Imagine you're just You're driving your car at exactly 5
mph. OK, stop and go traffic kind of.
Thing. Yeah, exactly.
You're in heavy traffic. You glance at your phone for
just a fraction of a second and your foot slips off the brake.
Yeah, you tap the bumper of the car in front of you.
Right, so a classic super minor Fender Bender.
Right now, a normal person in that car would maybe suffer, I
don't know, a slightly stiff neck, yeah, or perhaps no injury
at all. Yeah, you just exchange
insurance and go home. Exactly, but the driver of the
car you just hit happens to suffer from osteogenesis
imperfecta. Oh wow, the ultra rare brittle
bone disease. Yep.
So because of this incredibly rare pre-existing condition, the
minor jolt from your five mile per hour impact causes their
entire spine to shatter. That is just catastrophic.
It is we are talking permanent paralysis, you know, $5,000,000
in lifelong medical bills. So the question is, are you on
the hook for a $500 bumper replacement or are you buying
that $5,000,000 medical bill? I mean, it's the ultimate
nightmare scenario for a driver, right?
Intuitively, your brain just screams that it isn't fair.
Exactly because you couldn't possibly have known the person
in front of you had glass bones. Right.
Your conduct was barely even careless, but in the wild world
of tort law, you might just be buying the millions.
And that is exactly where we're going today.
Welcome back to our deep dive on the Negligence Mountain.
The mountain just keeps getting steeper.
It really does. If you've been following our
journey, you know we've already mapped out the first half of the
terrain, right? We established duty.
Which is the legal obligation to act like a reasonably prudent
person? Exactly.
And we tackled BREACH, which is proving that a defendant failed
to meet that standard. But here's the thing about tort
law, and I think this is where students get tripped up.
Being careless in and of itself is not a tort.
It is absolutely not and this is a fundamental trap.
We see it all the time when people look at a real world
scenario or you know, a complex exam fact pattern.
Right, your heart rate goes up, you spot the negligent behavior,
and you immediately just want to hold someone liable.
Yeah, but careless conduct alone does not equal a lawsuit.
I mean, think about a driver going 100 mph through a crowded
school's. Terrifying.
Totally. They're texting, they have
blindfold on. They are essentially doing
everything wrong. It's a massive, undisputed
breach of the duty of care. But if by some sheer miracle,
they make it all the way through that school zone without hitting
a single person, without scratching a single parked car,
without damaging one blade of grass.
There's no lawsuit. Exactly.
There's no civil lawsuit now. The criminal justice system will
absolutely step in. Right.
Oh for sure. They'll lose their license,
maybe go to jail for reckless. Yeah, but the civil justice
system, the world of torts, requires an actual injury, and
more importantly, it requires a direct, proven link between the
careless act and that specific injury.
So our mission for this deep dive is to build that link.
We're going to construct a bridge between a careless act
and a compensable injury. And we call this causation.
Right. Causation.
And once we cross that bridge, we have to put a dollar value on
that injury, which brings us to damages.
And finally, because the courtroom is an adversarial
arena, we have to look at how a defendant can fight back.
Yeah, the affirmative defenses, how a defendant can reduce or
even eliminate their liability even when they've been proven
entirely negligent. And as we dig into this, you
have to remember that this isn't just a list of rules to
memorize. This is a framework for arguing.
Right lawyers use these concepts to stretch the limits of
liability or, you know, to shut down claims entirely.
So we aren't just going to look at what the rules are, we're
going to look at how lawyers twist them, how judges push back
and where the legal exam traps are hidden.
OK, let's jump right into causation.
This is arguably the most legally complex area of a
negligence case, I think. Oh, without a doubt, because it
forces us to blend cold, hard physics with the highly
subjective, deeply debated concept of fairness.
Exactly. To win a negligence claim, a
plaintiff has to prove 2 completely distinct types of
causation. It's like a 2 headed dragon.
Let's start with the physics side.
Factual cause. Right, sometimes called cause in
fact, and the foundational tool we use for factual cause is the
but for test. The famous But for test, it's
essentially a mental exercise in alternate realities.
Yeah, you asked the jury to look at the timeline of events and
ask one very simple question. But for the defendant's
negligent act, would the plaintiff's injury have
occurred? You're literally asking the jury
to mentally erase the defendant's carelessness from
the universe and see what happens to the plaintiff in that
alternate timeline. Right.
So if the answer is no, meaning if we erase the defendant's bad
driving, the pedestrian does not get hit, then the defendant is a
factual cause of the injury. Easy enough.
But if the answer is yes, meaning even if we erase the
defendant's actions, the injury still would have happened
exactly the same way, then the defendant is not the factual
'cause. It's a beautifully mechanical,
doesn't it? It feels like pure, undeniable
logic. It does, but the reality is that
the Butford test is incredibly fragile.
I mean, it works perfectly about 95% of the time in simple
one-on-one accidents. Like a car running a red light
and hitting a bicyclist. Exactly.
But for running the red light, the bicyclist is fine.
But what happens when that mechanical test completely
fails? Which happens more than you'd
think. Right.
What happens when you have multiple negligent actors and
either one of their actions alone could have caused the
exact same harm? OK, let's illustrate this with a
classic scenario often drawn from historical cases like Cory
V Havener. Imagine 2 separate campers,
Camper A and Camper B. OK, I'm visualizing it.
They're completely unrelated to each other, they don't know each
other, and they're camping in different parts of a massive,
incredibly dry forest. Camper A negligently leaves his
campfire burning when he packs up.
Bad move. And Camper B negligently leaves
her campfire burning when she packs up.
So both are clear breaches of duty.
Exactly. Now the wind picks up.
Camper A's fire spreads into a massive blaze.
Camper B's fire also spreads into a massive blaze.
I see where this is going. Yeah, eventually these two
distinct infernos merge into one giant wall of fire, and it
sweeps across the valley and burns down the plaintiff's
house. And here is where the strict but
for logic creates a massive legal headache.
Right, let's role play this. I'm the plaintiff.
My house is ashes. I sue camp array as Camper A's
defense lawyer, What is your argument?
My argument is pure cold logic. I stand up and tell the judge,
Your Honor, apply the but for test.
But for Camper A's fire, would the plaintiff's house have
burned down? And the answer is yes.
Exactly. Even if my client had perfectly
extinguished his fire, Camper B's massive inferno was already
sweeping across the valley. Right.
Camper B's fire was more than sufficient to destroy that house
all by itself. Therefore, my client camper A is
not the but for cause of the destruction.
Case dismissed. And it works under strict, but
for logic you are absolutely right.
