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WHAT IS NEGLIGENCE? Negligence is defined as the failure to act with the prudence that a reasonable person would exercise under the same circumstances.  The tort of "negligence" occurs when a defendant’s conduct imposes an unreasonable risk upon another, which results in injury to that person.  The negligent actor’s mental state is irrelevant.  The components of a negligence action are:

Duty: A legal duty requiring defendant to conduct himself according to a certain standard, so as to avoid unreasonable risk to others.
Failure to conform: This element can be thought of as "carelessness."
Proximate cause: A sufficiently close causal link between defendants act of negligence and the harm suffered by plaintiff. This is "proximate cause."
Actual damage: Actual damage suffered by plaintiff.

What is a "DUTY?" Generally, a person owes everyone else with whom he comes in contact a general "duty of care."  Normally, you don’t have to worry about this duty – it is the same in all instances, the duty to behave with the care that would be shown by a reasonable person.  But there are several situations in which courts hold that the defendant owes plaintiff less than this regular duty.  The most important of these situations are: (1) Defendant ("D") generally has no duty to take affirmative action to help Plaintiff ("P"); (2) D generally has no duty to avoid causing unintended mental suffering to P and (3) D has no duty to avoid causing pure economic loss to P in the absence of more tangible types of harm such as physical injury.

If the danger or injury to P is due to D’s own conduct, or to an instrument under D’s control, D has the duty of assistance.  This is true today even if D acted without fault. 

• Ex.: A truck driven by D strikes P, a pedestrian. Even though D has driven completely non-negligently, and the accident is due to P’s carelessness in crossing the street, D today has a common-law duty to stop and give reasonable assistance to P.

Where the victim and the defendant are engaged in a common pursuit, so that they may be said to be co-venturers, some courts have imposed on the defendant a duty of warning and assistance.  For instance, if two friends went on a jog together, or on a camping trip, their joint pursuit might be enough to give rise to a duty on each to aid the other.  Once D voluntarily begins to render assistance to P (even if D was under no legal obligation to do so), D must proceed with reasonable care.  D is especially likely to be found liable if he begins to render assistance, and this has the effect of dissuading others from helping P.

• Ex.: If D stops by the roadside to help P, an injured pedestrian, and other passers-by decline to help because they think the problem is taken care of, D may not then abandon the attempt to help P.

If D has a duty to control third persons, D can be negligent for failing to exercise that control.  A duty to control a third person may arise either because of a special relationship between D and P, or a special relationship between D and a third person. For instance, some courts now hold that any business open to the public must protect its patrons from wrongdoing by third parties.

• Ex.: D, a storekeeper, fails to take action when X, an obviously deranged man, comes into the store wielding a knife. P, a patron, is stabbed. Most courts would find D liable for failing to take action.

RISK - P must show that defendant’s conduct imposed an unreasonable risk of harm on him.  This is NOT judged by results: It is not enough for P to show that D’s conduct resulted in a terrible injury.  P must show that D’s conduct, viewed as of the time it occurred, without benefit of hindsight, imposed an unreasonable risk of harm.  When determining whether the risk of harm from D’s conduct was so great as to be "unreasonable," courts use a balancing test:

"Where an act is one which a reasonable person would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done."

THE REASONABLE PERSON - The reasonableness of Defendant’s conduct is viewed under an objective standard: Would a "reasonable person of ordinary prudence," in Defendant’s position, act the same way?  Defendant does not escape liability merely because she intended to behave carefully or thought she was behaving carefully.  If Defendant has a physical disability, the standard for negligence is what a reasonable person with that physical disability would have done.  The ordinary reasonable person is not deemed to have the particular mental characteristics of Defendant.

Intoxication is no defense: Even if Defendant is drunk, they are held to the standard of conduct of a reasonable sober person.

Custom: Courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable care. 

• Evidence by D: Thus where D shows that everyone else in the fishing industry does things the way D did them, the jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent.
• Proof by plaintiff: Conversely, proof offered by P that others in the fishing industry followed a certain precaution that D did not, will be suggestive but not conclusive evidence that D was negligent.

A reasonable person possesses at least limited ability to anticipate the conduct of others.  A construction operator may be required to anticipate the possibility of negligence on the part of others, i.e. it may be negligence for the construction operator to presume that all workers near him will behave non-negligently, and that these others will use safety equipment, signal properly, etc.

If D has a higher degree of knowledge, skill or experience than the "reasonable person," D must use that higher level. 

• Ex.: Trucker, a local resident, knows that a stretch of highway is exceptionally curvy and thus dangerous.  Trucker drives at a rate of speed that one who did not know the terrain well would think was reasonable, and crashes, injuring motorist, P.  Even though trucker’s driving would not have represented carelessness if done by a reasonable person with ordinary knowledge of the road, Trucker was responsible for using his special knowledge and is negligent for not doing so.

