e.


IN RE GUARDIAN CASUALTY COMPANY Supreme Court of New York, Appellate Div=n, First Dep=t 253 A.D. 360, 2 N.Y.S.2d 232 (1938), aff=d, 16 N.E.2d 397 (N.Y. 1938)

CALLAHAN, J. This is a claim for damages for the wrongful death of one Marsha Kuttler. The insurance companies involved, being in the process of liquidation by the Superintendent of Insurance, the matter was heard by a referee.

The accident causing the death of claimant=s wife was the aftermath of a collision between two automobiles. One of the automobiles was owned by one Haas (insured by the Guardian Casualty Company), and the other was a taxicab owned by the Monarch Transportation Company (insured by the Consolidated Indemnity and Insurance Company). [&] The car owned and operated by Haas collided with the taxicab owned by Monarch, and operated by one Landesberg, at the intersection of Intervale Avenue and One Hundred and Sixty-Fifth Street, in the Bronx, in the early morning of January 24, 1931. As the result of the collision, the taxicab was forced across the sidewalk and against the stone stoop of premises 1017 Intervale Avenue. The force of the collision dislodged several stones composing the stoop, and the taxicab remained wedged between some of the remaining stones.

The deceased conducted a laundry in the premises, in conjunction with her husband, and was called down to view the store, which was thought to be damaged. About twenty minutes after the collision a police officer, together with two citizens and a wrecking car, . . . was attempting to remove the taxicab from its position against the stoop. In removing it, and without any negligent act on the part of those doing the work (as was found by the referee), the stone which had been loosened by the impact of the taxicab and was resting, at least in part, against the taxicab, fell onto the sidewalk and struck the deceased, who stood about twenty feet away, knocking her down and injuring her in such manner that she died a few minutes later. [&] . . . There was ample proof that the collision was caused because both drivers were negligent.

The sole question remaining is whether the injuries from which Mrs. Kuttler died were the proximate result of the collision which caused the injury to the stoop; or whether there was an intervening and independent act which broke the chain of causation, when the removal of the taxicab permitted the stone to fall. [&] . . . [W]here harmful consequences are brought about by intervening and independent forces, the operation of which might have been reasonably foreseen, even though such forces are the deliberate but innocent acts of a human being, there is no break in the chain of causation of such a character as to relieve the original [tortious] actor from liability. [&] Where the acts of the defendant gave rise to the stream of events that culminated in the accident, such acts are held the proximate cause. [Citations omitted.]

The present defendants, whose wrongful acts caused a vehicle to be projected across a sidewalk and against a building, with such force as to loosen parts of the structure, must have foreseen the necessity of removal of the vehicle from the sidewalk. They might reasonably have anticipated that the parts of the structure which were dislodged by the blow would fall into the highway. That a passing pedestrian might be

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 627 injured when such an event took place in a city street, was also foreseeable. It would seem plain that although the injury to the pedestrian did not occur for some minutes after the application of the original force, because of the circumstances that the dislodged stones were temporarily held in place by the vehicle, this would not alter the case, when there is nothing to show the application of a new force causing the stone to fall.

We think that the fact situation presented here shows that claimant=s wife lost her life as the result of the original acts of negligence of both defendants. [&] The orders confirming the report should be reversed, with costs and disbursements, and the claims allowed in the sum of $5,000 against The Guardian Casualty Company, and $2,500 (the limit of the policy) against the Consolidated Indemnity and Insurance Company.

GLENNON and DORE, JJ., concur; MARTIN, P. J., and UNTERMYER, J., dissent and vote for affirmance. UNTERMYER, J. (dissenting). The decision in this case, it seems to me, extends the liability for acts of negligence beyond all precedent. [Citing, inter alia, Palsgraf v. Long Island R. R. Co., 248 N.Y. 339.] The death of Marsha Kuttler was not the proximate result of the collision which had occurred twenty minutes earlier. Both automobiles had reached a condition of rest. The accident, so far as human foresight could predict, was at an end. Then a new cause, not within the range of reasonable apprehension, intervened. That cause was the collapse of a portion of the building due to the removal of the taxicab, with fatal consequences to a person on the sidewalk. If the defendants are liable for that, then it would seem that they would be liable for injuries sustained if the entire building had collapsed on account of the removal of the taxicab twenty days, instead of twenty minutes, after the collision had occurred. . . . NOTES

1. New York law 10 years after Palsgraf. Note that the New York Court of Appeals, which ten years earlier had decided the Palsgraf case, affirmed the Appellate Division=s decision in Guardian Casualty. The dissenting judges in Guardian Casualty cited Palsgraf; the majority did not. Did either the majority or the dissent follow Cardozo=s approach in Palsgraf? Did either analyze the liability issue as a duty issue rather than a scope of liability (Aproximate cause@) issue? Did either apply a foreseeable consequence limitation on duty or scope of liability? If not, what sort of analysis did they employ in assessing responsibility for the consequences of the defendant=s tortious conduct?

2. The termination of force/hazard principle. The judges’ analyses in In re Guardian seems to be based on the termination of force/hazard principle that has been advocated by leading academics and is still applied by the courts. See, e.g., Vincent v. Fairbanks Mem’l Hosp., 862 P.2d 847 (Alaska 1993):

If the force [the defendant] set in motion, has become, so to

speak, merged in the general forces that surround us, [or has] ‘exhausted itself’ like a spent cartridge, it can be followed no further. Any later


combination of circumstances to which it may contribute in some degree is too remote from the defendant to be chargeable to him.

Id. at 851 n.8 (Alaska 1993) (quoting Jeremiah Smith, Legal Cause in Actions of

Tort (pt. 1, 25 Harv. L. Rev. 103, 112 (1911) (alterations in original) (citations omitted)). The quotation in Vincent, which focuses on the forces generated by the defendant’s tortious conduct, tracks Joseph Beale’s theory of proximate causation. See Joseph H. Beale, The Proximate Consequences of an Act, 33 Harv. L. Rev. 633, 651 (1920). Warren Seavey replaced Beale’s focus on forces with a focus on the risks or hazards that made the defendant’s conduct negligent to produce a “termination of risk” rule, which Seavey identified with the harm-risked limitation. See Robert E. Keeton, Legal Cause in the Law of Torts 23, 74 (1963) (citing Warren A. Seavey, Principles of Torts, 56 Harv. L. Rev. 72, 93 (1942)). However, as Keeton explained (id. at 75; see id. at 73–78), Seavey’s termination-of-risk rule is actually distinct from and inconsistent with the harm-risked (foreseeable consequences) rule:

[T]hough negligence is judged from the point of view of foresight at the time and place of the conduct under scrutiny, [under the termination-of-risk rule] it is appropriate to take another look, as of any point of time thereafter that may be suggested, to see whether the once unreasonably dangerous situation appears then to be reasonably safe. . . .

Use of such a new appraisal of risk appears to be inconsistent with the proposition that the test for fact of liability should also be the test for scope of liability. The concept of risk used in the test for fact of liability is one based on reasonable foresight from the time and place of the conduct under scrutiny, whereas the concept of termination of risk is based on a new appraisal as of a subsequent time.

3. The superseding cause analysis. Did the majority employ a foresight or

hindsight analysis of the intervening causes in the chain of causation between the defendant=s negligence and the plaintiff=s injury? Would a hindsight analysis be appropriate in this case? What result should have been reached under each approach?

4. Non-adoption of the foreseeable consequence limitation. Many other cases decided after the Palsgraf decision and the publication of the first Restatement rejected or failed to employ the foreseeable consequence limitation as either a duty or scope limitation. Recall, for example, the Lynch and Brown cases discussed in section D.4 above, both of which were decided in 1947, two decades after the Palsgraf decision and more than a decade after the publication of the first Restatement. The court in the Cooley case, decided in 1940, which was discussed in section B.1 of chapter 4, stated: AThe duty to take precautions rests upon the rule of reasonable anticipation, even though that rule does not prevail as to damages once the duty appears.@ Cooley v. Public Service Co., 10 A.2d 673, ____ (N.H. 1940). Recall also the Dellwo case discussed in section D.4 of chapter 4, which is the leading case on the bifurcated perspective applied when assessing children=s negligence. Mrs. Dellwo was injured while fishing from a boat with her husband on a lake. The Minnesota Supreme Court described the facts as follows:


[The Dellwos] were fishing [on a lake] by trolling at a low speed with about 40 to 50 feet of line trailing behind the boat. Defendant, a 12-year-old boy, operating a boat with an outboard motor, crossed behind plaintiffs= boat. Just at this time Mrs. Dellwo felt a jerk on her line which suddenly was pulled out very rapidly. The line was knotted to the spool of the reel so that when it had run out the fishing rod was pulled downward, the reel hit the side of the boat, the reel came apart, and part of it flew through the lens of Mrs. Dellwo=s glasses and injured her eye. Both parties then proceeded to a dock where inspection of defendant=s motor disclosed 2 to 3 feet of fishing line wound about the propeller.

Dellwo v. Pearson, 107 N.W.2d 859, ____ (Minn. 1061). The trial court instructed the jury that a defendant is not responsible for the unforeseen consequences of its negligence, and the jury returned a verdict for the defendant. The Dellwos appealed. The Supreme Court reversed:

Although a rigorous definition of proximate cause continues to elude us, nevertheless it is clear, in this state at least, that it is not a matter of foreseeability. We are unable now to make any better statement on this issue than that of Mr. Justice Mitchell many years ago. Speaking for this court [in Christianson v. Chicago, St. P.M. & O. Ry. Co. 69 N.W. 640, 641 (Minn. 1896)], he said:

. . . AWhat a man may reasonably anticipate is important, and

may be decisive, in determining whether an act is negligent, but is not at all decisive in determining whether that act is the proximate cause of an injury which ensues. If a person had no reasonable ground to anticipate that a particular act would or might result in any injury to anybody, then, of course, the act would not be negligent at all; but, if the act itself is negligent, then the person guilty of it is equally liable for all its natural and proximate consequences, whether he could have foreseen them or not. . . . Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.@

. . . We now reaffirm that the doctrine of the Christianson case is still

the law of Minnesota . . . . It is enough to say that negligence is tested by foresight but proximate cause is determined by hindsight.

Id. at ____.; see also, e.g., Smith v. Lampe, 64 F.2d 201, 203 (6th Cir. 1933) (AThere is a respectable and growing body of authority for the rule that reasonable anticipation of injury is important only in determining negligence, while the natural course of events is the test of required [legal] causation.@).


5. Wishful thinking in the first and second Restatements. Despite many courts= failure to adopt the foreseeable consequence limitation as a limitation on either duty or scope of liability, the American Law Institute reaffirmed and strengthened its support of the rule as a duty limitation when the first Restatement was revised in 1948. The reporter for the revision of the main torts topics was Laurence Eldredge, who was one of the strongest proponents of a foreseeable-risk duty limitation. Comment e to section 281 and comment a to section 430 were revised to make this limitation clearly applicable in all negligence cases, by eliminating qualifying language that stated that the limitation applied only to Acertain forms@ of negligent conduct or only Ain certain cases.@ Section 281 comment e was retitled AThe hazard problem@ and explicitly described the foreseeable hazard limitation as a duty limitation. In his reporter=s note on comments e and ee to section 281, Eldredge acknowledged the courts= past general disregard of this limitation, especially as a duty limitation, but he purported to discern a nascent Ajudicial trend@ supporting it. See Restatement of the Law, 1948 Supplement, Torts '' 281 at 650-52, 430 at 728-29 (1949).