But then I turn around and I sue Camper B.
And Camper B's lawyer uses the exact same argument.
Right. But for Camper B's fire, would
the house have burned? Yes, because Camper A's fire was
going to destroy it anyway. So if we stick rigidly to the
but for test, both negligent campers get off Scott free and
the innocent plaintiff is left with a pile of ashes and 0
compensation. Which is just a deeply offensive
legal fiction. Yeah, judges look at that
outcome and their blood boils. Because the entire policy behind
tort law is twofold right to compensate the innocent victim
and to deter careless behavior. Yes, and letting both campers
win completely subverts both of those goals.
You cannot have two negligent parties escape liability simply
because they had the sheer luck of being negligent at the exact
same time. So the law had to evolve.
When a mechanical rule produces an absurd result, courts create
an exception. And in the case of multiple
concurrent causes where any one of them would have been
sufficient to cause the injury on its own, we throw out the
buffer test entirely. We replaced it with what is
called the substantial factor test.
Right. And the substantive factor test
asks a much more holistic question.
It asks was the defendants conduct a substantial factor in
bringing about the harm. The court doesn't care if
another fire could have done the job.
If Camper A's fire was a material contributing force to
the inferno that destroyed the house, Camper A is liable.
It's a brilliant fix, and if you're trying to analyze a
complex legal scenario like on an exam, this is a major trap to
watch out for. Oh, huge trap.
If you see a fact pattern where two independent forces merged to
cause an injury and either force could have done it alone, do not
even try. Try to apply the butt for test.
The defense will use it to trip the judge.
You have to go straight to the substantial factor test.
Now let me introduce an even Wilder scenario, because this is
where the courts really had to perform some legal gymnastics.
We just talked about a situation where two people are negligent
and both of their actions actually combined to cause the
harm. Both fires burn the house,
right? But what if you have a scenario
where two people are negligent, but only one of them actually
caused the injury and we have absolutely no idea which one it
was? Ah.
Yes, the landmark case of Summers V Tice.
This is one of the most famous cases in American law for a
reason. It totally bends the fundamental
rules of the justice system. It really does.
Let's paint the picture for this one.
You have a plaintiff, Mr. Summers, and two defendants, Mr.
Tice and Mr. Simonson. They are out hunting quail in
the woods. OK, so three guys with guns.
Right. They're walking in a triangular
formation. A quail flushes from the brush
and flies right between the plaintiff and the two
defendants. Both defendants Tice and
Simonson raise their shotguns and both of them act completely
negligently by firing in the direction of the plaintiff.
Two guns go off at the exact same time.
A single stray birdshot pellet strikes the plaintiff squarely
in the eye, causing severe permanent damage.
Just a tragic, reckless accident.
Very Now here is the factual impossibility.
Both defendants were carrying the exact same gauge of shotgun.
Oh boy, they were firing the exact same manufacturer as
ammunition. The birdshot pellet extracted
from the plaintiff's eye is a mass produced piece of lead.
So it's scientifically impossible to prove whose gun
fired the specific pellet that caused the blinding injury.
Exactly. And if you understand how a
civil trial works, you realize the plaintiff has a massive,
seemingly insurmountable problem here.
Yeah, because in a civil case, the plaintiff carries the burden
of proof. Right.
They have to prove every single element of their case by a
preponderance of the evidence. Which means they have to show it
is more likely than not that a specific defendant caused the
harm. We quantify that, as you know,
51% certainty. So Mr. Summers goes to court.
He points at Mr. Tice. The math is brutal.
There were two shooters, one pellet.
So the statistical probability that Mister Tice fired the
blinding shot is exactly 50%. And since 50% is not greater
than 50%, the plaintiff cannot meet that 51% threshold.
So the claim against Tice fails. Right then he points at Mr.
Simonson. Same math, 50% probability.
The claim against Simonson fails too.
So under stripped traditional rules of Civil Procedure, the
plaintiff loses completely and both reckless shooters walk away
without paying a dime. Wait, hold on, in a civil system
where the plaintiff always has to prove their case, the court
just decided to flip the rules because they felt bad for the
guy. I mean.
How is that legally justified? It feels like the court is just
making it up as they go it. Does feel like that.
And believe me, defense attorneys screamed bloody murder
when this happened. I get to imagine.
But the California Supreme Court looked at this and said this is
fundamentally unjust. You have a wholly innocent
plaintiff who is permanently named, and you have two
defendants who were both demonstrably reckless.
The court reasoned that it's unfair to let the reckless
parties hide behind a veil of evidentiary uncertainty and
uncertainty that they themselves created by shooting at the same
time. So the court invented a new
doctrine, alternative liability, and here's how it works.
This is the magic trick. When two or more defendants are
both negligent, but only one could have caused the harm, and
it is impossible to tell which one did it, the court literally
rewrites the rules of the trial. The burden of proof shifts.
It shifts away from the plaintiff and lands squarely on
the shoulders of the defendants. The judge effectively looks at
the 2 hunters and says you 2 figure it out.
You proved to me that it wasn't your bullet.
And of course, based on the facts, neither defendant can
prove that they don't know either.
And since they can't prove their innocence, the court holds both
of them liable. Specifically, they are held
jointly and severally liable for the entire injury.
Let's unpack that phrase jointly and severally liable, because it
is a vital concept, especially for exam mechanics.
Absolutely. It means the plaintiff doesn't
just get half the money from one guy and half from the other.
The plaintiff gets a judgement for the total amount of damages.
Let's say it's $1,000,000. The plaintiff can go to defend
an A and demand the entire $1 million.
Even if defendant A was only a 50% statistical probability.
Yes, the law allows the plaintiff to collect 100% of the
money from whichever defendant has the deepest pockets.
It is incredibly plaintiff friendly.
Wow, so defendant A just takes the massive hit.
Well, once Defendant A pays the full million, it is now
Defendant A's problem to go chase down Defendant B and sue
them for their half. I see.
The law prefers putting the burden of collection and the
risk of someone being bankrupt on the wrongdoers rather than on
the innocent victim. It's a fascinating piece of
legal engineering, and if you were studying this or trying to
understand how lawyers analyze a case, look for the trigger face.
Always look for the trigger phrase like.
We don't know whose bullet it was, or in a products liability
context, we don't know which manufacturer made the specific
generic pill the plaintiff took. Right.
When you see a factual impossibility combined with
multiple negligent actors, that is a lawyer's cue to argue
alternative liability and shift the burden.
All right, So we have established factual causation.
We used the but for test or we use the substantial factor or
alternative liability exceptions we've.