Professionals, including doctors, lawyers, accountants, engineers, professional drivers etc., must act with the level of skill and learning commonly possessed by members of the profession in good standing.  The professional will not normally be held to guarantee that a successful result will occur, only that she will use the requisite minimum skill and competence.  Minimally qualified member: It is not enough for P to prove that D performed with less skill than the average member of the profession. D must be shown to have lacked the skill level of the minimally qualified member in good standing.  One who is just beginning the practice of his special profession is held to the same level of competence as a member of the profession generally. 

• Ex.: A truck driver who has just obtained his commercial drivers license, does not get the benefit of a lower standard – he must perform at the level of minimally competent truck drivers generally, not novices.

WHAT IS A "STATUTE OF LIMITATIONS?"  If the injured party does not discover his injury until long after Defendant’s negligent act occurred, the statute of limitations may start to run at the time of the negligent act, or may instead not start to run until P discovered (or ought to have discovered) the injury.  The period of time for a statute of limitations varies depending on the state. 

WRONGFUL DEATH ACTIONS -  Most states have two types of statutes that take effect when a personal injury victim dies.  A "survival" statute governs whether the victim’s own right of recovery continues after his death.  The survival statute in most states provides that when an accident victim dies, his estate may sue for those elements of damages that the victim himself could have sued for had he lived.  Thus a survival statute typically allows the estate to sue for pain and suffering, lost earnings prior to death, actual medical expenses, etc.  In many states, if death is instantaneous, there is no survival action at all, since all damages are sustained on account of or after the death.

Depending on the state, in a wrongful death action, survivors may recover for:

• The economic support they would have received had the accident and death not occurred;
• Companionship (including sexual companionship) and moral guidance that would have been given by the decedent.  Some states also allow the survivors to recover for grief.
• Many courts now allow a parent whose child has died to recover for the loss of companionship of that child.

PERSONAL INJURY DAMAGES:

Actual injury is required - In any action based on negligence, there must be an actual injury suffered.  Normally, a plaintiff must show that they suffered some kind of physical harm.  Recovery will not be allowed where only mental harm, and no physical harm was suffered.  Once physical harm has been proven, Plaintiff may recover a variety of damages.  These include:

Direct loss: The value of any direct loss of bodily functions (actual monetary compensation for the loss of a leg).

Economic loss: Out-of-pocket losses stemming from the injury (medical expenses, lost earning capacity)

Pain and suffering: Damages for pain and suffering caused as a result of the injury.

Hedonistic damages: Damages for loss of the ability to enjoy one’s prior life (compensation for loss of the ability to walk, even if loss of that ability has no economic consequences).

Future damages: Plaintiff brings only one action for a particular accident, and recovers in that action not only for past damages, but also for likely future damages.

PUNITIVE DAMAGES  - Punitive damages can be awarded to penalize a defendant whose conduct is particularly outrageous.  In cases of negligence (as opposed to intentional torts), punitive damages are usually awarded only where the Defendant’s conduct was "reckless" or "willful and wanton."  Punitive damages are also frequently awarded in product liability suits, if Plaintiff shows that Defendant knew its product was defective, or recklessly disregarded the risk of a defect.

In a product liability context, a defendant who has made many copies of a defective product (such as faulty truck tires) may face multiple suits, each awarding punitive damages.  The possibility of multiple awards by itself generally does not mean that such awards should not be made.  Many courts take into account the possibility of multiple awards in fixing the amount of punitive damages in each case.

IMMUNITIES

The common law recognizes two immunities in the family relationship:

(1)  Husband and wife: At common law, inter-spousal immunity prevented suits by one spouse against the other for personal injury.

Ex.: If Wife is injured while a passenger in a truck driven negligently by Husband, Wife cannot sue Husband.

• Abolition: Over half the states have completely abolished the inter-spousal immunity, even for personal injury suits.  Other states have partially abolished it.

(2)  Parent and child: At common law, there is an immunity that bars suit by a child against his parents or vice versa.  Many states have abolished this immunity, and others have limited it.

(3)  Governmental immunity:

At common law, there is "sovereign immunity," preventing anyone from suing the government.  Suits against the federal government are generally allowed today, under the Federal Tort Claims Act (FTCA).  However, no liability may be based upon the government’s exercise of a discretionary or policy-making function, even if the discretion is abused.

State governments have traditionally had similar sovereign immunity, but many have abolished that immunity.  Similarly, local government units (cities, school districts, public hospitals, etc.) have traditionally had sovereign immunity as well.  Even at common law, where a local government unit performs a "proprietary" function, there is no immunity.  Proprietary functions are ones that have not been historically performed by government, and which are often engaged in by private corporations.

Ex.s: The running of hospitals, utilities, airports, etc., is generally proprietary, since these are revenue-producing activities; they can therefore be the subject of suit for personal injuries.  Police departments, fire departments and school systems are not proprietary, and cannot be sued at common law.

