Chapter 5: Cause in fact 3 Multiple defendants

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Chapter 5 Cause in fact (3) Multiple defendants
Hymowitz v. Eli Lilly Market Share
liability Where 1) manufacturers act in a
parallel manner 2) to produce an identical,
generic product 3) which causes injury many years
later 4) and the legislature has created an
expectation that recovery will be available by
creating an exception to the statute of
limitations the defendant may be liable even
though the plaintiff cannot show which
manufacturer produced the product that harmed her.
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Market Share Liability
Is liability joint or several? Several. What
is the basis for apportionment? National market
share or local market share? National market
share. Can the defendant prove out by
showing It did not manufacture DES for
pregnancy use? Yes It did not manufacture the
DES the plaintiff took? No
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What is Tort Law? A functional definition.

• A social system for
• Distributing the costs of injuries that are a
  by-product of a complex society.
• Compensating people who have been injured in
  certain ways by particular forms of conduct.

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Recap Evaluation

• Using the Holmes and Posner quotes, to get you to
  begin to think about the purposes of tort law,
  another pervasive theme
• To correct wrongs by requiring compensation
  (corrective justice)
• To require people who profit from an activity to
  bear its cost?
• To encourage productive social activity by
  requiring compensation only where there is fault
  (the Holmesian view / instrumentalist)
• To make society safer by encouraging cost -
  effective investment in safety (the law and
  economics view)
• To more fairly distribute the costs of
  dangerous but useful economic activity

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Chapter 5 Cause in fact (3) Multiple defendants

• When are multiple defendants jointly and
  severally liable?
• concurrent tortfeasors
• inability to apportion
• acting in concert
• other vicariously liable defendants
• alternative liability (Summers v. Tice)
• alternative liability / twin fires scenario
• market share liability, in some jurisdictions

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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
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Chapter Five Proximate Cause An Approach

• 1) What category of cases does your case fall
  into?
• Unforeseen Plaintiff
• Unforeseen Harm
• Unforeseen Manner
• Practice tip Your theory of the case -- duty,
  breach, cause in fact -- determines this!
• Practice tip Any given case may have more than
  one possible theory, with different proximate
  cause implications!

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Chapter Five Proximate Cause An Approach
2) What rule -- doctrine -- applies to this
particular category? Practice tip For some
categories, different jurisdictions -- or
different cases within a jurisdiction --may
follow different rules!
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Chapter Five Proximate Cause An approach
3) Apply the rule you settle on to the facts
you have. Practice tip Outcomes will depend on
evidence and argument they are not
obvious! Practice tip Pay attention to the
roles of judge and jury!
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Chapter Five Proximate Cause

• What are the doctrinal options?
• Defendant has failed to use ordinary care, and
  his negligence has in fact caused harm. Should
  his liability extend
• to the foreseeable results of his actions, and no
  further?
• 2) to all the results of his actions,
  foreseeable or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?

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Chapter Five Proximate Cause Fact Pattern 1
Unexpected Plaintiff
According to Justice Cardozo which view is
correct Defendant has been negligent, and his
negligence has in fact caused harm. Should his
liability extend 1) to the foreseeable results
of his actions, and no further? 2) to all the
results of his actions, foreseeable or not? 3)
to some, but not all of the unforeseeable
consequences of his actions?
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Chapter Five Proximate Cause Fact Pattern 1
Unexpected Plaintiff
According to Justice Cardozo which view is
correct Defendant has been negligent, and his
negligence has in fact caused harm. Should his
liability extend 1) to the foreseeable results
of his actions, and no further? Cardozo Harm to
the plaintiff must be foreseeable, or there is
no duty. 2) to all the results of his actions,
foreseeable or not? 3) to some, but not all of
the unforeseeable consequences of his actions?
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Chapter Five Proximate Cause Fact Pattern 1
Unexpected Plaintiff

• According to Justice Andrews, in which view is
  correct
• Defendant has been negligent, and his negligence
  has in fact caused harm. Should his liability
  extend
• to the foreseeable results of his actions, and no
  further?
• 2) to all the results of his actions, foreseeable
  or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?

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Chapter Five Proximate Cause Fact Pattern 1
Unexpected Plaintiff
According to Justice Andrews, in which view is
correct Defendant has been negligent, and his
negligence has in fact caused harm. Should his
liability extend 3) to some, but not all of the
unforeseeable consequences of his actions? In
hindsight, were the results too attenuated from
the original negligence to hold the defendant
liable, considering various factors but for
cause, natural and continuous sequence,
substantial factor, direct, without too many
intervening causes, likely, in the usual judgment
of mankind, to produce the result, too remote, in
time and space, foreseeable. (p. 426)
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• Andrews, J. dissenting in Palsgraf, p. 426
• There are some hints that may help us
• but for cause
• natural and continuous sequence
• substantial factor
• direct, without too many intervening causes
• likely, in the usual judgment of mankind, to
  produce the result
• too remote, in time and space
• foreseeable
• 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 plaintiff is responsible.

