Chapter Five: Proximate Cause

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Chapter Five Proximate Cause
Duty Breach Causation Defendants act must be
both An actual cause, or cause in fact of the
plaintiffs injury And a proximate cause of the
injury. Damages
2

• First, decide how you are going to characterize
  the risk and the breach! Then, ask
• Was the plaintiff foreseeable?
• If not, Cardozo says no duty
• If so, or if you follow the Andrews view
• Was the initial injury unexpected?
• Set-stage cases
• Was the injury simply foreseeable? (Wagon Mound
  II n. 10 p. 414, Hines v. Morrow, p. 423)
• Outside the scope of the risk / different hazard?
• In a close case Wagon Mound or Kinsman or
  Andrews?
• Intervening cause cases
• Foreseeable intervening cause / foreseeable harm
• Same type of harm / different manner
• Unforeseeable intervening cause / harm outside
  the scope of the risk.

3

• First, decide how you are going to characterize
  the risk and the breach! Then, ask
• 3. Were there unforeseeable consequences of the
  initial injury?
• Egg-shell skull rule
• Rescuers are always foreseeable
• Normal consequence / normal efforts rule for
  secondary harms

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Chapter Six Defenses A. The Plaintiffs Fault

• Duty
• Breach
• Causation
• Cause in fact
• Proximate cause
• Damage or injury
• Defenses
• Immunity
• Contributory negligence/comparative fault
• Assumption of the risk

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Chapter Six DefensesA. The Plaintiffs Fault
Contributory Negligence

• If the plaintiff was contributorily negligent,
  the plaintiff could not recover damages, even
  though the defendant was also negligent!
• Elements of contributory negligence
• Duty to use due care to protect oneself from
  physical injury
• Breach
• reasonable person standard
• perhaps more willing to take mental capacity into
  account
• Learned Hand formula, role of custom, violation
  of statute,etc. all can be used to establish the
  std of care
• Causation
• actual cause
• proximate cause

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Li v. Yellow Cab, 532 P.2d 1226 (Cal.
1975) Plaintiff was making a left hand turn into
a gas station, just ahead of an intersection
controlled by a traffic light. The light turned
yellow, and defendant speeded up to get through
the intersection. Plaintiff turned too closely
in front of defendant, who was going too fast to
stop.
D
P
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Doctrines that limited the effect of the rule

• Changes to the standard of conduct taking
  mental disability into account, e.g.
• Refusal to impute contributory negligence
• Doctrine of last clear chance
• All cases sent to jury / jury nullification

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The new rule Comparative fault

• Plaintiffs recovery is reduced to reflect the
  fact that the plaintiff was also at fault
• Choice of pure or modified versions
• Implications for cases involving multiple
  defendants

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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault
The questions to ask 1) How is comparative
fault calculated? 2) What happens if there is
more than one possible defendant in the case? A)
Is there joint and several liability? B) Do
defendants have rights of contribution or
indemnity? C) What happens if a defendant is
insolvent? D) Are there set offs if defendants
have counterclaims against plaintiffs? E) How
are settlements taken into account?
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Li v. Yellow Cab, 532 P.2d 1226 (Cal.
1975) Plaintiff was making a left hand turn into
a gas station, just ahead of an intersection
controlled by a traffic light. The light turned
yellow, and defendant speeded up to get through
the intersection. Plaintiff turned too closely
in front of defendant, who was going too fast to
stop.
D
P
What percentage of fault would you assign to each
party?
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault

• nature of the conduct of each party at fault and
• the extent of the causal relation between the
  conduct and the damages claimed.

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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault

• Note 2, p. 450
• Inadvertent vs conscious
• Magnitude of risk, persons endangered,
  seriousness of injury
• Significance of actors goals
• Actors superior or inferior capacity
• Exigent circumstances