These revisions were carried forward into the Restatement Second, which was published in 1965. By the time the Restatement Second was being drafted, the failure of many courts to adopt the first Restatement=s foreseeable consequence limitation was clear. As is discussed in the notes following the Palsgraf case above, the Restatement Second abandoned the fine-grained type-of-interest-affected approach to specifying the foreseeable type of harm that was advocated by Cardozo and adopted in the first Restatement. Yet the Restatement Second continued to try to describe the case law as being consistent with the foreseeable consequence limitation. See especially Restatement Second ' 281 comment g:

Flexibility of risk. In determining whether a particular hazard or risk is within the scope of the risk created by the actor=s conduct, Arisk@ must be understood in the broader sense of including all of those hazards and consequences which are to be regarded as normal and ordinary. ARisk@ is not limited to those hazards which a reasonable man would have in contemplation and take into account in planning his conduct. [Examples omitted.] None of these possibilities is in itself sufficient to make the [actor] negligent, and none of them is sufficiently probable to influence the conduct of a reasonable man in his position, which will be determined without regard to them. Nevertheless, each of them is a normal, not unusual consequence of the hazardous situation risked by the driver=s conduct, and each is justifiably attached to the risk created, and so within its scope.

In determining whether such events are within the risk, the courts

have been compelled of necessity to resort to hindsight rather than foresight. If an event appears to have been normal, not unusual, and closely related to the danger created by the actor=s original conduct, it is regarded as within the scope of the risk though, strictly speaking, it would not have been expected by a reasonable man in the actor=s place.

E1. The Foreseeable Consequence (Harm Matches the Risk) Limitation 631 Similar attempts to preserve the foreseeable consequence limitation by simply declaring that unforeseeable consequences are foreseeable appear in other comments. Recall, for example, Restatement Second ' 435 comment d, quoted in the notes following the Lynch case in section D of this chapter, which set forth the hindsight, step-by-step approach to analyzing the foreseeability of intervening causes as a method of analyzing the foreseeability of the ultimate harm.

6. Wagon Mound (No. 2): The gutting of Wagon Mound (No. 1). The Privy Council=s strict foreseeable consequence limitation, as adopted in Wagon Mound (No. 1), was gutted in Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. (The Wagon Mound (No. 2)), [1967] 1 A.C. 617 (PC). In Wagon Mound (No. 2), the owners of two ships that were being refitted at the Morts Dock sued the charterers of the S.S. Wagon Mound for the extensive damage to their ships that was caused by the same fire that damaged the dock. The plaintiffs= negligence claims were rejected in the Australian courts, based on the foreseeable consequence limitation that was adopted in Wagon Mound (No. 1). The Privy Council reversed, in an opinion by Lord Reid, who argued that Athe evidence led was substantially different from the evidence led in The Wagon Mound (No. 1) and the findings . . . are significantly different.@ Id. at ____.

With respect to the evidence, Lord Reid claimed that the plaintiffs in Wagon Mound (No. 1), unlike those in Wagon Mound (No. 2), had been deterred from arguing that it was foreseeable that the oil might be set alight because they then would have been held contributorily negligent for resuming operations and would have been barred from any recovery. Id. at __ _. Lord Reid ignored the plaintiffs= unsuccessful attempt on appeal in Wagon Mound (No. 1) to have the finding of lack of foreseeability limited or modified, as well as the fact that the plaintiffs= supervisor directed Athat all safety precautions should be taken to prevent inflammable material falling off the wharf into the oil.@ It seems highly unlikely that the plaintiffs in Wagon Mound (No. 1) would have been found contributorily negligent for proceeding given the admittedly very small and insignificant nature of the foreseeable risk.

With respect to the findings, Lord Reid argued:

The crucial finding . . . in this case is in finding (5): that the damage was Anot reasonably foreseeable by those for whose acts the defendant would be responsible.@ [Editor: A finding essentially indistinguishable from the trial judge=s Aall-important finding@ in Wagon Mound (No. 1) that the defendant Acould not reasonably have been expected to have known that [the oil] was capable of being set afire when spread on water.@] That is not a primary finding of fact but an inference from the other findings . . . . The vital parts of the findings of fact . . . are (1) that the officers of the Wagon Mound Awould regard furnace oil as very difficult to ignite on water@Cnot that they would regard this as impossible: (2) that their experience would probably have been Athat this had very rarely happened@Cnot that they would never have heard of a case where it had happened, and (3) that they would have regarded it as a


Apossibility, but one which could become an actuality only in very exceptional circumstances@Cnot, as in The Wagon Mound (No. 1), that they could not reasonably be expected to have known that this oil was capable of being set afire when spread on water. [Editor: the trial court also found A(4) They would have considered the chances of the required exceptional circumstances happening whilst the oil remained spread on the harbour waters as being remote.@]. . . .

In The Wagon Mound (No. 1) the Board were not concerned with

degrees of foreseeability because the finding was that the fire was not foreseeable at all. . . . But here the findings show that some risk of fire would have been present to the mind of a reasonable man in the shoes of the ship=s chief engineer. So the first question must be what is the precise meaning to be attached in this context to the words Aforeseeable@ and Areasonably foreseeable.@ . . .

[In Bolton v. Stone] a member of a visiting team drove a cricket ball

out of the ground on to an unfrequented adjacent public road and it struck and severely injured a lady who happened to be standing in the road. That it might happen that a ball would be driven on to this road could not have been said to be a fantastic or far-fetched possibility: according to the evidence it had happened about six times in twenty-eight years. Moreover it could not have been said to be a far-fetched or fantastic possibility that such a ball would strike someone in the road: people did pass along the road from time to time. So it could not have been said that, on any ordinary meaning of the words, the fact that a ball might strike a person in the road was not foreseeable or reasonably foreseeableCit was plainly foreseeable. But the chance of its happening in the foreseeable future was infinitesimal. A mathematician given the data could have worked out that it was only likely to happen once in so many thousand years. The House of Lords held that the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it.

But it does not follow that, no matter what the circumstances may be,

it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so: e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity, there can be little doubt but that Bolton v. Stone would have been decided differently. . . .

In the present case there was no justification whatever for discharging

the oil into Sydney Harbour. Not only was it an offence to do so, but it involved considerable loss financially. If the ship=s engineer had thought about the matter there could have been no question of balancing the

E.2. The Risk Playout (Harm Results from the Risk) Limitation 633

advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately. . . .

Id. at ____. According to Wagon Mound (No. 2), a Aremote,@ Ainfinitesimal,@

Ainsubstantial,@ Avery rare,@ Avery improbable,@ and Avery exceptional@ risk will still be deemed to be a foreseeable risk that satisfies the foreseeable consequence limitation as long as it is Areal@ and not Afantastic@ or Afar-fetched.@ Accord, Wyong Shire Council v. Shirt, 29 Aust. L. Rep. 217 (High Court of Australia 1980). Such a risk is deemed to be one which should have been avoided, even though by itself it would not be significant, because the marginal cost of doing so was zero, given the care already required in the light of the significant foreseeable risks (those that actually made the defendant=s conduct negligent). See Patrick J. Kelley, Proximate Cause in Negligence Law: History, Theory, and the Present Darkness, 69 Wash. U.L.Q. 49, 103-04 (1991). Wouldn=t this argument apply also to unreal, fantastic, or even completely unforeseeable risks? Note that the zero marginal-cost argument makes any legal cause limitation based on foreseeability difficult to explain under the utilitarian-efficiency theory.

2. THE RISK PLAYOUT (HARM RESULTS FROM THE RISK)

LIMITATION MARSHALL V. NUGENT U.S. Court of Appeals for the First Circuit 222 F.2d 604 (1955)

MAGRUDER, Chief Judge. . . . On the morning of December 17, 1951, a Chevrolet car owned and operated by Walter G. Harriman was proceeding on a public highway . . . in a southerly direction . . . . Marshall was riding as a passenger in the front seat of the Chevrolet. . . . As Harriman was driving his car on the right-hand side, or westerly lane of the highway, at 30 to 35 miles per hour, he approached a curve in the road. At this point the highway ran uphill and curved rather sharply to Harriman=s right. . . . On the day in question the road was covered with hard-packed snow and ice and was quite slippery. Proceeding in the opposite direction, i.e., northerly . . . , was a heavy oil truck owned by Socony-Vacuum Oil Co., Inc., and driven by its servant, Warren K. Prince, undoubtedly then in the scope of his employment. Upon ample testimony the jury were warranted in finding that after the oil truck loomed over the crest of the hill it Acut the corner@ by swinging over to the westerly side of the highway (to Prince=s left) and proceeded down the banked curve in that manner. In this situation the truck and the Chevrolet, then approximately 300 ft. or more apart, were headed for a collision. There was credible evidence that Harriman let up on his accelerator and blew his horn, but as the truck did not get back promptly to its side of the road Harriman turned to the right into the snowbank at the west side of the road to slow down; the Chevrolet went into a skid for about 50 ft. and came to a stop completely off the highway on the westerly side and at right angles with the road.

Prince stopped his oil truck on the easterly, or to him the right-hand, side of the highway, about opposite the stalled Chevrolet. Harriman and Marshall got out of the car. Prince inquired if they were Aokay@Cwhich they were at that timeCand offered to yank the

634 Chapter Seven. Attributable Responsibility Chevrolet back into the highway if Harriman had a chain. [] At this time the oil truck, blocking as it was the eastern lane of the highway, was stopped in a dangerous place. The danger was not with reference to southbound traffic, for the Chevrolet and the stopped truck were visible to such traffic for a straightaway distance of 1200 to 1500 ft. Rather, the danger was with reference to northbound traffic. Drivers in cars proceeding in a northerly direction could not see the truck standing in the Ablind spot@ below until they arrived almost at the crest of the hill, when they would realize that there was not room to pass the truck on the right-hand or easterly side, and the risk was obvious that in the existing weather conditions they might go into a skid while attempting to swing over to the left on the banked curve in order to pass between the Chevrolet and the truck. Also there would be danger from northbound traffic during the blocking of the highway by the anticipated operation of towing the Chevrolet back into the highway.

Prince . . . recognized the danger inherent in the situation, for he remarked to Messrs. Harriman and Marshall that his truck was stopped in a rather dangerous position and that someone ought to go up the grade to warn any approaching northbound traffic. [] Marshall undertook to go up the hill to warn any cars that might be approaching the crest in a northerly direction. Harriman continued the operation of getting out his chain and affixing it to the spring shackle of his car. Meanwhile, Prince let the truck stand still on the east side of the highway, when it might have been safer to have pulled over in a matter of moments to the other side of the highway to await the towing operation. Having proceeded southerly for perhaps 75 or 80 ft., walking on his right-hand side of the highway, about 4 ft. from the snowbank on the westerly side, Marshall perceived coming over the crest of the hill a car driven by Robert H. Nugent. This car would have presented no danger to Marshall if it could have proceeded on its right-hand or easterly lane, but this was impossible because the oil truck was blocking this lane. Marshall waved his arms in warning. Nugent turned his car toward the left. It soon went into a skid, crossing to the left-hand side of the banked curve, crashing into a plank guard fence on the westerly side of the highway, and immediately thereafter striking and severely injuring Marshall. It all happened so quickly that Marshall was unable to get out of the way. Nugent=s car continued more or less out of control until its front bumper guard struck and dented the rear fender of Harriman=s stalled Chevrolet, and there Nugent=s car stopped. . . .