Proven that the defendants act is physically linked to the
injury. Right, we have crossed the first
half of the causation bridge, but factual cause is just
physics, and physics doesn't care about fairness.
It really doesn't. If we only used factual cause,
liability would be infinite. Let me give you an example.
Think about your alarm clock. OK, my alarm clock.
But for your alarm clock waking you up exactly when it did this
morning, you wouldn't have left your house at exactly 80 AM.
You wouldn't have been driving through that specific
intersection at 8:15 AM, and you wouldn't have been rear-ended by
a careless driver. That's true.
So, under the strict laws of physics, is the company that
manufactured your alarm clock the factual cause of your
whiplash? Technically yes if we run the
butt for test, but for the alarm clock you wouldn't be hurt.
So yes, they are a factual cause.
But should they be legally liable?
Of course not. Or what about the person who
invented the wheel? Right, but for the wheel, No
cars, no crash. Exactly.
Factual cause is like throwing a massive boulder into a pond.
The ripples go out forever, affecting everything, tracing
back to the dawn of time. And the courts recognized early
on that they needed a way to stop the madness.
They needed a boundary line. Which brings us to the
second-half of the causation bridge, proximate causation.
Also known as legal cause. Right.
If factual cause is the boulder hitting the pond, proximate
cause is the judge standing on the shore pointing at a ripple
50 feet out and saying that ripple is too faint.
We are drawing the line here. It's the loss fairness filter.
It is the mechanism courts used to say even though your action
caused this event in a literal, physical sense, the result is
simply too remote, too bizarre, or too unforeseeable to hold you
financially responsible. And the standard, the golden
word that governs proximate cause, is foreseeability.
Foreseeability is everything here.
We limit a defendant's liability to the type of harm that was a
reasonably foreseeable consequence of their negligence.
It prevents liability for those freakish Rube Goldberg machine
style chains of events. And to truly grasp how this
works, we have to talk about the most famous, most fiercely
debated torts case in American legal history.
Oh. Helen Paulsgraph If you walk
into any law firm in the country and whisper the word Paulsgraph,
every lawyer in the room will instantly have a flashback to
their first year of law school. It's universally known.
It is the ultimate story of cutting off liability for
bizarre outcomes. Let's travel back to 1924.
It's a Sunday in August. Helen Paulsgraph is a 40 year
old mother taking her daughters to the beach.
Sounds nice. She is standing on a platform at
the East New York station of the Long Island Railroad.
She's waiting for her train, minding her own business.
At the other end of the platform, a different train is
pulling out of the station. Right, so you have two men come
running down the platform desperately trying to catch this
moving train. The first man jumps aboard
successfully. The second man carrying a
package leaps for the moving train car.
Now 2 railroad employees, a guard on the train and a
platform guard try to help him and they are acting carelessly.
Instead of telling him to stop, the guard on the train reaches
out and pulls the man forward while the guard on the platform
shoves him from behind. It's a clumsy, negligent
struggle, and in the chaos, the passenger drops his package.
Now, to the naked eye, there's nothing dangerous about this
package. It's about 15 inches long.
Wrapped in ordinary newspaper, it looks completely innocuous.
But inside that newspaper is a massive bundle of fireworks.
Which is crazy to carry on a train.
Completely, and when the package hits the rails, the impact
triggers an explosion. A massive explosion.
The shockwave rips through the station.
The force of the blast travels all the way down the platform
and the vibration knocks over a set of heavy coin operated penny
weighing scales that were standing near Missus Paul's
graph. The scales fall over and crush
her. She suffers severe injuries.
She sues the railroad for the negligence of their employees.
And she actually won at trial. She did.
The jury awarded her a massive sum for the time, and the
appellate court upheld it. The logic was simple, right?
The guards were negligent. Their negligence caused the
package to fall. The package exploded and the
explosion hurt Helen. It was a clear, unbroken chain
of factual cause, but Railroad appeals it all the way to the
highest court in New York, and the case lands in front of Chief
Judge Benjamin Cardozo. Who is an absolute Titan of
American jurisprudence? And Cardozo reverses the
decision. He wipes out Mrs. Paul's Graf's
verdict entirely. Cardozo's logic is the
foundation of our modern proximate cause analysis.
He essentially said that negligence is not a free
floating concept in the air. You can't just be negligent
generally. Negligence is relational.
You only owe a duty of care to a foreseeable plaintiff who is
within the zone of danger. Cardozo looked at the guards and
said, sure, They were negligent toward the man with a package.
Maybe they were negligent toward the package itself.
But there was absolutely no way they could have foreseen that
pushing a passenger would cause an explosion that would injure a
woman standing at the complete opposite end of the platform.
Because the package looked harmless, the explosion was
unforeseeable. And because the explosion was
unforeseeable, the harm to Mrs. Paul's graph was entirely
unforeseeable. Their four approximate cause was
severed. The railroad is not liable for
the falling scales. But I think it's important to
mention the dissent here written by Judge Andrews, because it
shows how subjective this all is 0.
Andrews was furious. He vehemently disagreed.
He argued that if you act negligently and your negligence
sets off a direct chain of events, you should be liable for
whatever happens, no matter how bizarre.
As long as the chain isn't broken by some outside force.
Exactly. He thought the law owed a duty
to society at large, not just the people in the immediate zone
of danger. It's a brilliant philosophical
divide, but Cardozo's view one out Foreseeability is the law of
the land. If you speed through a red
light, it's foreseeable you will hit another car.
It is not foreseeable that the sound of your tires screeching
will startle A pedestrian a block away, causing them to drop
a priceless Ming vase. You pay for the car crash.
You do not pay for the vase. But this foreseeability analysis
gets incredibly twisted when we introduce events that happened
after the defendant's initial negligent act.
Because things rarely happen in a vacuum.
Exactly. This brings us to the realm of
intervening and superseding causes.
This is a critical area for anyone trying to analyze real
world liability. So an intervening cause is
simply anything that happens between the defendant's
negligent act and the plaintiff's final injury.
Right, the timeline goes, Defendant acts negligently, then
event X happens, then the plaintiff is hurt.
And the legal question is always does event X relieve the
original defendant of liability? Does it let them off the hook?
And the answer once again comes down to our golden word,
foreseeability. Right.
If event X is a foreseeable intervening cause, the chain of
liability remains intact. The defendant is still on the
hook. Let's use a harrowing but common
example. You negligently run a stop sign
and hit a pedestrian. OK, The pedestrian suffers a
badly broken leg. An ambulance takes them to the
hospital. While in the operating room, the
surgeon commits flagrant medical malpractice.