EMPLOYER-EMPLOYEE RELATIONSHIP

If an employee commits a tort during the "scope of his employment," his employer will be liable jointly with the employee.  This is the rule of "respondeat superior."  This doctrine applies to all torts, including intentional ones and those in which strict liability exists, provided that the tort occurred during the scope of the employee’s employment.  Most cases of respondeat superior liability involve independent contractors.  These must be distinguished for regular employees. 

The distinction is that an employee is one who works subject to the close control of the person who has hired him.  Alternatively, an independent contractor, is not subject to the close control of the person doing the hiring.  The "control" required to make a person an employee rather than an independent contractor is usually held to be control over the physical details of the work, not just the general manner in which the work is turned out.

• Ex.: A "newspaper boy" is likely to be an independent contractor, not an employee, because the newspaper usually controls only the general terms of employment such as the time by which the deliveries must take place and not the physical details, such as whether the work should be done by bike or automobile.

Respondeat Superior applies only if the employee was acting "within the scope of his employment" when the tort occurred.  The tort is within the scope of employment if the tortfeasor was acting with an intent to further his employer’s business purpose, even if the means he chose were indirect, unwise or even forbidden.

Most courts hold that where an accident occurs where the employee is traveling from home to work, they are not acting within the scope of their employment.  If the employee is returning home after business, courts are divided.  Even a detour or side-trip for personal purposes by an employee may be found within the scope of employment if the deviation was "reasonably foreseeable." 

• Ex.: While Defendant, a salesperson, is taking a two-hour trip to visit a business prospect, she makes a five-minute detour to buy a pack of cigarettes.  If an accident occurred during the detour, this would probably be held to be "within the scope of employment," so that Defendant’s employer would be liable.  But a two-hour detour for personal business while on a one-day trip would probably not be within the scope of employment.

Even if the act done was expressly forbidden by the employer, it will be "within the scope of employment" if done in furtherance of the employment. 

• Ex.: Defendant, the owner of a trucking company, expressly orders his driver never to load cargo in a particular manner.  The driver ignores this rule and loads the cargo, the cargo comes loose causing an accident in which Plaintiff is hurt.  D will be liable because the loading, though forbidden, was done in furtherance of the employer’s business purposes, i.e., the transportation of the cargo.

There are some important exceptions to the rule that an employer is not liable for the torts of his independent contractor.  First, if the employer is negligent in there own dealings with the independent contractor, this can give rise to employer liability. 

• Ex.: Defendant knows that the work to be done is hazardous if not done with special precautions.  He chooses a contractor, X, who he should know will probably not do the work safely.  X, performing the work negligently, injures Plaintiff.  Defendant is liable for the consequences, because of his own negligence in selecting X.

Second, there are some duties of care that are deemed so important that the person doing them will not be allowed to delegate them to anyone. 

• Ex.: A city cannot delegate its duty to keep its streets in good repair; a business owner cannot delegate his duty to keep the premises safe for business visitors; a truck driver cannot delegate the duty to keep his brakes in good working order.

Finally, one who employs an independent contractor will also be liable where the work is such that, unless special precautions are taken, there will be a high degree of danger to others.  This special rule of vicarious liability applies only to "peculiar risks," i.e., risks differing from commonly-encountered risks.

• Ex.: Defendant, a city, hires X, an independent contractor, to dig a sewer in the street.  X leaves the trench unguarded without warning lights at night.  Defendant will be liable to Plaintiff, who drives his truck into the trench.  Defendant knew or should have known that the work being done posed peculiar risks to motorists.

JOINT ENTERPRISE

A joint enterprise is like a partnership, except that it is for a short and specific purpose (e.g., a trip).  The doctrine is used often in truck accident cases.  The negligence of the driver is imputed to the passenger (either to allow the occupant of a second car to recover against the passenger, or to prevent the passenger from recovering against the negligent driver of the other truck under the doctrine of imputed contributory negligence).

There are four requirements for a joint enterprise:

1.     An agreement, express or implied, between the members;

4.     An equal right to a voice in the enterprise, i.e., an equal right of control.

The family purpose doctrine provides that a truck owner who lets members of their household drive the truck for their own personal use has done so in order to further a "family purpose," and is, therefore, vicariously liable.  This doctrine is probably now accepted by less than half of American courts.

• Ex.: Father lets son use his truck.  Son negligently smashes into Plaintiff.  In a state adopting the family purpose doctrine, Father will be vicariously liable for son’s negligence.

AUTO CONSENT STATUTES

Many, states have enacted "automobile consent statutes," which provide that the owner of a car is vicariously liable for any negligence committed by one using the car with the owner’s permission.  If the use by the borrower goes clearly beyond the scope of that consent, there is no liability. 

• Ex.: A lets B use A’s car, but forbids B to drive on the highway.  B drives on the highway, and injures D.  D probably cannot recover against A under the auto consent statute, because B’s use clearly exceeded the scope of A’s consent.