Marshall filed his complaint in the court below against both Socony-Vacuum Oil Co., Inc., and Nugent, charging them as joint tortfeasors, each legally responsible for the plaintiff=s personal injuries. . . . After a rather lengthy trial, the jury reported a verdict in favor of Marshall as against Socony in the sum of $25,000, and a verdict in favor of the defendant Nugent. The district court entered judgments against Socony and in favor of Nugent in accordance with the verdict.

This is an appeal by Socony from the judgment against it in favor of Marshall. Appellant has presented a great number of points, most of which do not merit extended discussion. [&] The most seriously pressed contentions are that the district court was in error in refusing Socony=s motion for a directed verdict in its favor, made at the close of all the evidence. The motion was based on several grounds, chief of which were (1) [omitted], (2) that if Socony=s servant Prince were found to have been negligent in Acutting the corner@ on the wrong side of the road, and thus forcing Harriman=s car off the highway,

E.2. The Risk Playout (Harm Results from the Risk) Limitation 635 Marshall suffered no hurt from this, and such negligent conduct, as a matter of law, was not the proximate cause of Marshall=s subsequent injuries when he was run into by Nugent=s car, and (3) [omitted]. . . .

Back of the requirement that the defendant=s culpable act must have been a proximate cause of the plaintiff=s harm is no doubt the widespread conviction that it would be disproportionately burdensome to hold a culpable actor potentially liable for all the injurious consequences that may flow from his act, i.e., that would not have been inflicted Abut for@ the occurrence of the act. This is especially so where the injurious consequence was the result of negligence merely. And so, speaking in general terms, the effort of the courts has been, in the development of this doctrine of proximate causation, to confine the liability of a negligent actor to those harmful consequences which result from the operation of the risk, or of a risk, the foreseeability of which rendered the defendant=s conduct negligent.

Of course, putting the inquiry in these terms does not furnish a formula which automatically decides each of an infinite variety of cases. Flexibility is still preserved by the further need of defining the risk, or risks, either narrowly, or more broadly, as seems appropriate and just in the special type of case. [] Regarding motor vehicle accidents in particular, one should contemplate a variety of risks which are created by negligent driving. . . . [D]irect collision may be avoided, yet the plaintiff may fall and injure himself in frantically racing out of the way of the errant car. Or the plaintiff may be knocked down and injured by a human stampede as the car rushes toward a crowded safety zone. Or the plaintiff may faint from intense excitement stimulated by the near collision, and in falling sustain a fractured skull. Or the plaintiff may suffer a miscarriage or other physical illness as a result of intense nervous shock incident to a hair-raising escape. [Citations omitted.] This bundle of risks could be enlarged indefinitely with a little imagination. In a traffic mix-up due to negligence, before the disturbed waters have become placid and normal again, the unfolding of events between the culpable act and the plaintiff=s eventual injury may be bizarre indeed; yet the defendant may be liable for the result. In such a situation, it would be impossible for a person in the defendant=s position to predict in advance just how his negligent act would work out to another=s injury. Yet this in itself is no bar to recovery.

. . . [We] conclude that the district court committed no error in refusing to direct a verdict for the defendant Socony on the issue of proximate cause.

In the first place, the question of Socony=s liability here does not depend upon a determination of what is the New Hampshire law with reference to the so called Arescue@ doctrine. That doctrine is a refinement of, or a special application of, the generally recognized rule that for a plaintiff to establish a breach of duty by the defendant predicated upon negligence, he must show that the defendant=s conduct was antecedently negligent in relation to the plaintiff, or to a class of persons of which the plaintiff proved to be one; it is not enough to show that the defendant was negligent only with reference to the interests of some third person. See Palsgraf v. Long Island R. Co., 162 N.E. 99 (N.Y. 1928) . . . . Notwithstanding this general rule, it is held in most jurisdictions that when the defendant

636 Chapter Seven. Attributable Responsibility is negligent in that he puts X or X=s property in undue peril, he may at the same time be deemed to be negligent with relation to potential rescuers as a class . . . .

Whatever may be the New Hampshire law in the foregoing respect, the case at bar presents a quite different situation. Plaintiff Marshall was a passenger in the oncoming Chevrolet car, and thus was one of the persons whose bodily safety was primarily endangered by the negligence of Prince, as might have been found by the jury, in Acutting the corner@ with the Socony truck in the circumstances above related. In that view, Prince=s negligence constituted an irretrievable breach of duty to the plaintiff. Though this particular act of negligence was over and done with when the truck pulled up alongside of the stalled Chevrolet without having actually collided with it, still the consequences of such past negligence were in the bosom of time, as yet unrevealed.

If the Chevrolet had been pulled back onto the highway, and Harriman and Marshall, having got in it again, had resumed their journey and had had a collision with another car five miles down the road, in which Marshall suffered bodily injuries, it could truly be said that such subsequent injury to Marshall was a consequence in fact of the earlier delay caused by the defendant=s negligence, in the sense that but for such delay the Chevrolet car would not have been at the fatal intersection at the moment the other car ran into it. But on such assumed state of facts, the courts would no doubt conclude, Aas a matter of law@, that Prince=s earlier negligence in cutting the corner was not the Aproximate cause@ of this later injury received by the plaintiff. That would be because the extra risks to which such negligence by Prince had subjected the passengers in the Chevrolet car were obviously entirely over; the situation had been stabilized and become normal, and, so far as one could foresee, whatever subsequent risks the Chevrolet might have to encounter in its resumed journey were simply the inseparable risks, no more and no less, that were incident to the Chevrolet=s being out on the highway at all. But in the case at bar, the circumstances under which Marshall received the personal injuries complained of presented no such clear-cut situation. [] As we have indicated, the extra risks created by Prince=s negligence were not all over at the moment the primary risk of collision between the truck and the Chevrolet was successfully surmounted. . . . NOTES

1. Duty and scope of liability. Chief Judge Magruder was an adviser to the reporter for the Restatement Second. Does his reasoning more closely track Cardozo=s or Andrews= view of the duty and scope of liability issues? Can his finding of Aproximate causation@ be explained and justified under a reasonable application of the foreseeable consequence (harm matches the risk) limitation? Note his description of the Arescue@ doctrine as a Arefinement@ of the foreseeable consequence limitation.

2. The delay hypothetical. Judge Magruder distinguishes a hypothetical situation in which Harriman=s car was pulled back onto the highway without any accident occurring, the car and truck proceeded on their way, and the car containing Harriman and Marshall collided with another truck or car a few miles down the road, resulting in bodily injury to Marshall. Is his discussion of the hypothetical situation consistent with the foreseeable consequence (harm matches the risk) limitation? Would Marshall have been a

E.2. The Risk Playout (Harm Results from the Risk) Limitation 637 person within the class of persons put at risk by the original negligence of the defendant? Would the type of hazard or injury that he suffered have matched the hazards or injuries that were foreseeable as a result of the original negligence? Remember that, according to Cardozo and the first and second Restatements, the manner of occurrence of the injury does not need to have been foreseeable.

3. The risk playout (harm results from the risk) limitation. Generally overlooked in the debate regarding a foreseeable risk limitation on duty or scope of liability is the preferable formulation of any such limitation, assuming it should exist. It is commonly described and was formulated in Palsgraf and the relevant sections of the first and second Restatements as a Aforeseeable consequences,@ Aharm within the risk,@ or Aharm matches the risk@ limitation, which requires that the actual consequences for which legal recovery is sought match the consequences that were foreseeable at the time of the defendant=s tortious conduct and that made the defendant=s conduct tortious given the foreseeable risk of their occurrence.

However, from the beginning, an alternative formulation often has been articulated, which differs significantly from the foreseeable consequence formulation and is similar to Professor Seavey’s Atermination of risk@ principle described in note 2 following the In re Guardian case above. The alternative formulation requires that the actual consequences for which legal recovery is sought result from the actual or anticipated realization and working out of the foreseeable risks that made the defendant=s conduct tortiousCa Aharm results from the risk@ or Arisk playout@ limitationCrather than requiring that the consequences themselves must have been foreseeable. See, e.g., comment e to section 281 in the first Restatement (emphasis added):

Risk of particular harm. Certain forms of conduct are negligent because they tend to subject certain interests of another to a particular hazard or type of hazard or to a limited number of hazards of a definite character. If so, the actor=s negligence lies in his subjecting the other to the particular hazard and he is liable only for such harm as results from the other=s exposure thereto.

Similar language appears in comment e to section 281 in subsequent editions of

the first and second Restatements and in numerous other comments in the first and second Restatements. See id. ' 430 comments a & c; ' 468 and comment a; Restatement of the Law, 1948 Supplement, Torts ' 281 comment e at 650; Restatement Second ' 281 comment e; id. ' 430 comments a & c; ' 468 and comments a & b.

4. The risk playout limitation as a reconciliation of Cardozo and Andrews. The risk playout limitation arguably accommodates and reconciles the arguments underlying both Cardozo=s and Andrews= positions in Palsgraf. On the one hand, the risk playout limitation is responsive to the argument that underlies the foreseeable consequence limitation: that there should be a sufficient relationship between the foreseeable risks that made the defendant=s conduct tortious and the actual injury. Indeed, it may be more responsive to that argument. Making the required relationship a simple matching of the original risk and the ultimate harm, as in the foreseeable consequence limitation, without

638 Chapter Seven. Attributable Responsibility consideration of the role, if any, that the original risk played in producing the ultimate harm, arguably is both too restrictive and insufficiently restrictive. Rather, it should be required that the injury occur as part of the working out of one of the risks that made the conduct tortious, before those risks have terminated or dissipated.

Similarly, the risk playout limitation can be seen as a better elaboration of the argument that seems to underlie Andrews= position. That argument is that the defendant prima facie should be liable, whether or not the actual harm matches the foreseeable harm, because the plaintiff would not have been injured if the defendant had behaved properly (non-tortiously). This argument is much stronger where the injury resulted not merely from the tortious conduct, or even the tortious aspect of that conduct, but also from the playing out of one of the risks that made the conduct tortious, as suggested by Andrews in his stream and pond ripple analogies, the latter of which was repeated by Judge Magruder in Marshall: A[B]efore the disturbed waters have become placid and normal again, the unfolding of events between the culpable act and the plaintiff=s eventual injury may be bizarre indeed; yet the defendant may be liable for the result.@

Depending on the specific circumstances, the risk playout limitation may be more or less advantageous to the plaintiff than the foreseeable consequence limitation. The foreseeable consequence limitation, unlike the risk playout limitation, requires that there be a match between the plaintiff=s injury and one of the consequences the foreseeability of which made the defendant=s conduct tortious, but it does not, as the risk-playout limitation does, require that the plaintiff=s injury occur as part of the realization and continuing operation of the foreseeable risk of that consequence=s occurrence and thus would allow liability in situations such as Magruder=s delay hypothetical.

5. The cases. Chief Judge Magruder=s opinion in Marshall, including especially his discussion of the hypothetical situation, articulates and applies the risk playout (harm results from the risk) formulation of the foreseeable risk limitation as the proper scope of liability (Aproximate cause@) limitation, while apparently accepting the foreseeable consequence limitation on duty, albeit emphasizing broad flexibility in the description of the foreseeable risks and using a risk playout (harm results from the risk) analysis to distinguish the delayed collision situation. Which version of the foreseeable risk limitation better explains and justifies the result and the various decisions in the In re Guardian case and the various cases discussed in note 4 following that case? Which version better explains and justifies the numerous recognized exceptions to the foreseeable consequences limitation?