Oh, that's awful. They set the bone completely
wrong. Use unsterilized equipment and
it leads to a severe infection resulting in permanent nerve
damage. Now, intuitively, the driver
might argue, wait a minute, I caused a broken leg.
I didn't cause nerve damage. That terrible doctor caused the
nerve damage. I should only pay for the broken
leg and the doctor should pay for the rest.
Right, but the law says no. The law considers ordinary
medical malpractice to be a foreseeable risk of putting
someone in the medical system. When you hit someone with your
car, it is highly foreseeable that they will need an
ambulance, a hospital and doctors.
And it is a sad but foreseeable reality that doctors are human
and sometimes make mistakes. Therefore, the medical
malpractice is a foreseeable intervening 'cause it does not
sever the chain. You, the driver, are liable for
all of it. The broken leg, the infection
and the nerve damage. It is a brutal reality of tort
law and the same rule applies to rescuers.
Ah. Yes, the famous legal maxim
danger invites rescue. If you leave a massive unmarked
trench in the sidewalk and a pedestrian falls in, it's highly
foreseeable that a Good Samaritan will try to pull them
out. And if that Good Samaritan
accidentally dislocates the pedestrian shoulder while
pulling them out? You, the person who dug the
trench, are liable for the dislocated shoulder.
Because it's foreseeable that if you create a perilous situation,
someone will try to help, and they might clumsily make it
worse. But what if event X is totally
bizarre? What if it's completely outside
the realm of normal human probability?
That is when an intervening cause escalates into a
superseding cause. A superseding cause is an
unforeseeable act that is so massive or so unexpected that it
severs the chain of proximate causation.
It acts like a giant pair of legal scissors, cutting the link
between the defendant and the injury.
And the classic examples of superseding causes are acts of
God, like a freak lightning strike or intentional
unforeseeable crimes by third parties.
Let's go back to the driver who hit the pedestrian.
You hit the pedestrian, breaking their leg.
They're lying on the sidewalk waiting for the ambulance.
OK, Suddenly a totally unpredicted localized microburst
tornado touches down and throws a heavy tree barge at the
pedestrian, breaking their arm. Are you liable for the broken
arm? No, you are liable for the car
crash in the broken leg, but a freak tornado is a superseding
'cause. You couldn't possibly foresee
that your liability ends the moment the tornado hits.
Let's put this into a complex multi layered hypothetical.
This is how lawyers train to spot issues.
I call this the clinical challenge.
We're going to force you, the listener, to apply these rules
simultaneously. Here are the facts.
An amateur mechanic is working on a high-powered electric
scooter in his open garage. He's careless and decides to use
a visibly frayed, damaged wire to connect the lithium ion
battery. Which is a clear breach of duty.
Unsurprisingly, the moment he connects it, the frayed wire
sparks, causing a small, intense chemical fire on the workbench.
OK, so a fire starts. The mechanic panics.
He runs out of the garage and down the driveway to grab the
garden hose. Just as he reaches the end of
the driveway, a freak, localized, completely
unpredicted earthquake occurs. The violent tremors cause a
heavy, poorly secured brick retaining wall at the edge of
the driveway to collapse and it falls, completely crushing the
mechanic's foot. All right, let's break this down
piece by piece. You have to bifurcate your
analysis here. That's a great tip.
You have two distinct harms, the fire damage to the workbench and
the scooter, and the crushed foot.
Let's take the crushed foot first.
Step one is the mechanic, the factual cause of his own foot
injury. Apply the butt for test, but for
the mechanic using the frayed wire, would his foot have been
crushed? Let's trace the ripples.
If he hadn't used the bad wire, there wouldn't have been a
spark. If there was no spark, there
would be no fire. If there's no fire, he wouldn't
have panicked and run out to the driveway.
If he wasn't standing in that exact spot in the driveway, he
wouldn't have been under the wall when the earthquake hit.
So yes, physically speaking he is absolutely the factual, but
for cause of his crushed foot. But Step 2 is the fairness
filter. Is he the proximate cause?
Was the crushed foot a reasonably foreseeable result of
using a frayed wire on a scooter battery?
Absolutely not. The earthquake is the very
definition of an unforeseeable superseding cause.
When you wire a battery poorly, you foresee sparks, you foresee
fire, you foresee coccyx smoke, you foresee burns.
You do not foresee tectonic plates shifting and dropping a
brick wall on you. The earthquake is the giant pair
of scissors. It severs the chain of
liability. So the legal conclusion here is
vital. You have to divide the damages.
Is he legally responsible for the fire damage to the
workbench? Yes.
Factual cause and proximate cause are both met.
A fire is a highly foreseeable consequence of a frayed wire.
Is he legally responsible for the crushed foot?
No factual cause is met, but proximate cause fails due to a
superseding event. If you try to treat the entire
fact pattern as one single BLOB of injury, you will completely
fail to understand how the law applies.
Bifurcate the harms. That is exactly how you have to
think about it on an exam, and it provides the perfect
transition to our next major topic.
Because, as we just noted, you have to look at the specific
harms that brings us to damages. You established a duty, a
breach, and a clear, unbroken chain of factual and proximate
causation. But to get into court, you need
an actual, legally recognized injury.
And this is a massive contrast with intentional torts.
Think back to things like battery or trespass to land.
With an intentional tort, a plaintiff can sue for what we
call nominal damages. Meaning they can sue you for
exactly $1.00 just to get a court order proving that you
violated their rights. Right.
If you step onto my perfectly manicured lawn intentionally
without permission, I can see you for trespass.
Even if you didn't damage a single blade of grass, you can
win a judgement for $1.00 just to prove it's your property.
But in negligence that is entirely prohibited.
There are no nominal damages in negligence.
If you act carelessly but no one gets hurt, the law simply does
not care. There must be actual compensable
harm, either physical harm to a person or economic harm to
property. But once we establish that there
is an actual physical injury, we run into one of the most famous,
heavily debated, and sometimes mind bending rules in all of
torts. The eggshell skull rule.
Or, as it's sometimes called in other jurisdictions, the thin
skull rule. This rule dictates exactly how
we value the damages once liability is firmly established.
And the core maxim, the phrase you will hear in every
courtroom, is you take your plaintiff as you find them.
This loops us all the way back to the scenario we open the show
with. Let's revisit it with our new
legal tools. You're driving in traffic.
You negligently tap the bumper of the car in front of you at 5
mph. The driver of that car suffers
from osteogenesis imperfecta, the brittle bone disease.
The minor jolt causes their spine to shatter, resulting in
$5,000,000 in medical bills and lifelong care.