If there is no consent statute, the mere existence of a bailment does not make the bailor vicariously liable for the bailee’s negligence.  The bailor may be negligent in entrusting a potentially dangerous instrument to the bailee, where the bailor should know that the latter may use it unsafely. 

• Ex.: Defendant, a car rental company, rents to X.  Defendant knows or should know that X is drunk.  X immediately runs over Plaintiff.  Plaintiff will be able to recover against Defendant, not because of vicarious liability, but because Defendant was directly negligent in entrusting the instrumentality to a drunk driver.

IMPUTED CONTRIBUTORY NEGLIGENCE

The common law recognized the doctrine of "imputed contributory negligence" in many three-party situations.  That is, because of some relation between A and B, B’s suit against C might be defeated because of A’s contributory negligence, "imputed" to B.  For example, traditionally a driver’s negligence could be imputed to his passenger so as to prevent the passenger from recovering against the driver of another vehicle whose negligence contributed to a collision between the two trucks.  Similarly, a husband’s negligence was frequently imputed to his wife, and vice versa.

In the vast majority of states today, contributory negligence will be imputed only if the relationship is one that would make the plaintiff vicariously liable if he were a defendant. 

• Ex.: Passenger rides in a car owned and driven by Driver.  Driver collides with Trucker.  Passenger is injured.  Passenger sues Trucker.  Trucker shows that Driver was negligent, and asserts that Driver’s negligence should be imputed to Passenger.  Traditionally, this argument would work.  But today, most courts would reject it, because the driver-passenger relationship is not one in which the passenger would be vicariously liable for the driver’s negligence if the passenger were being sued, unless a joint enterprise existed between them.

"Both ways" rule: Conversely, if the relationship is one which would give rise to vicarious liability, in most courts contributory negligence is still imputed.

• Ex.: Company owns an expensive truck.  Worker, who is an employee of Company, drives the truck on Company’s business.  While en route, he negligently collides with Driver, who is also negligent.  Company sues Driver for damage to the truck.  Since Company would be vicariously liable for any negligence by Worker in a suit brought by Driver, Worker’s contributory negligence will be imputed to Company, thus barring Company from recovery from Driver in a contributory negligence jurisdiction.  If the state follows comparative negligence, probably Company’s recovery will be reduced by Worker’s comparative fault.

The more culpable the defendants conduct, the more far-reaching his liability for unexpected consequences so an intentional actor is liable for a wider range of unexpected consequences than is a negligent actor.  The measure of damages is generally broader for the more culpable categories.  In particular, an actor is more likely to be required to pay punitive damages when he is an intentional actor than when he is negligent or strictly liable.

AUTOMOBILE GUEST STATUTES

A minority of states still have "automobile guest statutes" on their books.  These generally provide that an owner-driver is not liable for any injuries received by his non-paying passenger, unless the driver was grossly negligent or reckless.

VIOLATION OF STATUTE

Most courts apply the "negligence per se" doctrine: when a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute by D is "negligence per se," and thus conclusively establishes that D was negligent.

• Ex.: Driver drives at 65 m.p.h. in a 55 m.p.h. zone.  While so driving, he strikes and injures P, a motorist.  Because the 55 m.p.h. limit is a safety measure designed to protect against accidents, the fact that Driver has violated the statute without excuse conclusively establishes that Driver was negligent – Driver will not be permitted to argue that it was in fact safe to drive at 65 m.p.h.

In virtually all states, the negligence per se doctrine applies to the violation of a statute.  Where the violation is of an ordinance or regulation, courts are split about whether the doctrine should apply.  The negligence per se doctrine will apply only where P shows that the statute was intended to guard against the very kind of injury in question.  This means that P must be a member of the class of persons whom the statute was designed to protect.  The statute must have been intended to protect against the particular kind of harm that P seeks to recover for. 

• Ex.: A statute requires that when certain foodstuffs are being transported, they must be kept in separate containers.  D, a shipping company, violates the statute by placing different foodstuffs in the same container.  Because they are in the same container, the foodstuffs are destroyed when the truck crashes.  P cannot use the negligence per se doctrine, because the statute was obviously intended to protect only against spread of disease, not protection during an accident. 

The court is always free to find that the statutory violation was excused, as long as the statute itself does not show that no excuses are permitted.  Some typical reasons for finding D’s violation to be excused are: (1) D was reasonably unaware of the particular occasion for compliance; (2) D made a reasonable and diligent attempt to comply; (3) D was confronted with an emergency not of his own making; or (4) compliance would have involved a greater risk of harm.

• Ex.: A statute requires all brakes on tractor-trailers be maintained in good working order.  D’s brakes fail, and he can’t stop, so he runs over P.  If D can show that he had no way to know that his brakes were not in working order, his violation of the statute would be excused, and the negligence per se doctrine will not apply.

Contributory negligence per se: If the jurisdiction recognizes contributory negligence, D may get the benefit of contributory negligence per se where P violates a statute.