6. The Restatement Third. As was discussed in Chapter 3, the Restatement Third rejects the limited duty rule that was adopted in Palsgraf and the first and second Restatements. The section on duty states:

(a) An actor ordinarily has a duty to exercise reasonable care when the actor=s conduct creates a risk of physical harm.

(b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of


cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.

Restatement Third: Physical and Emotional Harm ' 7. Comment a to section 7 describes the types of situations in which it is appropriate to use a duty analysis:

There are two different legal doctrines for withholding liability: no-duty rules and scope-of-liability doctrines (often called Aproximate cause@). An important difference between them is that no-duty rules are matters of law decided by the courts, while the defendant=s scope of liability is a question of fact for the factfinder. When liability depends on facts specific to an individual case, the appropriate rubric is scope of liability. On the other hand, when liability depends on factors applicable to categories of actors or patterns of conduct, the appropriate rubric is duty. No duty rules are appropriate only when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases.

Examples of categorical exceptions to the general duty to exercise reasonable care

include, inter alia, the no-duty and limited-duty rules for pure economic or pure emotional loss (see Chapter 1 section C.2.a), land occupiers with respect to certain entrants on their land (see Chapter 5 section D.4), failures to aid in nonfeasance situations (see Chapter 5 sections E.1 and E.5), and, in some jurisdictions, obligations of social hosts toward third parties injured by their guests’ consumption of alcohol (see Chapter 5 section E.2). However, as previously noted, many if not all of these exceptions can be explained as proper elaborations of reasonable care in these situations rather than as a lack or limitation of the general duty to exercise reasonable care.

The Restatement Third sometimes describes its principal scope of liability limitation as a foreseeable consequence limitation. See, e.g., Restatement Third: Physical and Emotional Harm ' 29 comment d. However, this is likely due to editorial oversight when, as is discussed below, a last-minute change was made from the foreseeable consequence limitation to the risk playout limitation as the appropriate limitation. The relevant sections and most of the relevant comments use risk playout (harm results from the risk) language rather than foreseeable consequence (harm matches the risk) language and downplay the foreseeability of the particular plaintiff:

Unforeseeable plaintiffs. No express limitation in this Section places harm to unforeseeable plaintiffs outside the scope of an actor=s liability. The limitations on duty for negligence actions . . . and the definitions of the strict-liability torts . . . also contain no such express limitation. Ordinarily, the risk standard contained in this Section will, without requiring any separate reference to the foreseeability of the plaintiff, preclude liability for harm to such plaintiffs. [&] . . . In those cases in which the plaintiff was, because of time or geography, truly beyond being subject to harm of the type risked by the tortious conduct, but the plaintiff


somehow suffers such harm, the defendant is not liable to that plaintiff for the harm.

Id. ' 29 comment n.

The principal relevant section, section 29, in the Restatement Third initially was drafted as a foreseeable consequence limitation: AAn actor is not liable for harm different from the harms whose risks made the actor=s conduct tortious.@ Restatement Third: Liability for Physical Harm (Basic Principles) ' 29 (Tentative Draft No. 3, 2003). However, the reporters described Marshall v. Nugent as A[t]he classic case expressing the limit on liability reflected in [section 29]@ and focused on the risk-playout language in Marshall v. Nugent (Athe effort of the courts has been . . . to confine the liability of a negligent actor to those harmful consequences which result from the operation of the risk, or of a risk, the foreseeability of which rendered the defendant=s conduct negligent@). They noted that the limitation as so worded satisfies the basic rationale for the foreseeable risk limitation by Aimpos[ing] limits on liability by reference to the reasons for holding an actor liable for tortious conduct in the first place,@ incorporated risk playout language in many other sections and many comments, and acknowledged that numerous exceptions had to be made to the foreseeable consequence formulation contained in section 29 to make it consistent with the case law and that even with these exceptions the formulation in section 29 was inconsistent with the reasoning and the results in many cases. See id. ' 29 comment d and reporters= note and comment e; Richard W. Wright, The Grounds and Extent of Legal Responsibility, 40 San Diego L. Rev. 1425, 150001 n. 257, 152930 and nn. 348349.

When this draft of section 29 was discussed at the 2003 annual meeting of the American Law Institute, a number of members stated, with no opposing comments, that it should be rewritten using the risk playout formulation rather than the foreseeable consequence formulation, noting, among other arguments, that doing so would no longer require recognizing numerous exceptions to the foreseeable consequence limitation. See American Law Institute, 80th Annual Meeting, Proceedings 2003, at 57-58, 62-64, 67-68, 70-71 (2004). Following this discussion, section 29 was revised to state, in its final form, the risk playout limitation rather than the foreseeable consequence limitation: AAn actor=s liability is limited to those harms that result from the risks that made the actor=s conduct tortious.@ Restatement Third: Physical and Emotional Harm ' 29. All the sections and the great majority of the comments use risk playout language; some comments and one of the four suggested jury instructions still contain foreseeable consequence language. . 7. Identifying the negligently created hazards or risks. In Berry v. Borough of Sugar Notch, 43 A. 240 (Pa. 1899), the plaintiff was the operator of a trolley car that ran on tracks in the street of the defendant borough. On the line of the road there was a large tree in allegedly negligent condition. The plaintiff was operating the trolley during a violent windstorm at a speed considerably higher than the maximum speed allowed by a borough ordinance. As the trolley car passed under the tree, the tree was blown down and crushed the roof of the car, causing physical injury to the plaintiff. The jury found in favor of the plaintiff. The issue on appeal was whether the plaintiff should have been found

E.2. The Risk Playout (Harm Results from the Risk) Limitation 641 contributorily negligent as a matter of law, which would have barred his recovery. The court affirmed the judgment for the plaintiff:

We do not think that the fact that the plaintiff was running his car at a higher rate of speed than eight miles an hour affects his right to recover. It may be that in doing so he violated the ordinance by virtue of which the company was permitted to operate its cars in the streets of the borough, but he certainly was not for that reason without rights upon the streets. Nor can it be said that the speed was the cause of the accident, or contributed to it. It might have been otherwise if the tree had fallen before the car reached it; for in that case a high rate of speed might have rendered it impossible for the plaintiff to avoid a collision which he either foresaw or should have foreseen. Even in that case the ground for denying him the right to recover would be that he had been guilty of contributory negligence, and not that he had violated a borough ordinance. The testimony however shows that the tree fell upon the car as it passed beneath. With this phase of the case in view, it was urged on behalf of the appellant that the speed was the immediate cause of the plaintiff=s injury, inasmuch as it was the particular speed at which he was running which brought the car to the place of the accident at the moment when the tree blew down. This argument, while we cannot deny its ingenuity, strikes us, to say the least, as being somewhat sophistical. That his speed brought him to the place of the accident at the moment of the accident was the merest chance, and a thing which no foresight could have predicted. The same thing might as readily have happened to a car running slowly, or it might have been that a high speed alone would have carried him beyond the tree to a place of safety. It was also argued by the appellant=s counsel that, even if the speed was not the sole efficient cause of the accident, it at least contributed to its severity, and materially increased the damage. It may be that it did. But what basis could a jury have for finding such to be the case; and, should they so find, what guide could be given them for differentiating between the injury done this man and the injury which would have been done a man in a similar accident on a car running at a speed of eight miles an hour or less?

Id. at 241. Was the plaintiff=s negligence a cause of his injury? Did the injury result from the realization of one of the risks that made the plaintiff=s conduct negligent?

PETITION OF KINSMAN TRANSIT CO. (KINSMAN NO. 1) U.S. Court of Appeals for the Second Circuit 338 F.2d 708 (2d Cir. 1964)

FRIENDLY, Circuit Judge: . . . The litigation, in the District Court for the Western District of New York, arose out of a series of misadventures on a navigable portion of the Buffalo River during the night of January 21, 1959. . . . [&] The Buffalo River flows through Buffalo from east to west, with many turns and bends, until it empties into Lake Erie. Its navigable western portion is lined with docks, grain elevators, and

642 Chapter Seven. Attributable Responsibility industrial installations; during the winter, lake vessels tie up there pending resumption of navigation on the Great Lakes, without power and with only a shipkeeper aboard. About a mile from the mouth, the City of Buffalo maintains a lift bridge at Michigan Avenue. Thaws and rain frequently cause freshets to develop in the upper part of the river and its tributary, Cazenovia Creek; currents then range up to fifteen miles an hour and propel broken ice down the river, which sometimes overflows its banks.

On January 21, 1959, rain and thaw followed a period of freezing weather. The United States Weather Bureau issued appropriate warnings which were published and broadcast. Around 6 P.M. an ice jam that had formed in Cazenovia Creek disintegrated. Another ice jam formed just west of the junction of the creek and the river; it broke loose around 9 P.M.

The MacGilvray Shiras, owned by The Kinsman Transit Company [a family corporation whose principal officers were Harry Steinbrenner and his then 28-year-old son, George Steinbrenner], was moored at the dock of the Concrete Elevator, operated by Continental Grain Company, on the south side of the river about three miles upstream of the Michigan Avenue Bridge. She was loaded with grain owned by Continental. The berth, east of the main portion of the dock, was exposed in the sense that about 150' of the Shiras= forward end, pointing upstream, and 70' of her sternCa total of over half her lengthCprojected beyond the dock. This left between her stem and the bank a space of water seventy-five feet wide where the ice and other debris could float in and accumulate. The position was the more hazardous in that the berth was just below a bend in the river, and the Shiras was on the inner bank. None of her anchors had been put out. From about 10 P.M. large chunks of ice and debris began to pile up between the Shiras= starboard bow and the bank; the pressure exerted by this mass on her starboard bow was augmented by the force of the current and of floating ice against her port quarter. The mooring lines began to part, and a Adeadman,@ to which the No. 1 mooring cable had been attached, pulled out of the groundCthe judge finding that it had not been properly constructed or inspected. About 10:40 P.M. the stern lines parted, and the Shiras drifted into the current. During the previous forty minutes, the shipkeeper took no action to ready the anchors by releasing the devil=s claws; when he sought to drop them after the Shiras broke loose, he released the compressors with the claws still hooked in the chain so that the anchors jammed and could no longer be dropped. The trial judge reasonably found that if the anchors had dropped at that time, the Shiras would probably have fetched up at the hairpin bend just below the Concrete Elevator, and that in any case they would considerably have slowed her progress, the significance of which will shortly appear.

Careening stern first down the S-shaped river, the Shiras, at about 11 P.M., struck the bow of the Michael K. Tewksbury, owned by Midland Steamship Line, Inc. The Tewksbury was moored in a relatively protected area flush against the face of a dock on the outer bank just below a hairpin bend so that no opportunity was afforded for ice to build up between her port bow and the dock. Her shipkeeper had left around 5 P.M. and spent the evening watching television with a girl friend and her family. The collision caused the Tewksbury=s mooring lines to part; she too drifted stern first down the river, followed by the Shiras. The collision caused damage to the Steamer Drucken-miller which was moored opposite the Tewksbury.