Now, if you are the defense lawyer, your immediate instinct
is to stand before the judge and say, Your Honor, this is absurd.
Go back to proximate 'cause. We just learned that liability
is limited by foreseeability. Exactly.
A normal person wouldn't have been hurt that badly.
I shouldn't have to pay millions for a five mile per hour tap.
I couldn't possibly have foreseen that the driver had
glass bones. The damages should be capped at
the cost of a stiff neck, maybe $1000.
It sounds like a great argument, but the law firmly shuts it
down. Under the eggshell skull rule,
you are liable for the entire injury.
The entirety of the $5,000,000 and here is why the
foreseeability filter we talked about in proximate cause applies
to the type of harm. A physical impact injury from a
car crash is a foreseeable type of harm.
But you do not need to foresee the extent of the harm.
Exactly. The courts decided long ago that
between an innocent plaintiff with a fragile body and a
negligent defendant who caused crash, the burden must fall on
the wrongdoer. You don't get a discount on your
negligence just because you happen to hit someone
vulnerable. If you break the plaintiff, you
buy the plaintiff. Pre-existing fragilities and
all. It is an incredibly powerful
rule for plaintiffs, but the law loves nuance, and there is a
massive distinction here that defense lawyers use to fight
back. Yes, there is a difference
between an eggshell skull condition and a crumbling skull
condition. They sound similar, but the
mathematical calculations for damages are vastly different.
This is a brilliant distinction, and it really shows the economic
reality of the courtroom. An eggshell or thin skull
condition, like the brittle bone disease we just discussed, is a
stable but fragile condition. The plaintiff was living their
life. Their bones are fragile, yes,
but they weren't actively breaking.
But for your car crash, their spine would not have shattered
that day because your negligence triggered the catastrophic
outcome. You pay for everything.
But a crumbling skull condition is an actively deteriorating
condition. Let's change the facts.
OK, let's hear it. Let's say the plaintiff didn't
have brittle bones, but they had a severe degenerative spinal
disease that was already actively destroying their
vertebrae. So they were already declining.
Right. Their doctors had already
evaluated them and said, I'm sorry, but your spine is
deteriorating. In exactly 6 months you will
require major spinal fusion surgery and you will have
chronic pain for the rest of your life.
OK, then you tap their bumper. The impact exacerbates the
condition, making them need the surgery today instead of six
months from now. In a crumbling cell scenario,
the defense lawyer finally gets a win.
The defendant does not pay for the entire spinal fusion and all
the lifelong care because the plaintiff was going to need that
anyway. Your negligence didn't cause the
need for surgery, it just speed up the timeline.
So the defendant only pays for the acceleration of the harm.
You pay for the pain and suffering of having to undergo
the surgery six months earlier than expected.
You perhaps pay for the economic loss of them missing work sooner
than they had planned. You are liable for speeding up
the inevitable, but you are not liable for the pre-existing
inevitable damage itself. It's a vital distinction for
assessing damages. You do not get a free pass for
hurting someone who is already sick, but you also don't have to
cure a disease you didn't cause. So let's take stock of the
battlefield. The plaintiff has stood before
the court. They have proven duty.
They've proven breach. They've linked it up with
factual and proximate causation. They've demonstrated actual
damages calculated using the eggshell skull rule.
The plaintiff rests their case. They are demanding millions.
But the trial is only half over because now the burden shifts.
We turn our attention to the defense table.
The defendant gets to stand up and say, OK, maybe I was
careless, maybe I did 'cause the injury.
But plaintiff, you are not entirely innocent in this
either. How does a defendant fight back
to reduce or even entirely eliminate the massive judgement
they're facing? We are going to look at
affirmative defenses to negligence.
This brings us to the historical evolution of plaintiff blaming.
And to understand the rules today, you really have to
understand the history, because it's a fascinating look at how
the law bends to protect economic interests.
We start with the old rule, the draconian standard known as
contributory negligence. Contributory negligence was born
in the 19th century, right alongside the Industrial
Revolution. You had railroads cutting across
the country, massive factories being built, heavy machinery
everywhere. Accidents were skyrocketing.
And judges were genuinely terrified that if companies had
to pay for every single injury, these fledgling industries would
go bankrupt and the economic progress of the nation would
stall. So, to protect capital and
industry, the courts adopted A brutally hard line approach
under pure contributory negligence, if the jury finds
that the plaintiff was even 1% at fault for their own injury.
The plaintiff gets absolutely nothing.
It is a total 100% bar to recovery.
Think about how harsh that is. Imagine a scenario where a
pedestrian is waiting at a crosswalk.
They step off the curb a half second before the walk signal
turns green. Technically, that is jaywalking.
It's negligent. At that exact moment, a driver
comes tearing down the street. The driver is drunk, they are
speeding at 90 mph, they are texting and they are driving on
the wrong side of the road. And they hit the pedestrian,
causing catastrophic injuries. Under pure contributory
negligence, the jury does the math.
They say the drunk driver was 99.9% at fault, but the
pedestrian was .1 1% at fault for stepping off the curb early.
The result? The drunk driver pays $0.00.
The slightly impatient pedestrian bears the entire cost
of their hospital bills. It is so harsh that juries
actively started ignoring the law.
Juries would look at a drunk driver and say we refuse to let
this guy off the hook just because the plaintiff made a
tiny mistake. When juries start openly
rebelling against the law, the law has to change.
So the vast majority of the country abandoned it.
However, and this is a massive caveat for anyone studying law
or living in these specific areas, contributory negligence
is not dead. It's still the law in a handful
of jurisdictions today. States like Maryland, Virginia,
North Carolina, Alabama and Washington, DC still cling to
this old draconian rule. If you are injured in DC and you
are 1% at fault, your case is over.
But assuming you're in the modern world, which most of the
country is, we use a much more equitable system called
comparative negligence. Or comparative fault.
This is essentially fairness math.
Instead of an all or nothing system, the jury listens to the
evidence and assigns a percentage of fault to everyone
involved, including the plaintiff, so that it all adds
up to exactly 100%. But even within comparative
negligence, states are divided into two distinct philosophical
camps, pure comparative and modified comparative.
Let's start with pure comparative negligence, which is
used by states like California, New York, and Florida.
This is the most forgiving system for a plaintiff.
Under pure comparative, the plaintiff can recover damages
even if they are primarily at fault for the accident.
The math is simple. You take the total damages and
you subtract the plaintiff's percentage of fault.
Let's use some numbers. A plaintiff gets into a horrible
accident and the jury determines the total damages are $100,000.
But the jury also decides that the plaintiff was driving
recklessly and was 99% at fault for the crash.
