Coincidence (Harm-Within-the-Risk) Harm not within the risk Barry v. Sugar Notch Borough speeding train has tree fall on it – Georgia Ry v. Price train didn’t stop, woman burned by lamp at hotel – Harm within the risk Hines v. Garrett train didn’t stop, woman raped in bad neighborhood on way – home RST §448 Antecedent wrong that persists til 3rd person committed tortious – act is liable until person reaches safety Directness vs. Foresight Foresight (ex ante) Beginning with negligence, was harm a foreseeable consequence Δ’s Π’s when acted? Δ Directness (ex post) Start with harm and work back to negligence is there a superseding Δ’s – cause that severs causation? negligence increased the risk of harm remains til risk returns to Δ’s levels General Mound #1 not liable when spilled oil into harbor that burned down a – Δ wharf when servants of were welding with knowledge that oil was there Π Palsgraf innocent trigger (unforeseeable), fails negation, – In re Polemis was it foreseeable a board falling into a hold of benzene would – explode? Direct and probably foreseeable Unforeseeable unbroken causal chain Hebert v. Enos guy gets shocked gardening at house – Π’s Not foreseeable, but direct Risk not dissipated Marshall v. Nugent Truck cuts corner, forces off road, swerves to miss – Π Δ stalled car, hits Truck liable Π Intervening/subsequent cause still liable for foreseeable intervening causes – Brower v. NY central & HRR train destroys cart, barrels stolen by – Π’s thieves train liable Compulsion/Duress Danger invites rescue (Wagner v. International Ry guy falls rescuing dead – cousin) City of Lincoln from coach when it was out of control. Doesn’t – Π Δ’s sever causation if he wouldn’t have been injured had he stayed put Tuttle Rule if negligence puts under apprehension of injury and – Δ’s Π Π sustains injury during good faith effort to minimize loss, doesn’t sever causation Thin Skull Take as is Π – Π Π NIED Dillon Test How close was to accident? no need to be in of danger” Π – “zone
Coincidence (Harm-Within-the-Risk) Harm not within the risk Barry v. Sugar Notch Borough – speeding train has tree fall on it Georgia Ry v. Price – train didn’t stop, woman burned by lamp at hotel Harm within the risk Hines v. Garrett – train didn’t stop, woman raped in bad neighborhood on way home RST §448 – Antecedent wrong that persists til 3rd person committed tortious act is liable until person reaches safety Directness vs. Foresight Foresight (ex ante) Beginning with Δ’s negligence, was Π’s harm a foreseeable consequence when Δ acted? Directness (ex post) Start with harm and work back to Δ’s negligence – is there a superseding cause that severs causation? Δ’s negligence increased the risk of harm remains til risk returns to levels General Mound #1 – Δ not liable when spilled oil into harbor that burned down a wharf when servants of Π were welding with knowledge that oil was there Palsgraf – innocent trigger (unforeseeable), fails negation, In re Polemis – was it foreseeable a board falling into a hold of benzene would explode? Direct and probably foreseeable Unforeseeable unbroken causal chain Hebert v. Enos – guy gets shocked gardening at Π’s house Not foreseeable, but direct Risk not dissipated Marshall v. Nugent – Truck cuts corner, forces Π off road, Δ swerves to miss stalled car, hits Π Truck liable Intervening/subsequent cause – still liable for foreseeable intervening causes Brower v. NY central & HRR – train destroys Π’s cart, barrels stolen by thieves train liable Compulsion/Duress Danger invites rescue (Wagner v. International Ry – guy falls rescuing dead cousin) City of Lincoln – Π from Δ’s coach when it was out of control. Doesn’t sever causation if he wouldn’t have been injured had he stayed put Tuttle Rule – if Δ’s negligence puts Π under apprehension of injury and Π sustains injury during good faith effort to minimize loss, doesn’t sever causation Thin Skull Π – Take Π as Π is NIED Dillon Test How close was Π to accident? – no need to be in “zone of danger”
Torts_Epstein_Fall_2011.docx