Thus far there was no substantial conflict in the testimony; as to what followed there was. Judge Burke found, and we accept his findings as soundly based, that at about 10:43 P.M., Goetz, the superintendent of the Concrete Elevator, telephoned Kruptavich, another employee of Continental, that the Shiras was adrift; Kruptavich called the Coast Guard, which called the city fire station on the river, which in turn warned the crew on the Michigan Avenue Bridge, this last call being made about 10:48 P.M. Not quite twenty minutes later the watchman at the elevator where the Tewksbury had been moored phoned the bridge crew to raise the bridge. Although not more than two minutes and ten seconds were needed to elevate the bridge to full height after traffic was stopped, assuming that the motor started promptly, the bridge was just being raised when, at 11:17 P.M., the Tewksbury crashed into its center. The bridge crew consisted of an operator and two tenders; a change of shift was scheduled for 11 P.M. The inference is rather strong, despite contrary testimony, that the operator on the earlier shift had not yet returned from a tavern when the telephone call from the fire station was received; that the operator on the second shift did not arrive until shortly before the call from the elevator where the Tewksbury had been moored; and that in consequence the bridge was not raised until too late.

The first crash was followed by a second, when the south tower of the bridge fell. The Tewksbury grounded and stopped in the wreckage with her forward end resting against the stern of the Steamer Farr, which was moored on the south side of the river just above the bridge. The Shiras ended her journey with her stern against the Tewksbury and her bow against the north side of the river. So wedged, the two vessels substantially dammed the flow, causing water and ice to back up and flood installations on the banks with consequent damage as far as the Concrete Elevator, nearly three miles upstream. Two of the bridge crew suffered injuries. Later the north tower of the bridge collapsed, damaging adjacent property.

Judge Burke concluded that Continental and the Shiras had committed various faults discussed below; . . . that the Tewksbury and her owner were entitled to exoneration [did not negligently contribute to the various injuries]; and that the City of Buffalo was at fault for failing to raise the Michigan Avenue Bridge. . . . (2) Negligence of Kinsman and Continental.

The mooring of the Shiras, as to which more will be said under the next heading, was the joint work of Kinsman, acting through Captain Davies, her former master, and of Continental. The judge was justified in holding that, with her bow protruding into the river just below a bend and with the eroded bank incapable of taking a long lead line or an anchor chain, the Shiras ought to have put out an anchor from her port bow. He was also warranted in finding that Continental was at fault for the inadequately secured Adeadman@ and the Shiras for the shipkeeper=s failure to ready the anchors in the interval between 10 P.M. and 10:40 P.M. on January 21. The current and ice conditions on the fateful evening were not so unexpectable as to go beyond the range of foreseeability and hence to come within the principle of inevitable accident; the conditions were of the very sort that had been occurring for years, although not in quite the same degree. Kinsman and Continental say that no ship had drifted loose in the river as the result of the breaking of an ice jam

644 Chapter Seven. Attributable Responsibility since an episode in 1916 relating to The Anna C. Minch, 271 F. 192 (2d Cir. 1921), and that we exonerated her. However, the basis for exoneration was not that the strong currents and heavy ice were unexpectable but that the Minch had taken all reasonable precautions against them. . . . III. The allegedly unexpectable character of the events leading to much of the

damage.

The very statement of the case suggests the need for considering Palsgraf v. Long Island RR., 162 N.E. 99 (N.Y. 1928), and the closely related problem of liability for unforeseeable consequences.

In Sinram v. Pennsylvania R.R., 61 F.2d 767, 770 (2d Cir. 1932), which received Palsgraf into the admiralty, Judge Learned Hand characterized the issue in that case as Awhether, if A. omitted to perform a positive duty to B., C., who had been damaged in consequence, might invoke the breach, though otherwise A. owed him no duty; in short, whether A. was chargeable for the results to others of his breach of duty to B.@ Thus stated, the query rather answers itself; Hohfeld=s analysis tells us that once it is concluded that A. had no duty to C., it is simply a correlative that C. has no right against A. The important question is what was the basis for Chief Judge Cardozo=s conclusion that the Long Island Railroad owed no Aduty@ to Mrs. Palsgraf under the circumstances.

. . . The reason why the Long Island Railroad was thought to owe no duty to Mrs. Palsgraf was the lack of any notice that the package contained a substance demanding the exercise of any care toward anyone so far away; Mrs. Palsgraf was not considered to be within the area of apparent hazard created by whatever lack of care the guard had displayed to the anonymous carrier of the unknown fireworks. The key sentences in Chief Judge Cardozo=s opinion are these:

AHere, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff=s safety, so far as appearances could warn him. Liability can be no greater where the act is inadvertent.@ 162 N.E. at 101.

We see little similarity between the Palsgraf case and the situation before us. The

point of Palsgraf was that the appearance of the newspaper-wrapped package gave no notice that its dislodgement could do any harm save to itself and those nearby, and this by impact, perhaps with consequent breakage, and not by explosion. In contrast, a ship insecurely moored in a fast flowing river is a known danger not only to herself but to the owners of all other ships and structures down-river, and to persons upon them. No one would dream of saying that a shipowner who Aknowingly and wilfully@ failed to secure his ship at a pier on such a river Awould not have threatened@ persons and owners of property downstream in some manner.6 The shipowner and the wharfinger in this case having thus

6The facts here do not oblige us to decide whether the Shiras and Continental could

E.2. The Risk Playout (Harm Results from the Risk) Limitation 645 owed a duty of care to all within the reach of the ship=s known destructive power, the impossibility of advance identification of the particular person who would be hurt is without legal consequence. Similarly the foreseeable consequences of the City=s failure to raise the bridge were not limited to the Shiras and the Tewksbury. Collision plainly created a danger that the bridge towers might fall onto adjoining property, and the crash of two uncontrolled lake vessels, one 425 feet and the other 525 feet long, into a bridge over a swift ice-ridden stream, with a channel only 177 feet wide, could well result in a partial damming that would flood property upstream. . . .

The case is quite different from this Court=s ruling in Sinram, where a tug which had negligently rammed a barge was held free of liability for the loss of coal that the bargee subsequently allowed to be loaded into his barge without first having inspected her for damage. That case illustrates the principle, noted in Judge Hand=s opinion, Athat there must be a terminus somewhere, short of eternity, at which the second party becomes responsible in lieu of the first,@ Prosser, Torts, 280Ca principle now explicitly recognized in the Restatement Second Torts, ' 452(2) (Tent. Draft No. 9, April, 1963): AWhere, by contract or otherwise, all responsibility for the protection of the other against the threatened harm is shifted to the third person, his intentional or negligent failure to act to prevent such harm is a superseding cause.@7

Since all the claimants here met the Palsgraf requirement of being persons to whom the actors owed a Aduty of care,@ we are not obliged to reconsider whether that case furnishes as useful a standard for determining the boundaries of liability in admiralty for negligent conduct as was thought in Sinram, when Palsgraf was still in its infancy. But this does not dispose of the alternative argument that the manner in which several of the claimants were harmed, particularly by flood damage, was unforeseeable and that recovery for this may not be hadCwhether the argument is put in the forthright form that unforeseeable damages are not recoverable or is concealed under a formula of lack of Aproximate cause.@8

. . . [A]s to the failure of Kinsman=s shipkeeper to ready the anchors after the danger had become apparent[, the] exhibits indicate that the width of the channel between the Concrete Elevator and the bridge is at most points less than two hundred fifty feet. If the Shiras caught up on a dock or vessel moored along the shore, the current might well swing her bow across the channel so as to block the ice floes, as indeed could easily have occurred at the Standard Elevator dock where the stern of the Shiras struck the Tewksbury=s bow. At this point the channel scarcely exceeds two hundred feet, and this was further narrowed by the presence of the Druckenmiller moored on the opposite bank.

successfully invoke Palsgraf against claims of owners of shore-side property upstream from the Concrete Elevator or of non-riparian property other than the real and personal property which was sufficiently close to the bridge to have been damaged by the fall of the towers. 7Compare Professor Beale=s Acome to rest@ rule, The Proximate Consequences of an Act, 33 Harv. L. Rev. 633, 651 ff. (1920), and Professor Seavey=s Atermination of risk@ principle, Principles of Torts, 56 Harv. L. Rev. 72, 93 (1942). 8It is worth underscoring that the ratio decidendi in Palsgraf was that the Long Island was not required to use any care with respect to the package vis-a-vis Mrs. Palsgraf; Chief Judge Cardozo did not reach the issue of Aproximate cause@ for which the case is often cited.

646 Chapter Seven. Attributable Responsibility Had the Tewksbury=s mooring held, it is thus by no means unlikely that these three ships would have dammed the river. Nor was it unforeseeable that the drawbridge would not be raised since, apart from any other reason, there was no assurance of timely warning. What may have been less foreseeable was that the Shiras would get that far down the twisting river, but this is somewhat negated both by the known speed of the current when freshets developed and by the evidence that, on learning of the Shiras= departure, Continental=s employees and those they informed foresaw precisely that.

Continental=s position on the facts is stronger. It was indeed foreseeable that the improper construction and lack of inspection of the Adeadman@ might cause a ship to break loose and damage persons and property on or near the riverCthat was what made Continental=s conduct negligent. With the aid of hindsight one can also say that a prudent man, carefully pondering the problem, would have realized that the danger of this would be greatest under such water conditions as developed during the night of January 21, 1959, and that if a vessel should break loose under those circumstances, events might transpire as they did. But such post hoc step by step analysis would render Aforeseeable@ almost anything that has in fact occurred; if the argument relied upon has legal validity, it ought not be circumvented by characterizing as foreseeable what almost no one would in fact have foreseen at the time.

The effect of unforeseeability of damage upon liability for negligence has recently

been considered by the Judicial Committee of the Privy Council, Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound), [1961] 1 All E.R. 404. The Committee there disapproved the proposition, thought to be supported by Re Polemis and Furness, Withy & Co. Ltd., [1921] 3 K.B. 560 (C.A.), Athat unforeseeability is irrelevant if damage is <direct.=@ We have no difficulty with the result of The Wagon Mound, in view of the finding that the appellant had no reason to believe that the floating furnace oil would burn, see also the extended discussion in Miller S.S. Co. v. Overseas Tankship (U.K.) Ltd., The Wagon Mound No. 2, [1963] 1 Lloyd=s Law List Rep. 402 (Sup. Ct. N.S.W.). On that view the decision simply applies the principle which excludes liability where the injury sprang from a hazard different from that which was improperly risked, see fn. 9. Although some language in the judgment goes beyond this, we would find it difficult to understand why one who had failed to use the care required to protect others in the light of expectable forces should be exonerated when the very risks that rendered his conduct negligent produced other and more serious consequences to such persons than were fairly foreseeable when he fell short of what the law demanded. Foreseeability of danger is necessary to render conduct negligent; where as here the damage was caused by just those forces whose existence required the exercise of greater care than was takenCthe current, the ice, and the physical mass of the Shiras, the incurring of consequences other and greater than foreseen does not make the conduct less culpable or provide a reasoned basis for insulation.9 See Hart and Honoré, Causation in the Law 9The contrasting situation is illustrated by the familiar instances of the running down of a pedestrian by a safely driven but carelessly loaded car, or of the explosion of unlabeled rat poison, inflammable but not known to be, placed near a coffee burner. Larrimore v. American Nat. Ins. Co., 89 P.2d 340 (Okla. 1939). Exoneration of the defendant in such cases rests on the basis that a negligent actor is responsible only for harm the risk of which was increased by the negligent aspect of his conduct. See Keeton, Legal Cause in the Law of Torts, 1-10 (1963); Hart & Honore,

E.2. The Risk Playout (Harm Results from the Risk) Limitation 647 234-48 (1959). The oft encountered argument that failure to limit liability to foreseeable consequences may subject the defendant to a loss wholly out of proportion to his fault seems scarcely consistent with the universally accepted rule that the defendant takes the plaintiff as he finds him and will be responsible for the full extent of the injury even though a latent susceptibility of the plaintiff renders this far more serious than could reasonably have been anticipated. See Prosser, Torts, 260.