• Ex.: Truck driven by P and car driven by D collide. If P was violating the speed limit, and the jurisdiction recognizes contributory negligence, D can probably use the negligence per se doctrine to establish that P was contributorily negligent.

The fact that D has fully complied with all applicable safety statutes does not by itself establish that he was not negligent – the finder of fact is always free to conclude that a reasonable person would take precautions beyond those required by statute.

RES IPSA LOQUITUR

The doctrine of res ipsa loquitur ("the thing speaks for itself") allows P to point to the fact of the accident, and to create an inference that, even without a precise showing of how D behaved, D was probably negligent.

• Ex.: A barrel of flour falls on P’s head as he walks below a window on the street. At trial, P shows that the barrel fell out of a window of D’s shop, and that barrels do not fall out of windows without some negligence. By use of the res ipsa loquitur doctrine, P has presented enough evidence to justify a verdict for him, so unless D comes up with rebuttal evidence that the barrel did not come from his shop or was not dropped by negligence, D will lose.

Courts generally impose four requirements for the res ipsa doctrine.  First, there must be no direct evidence of how D behaved in connection with the event.  Second, P must demonstrate that the harm which occurred does not normally occur except through the negligence of someone. P only has to prove that most of the time, negligence is the cause of such occurrences.

• Ex.: If truck crashes without explanation, P will generally be able to establish that trucks usually do not crash without some negligence, thus meeting this requirement.

P must demonstrate that the instrumentality which caused the harm was at all times within the exclusive control of D. 

• Ex.: P, while walking on the sidewalk next to D hotel, is hit by a falling armchair. Without more proof, P has not satisfied the "exclusive control" requirement, because a guest, rather than the hotel, may have had control of the chair at the moment it was dropped.

If there are two or more defendants, and P can show that at least one of the defendants was in control, some cases allow P to recover.  This is especially likely where all of the Ds participate together in an integrated relationship.  Usually, the effect of res ipsa is to permit an inference that D was negligent, even though there is no direct evidence of negligence.

CAUSATION IN FACT

Plaintiff must show that Defendant’s conduct was the "cause in fact" of P’s injury.  The vast majority of the time, the way P shows "cause in fact" is to show that D’s conduct was a "but for" cause of P’s injuries.  Had D not acted negligently, P’s injuries would not have resulted.

• Ex.: A statute requires all trucks to have a special safety lights.  D sends out a truck without the safety lights. P, a trucker, gets in an accident in a storm so heavy that, even had there been safety lights, it could not have been prevented. P is killed. Even assuming that D was negligent per se, D’s failure to provide the safety lights is not a cause in fact of P’s death, because that death would have occurred even without the failure. Therefore, D is not liable.

There can be multiple "but for" causes of an event.  D1 cannot defend on the grounds that D2 was a "but for" cause of P’s injuries as long as D1 was also a "but for" cause, D1 is viewed as the "cause in fact."  Sometimes D’s conduct can meet the "cause in fact" requirement even though it is not a "but for" cause.  This happens where two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other.  Each of these concurring events is deemed a cause in fact of the injury, since it would have been sufficient to bring the injury about. 

• Ex.: Sparks from D’s campfire start a forest fire; the fire merges with some other unknown fire, and the combined fires burn P’s property. Either fire alone would have been sufficient to burn P’s property. Therefore, D’s fire is a cause in fact of P’s damage, even though it is not a "but for" cause.

If P can show that each of two (or more) defendants was at fault, but only one could have caused the injury, the burden shifts to each defendant to show that the other caused the harm.  Where D’s conduct has increased the risk that P will suffer some later damage, but the damage has not yet occurred, most courts deny P any recovery for that later damage unless he can show that it is more likely than not to occur eventually.  Some courts now allow recovery for such damage, discounted by the likelihood that the damage will occur. 

PROXIMATE CAUSE GENERALLY

Even after P has shown that D was the "cause in fact" of P’s injuries, P must still show that D was the "proximate cause" of those injuries.  The proximate cause requirement is a policy determination that a defendant, even one who has behaved negligently, should not automatically be liable for all the consequences, no matter how improbable or far-reaching, of his act.  Today, the proximate cause requirement usually means that D will not be liable for the consequences that are very unforeseeable.

• Ex.: D, driving carelessly, collides with a car driven by X. Unbeknownst to D, the car contains dynamite, which explodes. Ten blocks away, a nurse who is carrying P, an infant, is startled by the explosion, and drops P. P will not be able to recover against D, because the episode is so far-fetched – it was so unforeseeable that the injury would occur from D’s negligence – that courts will hold that D’s careless driving was not the "proximate cause" of P’s injuries.

Multiple proximate causes: Just as an occurrence can have many "causes in fact," so it may well have more than one proximate cause.  (Ex.: Each of two drivers drives negligently, and P is injured. Each driver is probably a proximate cause of the accident.)