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1. Fact Pattern 1 the unforeseeable
plaintiff 2. Rule A split
Andrews ask, in hindsight, should the D be
responsible?
Cardozo no duty to unforeseeable plaintiffs
3. Application
Cardozo Would a reasonable person in
defendants position have foreseen that his
conduct would create a risk of harm to the
plaintiff?
Andrews Knowing what happened, how foreseeable
was the extent of harm how directly did the
injury flow how remote was it in time and space
from the original wrong . . .
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Fact Pattern 2 The Unexpected Harm Eggshell
Skull Plaintiffs
In Benn, which characterizes the courts
approach Defendant has been negligent, and his
negligence has in fact caused harm. Should his
liability extend 1) to the foreseeable results
of his actions, and no further? 2) to all the
results of his actions, foreseeable or not? 3)
to some, but not all of the unforeseeable
consequences of his actions?
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Fact Pattern 2 The Unexpected Harm Eggshell
Skull Plaintiffs
Does the defendants liability extend 1) only
to the foreseeable results of his actions? 2) to
all the results of his actions, foreseeable or
not? Eggshell skull rule liable for full extent
of harm when preexisting condition causes
physical injurys extent to be unexpected. 3) to
some, but not all of the unforeseeable
consequences of his actions?
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Fact Pattern 2 The Unexpected Harm Eggshell
Skull Plaintiffs
1. Fact Pattern 2 the eggshell skull
plaintiff. 2. Rule Liable for the full extent
of the harm, even if the extent is
unforeseeable. 3. Application Characterize
the defendants acts as creating a foreseeable
risk of physical injury to this plaintiff,
physical injury occurs, the extent of the harm is
then irrelevant.
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Fact Pattern 3 The Unexpected Harm
Set-Stage Cases

• In Polemis, which characterizes the courts
  approach
• Defendant has been negligent, and his negligence
  has in fact caused harm. Should his liability
  extend
• to the foreseeable results of his actions?
• 2) to all the results of his actions, foreseeable
  or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?

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Fact Pattern 3 The Unexpected Harm
Set-Stage Cases

• In Polemis, which characterizes the courts
  approach
• Defendant has been negligent, and his negligence
  has in fact caused harm. Should his liability
  extend
• to the foreseeable results of his actions, and no
  further?
• 2) to all the results of his actions, foreseeable
  or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?
• Polemis (all harm directly caused)

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Fact Pattern 3 The Unexpected Harm
Set-Stage Cases

• In Wagon Mound, which characterizes the courts
  approach
• Defendant has been negligent, and his negligence
  has in fact caused harm. Should his liability
  extend
• to the foreseeable results of his actions, and no
  further?
• 2) to all the results of his actions, foreseeable
  or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?

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Fact Pattern 3 The Unexpected Harm
Set-Stage Cases
Does the defendants liability extend 1) only
to the foreseeable results of his actions, and no
further? Wagon Mound I 2) to all the results of
his actions, foreseeable or not? 3) to some, but
not all of the unforeseeable consequences of his
actions?
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Fact Pattern 3 The Unexpected Harm
Set-Stage Cases
Does the defendants liability extend 1) only
to the foreseeable results of his actions, and no
further? Wagon Mound I 2) to all the results of
his actions, foreseeable or not? Eggshell skull
rule 3) to some, but not all of the
unforeseeable consequences of his
actions? Polemis (all harm directly caused)
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Fact Pattern 3 The Unexpected Harm
Set-Stage Cases

• Advantage of Wagon Mound approach
• Not arbitrary
• Liability is tied to culpability

• Problems with Wagon Mound approach
• Can you reconcile the egg shell skull rule?
• What must be foreseeable and how foreseeable
  must it be?

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Fact Pattern 3 The Unexpected Harm
Set-Stage Cases
1. Fact Pattern 3 the unexpected harm, but not
eggshell skull 2. Rule A division in
authority Polemis all harm that is directly
caused Wagon Mound I liability limited to what
was foreseeable 3. Application Under the WM
approach Characterize the foreseeable risk
broadly, if you are the plaintiff narrowly, if
you are the defendant. Under the Polemis
approach Is the causation direct.
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Fact Pattern 4 The Entirely Different Hazard
Page 415, Note 11 Berry v Sugar Notch Borough
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Fact Pattern 4 The Entirely Different Hazard

• 1) Fact Pattern 4 The entirely different
  hazard.
• Examples Berry v Sugar Notch Borough (p. 414,
  n.11)
• Unforeseeably flammable rat poison near coffee
  burner.
• The rule a negligent actor is responsible only
  for harm the risk of which was increased by the
  negligent aspect of his conduct
• Restatement No liability where harm arises
  from an entirely different hazard than that
  created by the defendants negligence.
• 3) Application Driving at an unsafe speed does
  not increase the risk that a tree branch will
  fall on you. Placing rat poison where someone
  might drink it does not increase the risk that it
  will catch fire.

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In re Kinsman (p. 438) Wagon Mound simply
applies the principle which excludes liability
where the injury sprang from a hazard different
from that which was improperly risked 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 and to the same class of persons
should be relieved of responsibility for the
latter simply becaue the chance of its
occurrence, if viewed alone, may not have been
large enough to require the exercise of care.
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Assignments

Tuesday 369-389 n. 6 Wednesday 425-437 Thursd
ay 401-415 Friday 416-425, 437-439