The weight of authority in this country rejects the limitation of damages to consequences foreseeable at the time of the negligent conduct when the consequences are Adirect,@ and the damage, although other and greater than expectable, is of the same general sort that was risked. See the many cases cited in Prosser, Torts, . . . and the recent reaffirmation, Dellwo v. Pearson, 107 N.W.2d 859 (Minn. 1961), of Mr. Justice Mitchell=s statement in Christianson v. Chicago, St. P., M. & O. Ry., 69 N.W. 640, 641 (Minn. 1896), that the rule of Hadley v. Baxendale, 9 Exch. 341 (1854), has no place in negligence law. Other American courts, purporting to apply a test of foreseeability to damages, extend that concept to such unforeseen lengths as to raise serious doubt whether the concept is meaningful;10 indeed, we wonder whether the British courts are not finding it necessary to limit the language of The Wagon Mound as we have indicated.11 Causation in the Law, 157-58 (1959). Compare Berry v. Borough of Sugar Notch, 43 A. 240 (Pa. 1899).

This principle supports the judgment for the defendant in the recent case of Doughty v. Turner Mfg. Co., [1964] 2 W.L.R. 240 (C.A.). The company maintained a bath of molten cyanide protected by an asbestos cover, reasonably believed to be incapable of causing an explosion if immersed. An employee inadvertently knocked the cover into the bath, but there was no damage from splashing. A minute or two later an explosion occurred as a result of chemical changes in the cover and the plaintiff, who was standing near the bath, was injured by the molten drops. The risk against which defendant was required to use careCsplashing of the molten liquid from dropping the supposedly explosion proof coverCdid not materialize, and the defendant was found not to have lacked proper care against the risk that did. As said by Lord Justice Diplock, [1964] 2 W.L.R. at 247, AThe former risk was well known (that was foreseeable) at the time of the accident; but it did not happen. It was the second risk which happened and caused the plaintiff damage by burning.@ Moreover, if, as indicated in Lord Pearce=s judgment, [1964] 2 W.L.R. at 244, the plaintiff was not within the area of potential splashing, the case parallels Palsgraf; Lord Justice Diplock=s statement, [1964] 2 W.L.R. at 248, that defendants Awould have been under no liability to the plaintiff if they had intentionally immersed the cover in the liquid@ is reminiscent of Chief Judge Cardozo=s quoted above. 10An instance is In re Guardian Casualty Co., 2 N.Y.S.2d 232 (A.D.), aff=d, 16 N.E.2d 397 (N.Y. 1938), where the majority gravely asserted that a foreseeable consequence of driving a taxicab too fast was that a collision with another car would project the cab against a building with such force as to cause a portion of the building to collapse twenty minutes later, when the cab was being removed, and injure a spectator twenty feet away. Surely this is Astraining the idea of foreseeability past the breaking point,@ Bohlen, Book Review, 47 Harv. L. Rev. 556, 557 (1934), at least if the matter be viewed as of the time of the negligent act, as the supposedly symmetrical test of The Wagon Mound demands, [1961] 1 All Eng. R. at 415. On the other hand, if the issue of foreseeability is viewed as of the moment of impact, see Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv. L. Rev. 372, 385 (1939), the test loses functional significance since at that time the defendant is no longer able to amend his conduct so as to avert the consequences. 11In a recent case, workmen who had adjourned for their tea-break on a November afternoon left paraffin lamps as warnings around a tent covering an open manhole. Two boys determined to


explore the manhole, using a ladder lying nearby; after they had performed this successfully, one of the lamps fell or was kicked into the manhole, an explosion occurred, and a boy fell in and suffered burns, particularly from applying his fingers to the hot rungs of the ladder. The Court of Sessions affirmed a defendant=s judgment in deference to The Wagon Mound. The House of Lords reversed, their lordships explaining that this was not different from Athe type or kind of accident * * * or occurrence that could reasonably have been foreseen.@ They stated that AThe fact that the features or developments of an accident may not reasonably have been foreseen does not mean that the accident itself was not foreseeable@; that AIn order to establish a coherent chain of causation it is not necessary that the precise details leading up to the accident should have been reasonably foreseeable@; and that Ato demand too great precision in the test of foreseeability would be unfair * * * since the facets of misadventure are innumerable.@ Hughes v. Lord Advocate, [1963] A.C. 837, 852, 855, 857, reversing 1961 S.C. 310. This comes very close to saying that where the damage was of the sort that was risked, foreseeability is not required.

We see no reason why an actor engaging in conduct which entails a large risk of small damage and a small risk of other and greater damage, of the same general sort, from the same forces, and to the same class of persons, should be relieved of responsibility for the latter simply because the chance of its occurrence, if viewed alone, may not have been large enough to require the exercise of care. By hypothesis, the risk of the lesser harm was sufficient to render his disregard of it actionable; the existence of a less likely additional risk that the very forces against whose action he was required to guard would produce other and greater damage than could have been reasonably anticipated should inculpate him further rather than limit his liability. This does not mean that the careless actor will always be held for all damages for which the forces that he risked were a cause in fact. Somewhere a point will be reached when courts will agree that the link has become too tenuousCthat what is claimed to be consequence is only fortuity. Thus, if the destruction of the Michigan Avenue Bridge had delayed the arrival of a doctor, with consequent loss of a patient=s life, few judges would impose liability on any of the parties here, although the agreement in result might not be paralleled by similar unanimity in reasoning; perhaps in the long run one returns to Judge Andrews= statement in Palsgraf, 162 N.E. at 104 (dissenting opinion). AIt is all a question of expediency, * * * of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.@ It would be pleasant if greater certainty were possible, see Prosser, Torts, 262, but the many efforts that have been made at defining the locus of the Auncertain and wavering line,@ 162 N.E. 99, are not very promising; what courts do in such cases makes better sense than what they, or others, say. Where the line will be drawn will vary from age to age; as society has come to rely increasingly on insurance and other methods of loss-sharing, the point may lie further off than a century ago. Here it is surely more equitable that the losses from the operators= negligent failure to raise the Michigan Avenue Bridge should be ratably borne by Buffalo=s taxpayers than left with the innocent victims of the flooding; yet the mind is also repelled by a solution that would impose liability solely on the City and exonerate the persons whose negligent acts of commission and omission were the precipitating force of the collision with the bridge and its sequelae. We go only so far as to hold that where, as here, the damages resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort that was

E.2. The Risk Playout (Harm Results from the Risk) Limitation 649 expectable, unforeseeability of the exact developments and of the extent of the loss will not limit liability. Other fact situations can be dealt with when they arise.

As [modified to reallocate liabilities among the responsible parties], the decree is affirmed.

MOORE, Circuit Judge (concurring and dissenting): I do not hesitate to concur with [most of] Judge Friendly=s well-reasoned and well-expressed opinion . . . . I cannot agree, however, merely because Asociety has come to rely increasingly on insurance and other methods of loss-sharing@ that the courts should, or have the power to, create a vast judicial insurance company which will adequately compensate all who have suffered damages. Equally disturbing is the suggestion that A[Here] it is surely more equitable that the losses from the operators= negligent failure to raise the Michigan Avenue Bridge should be ratably borne by Buffalo=s taxpayers than left with the innocent victims of the flooding.@ Under any such principle, negligence suits would become further simplified by requiring a claimant to establish only his own innocence and then offer, in addition to his financial statement, proof of the financial condition of the respective defendants. Judgment would be entered against the defendant which court or jury decided was best able to pay. Nor am I convinced that it should be the responsibility of the Buffalo taxpayers to reimburse the Ainnocent victims@ in their community for damages sustained. In my opinion, before financial liability is imposed, there should be some showing of legal liability.

Unfortunate though it was for Buffalo to have had its fine vehicular bridge demolished in a most unexpected manner, I accept the finding of liability for normal consequences because the City had plenty of time to raise the bridge after notice was given. Bridges, however, serve two purposes. They permit vehicles to cross the river when they are down; they permit vessels to travel on the river when they are up. But no bridge builder or bridge operator would envision a bridge as a dam or as a dam potential.

By an extraordinary concatenation of even more extraordinary events, not unlike the humorous and almost-beyond-all-imagination sequences depicted by the famous cartoonist, Rube Goldberg, the Shiras with its companions which it picked up en route did combine with the bridge demolition to create a very effective dam across the Buffalo River. Without specification of the nature of the damages, claims in favor of some twenty persons and companies were allowed resulting from the various collisions and from Athe damming of the river at the bridge, the backing up of the water and ice upstream, and the overflowing of the banks of the river and flooding of industrial installations along the river banks.@

My dissent is limited to that portion of the opinion which approves the awarding of damages suffered as a result of the flooding of various properties upstream. I am not satisfied with reliance on hindsight or on the assumption that since flooding occurred, therefore, it must have been foreseeable. In fact, the majority hold that the danger Aof flooding would not have been unforeseeable under the circumstances to anyone who gave them thought.@ But believing that Aanyone@ might be too broad, they resort to that most famous of all legal mythological characters, the reasonably Aprudent man.@ Even he,

650 Chapter Seven. Attributable Responsibility however, Acarefully pondering the problem,@ is not to be relied upon because they permit him to become prudent A[With] the aid of hindsight.@

The majority, in effect, would remove from the law of negligence the concept of foreseeability because, as they say, A[The] weight of authority in this country rejects the limitation of damages to consequences foreseeable at the time of the negligent conduct when the consequences are <direct.=@ Yet lingering thoughts of recognized legal principles create for them lingering doubts because they say: AThis does not mean that the careless actor will always be held for all damages for which the forces that he risked were a cause in fact. Somewhere a point will be reached when courts will agree that the link has become too tenuousCthat what is claimed to be consequence is only fortuity.@ The very example given, namely, the patient who dies because the doctor is delayed by the destruction of the bridge, certainly presents a direct consequence as a factual matter yet the majority opinion states that Afew judges would impose liability on any of the parties here,@ under these circumstances.

In final analysis the answers to the questions when the link is Atoo tenuous@ and when Aconsequence is only fortuity@ are dependent solely on the particular point of view of the particular judge under the particular circumstances. In differing with my colleagues, I must be giving Aunconscious recognition of the harshness of holding a man for what he could not conceivably have guarded against, because human foresight could not go so far.@ (L. Hand, C.J., in Sinram v. Pennsylvania R. Co., 61 F.2d 767, 770 (2d Cir. 1932).) If Aforeseeability@ be the test, I can foresee the likelihood that a vessel negligently allowed to break its moorings and to drift uncontrolled in a rapidly flowing river may well strike other ships, piers and bridges. Liability would also result on the Adirect consequence@ theory. However, to me the fortuitous circumstance of the vessels so arranging themselves as to create a dam is much Atoo tenuous.@

The decisions bearing on the foreseeability question have been so completely collected in three English cases [Polemis and the two Wagon Mound cases] that no repetition of the reasoning pro and con of this principle need be made here. To these cases may be added the many American cases cited in the majority opinion which to me push the doctrine of foreseeability to ridiculous lengthsCridiculous, I suppose, only to the judge whose Ahuman foresight@ is restricted to finite limits but not to the judge who can say: It happened; ergo, it must have been foreseeable. The line of demarcation will always be Auncertain and wavering,@ but if, concededly, a line exists, there must be areas on each side. The flood claimants are much too far on the non-liability side of the line. As to them, I would not award any recovery even if the taxpayers of Buffalo are better able to bear the loss. NOTES

1. The foreseeable consequence limitation. Does Judge Friendly accept or reject the foreseeable consequence limitation, as either a duty or proximate cause limitation? Can the result in Kinsman, especially the liability of Kinsman and Continental for flooding damage to riparian property between the Concrete Elevator and the Michigan Avenue bridge, be reasonably explained under the usual interpretation of the foreseeable

E.2. The Risk Playout (Harm Results from the Risk) Limitation 651 consequence limitation, which would not require that the extent of the injury or its particular manner of occurrence be foreseeable, but would at least require that the plaintiff and the type of injury be foreseeableCi.e., within the original Azone of risks@ that made the defendant=s conduct tortious? Does the majority agree that the plaintiff(s) must be foreseeable?