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Chapter Six Defense The Plaintiffs Fault 2.
Comparative Fault -- problem page 447
What are the rights of your client, C, in the
following situation There has been an accident
in which A has suffered damages of 40,000 and
has brought suit against B,C, and D. A trial has
established the relative shares of fault are A
-- 40 B -- 30 C -- 10 D -- 20 Assume all
parties are solvent.
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What are the rights of your client, C, in the
following situation There has been an accident
in which A has suffered damages of 40,000 and
has brought suit against B,C, and D. A trial has
established the relative shares of fault are A
-- 40 of 40,000 16,000 B -- 30 of 40,000
12,000 C -- 10 of 40,000 4,000 D -- 20 of
40,000 8,000 Assume all parties are
solvent. UCFA A has a judgment against C for
24,000 ( 1, 2(c)). If C pays more than
4,000, he has a right of contribution against B
and D (UCFA 4 (a)) CA Same, except no joint
and several liability for non economic losses
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What are the rights of your client, C, in the
following situation There has been an accident
in which A has suffered damages of 40,000 and
has brought suit against B,C, and D. A trial has
established the relative shares of fault are A
-- 40 B -- 30 C -- 10 D -- 20 At trial, it
appears that D is insolvent.
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There has been an accident in which A has
suffered damages of 40,000 and has brought suit
against B,C, and D. A trial has established the
relative shares of fault are A -- 40
(16,000) B -- 30 (12,000) C -- 10 (
4,000) D -- 20 ( 8,000) At trial, it appears
that D is insolvent. UCFA 2(d) As share of
Ds liability -- 4/8, or 4,000 Bs share of
Ds liability -- 3/8, or 3,000 Cs share of
Ds liability -- 1/8, or 1,000 C and B are
jointly and severally liable to A for 20,000. C
has a right of contribution against B if C pays
more than 5,000. All parties retain their
rights against D, should he become solvent. CA
B and C are liable for Ds share of the economic
damages, dividing it 31.
A B C 431 4/8 3/8 1/8
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Assume all parties are solvent. C has also been
hurt and has sustained damages of 25,000. A, B
and D are jointly and severally liable to C for
22,500 (25,000 - 10) As share 10,000
(40) Bs share 7,500 (30) Ds share
5,000 (20) UCFA 4(a) C is still jointly
and severally liable to A for 24,000. There is
no offset. California Same result for economic
losses. A is only severally liable for Cs non
pecuniary losses.
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Chapter Six Defenses A. The Plaintiffs
Fault 2. Comparative Fault

Note 8, p. 454 Damages 100,000
As fault 10 Bs fault 45 Cs fault 45
Bs settlement offer 25,000. Should A accept?
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Note 8, p. 454 Damages 100,000
As fault 10 Bs fault 45 Cs fault 45

Bs settlement offer 25,000. IF A accepts
Under UCFA Reduce judgment by the amount of the
settling defendants share. A will get a judgment
against C for 90,000 - 45,000 45,000. As
total recovery 45,000 25,000 60,000
Under California law (assuming all damages are
economic) Reduce judgment by the amount of the
settlement A will get a judgment against C
for 90,000 - 25,000 65,000. As total
recovery 65,000 25,000 90,000
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Chapter Six Defenses A. The Plaintiffs
Fault 3. Express Assumption of the Risk
1. Was the agreement effective? 2. Is the
agreement enforceable, as a matter of law?
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Chapter Six Defenses A. The Plaintiffs
Fault 3. Express Assumption of the Risk
1. Was the agreement effective? Was it brought
to the plaintiffs attention? Does the agreement
cover the injury that occurred? Does the
agreement cover the person who was injured?
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Chapter Six Defenses A. The Plaintiffs
Fault 3. Express Assumption of the Risk
2. Is the agreement enforceable, as a matter
of law? Dalury v. S.K.I. Tunkle v.
Regents Virginia rule
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Contrasting the approaches
Tunkl
Dalury

• Public regulation
• Important public service
• Open to public
• Advantage of bargaining power
• Adhesion contract
• Under control / subject to risk of negligence

• Open to the public
• Illogical to place duty on premises owner, and
  then shift risk to skiers who have no ability or
  right to control it

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Chapter Six Defenses A. The Plaintiffs
Fault 3. Assumption of the Risk

• Duty
• Breach
• Causation
• Cause in fact
• Proximate cause
• Damage or injury
• Defenses
• Immunity
• Contributory negligence/comparative fault
• Assumption of the risk
• Express
• Implied

Negates!
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Assignments

Tuesday 416-425 Wednesday 440-449, 454
n.8 Thursday 466-475 Friday 475-490