FORESEEABILITY

The foreseeability rule generally: Most courts hold that D is liable, as a general rule, only for those consequences of his negligence which were reasonably foreseeable at the time she acted.

• Ex.: D’s boat crashes and spills oil into a lake. Some of the oil adheres to P’s dock. The oil is then set afire by some molten metal dropped by P’s worker, which ignites a cotton rag floating on the water. P’s whole dock then burns.

D is not liable, because the burning of P’s dock was not the foreseeable consequence of D’s oil spill, and thus the oil spill was not the proximate cause of the damage.  This is true even though the burning may have been the "direct" result of D’s negligence.  The general rule that D is liable only for foreseeable consequences is also usually applied to the "unforeseeable plaintiff" problem.  That is, if D’s conduct is negligent as to X (in the sense that it imposes an unreasonable risk of harm upon X), but not negligent as to P (i.e., does not impose an unreasonable risk of harm upon P), P will not be able to recover if through some fluke he is injured.

A key exception to the general rule that D is liable only for foreseeable consequences is: once P suffers any foreseeable impact or injury, even if relatively minor, D is liable for any additional unforeseen physical consequences.  Thus if P, unbeknownst to D, has a very thin skull, and D negligently inflicts a minor impact on this skull, D will be liable if, because of the hidden skull defect, P dies.  The defendant "takes his plaintiff as he finds him."

Another exception to the "foreseeable consequences only" rule is that as long as the harm suffered by P is of the same general sort that made D’s conduct negligent, it is irrelevant that the harm occurred in an unusual manner.  The fact that injury to the particular plaintiff was not especially foreseeable is irrelevant, as long as P is a member of a class as to which there was a general foreseeability of harm.

• Ex.: D negligently parks his car, and the car  rolls away. It smashes into a draw bridge, causing it to fall into the river and create a dam, which results in a flood. The Ps, whose property is flooded, sue.

These owners can recover against D, even though it would have been hard to foresee which particular owners might be flooded. All of the Ps were members of the general class of riverbank property owners, as to which class there was a risk of harm from flooding.

INTERVENING CAUSES

Most proximate cause issues arise where P’s injury is precipitated by an "intervening cause."  An intervening cause is a force which takes effect after D’s negligence, and which contributes to that negligence in producing P’s injury.  Some, but not all, intervening causes are sufficient to prevent D’s negligence from being held to be the proximate cause of the injury.  Intervening causes that are sufficient to prevent D from being negligent are called "superseding" causes, since they supersede or cancel D’s liability.

Generally courts use a foreseeability rule to determine whether a particular intervening cause is superseding.  If D should have foreseen the possibility that the intervening cause (or one like it) might occur, or if the kind of harm suffered by P was foreseeable (even if the intervening cause was not itself foreseeable), D’s conduct will nonetheless be the proximate cause. But if neither the intervening cause nor the kind of harm was foreseeable, the intervening cause will be a superseding one, relieving D of liability.

Often the risk of a particular kind of intervening cause is the very risk (or one of the risks) which made D’s conduct negligent in the first place.  Where this is the case, the intervening cause will almost never relieve D of liability.

• Ex.: D leaves his keys in the ignition, and the car unlocked, while going into a store to do an errand. X comes along, steals the truck, and while driving fast to get out of the neighborhood, runs over P. If the court believes that the risk of theft is one of the things that makes leaving one’s keys in the ignition negligent, the court will almost certainly conclude that X’s intervening act was not superseding.

The negligence of third persons may similarly be an intervening force that is sufficiently foreseeable that it will not relieve D of liability.

• Ex.: D is a bar owner, who serves too much liquor to X, knowing that X is a truck driver that arrived alone. D also does not object when X gets out his keys and leaves. If X drunkenly runs over P, a court will probably hold that X’s conduct in negligently (drunkenly) driving, although intervening, was sufficiently foreseeable that it should not absolve D of liability.)

A third person’s criminal conduct, or intentionally tortious acts, may also be so foreseeable that they will not be superseding.  But in general, the court is more likely to find the act superseding if it is criminal or intentionally tortious than where it is merely negligent.  If an intervention is neither foreseeable nor normal, but leads to the same type of harm as that which was threatened by D’s negligence, the intervention is usually not superseding.

• Ex.: D negligently maintains a telephone pole, letting it get infested by termites. X drives into the pole. The pole breaks and falls on P. A properly-maintained telephone pole would not have broken under the blow. Even though the chain of events (termite infestation followed by truck crash) was bizarre, X’s intervention will not be superseding, because the result that occurred was the same general type of harm as that which was threatened by D’s negligence – that the pole would somehow fall down.