2. The risk playout limitation. Does Judge Friendly invoke the risk playout limitation? Can the result in Kinsman be better explained and justified under the risk playout limitation?

3. The British cases. Judge Friendly discusses a pair of British cases that are difficult to reconcile under the foreseeable consequence limitation. In Hughes v. Lord Advocate, [1963] A.C. 837 (HL), the House of Lords assumed that the Wagon Mound=s foreseeable consequence limitation was applicable, yet allowed the plaintiff to recover for a seemingly unforeseeable consequence resulting from a bizarre sequence of events. The defendant=s employees had been working on underground telephone cables, which they accessed through a manhole in a road. They had erected a canvas tent over the manhole and in accordance with normal procedure had placed four red warning lamps, containing paraffin as fuel, around the tent. Shortly after 5 p.m., after it had turned dark, they pulled the ladder up from the manhole and placed it on the ground next to the tent, pulled a tarpaulin over the tent opening, and went to a nearby building for a 15 minute tea break. While they were gone, two boys, one eight and the other ten, entered the shelter, taking the ladder, a length of rope and a tin can that they had brought with them, and one of the red warning lamps, which they swung at the end of the rope. They used the ladder to explore the manhole. When they emerged from the manhole, the lamp was either knocked or dropped into the manhole and a violent explosion took place, causing the plaintiff to fall into the manhole. He sustained severe burn injuries. The most serious were to his fingers and were probably caused by his holding on to the metal ladder rungs (which were intensely hot as a result of the explosion) to climb back out of the manhole. The explanation of the accident that was accepted was that when the lamp fell down the hole and was broken, some paraffin escaped, and enough was vaporized to create an explosive mixture that was detonated by the naked light of the lamp. The experts agreed that no one would have expected this to happen: that it was so unlikely as to be unforeseeable. The lower courts, relying on the Wagon Mound=s foreseeable consequence limitation, held that the defendant, although negligent in having left the site unguarded against inquisitive children, was not liable, since the type of injury which occurred, Ainjury by explosion,@ did not match the original negligently created risk, Ainjury by fire.@ The Law Lords disagreed, holding that the relevant risk was Ainjury by burns@ or Ainjury by fire of some kind,@ which was foreseeable and which occurred, although the manner of occurrence was unforeseeable and the extent of the injury was much greater than might have been foreseen.

Compare Doughty v. Turner Manufacturing Co., [1964] 1 Q.B. 518, in which the defendant=s employee accidentally knocked an asbestos-cement cauldron cover into a cauldron of molten liquid sodium cyanide which had been heated to 800 degrees centigrade, eight times as hot as boiling water. Although there was a foreseeable risk of the molten liquid being physically displaced and splashed on bystanders, apparently no

652 Chapter Seven. Attributable Responsibility splashes occurred as the cover slid into the molten liquid. At that point everyone thought the danger was over. However, one to two minutes later the molten liquid erupted as a result of an explosion caused by water vapor that was formed by a chemical reaction in the immersed cover. No one was aware or had reason to be aware that such a chemical reaction might occur, until subsequent testing by the supplier of the cauldrons and covers demonstrated that such reactions would inevitably occur when the covers were immersed in the molten liquid at temperatures over 500 degrees centigrade. The court purported to distinguish Hughes, arguing that the risk of being burned by a splash caused by a chemical reaction and consequent explosive eruption was unforeseeable and different in kind and not just in degree (or manner of occurrence) from the foreseeable risk of being burned by a splash caused by physical displacement. (Do you agree with the court that the risks here are more different in kind than the risks in Hughes? Or do they seem less different in kind?) The judges, while claiming to be unwilling to Amake another inroad on the [Wagon Mound] doctrine of foreseeability@ (id. at 529, per Lord Justice Harmon), seemed to be decisively influenced by the perception that, unlike in Hughes, the foreseeable risk here (of splashing by physical displacement) had either never occurred or spent itself without causing injury before a new and different unforeseeable risk (of splashing through explosive expulsion caused by a chemical reaction) came into play. See id. at 527, 529, 529-30, 532-33. Lord Pearce based his opinion on Athe intrusion of a new and unexpected >factor.=@ Id. at 527. Lord Justice Diplock stated: AThe former risk [of splashing of the molten metal by physical displacement] was well known (and so foreseeable) at the time of the accident; but it did not happen. It was the second risk [of explosive expulsion of the molten liquid due to a chemical reaction] which happened and caused the plaintiff damage by burning.@ He distinguished Hughes as a case in which the sequence of events leading to the plaintiff=s injury was Athe direct consequence of the defendant=s breach of duty and of the same kind as could reasonably have been foreseen, although of unforeseen gravity.@ See id. at 532-33. Is this foreseeable consequence reasoning, or rather an application of the risk playout limitation? Would the latter limitation explain the contrary holding in Hughes?

DI PONZIO V. RIORDAN New York Court of Appeals

89 N.Y.2d 578, 679 N.E.2d 616 (1997)

TITONE, J. Injured by another customer=s runaway car while he was on the premises of a self-service filling station, plaintiff sued the premises owner on the theory that it had a duty to ensure that all of its customers abided by regulations requiring their vehicle engines to be turned off during the operation of the gas pumps. We conclude, however, that defendant filling station owner had no duty to protect its customers from the unforeseeable occurrence that led to plaintiff=s injury and that, accordingly, the complaint against that defendant was properly dismissed.

Defendant United Refining Co. (URC) owns and operates a self-service filling station in Rochester. According to the complaint allegations and summary judgment submissions, the injury-producing accident occurred on defendant=s premises on April 15, 1991. At about 1:00 P.M. on that date, plaintiff Richard Di Ponzio drove into defendant=s gas station, exited his car and began to fill his tank with fuel. At approximately the same

E.2. The Risk Playout (Harm Results from the Risk) Limitation 653 time, defendant Michael Riordan drove his car into the gas station, stopped opposite plaintiff=s vehicle and, without turning off his engine, began pumping gas into his vehicle. Riordan stated during his deposition testimony that the pavement was relatively level and that he placed his console gearshift in the park position.

Riordan took about five minutes to pump gas into his car and then went inside the gas station=s storefront enclosure to pay the attendant for his fuel. He left his vehicle running because he had been experiencing problems with the carburetor and was afraid that he would not be able to restart the vehicle if he turned its ignition off. When he exited the store and began walking toward the car, he noticed that it was moving backward toward the rear of plaintiff=s vehicle, where plaintiff was still pumping gas. Riordan moved toward the vehicle, but he was unable to reach it in time to stop it from striking plaintiff. Plaintiff, who was pinned between the two cars, suffered a fractured leg.

Plaintiff and his spouse subsequently commenced the present personal injury action against Riordan and URC. Plaintiffs= theory against defendant URC was that it had been negligent in failing to properly train its attendants and that its attendants had been negligent in failing to comply with URC rules requiring that customers be warned to turn off their engines while fueling their vehicles. In support of their claim, plaintiffs cited information obtained during discovery that URC attendants were not supposed to allow customers to pump gas while their engines were running and that the attendants had the ability to turn off a particular pump in the event that a customer refused to comply. They also relied on deposition testimony that on the day of the accident URC=s attendants had deliberately turned down the sound on an intercom system that would otherwise have enabled them both to hear the sound of Riordan=s engine and to admonish him to turn it off.

Following discovery, defendant URC moved for summary judgment dismissing the complaint on several grounds, including the lack of a cognizable legal duty, the lack of a proximate causal relationship between its alleged negligence, if any, and the accident and the unforeseeability of the accident. Supreme Court denied the motion, holding that URC, as the premises owner, had a duty to exercise reasonable care and that the questions of foreseeability and proximate cause should be resolved by the fact finder.

On URC=s appeal, the Appellate Division reversed and dismissed the complaint against URC. Two of the Justices concluded that URC should not be held liable because the accident was not foreseeable. A third Justice concurred on the separate ground that URC had no duty to protect its customers from Athe unforeseeable risk that another patron=s car would suffer a mechanical malfunction or inexplicably jump into gear.@ (224 A.D.2d 139, 147.) Additionally, the concurrer opined that any alleged negligence on URC=s part was not the proximate cause of the accident. The remaining two Appellate Division Justices dissented for the reasons set forth in the Supreme Court opinion. Plaintiffs then appealed to this Court pursuant to CPLR 5601(a).

[Editor=s note. Four of the five judges in the Appellate Division agreed with the trial court that, as owner of the property, URC owed a (general) duty of reasonable care to the plaintiff, and that the question of whether URC had fulfilled this duty was best left,

654 Chapter Seven. Attributable Responsibility along with the proximate-cause issue, to the trier of fact. Two of the four judges also agreed with the trial court that the foreseeability issue was for the trier of fact, while the other two held that the complaint should have been dismissed since it was unforeseeable as a matter of law Athat a vehicle left unattended with its engine running at a self-service gas station will inexplicably move and injure a plaintiff.@ (Although it is not clear, they may have related this to the issue of breach of duty.) The fifth judge, who cast the deciding vote in favor of dismissing the complaint, held that as a matter of law URC owed no duty to Di Ponzio and that any alleged negligence by URC was not a proximate cause of Di Ponzio=s injury. Although he quoted Palsgraf=s language that Athe risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation@ and noted the unforeseeability of the car=s inexplicably shifting into gear, he did not make a foreseeable consequence argument but rather argued that Athe relationship between a gas station owner and patron@ should not be held to require the defendant to do more than it had done, by posting notices, to get customers to turn off their engines. Di Ponzio v. Riordan, 224 A.D.2d 139, 645 N.Y.S.2d 368 (App. Div. 1996).]

The threshold issue in this negligence action is whether defendant URC had a legally cognizable duty to prevent the accident in which plaintiff Di Ponzio was injured. It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition. It is also clear that this duty may extend to controlling the conduct of third persons who frequent or use the property, at least under some circumstances. The duty of a landowner or other tort defendant, however, is not limitless. It is an elementary tenet of New York law that A[t]he risk reasonably to be perceived defines the duty to be obeyed@ (Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344).

