Proximate Cause, Schemes and Mind Maps of Public Policy

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Negligence – Prima Facie Case

• D owed P a Legal Duty

• Breach of Duty

• Actual Damages

• Factual Cause

• Proximate Cause

Risks that Make

Defendant Negligent Other Risks

Harm

A

?

B?

?

C

? D

Element Modern Framework ( Thompson ) Palsgraff (Cardozo)

Duty

D owes everyone, including P, a duty of ordinary care

D owes P a duty only if: D’s conduct creates an unreasonable, foreseeable risk to P

Breach of

Duty

• D’s conduct creates a reasonably foreseeable risk of harm
• Reasonable and prudent person would seek to minimize or eliminate this risk
• D failed to do so
  • D failed to act as a reasonable and prudent person would

Proximate

Cause

• D’s conduct creates a foreseeable risk to P
• A reasonable and prudent person would seek to minimize or eliminate the risk to P

N/A

Proximate Cause – Scope of Risk

Harm w/in scope of risk if : Reasonable person

in similar circumstances would have

1) foreseen harm or risk (a) of same general

type, and (b) to the general class of

persons that includes the P; and

2) Taken greater precautions to avoid it

than D took

Proximate Cause -- Summary

• Scope of Risk : Proximate cause if w/in scope of

risk created by D’s negligence

1. Foreseeable harm or risk (a) of same general type, and (b) to the general class of persons that includes the P; and

2. Reasonable person would take greater precautions to avoid risk than D took

• Alternative Approaches :

1. Multifactor test ( Palsgraf dissent)

2. For public policy reasons, general rule of law deems D’s negligence proximate cause (e.g., Rescue Doctrine)

Proximate Cause – Scope of Risk

Reasonable person in similar circumstances would

have

• foreseen harm or risk (a) of same general type*, and

(b) to the general class of persons that includes the P,

and

• taken greater precautions to avoid that risk than D

took

* General rule: Actual harm can be w/in scope of risk

even if exact harm, extent of harm, or exact manner of

its occurrence not foreseeable

Intervening Acts – Proximate Cause

• Criminal acts :
  • Traditional rule : Criminal acts deemed a superseding cause, so no

proximate cause

• Foreseeability rule: Proximate cause only if specific criminal act is

foreseeable ( Marcus )

• Scope of risk approach: Apply scope of risk principles ( Collins )
• Suicide:
• Majority rule : Suicide is a superseding cause, so no proximate

cause

• Exceptions :
  • (1) D’s tortious conduct induces a mental illness/suicidal impulse, or
  • (2) special relationship between D and P resulting in D having duty to protect against suicide, and D aware/should know P at-risk of committing suicide
• Minority rule : Apply foreseeability principles

Intervening Acts – Proximate Cause

• Criminal acts :
  • Traditional rule : Criminal acts deemed a superseding cause, so no proximate cause
  • Foreseeability rule: Proximate cause only if specific criminal act is foreseeable ( Marcus )
  • Scope of risk approach: Apply scope of risk principles ( Collins )
• Suicide:
  • Majority rule : Suicide is a superseding cause, so no proximate cause
    • Exceptions :
      • (1) D’s tortious conduct induces a mental illness/suicidal impulse, or
      • (2) special relationship between D and P resulting in D having duty to protect against suicide, and D aware/should know P at-risk of committing suicide
  • Minority rule : Apply foreseeability principles
• Negligent Acts :
  • Majority rule : Apply scope of risk principles ( Derdiarian )
  • Minority rule : Proximate cause only if specific negligent act is foreseeable

Negligence Per Se

and Proximate Cause

O’Guin Conditions

1. The statute/regulation/ordinance is

intended to prevent type of harm D

caused;

2. P member of class of persons

statute/regulation/ordinance

designed to protect

Factual Causation -- Revisited

• Majority/Restatement: Apply but-for test

• Exception : Apply substantial factor test if Scenario 5/ Anderson

• Minority Approach #1: Factual cause if negligence

is either but-for cause or substantial factor

• Minority Approach #2 (Texas): Negligence is both

but-for and substantial factor

• In determining whether substantial factor, courts apply factors similar to Palsgraf dissent’s factors

Proximate Cause -- Summary

• Scope of Risk : Proximate cause if w/in scope of risk created by D’s negligence Within scope of risk if reasonable person in similar circumstances would have: - Foreseen harm or risk (a) of same general type, and (b) to the general class of persons that includes the P, even if exact harm, extent of harm, or exact manner of its occurrence was not foreseeable, and - Taken greater precautions to avoid the risk than D took *Not proximate cause if P in position of relative safety
• Alternative Approaches :

1. Multifactor test ( Palsgraf dissent)
2. For public policy reasons, general rule of law deems D’s negligence a proximate cause (e.g., rescue doctrine)
3. Intervening Acts

• Modern approaches :
  • Apply scope of risk principles
  • Focus on foreseeability of intervening act
• Traditional approach : Deems intervening act a superseding cause (e.g., traditional suicide rule, traditional rule criminal acts)