If the intervention was not foreseeable or normal, and it produced results which are not of the same general nature as those that made D’s conduct negligent, the intervention will probably be superseding.  Thus an extraordinary act of nature is likely to be superseding.  Courts sometimes distinguish between "dependent" intervening causes and "independent" ones.  A dependent intervening cause is one which occurs only in response to D’s negligence.  An independent intervention is one which would have occurred even had D not been negligent (but which combined with D’s negligence to produce the harm).  Dependent intervening events are probably somewhat more foreseeable on average, and thus somewhat less likely to be superseding, than independent ones.  But a dependent cause can be superseding (e.g., a grossly negligent rescue attempt), and an independent intervention can be non-superseding.

A third person’s failure to discover and prevent a danger will almost never be superseding.  For instance, if a manufacturer negligently produces a dangerous product, it will never be absolved merely because some person further down the distribution chain (e.g., a retailer) negligently fails to discover the danger, and thus fails to warn P about it.  But if the third person does discover the defect, and then willfully and negligently fails to warn P, D may escape liability if D took all reasonable steps to remedy the danger. 

• Ex.: D manufactures a car, and sells it to X. D then learns that the car may crash under certain circumstances. D offers to X to fix the truck for free. X declines. P, a worker for X, gets killed in an accident. X’s failure to warn P or allow the car to be fixed by D probably supersedes, and relieves D of liability because D tried to do everything it could.

JOINT LIABILITY

If more than one person is a proximate cause of P’s harm, and the harm is indivisible, each defendant is liable for the entire harm.  The liability is said to be "joint and several."  Indivisible versus divisible harms: This rule of joint and several liability applies only where P’s harm is "indivisible," i.e., not capable of being apportioned between or among the defendants.  If there is a rational basis for apportionment that is, for saying that some of the harm is the result of D1’s act and the remainder is the result of D2’s act then each will be responsible only for that directly-attributable harm.

If the two defendants can be said to have acted in concert, each will be liable for injuries directly caused by the other. In other words, apportionment does not take place.

• Ex.: D1 and D2 were racing. D1’s truck swerves and hits P. D2, even though his car was not part of the collision, is liable for the entire injuries caused by D1’s collision, because D1 and D2 acted in concert.)

Courts often are able to apportion harm if the harms occurred in successive incidents, separated by substantial periods of time.  Indivisible harms: Some harms are indivisible (making each co-defendant jointly and severally liable for the entire harm).  Even if D1 and D2 are jointly and severally liable, P is only entitled to a single satisfaction of her claim.  (Ex.: P suffers harm of $1 million, for which the court holds D1 and D2 jointly and severally liable. If P recovers the full $1 million from D1, she may not recover anything from D2.)

CONTRIBUTION

If two Ds are jointly and severally liable, and one D pays more than his pro rata share, he may usually obtain partial reimbursement from the other D.  This is called "contribution."

• Ex.: A court holds that D1 and D2 are jointly and severally liable to P for $1 million. P collects the full $1 million from D1. In most instances, D1 may recover $500,000 contribution from D2, so that they will end up having each paid the same amount.

As a general rule, each joint-and-severally-liable defendant is required to pay an equal share.  But in comparative negligence states, the duty of contribution is usually proportional to fault.

• Ex.: A jury finds that P was not at fault at all, that D1 was at fault 2/3 and D2 at fault 1/3. P’s damages are $1 million. P can probably recover the full sum from either D. But if P recovers the full sum from D1, D1 may recover $333,000 from D2.

Most states limit contribution as follows: No intentional torts: Usually an intentional tortfeasor may not get contribution from his co-tortfeasors (even if they, too, behaved intentionally).  The contribution defendant (that is, the co-tortfeasor who is being sued for contribution) must in fact be liable to the original plaintiff.

• Ex.: Husband drives a truck in which Wife is a passenger. The truck collides with a car driven by D. The jury finds that Husband and D were both negligent. Wife recovers the full jury verdict from D. If intra-family immunity would prevent Wife from recovering directly from Husband, then D may not recover contribution from Husband either, since Husband has no underlying liability to the original plaintiff.

Settlements:

If D settles, he may then generally obtain contribution from other potential defendants.  Where D1 settles, and D2 – against whom P later gets a judgment – sues D1 for contribution, courts are split among three approaches:

Traditional rule: The traditional – and probably still majority – rule is that D1, the settling defendant, is liable for contribution.

"Reduction of P’s claim" rule: Some courts reject contribution, but reduce P’s claim against D2 pro-rata (so that D2 comes out the same as if contribution had been allowed, but P loses out if what she received from D1 in settlement was less than half of the total damages she suffered).

"No contribution" rule: Some courts now discharge D1, the settling defendant, from contribution liability completely. This approach is increasingly popular, since it gives defendants strong incentive to settle.

INDEMNITY

Sometimes the court will not merely order two joint-and-severally-liable defendants to split the cost (contribution), but will instead completely shift the responsibility from one D to the other.  This is the doctrine of "indemnity" a 100% shifting of liability, as opposed to the sharing involved in contribution.  There are two important contexts in which indemnity is often applied:  Vicarious liability: If D1 is only vicariously liable for D2’s conduct, D2 will be required to indemnify D1.