The existence and scope of an alleged tortfeasor=s duty is, in the first instance, a legal question for determination by the court. In analyzing questions regarding the scope of an individual actor=s duty, the courts look to whether the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was within the zone of foreseeable harm (see, e.g., Palsgraf v. Long Is. R.R. Co., supra) and whether the accident was within the reasonably foreseeable risks. The nature of the inquiry depends, of course, on the particular facts and circumstances in which the duty question arises. The analysis is also driven by considerations of public policy. As we stated in [a prior case], A[t]he common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss.@

In this case, the focus of the inquiry is on the foreseeability of the risk. Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated (Prosser and Keeton, Torts ' 31, at 169-170, and n 15 [5th ed]). Further, although virtually every untoward consequence can theoretically be foreseen Awith the wisdom born of the event@ [citation omitted], the law draws a line between remote possibilities and those that are reasonably foreseeable because A[n]o person can be expected to guard against harm from events which are . . . so unlikely to occur that the risk . . . would commonly be disregarded@ (Prosser and Keeton, op. cit., ' 31, at 170).


A related problem, also implicated here, is the need to analyze the relationship between the risk created by the actor=s conduct and the actual occurrence that caused the harm. It is often said that plaintiffs need not demonstrate the foreseeability of the precise manner in which the accident occurred or the precise type of harm produced in order to establish the foreseeability component of their tort claims (e.g., Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344, supra). This principle is sometimes mistakenly cited to support an argument that a careless act should lead to liability even though the injury-producing accident itself occurred in an unexpected manner. Such arguments, however, are misguided to the extent that they fail to recognize the analytically important distinction between the concept of risk or hazard and the concept of harm.

The Restatement (Second) of Torts is useful in clarifying this often misconstrued principle. As is explained in section 281, comment e, conduct is considered negligent when it tends to subject another to an unreasonable risk of harm arising from one or more particular foreseeable hazards (Restatement [Second], of Torts ' 281, at 6). When the person is harmed by an occurrence resulting from one of those hazards, the negligent actor may be held liable. In contrast, where the harm was caused by an occurrence that was not part of the risk or recognized hazard involved in the actor=s conduct, the actor is not liable (see, id., comment f). The following example taken directly from the Restatement provides a useful illustration of the point:

AA gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D@ (id., comment f, illustration 3, at 7).

As this hypothetical fact pattern makes clear, where an individual breaches a legal

duty and thereby causes an occurrence that is within the class of foreseeable hazards that the duty exists to prevent, the individual may be held liable, even though the harm may have been brought about in an unexpected way. On the other hand, no liability will result when the occurrence is not one that is normally associated with such hazards. Significantly, the kind and number of hazards encompassed within a particular duty depend on the nature of the duty (see, id., comment e).

The gist of plaintiffs= claim is that defendant URC=s servants were negligent in failing to monitor its customers= conduct and, more specifically, in failing to require Riordan to turn off his vehicle=s engine despite having had the means and obligation to do so. Assuming without deciding that URC had a duty to control its customer=s conduct in this manner, the existence of such a duty would not aid plaintiff Di Ponzio=s case, since his injuries did not arise from the occurrence of any of the foreseeable hazards that the duty would exist to prevent.

When a vehicle=s engine is left running in an area where gasoline is being pumped, there is a natural and foreseeable risk of fire or explosion because of the highly flammable properties of the fuel. Indeed, the local ordinance plaintiffs cite as one source of support for the existence of a duty to direct gas station patrons to turn off their engines

656 Chapter Seven. Attributable Responsibility is, in fact, contained within the City of Rochester Fire Prevention Code, whose stated purpose is to safeguard against Athe hazards of fire and explosions@ (see, City of Rochester Fire Prevention Code ' 54-1).2 It is this class of foreseeable hazards that defines the scope of the URC=s purported duty.

The occurrence that led to plaintiff=s injury was clearly outside of this limited class of hazards. Plaintiff was injured because the parking gear of another customer=s car inexplicably failed and the unattended vehicle, which had rested stationary on a level surface for more than five minutes, suddenly began to move backwards, pinning plaintiff between its rear bumper and the bumper of his own car. Because this type of accident was not among the hazards that are naturally associated with leaving a car engine running during the operation of a gas pump, the alleged misconduct of URC=s employees does not give rise to liability in tort. Indeed, plaintiff=s position in this case is analogous to that of the child whose foot was injured by the plummeting pistol in the Restatement hypothetical. Moreover, while plaintiff=s accident may have been an indirect consequence of the station attendant=s failure to direct Riordan to turn off his engine, the accident was, at most, a remote possibility at the time the conduct in question occurred and thus was not a foreseeable consequence of the attendant=s inaction, even though the risk may now readily be perceived through hindsight. Accordingly, as a matter of law defendant URC had no cognizable legal duty to protect against the injury-producing occurrence and plaintiff=s cause of action based on URC=s own alleged negligence was properly dismissed. NOTES

1. New York law 70 years after Palsgraf. Neither the trial court nor the intermediate appellate court in Di Ponzio employed Cardozo=s limited duty analysis. The Court of Appeals did, at least in part. It cited Palsgraf and treated the case before it as raising a duty issue rather than a scope of liability (Aproximate cause@) issue, and it required that the plaintiff be a foreseeable plaintiff (Awithin the zone of foreseeable harm@). However, in its discussion of the foreseeable risks, did the Court of Appeals discuss and apply the foreseeable consequence formulation or the risk playout formulation of the foreseeable risk limitation? Was either version of the foreseeable risk limitation on attributable responsibility necessary, as either a duty limitation or a scope of liability limitation, in order to rule against the plaintiff? Was the negligent aspect of the defendant=s conduct a cause of the plaintiff=s injury?

2The specific provision plaintiffs have cited is section 54-22 (Q) of the City of Rochester Fire Prevention Code. That section requires filling stations to post warning signs directing their customers not to smoke and to A[s]top motor[s] during fueling operation.@ . . .

2. The loaded gun hypothetical. The loaded pistol hypothetical discussed in Di Ponzio has often been put forth as supporting a foreseeable consequence limitation. It first appeared in the Restatement as an illustration added by the reporter, Professor Laurence Eldredge, responsible for the the 1948 revision of the first Restatement. See Restatement of the Law, 1948 Supplement, Torts ' 281 illustration 2 at 651 (1949). However, as the Di Ponzio court notes, Eldredge focused in the associated comment on the foreseeable Ahazards@ (risks) rather than the foreseeable harms and, using language that the Di Ponzio

E.2. The Risk Playout (Harm Results from the Risk) Limitation 657 court repeats, invoked the risk playout formulation rather than the foreseeable consequence formulation of the foreseeable risk limitation:

e. The hazard problem. Conduct is negligent because it tends to subject certain interests of another to one or more hazards. . . . The duty established by law to abstain from the negligent conduct is established in order to protect the other from the risk of having his interest invaded by one or more of this limited number of hazards. . . . With respect to the specific hazard that brings about the harm, if it be determined that the duty to abstain from the negligent conduct was not established to protect the other from the risk of being harmed by that hazard, then as to it the conduct is not negligent. For example, precautions which must be taken in dealing with loaded firearms, but which would not be required if the firearms were not loaded, are required in order to protect members of the public from the risk of being harmed by their discharge. See Illustration 2 [the loaded gun hypothetical].

Id. ' 281 comment e at 650 (emphasis added).

3. Distinguishing the tortious-aspect causation requirement, the foreseeable consequence limitation, and the risk playout limitation. Like the great majority of the illustrations that have been relied upon by proponents of the foreseeable consequence limitation, the loaded gun hypothetical involves a failure to satisfy the tortious-aspect causation requirement, since the negligent aspect of A=s conduct (giving a loaded pistol to B) had nothing to do with D=s injury. See chapter 6, section B. There thus is no need to invoke either version of the foreseeable risk limitation, as an aspect of duty or attributable responsibility, in order to deny liability.

Some academic proponents of the foreseeable consequence limitataion have tried to substitute it for the tortious-aspect causation requirement. See, e.g., Robert Keeton, Legal Cause in the Law of Torts (1963). They allegedly would avoid all the difficult causation and superseding cause problems by requiring merely that the defendant=s conduct as a whole, rather than the tortious aspect of the defendant=s conduct, be a cause of the plaintiff=s injuryCa trivial requirement that almost always will be satisfiedCand they would have the foreseeable consequence limitation do all the work. Would this be a good approach? See Richard W. Wright, Causation in Tort Law, 73 Calif. L. Rev. 1735, 175966 (1985 (no).

Assume that B=s dropping of the pistol on D=s bare foot while attempting to hand it to C caused D to squeeze the trigger on a rifle that he was carrying, resulting in D=s being shot. Should A, who negligently gave the loaded gun to B, be liable to D? Under Keeton=s approach, which merely requires causation by A=s overall conduct of handing the gun to B and employs the foreseeable consequence limitation, would A be liable? When discussing a similar hypothetical involving a truck carrying explosives that is non-negligently driven over a trigger for some other explosives that explode and cause harm, Keeton is forced to depart from his approach: A[I]n relation to the hypothetical case of the transportation of explosives, . . . legal responsibility should be limited to damages

658 Chapter Seven. Attributable Responsibility caused by explosion [of the explosives in the truck] or by conduct responsive to the explosion risk . . . .@ Keeton, supra, at 22 (emphasis added). Would A be liable if the tortious-aspect causation requirement is employed? If the risk playout limitation is employed?

Assume that B=s dropping of the pistol on D=s bare foot while attempting to hand it to C caused the dropped pistol to fire and injure D. B takes D to the hospital. On the way to the hospital, B is shot by a bullet accidentally/deliberately discharged from X=s pistol. Should A, who negligently gave the loaded gun to B, be liable to B? Under Keeton=s approach, which merely requires causation by A=s overall conduct of handing the gun to B and employs the foreseeable consequence limitation, would A be liable? Would A be liable if the tortious-aspect causation requirement is employed? If the superseding cause limitation is employed? If the risk playout limitation is employed?

4. The current situation. As a result of the positions adopted in the first and second Restatements, a substantial number of jurisdictions adhere to Cardozo=s limited-duty approach. Probably the most widely accepted (yet still often ignored) component of the limited duty rule is the foreseeable plaintiff requirement. However, even those jurisdictions, such as California, which sometimes begin the negligence analysis with the duty issue and identify the existence of a foreseeable plaintiff as the most important aspect of the duty issue, tend to accept the traditional conception of a general duty to behave reasonably in light of foreseeable risks to (unspecified) others, and use the foreseeability of harm to a particular category of plaintiffs as a reason to expand that general duty or to remove previously existing limitations on its application, rather than to limit it. See, e.g., Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (expansion of liability for negligent infliction of emotional distress), which is discussed in chapter 9; Rowland v. Christian, 443 P.2d 561 (Cal. 1968) (expansion of liability for injuries to persons on one=s property), which is discussed in section D.4 of chapter 5; and Tarasoff v. Regents of the Univ. of California, 551 P.2d 334 (Cal. 1976) (expansion of liability for failure to aid the plaintiff), which is discussed in section E.4 of chapter 5.

As has been true since Palsgraf was decided in 1928, students are usually advised when writing their law school Torts exam or their state bar exam(s) to address both Cardozo=s and Andrews=s positions on the duty issue. This is fairly easily accomplished. If the plaintiff was a foreseeable plaintiff, state that a duty exists under either Cardozo=s or Andrews=s views regarding duty. If the plaintiff was not a foreseeable plaintiff, state that no duty was owed under Cardozo=s limited duty view but does exist under Andrews=s general duty view. If and when you reach the scope of liability issue, use the risk playout (harm results from the risk) limitation rather than the foreseeable consequence (harm matches the risk) limitation.

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