The defendant was only 1% at fault.
In a pure comparative state, the plaintiff still wins a
judgement. Right, they get their $100,000
minus their 99% share of the blame, which is $99,000.
So the defendant still has to write a check to the plaintiff
for $1000. Now, a lot of lawmakers looked
at that and said, wait, that's absurd.
Why should the person who caused almost the entire accident be
allowed to walk away with a check from the person who barely
did anything wrong? It felt counterintuitive to
justice, which is why the majority of states use the
second system. Modified comparative negligence.
Modified comparative negligence introduces a threshold, a cut
off point. The plaintiff can only recover
money if their fault falls below a certain line.
Once they cross that line, they are completely barred from
recovery, just like the old contributory negligence days.
There are two variations of this threshold, but they operate on
the same principle. In some states like Arkansas,
Colorado and Idaho, it is a 50% bar.
The plaintiff recovers only if they are 49 percent or less at
fault. If they hit exactly 50%, they
get absolutely zero. They must be less at fault than
the defendant. Other states like Delaware,
Hawaii, and Massachusetts use a 51% bar, meaning the plaintiff
recovers if their fault is 50% or less.
If they are equally at fault, you know 5050, they can still
recover half their damages. They only get zeroed out if
their fault reaches 51%. And then there is South Dakota,
which just has to be weird. South Dakota uses a truly
bizarre slight. Gross comparative negligence
rule. In South Dakota, the plaintiff
can only recover if their negligence was slight in
comparison to the gross negligence of the defendant.
It isn't tied to a specific number.
It is highly subjective. It drives lawyers crazy because
it's so hard to predict what a jury will consider slight.
But the core take away for the modern era is that a plaintiff's
own carelessness will usually reduce their damages
mathematically rather than destroy their case entirely.
However, there is one final ultimate shield the defendant
can raise, and this this one doesn't just reduce the damages,
it destroys the duty entirely. It is a complete defense.
I am talking about the assumption of risk.
This is an incredibly powerful argument.
If a defendant can prove assumption of risk, the case is
completely over. The rule is this If a plaintiff
knew of a specific subjective risk and voluntarily chose to
encounter that risk anyway, they cannot turn around and sue the
defendant when that exact risk harms them.
They have legally consented to the danger.
We divide this into two categories, express and implied.
Express assumption of risk is straightforward.
It is contractual. Have you ever gone scuba diving
or indoor rock climbing or skydiving?
Yeah, you have to sign your life away.
Exactly, before they let you anywhere near the equipment,
they make you sign a dense multi page liability waiver.
That waiver explicitly says I understand this activity is
dangerous, I understand I could suffer grievous bodily harm or
die, and I expressly agree not to sue the company for
negligence. If you sign that waiver and the
risk materializes, say you sprain your ankle rock climbing,
you are barred from suing for ordinary negligence.
You expressly assumed the risk. But implied assumption of risk
is much more common, there's more heavily litigated and much
trickier. This is where there is no signed
piece of paper, no contract, but the plaintiff's actions
demonstrate that they understood the danger and accepted it
anyway. Let's use a classic
hypothetical. Imagine you go to a summer
carnival. You see a ride called the
Bonecrusher Bumper Cars. Sounds safe.
You stand in line and you watch people slamming into each other.
You see their heads whipping back and forth.
You hear the crashes? So you know what you're getting
into. You voluntarily hand over your
tickets, you strap yourself into the little plastic car and the
ride starts. 5 minutes later someone T bones your car at high
speed and you suffer severe whiplash.
Can you sue the carnival for negligence?
Let's run it through the legal test.
Did you act voluntarily? Yes.
No one forced you onto the ride at gunpoint.
You weren't under duress. Did you know of the specific
risk? Well, you watched the ride.
You saw people crashing. You subjectively understood that
getting violently jerked around was the entire point of the
ride. Therefore, by voluntarily
participating, you impliedly assumed the risk of whiplash.
You cannot sue the carnival. But here is where defense
lawyers get overly confident and where plaintiffs can strike
back. Let's tweak the facts.
You are on the bumper cars. You are crashing around, but
suddenly instead of getting whiplash from another car, the
massive metal ceiling grid above the ride abruptly collapses and
crushes your car. Did you assume the risk of the
ceiling collapsing? Absolutely not.
That is the critical nuance of the rule.
The injury must be related to the specific known inherent risk
of the activity. The inherent risk of bumper cars
is getting bumped. The inherent risk is not
catastrophic structural engineering failure.
You assume the risk of whiplash. You did not assume the risk of a
roof collapse. The carnival's defense fails and
they are fully liable for the collapsed ceiling.
Let's apply this to another famous, highly specific
scenario, the firefighter rule. This is a specialized
application of implied assumption of risk that comes up
constantly on exams. A firefighter responds to an
emergency call. The homeowner negligently left a
candle burning and now their house is ablaze.
The firefighter runs inside, breathes in heavy, toxic smoke,
and suffers permanent lung damage.
Can the firefighter sue the homeowner for negligently
starting the fire? The answer is no.
Under the firefighter rule, emergency professionals, police,
firefighters, EMT's are deemed to have impliedly assumed the
risks inherent in their highly dangerous jobs.
Being exposed to smoke, fire and collapsing structures is the
exact risk a firefighter is hired to face.
It is a known occupational hazard.
Society compensates them through salary, pensions and workers
compensation funds, not through individual tort suits against
the panicked people they're rescuing.
But again, let's look at the boundaries of that rule.
What if the risk is not inherent to the job?
Let's say a firefighter is rescuing a little kitten out of
a tree outside a local dive bar. OK, classic cat in a tree
scenario. A drunken patron stumbles out of
the bar, gets belligerently angry at the noise, and sucker
punches the firefighter in the face, breaking their jaw.
Yikes. Can the drunk patron claim, hey,
you're a firefighter, you assumes the risk of a dangerous
job? Definitely not being a
firefighter is dangerous, but getting assaulted by a random
drunk bystander is not the specific inherent risk of
climbing a tree to save a cat. The injury must relate to the
specific risk they signed up for.
The drunk patron is fully liable.
But let me push it one step further.
What if the person who punched the firefighter was the owner of
the burning house? Oh, it's interesting.
The house is engulfed in flames. The homeowner is screaming,
demanding the firefighter go back into the inferno to save a
family photograph. The firefighter refuses, saying
it's too dangerous. The homeowner, blinded by panic
and rage, punches the firefighter.
Is that related to the job? Now that is a fascinating Gray
area. Arguably, yes.
Dealing with panicked, irate, irrational and physically
combative victims at the chaotic scene of an emergency is an
inherent, foreseeable part of being a first responder.