• Ex.: Employee injures P. P recovers against Employer on a theory of respondeat superior. Employer will be entitled to indemnity from Employee; that is, Employee will be required to pay to Employer the full amount of any judgment that Employer has paid.

Retailer versus manufacturer: A retailer who is held strictly liable for selling a defective injury-causing product will get indemnity from others further up the distribution chain, including the manufacturer.

MENTAL SUFFERING

If D causes an actual physical impact to P’s person, D is liable not only for the physical consequences of that act but also for all of the emotional or mental suffering which flows naturally from it.  Such mental-suffering damages are called "parasitic" they attach to the physical injury.  Where there has been no physical impact or direct physical injury to P, courts limit P’s right to recover for mental suffering.  Where there is not only no impact, but no physical symptoms of the emotional distress at all, nearly all courts deny recovery. 

• Ex.: D narrowly misses running over P. No one is hurt. P has no physical symptoms, but is distraught for weeks. Few if any courts will allow P to recover for her emotional distress.

Some courts recognize an exception to this rule in special circumstances (e.g., negligence by telegraph companies in wording messages, and by funeral homes in handling corpses).  About six states, including California and probably New York, have simply abandoned the rule against recovery for the negligent infliction of purely mental harm.

The "at risk" plaintiff: The general rule means that if P, by virtue of his exposure to a certain substance, suffers an increased likelihood of a particular disease, P may generally not recover for the purely emotional harm of being at risk.

• Ex.: D releases toxic chemicals into the water. This causes P to have a greatly increased risk of throat cancer. Most courts will not allow P to recover for distress at being extra vulnerable to cancer.

Where D’s negligent act (1) physically endangers P, (2) does not result in physical impact on P, and (3) causes P to suffer emotional distress that has physical consequences, nearly all courts allow recovery.

• Ex.: D narrowly avoids running over P with his car. P is so frightened that she suffers a miscarriage. P may recover.

If P suffers purely emotional distress (without physical consequences), and P’s distress is due solely to fear or grief about the danger or harm to third persons, courts are split.  If P was in the "zone of danger" (i.e., physically endangered but not struck), nearly all courts allow him to recover for emotional distress due to another person’s plight.

• Ex.: D narrowly avoids running over P with his truck, and in fact runs over P’s child S. Most courts will allow P to recover for her emotional distress at seeing S injured.

A number of states have abandoned the "zone of danger" requirement. In these courts, so long as P observes the danger or injury to X, and X is a close relative of P, P may recover.

• Ex.: P is on the sidewalk when D’s truck runs over P’s son, S. In a court which has abandoned the "zone of danger" requirement, P will be able to recover for his emotional distress at seeing his son injured, even though P himself was never in physical danger.

UNBORN CHILDREN

Most courts have rejected the traditional view that an infant injured in a pre-natal accident could never recover if born alive.  Today, recovery for pre-natal injuries varies: Child born alive: If the child is eventually born alive, nearly all courts allow recovery. 

• Ex.: D makes a drug taken by P’s mother while P is a fetus only a few weeks old. P is born with serious birth defects resulting from the drug. Nearly all courts would allow P to recover.

Courts are split about whether suit can be brought on behalf of a child who was not born alive. Usually, a court will allow recovery only if it finds that a fetus never born alive is a "person" for purposes of the wrongful death statute. 

The above discussion assumes that the injury occurred while the child was in utero. Suppose, however, that the injury occurred before the child was even conceived, but that some effect from the injury is nonetheless suffered by the later-conceived child. Here, courts are split as to whether the child may recover.

• Ex.: P’s mother, before getting pregnant with P, takes a drug made by D. The drug damages the mother’s reproductive system. When P is conceived, she suffers from some congenital disease or defect (e.g., sterility) as a result. P’s mother can clearly recover from D for her own injuries, but courts are split as to whether P can recover against D for these pre-conception events.

PURE ECONOMIC LOSS

Where D tortiously causes physical injury or property damage to X, but only pure economic loss to P, the traditional rule is that P may not recover anything.

• Ex.: A cat owned by D damages a garage owned by X. P, owner of a different car, is required to park elsewhere and suffers extra labor and parking costs, but no physical injury. Under the traditional view, P may not recover these expenses from D, even though D was a tortfeasor vis-a-vis X.

Most modern courts probably no longer impose a blanket rule of no liability for pure economic loss. If a court does decide to relax the no-liability rule, it is most likely to award recovery where: (1) the injury to P was relatively foreseeable; (2) relatively few plaintiffs would be permitted to sue if liability were found for pure economic loss; and (3) D’s conduct is relatively blameworthy.

• Ex.: D, a chemical company, negligently causes a fire. P, an airline with nearby operations, is forced to close for 12 hours and loses business. Held, P may maintain its suit, because it was part of an "identifiable class" who D knew or had reason to know was likely to suffer such damages from its conduct.

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