A court might very well find that the firefighter assumed the
risk of an altercation with the homeowner in the heat of the
moment. It perfectly illustrates how
incredibly fact dependent these defenses are.
You have to microscopically examine the specific context of
the risk. And that comprehensive look at
the defenses brings us to the end of our doctrinal journey for
today. We have successfully built the
bridge from careless act to courtroom judgement.
Let's do a quick recap of the terrain we just covered.
First, we tackled factual 'cause.
We use the ripples in the pond, but for test we looked at
concurrent camper fires and use the substantial factor test.
We looked at the simultaneous Quail hunters in Somersby Tice
and use the alternative liability burden shift,
exploring the terrifying power of joint and several liability.
2nd, we applied the fairness filter of proximate cause.
We traveled to the Long Island Railroad with Helen Paul's graph
to ask if the type of harm was foreseeable.
We examined intervening acts like medical malpractice, which
keeps the defendant on the hook, and superseding acts like freak
earthquakes and tornadoes, which cut off liability entirely. 3rd,
we valued the harm with damages. We established that negligence
requires actual physical or economic harm.
And we locked in the eggshell skull rule, taking the plaintiff
as you find them, paying for the shattered spine while carefully
distinguishing it from the pre-existing deterioration of a
crumbling skull. And finally, we examined how the
defense fights back. We track the history from the
draconian 1% bar of contributory negligence to the modern math of
comparative fault. And we looked at the ultimate
duty destroying shield of assumption of risk, exploring
the nuances of waivers, bumper cars, and the firefighter rule.
It is a massive, interconnected architecture of logic and
policy. But I want to leave you with a
teaser, a final provocative thought to Mull over before our
next deep dive. I love a good teaser.
We have spent hours across multiple sessions talking about
how incredibly hard you have to work to prove that someone was
at fault. You have to prove duty.
You have to prove breach. You have to trace the factual
cause, prove foreseeability, calculate damages, and survive a
gauntlet of affirmative defenses.
It is a grueling process to prove fault.
But what if there are situations in the law where you don't have
to prove fault at all? Wait, what?
What if a defendant can do everything perfectly safely,
take every reasonable precaution known to science, act like the
ultimate prudent person, make 0 mistakes, and still be held
strictly liable for millions of dollars in damages?
It sounds like a total contradiction of everything we
have just learned about the civil justice system.
But I can confirm that is the exact wild frontier we will
tackle next time. When we return, we will
abandoned the negligence framework entirely and dive into
the terrifying realm of special duties.
Strict liability, products liability and the law of
nuisance. Until then, review your mental
outlines, trace those causal chains, and keep looking for the
legal traps hidden in the everyday world.
All right, welcome back. So far we've nailed down the 1st
2 pillars of a negligence case. We know the defendant had a duty
and we know they breached it. But that's not the end of the
story, not even close. We've got this careless act over
here and the plaintiffs harm over there.
We still need to build the bridge that connects the two.
You know, in the world of torts, just being careless by itself
doesn't need a thing. Seriously, you could be
reckless. You could speed through a school
zone, which is a huge breach of duty.
But if you don't actually hit anyone, if no one gets hurt,
well, there's no tort. There's no case to be made.
That breach has to actually connect to an injury.
So that leads us to the big question for today.
How does the law build this bridge?
This is our focus and this bridge, it's made of two
absolutely critical components. You have to prove every single
time, causation and damages. Causation is the link and
damages are the harm. Get these two right and you've
connected the defendant's breach to the plaintiff's injury.
OK, let's get into it. We're going to start with the
first span of this bridge, which is the first part of our
two-part causation analysis, factual cause.
You'll also hear it called cause.
In fact. The easiest way to think about
this is it's just physics. It's the direct physical
connection. We're not talking about fairness
or philosophy yet. We're just asking, did the
defendant's action as a matter of pure fact lead to the
plaintiff getting hurt? And the main tool we use for
this 99% of the time is the but for test, the question couldn't
be simpler. But for what the defendant did,
would this injury have happened? So a driver runs a red light,
hits a pedestrian. We ask, but for the driver
running that light, would the pedestrian have been hit?
Well, no, of course not. Boom, factual cause is
established. It's that direct chain of
events. But, and this is a big but for
your exams, what happens when the but for test just flat out
fails? Well, there are two classic
scenarios you have to know. First, the merging fires.
Imagine 2 campers on opposite sides of a valley.
Both negligently leave their campfires unattended.
The fire spread. They merge into one giant blaze
and burn down a house in the middle.
Now let's try the test, but for Camper A's fire.
Would the house have burned? Yeah.
Camper B's fire would have done it anyway.
The test doesn't work. So the law gives us a new tool,
the substantial factor test. We just ask, was Camper A's fire
a substantial factor in the harm?
Yes, he's on the hook. The second scenario is called
alternative liability. The famous case is Summers V
Tice 2. Hunters negligently fire their
shotguns in the same direction toward their guide.
A single pellet hits the guide in the eye.
We know they were both negligent, but we have no idea
who's gun the pellet came from. The but for test fails again.
So what does the law do? It says, you know what, this
isn't fair to the plaintiff, so it flips the script.
It shifts the burden of proof to the defendants.
They now have to prove it wasn't them, and if they can't, they're
both liable. OK, so that's the first span of
our bridge. Now we move to the second and
honestly, the much more complicated one, Proximate
'cause you'll also hear this called legal cause.
And this is where we leave the world of pure physics and enter
the world of policy. This is the law's way of
stepping back and asking, OK, we have a factual connection, but
is it actually fair to hold this person responsible for this
particular result? Think of it as a fairness filter
designed to stop liability from spiraling out of control
forever. So the magic word here, the
concept you have to burn into your brain, is foreseeability.
The law says we're only going to hold you liable for the harms
that were a reasonably foreseeable consequence of your
negligent act. We don't really care about the
bizarre one in a million chain of events that actually
happened. The real question is what could
a reasonable person standing in the defendants choose have
predicted might happen? If the harm is just too weird to
remote, the law will step in and cut off liability even if you
have a perfect but for connection.
Now, this whole foreseeability thing gets really interesting
and really tough on an exam when some new event happens after the
defendant's initial screw up but before the plaintiff's final
injury. We call these intervening
events, and the whole game is figuring out whether this new
event is so bizarre and unexpected that it breaks that
chain of causation we've been talking about.
And this table right here illustrates the key distinction
beautifully. First, you have a foreseeable
intervening 'cause this does not break the chain.
The absolute classic example is medical malpractice.
Let's say I negligently run you over with my car.
You go to the hospital and the doctor negligently sets your
leg, making it worse. Am I liable for the bad medical
care? You bet I am.
Why? Because it is absolutely
foreseeable that if you injure someone badly enough to send
them to the hospital, they might be the victim of medical
negligence. It's part of the risk, but an
unforeseeable event, what we call a superseding 'cause that
does break the chain. So let's say after I hit you,
the ambulance taking you to the hospital gets struck by bolt of
lightning. That is an act of God.
It's completely unforeseeable. My liability is cut off right
there. I'm responsible for the injuries
from the crash, but not for what the lightning did.
This all circles back to what is probably the most famous torts
case of all time, Palsgraf V Long Island Railroad.
You remember the facts. Railroad employees help a guy
onto a moving train. He drops a package.
Turns out it's full of fireworks.
They explode. The shockwave knocks over some
scales at the other end of the platform, and they fall on poor
Missus Palsgraf. In his legendary opinion,
Justice Cardozo wrote the risk reasonably to be perceived
defines the duty to be obeyed. What he meant was the risk of
pushing a guy onto a train is that he might get hurt.
The risk is not that scales 30 feet away will fall and hit
someone else. The harm to Mrs. Palsgraf just
wasn't foreseeable, so the railroad wasn't liable.
See, foreseeability is everything.
OK, we've done it. We've built our bridge.
We have a solid connection of causation from the defendant's
breach all the way to the plaintiff's injury.
So what's next? Well, now we have to figure out
the toll. We have to value the harm.
This is damages, the 4th and final element of every single
negligence claim. And right off the bat, here's a
massive critical distinction from intentional torts that you
cannot get wrong on an exam. With an intentional tort, you
might be able to win nominal damages like a single dollar,
just to make a point that your rights were violated.
Not here. Not in negligence.
To win a negligence case, you must prove actual, tangible
harm. We're talking medical bills,
lost wages, physical pain. No harm, no foul, no case.
Now for one of the most famous and most tested rules in all of
tort law, the eggshell skull rule.
The rule is simple. You take your victim as you find
them. So if you negligently tap
someone's bumper in a parking lot and it turns out that driver
has a rare bone disease that causes his entire skeleton to
shatter from the tiny impact, you are liable for the shattered
skeleton. You don't get to say, hey, a
normal person would have just had a little whiplash.
It doesn't matter. The extent of the harm does not
have to be foreseeable as long as the type of harm some
physical impact was. And right behind the eggshell
skull roll is a classic exam trap designed to trip you up.
Do not confuse the eggshell skull with the crumbling skull.
They sound similar, but they're very different.
An eggshell plaintiff has a stable but fragile condition
like a thin skull. Your negligence is what causes
the injury. A crumbling skull plaintiff, on
the other hand, has an active, deteriorating condition that was
already getting worse on its own.
In that case, the defendant is only liable for the aggravation,
for making the condition worse or making it happen faster.
You don't pay for the underlying condition itself.
It's a really subtle but critical distinction when you're
calculating damages. So let's flip the script.
Let's say the plaintiff has done it.
They've proven all four elements, duty, breach,
causation, and damages. It seems like the case is over,
right? Well, not so fast.
Now we have to look at what the defendant can do.
They have defenses, ways to attack the plaintiff's case and
either reduce or completely wipe out their liability.
The biggest, most common defense is arguing that the plaintiff
was also being negligent. Now, how courts deal with this
depends on the jurisdiction. The old school, really harsh
rule is called contributory negligence.
It says if the plaintiff is even 1% at fault, they get 0 nothing.
It's a complete bar to recovery. As you can imagine, most states
have moved away from that and adopted comparative negligence,
which is basically fairness math.
Under a peer system, a plaintiff can recover even if they're 99%
at fault. They'll just get 1% of their
damages. Under a modified system, which
is the most common, a plaintiff can only recover if their own
fault is below a certain threshold, usually 50% or 51%.
Now, because that old contributory negligence rule was
so harsh, the courts created an escape hatch for plaintiffs.
It's called the last clear chance doctrine.
It basically lets a negligent plaintiff get a full recovery if
they can show that the defendant had the final opportunity to
prevent the accident and just didn't.
It's a way of asking, OK, both people were careless, but who
really had the last best chance to stop this from happening?
Another major defense is assumption of risk.
This is when the plaintiff knew about a particular danger and
voluntarily decided to encounter it anyway.
It can be expressed, like when you sign a waiver before you go
skydiving that says you understand the risks.
Or it can be implied from your actions, like when you buy a
ticket to a baseball game and sit right behind the dugout.
You are implicitly assuming the risk that you might get hit by a
foul ball. You knew the risk was there and
you went forward anyway. All right, that's a lot of
rules. So let's put it all together and
run it through a stress test. A quick clinical challenge.
Just like you'd seen on an exam, you get a set of facts and you
have to apply the rules step by logical step.
So here's our hypothetical. A mechanic is working in his
garage. He negligently uses a freight
electrical wire, which sparks and starts a small fire.
He panics, jumps up to run and get a bucket of water.
As he's running, a completely random freak earthquake hits.
The shaking causes a heavy shelf to fall off the wall, and it
crushes his foot. So let's start with our first
question. Is there factual cause
connecting that frayed wire to the crushed foot?
The answer is yes, absolutely. You just run the butt 4 test.
But for the fire that was caused by the negligence, where would
the mechanic have been? Probably sitting in his chair,
not running across the room. He would not have been in that
exact spot, the zone of danger at the exact moment the shelf
fell. So that physical, factual link
is definitely there. OK, but that's just the first
span of the bridge. That's the easy part.
Now for the real question, the key question is there proximate
cause? In other words, was a crushed
foot from an earthquake a foreseeable consequence of using
a frayed wire? And here the answer is a clear
and resounding no. A freak earthquake is the
absolute textbook definition of an unforeseeable superseding
'cause it's an act of God, it snaps the chain of legal
causation. So is the mechanic liable for
the damage caused by the fire itself?
Yes, that's foreseeable. But he's not liable for that
crushed foot because that specific harm was not within the
scope of the risk he created when he used that frayed wire.
And that's really what it all comes down to.
And it brings us to our final thought for the day.
This whole structure of proximate cause is built on the
idea of foreseeability, because that's what we think is fair.
But that leaves us with this huge, difficult question you're
going to wrestle with in every complex case.
In a world that is fundamentally unpredictable, how do we as
lawyers and judges actually draw that line?
How do we decide which risks are foreseeable enough to hold
someone responsible and which are not?
That's the central tension in the heart of Tortlot.