1
00:00:00,040 --> 00:00:03,200
Imagine you're just You're 
driving your car at exactly 5 

2
00:00:03,200 --> 00:00:05,400
mph. 
OK, stop and go traffic kind of.

3
00:00:05,400 --> 00:00:06,200
Thing. 
Yeah, exactly. 

4
00:00:06,360 --> 00:00:08,680
You're in heavy traffic. 
You glance at your phone for 

5
00:00:08,680 --> 00:00:11,160
just a fraction of a second and 
your foot slips off the brake. 

6
00:00:11,160 --> 00:00:13,360
Yeah, you tap the bumper of the 
car in front of you. 

7
00:00:13,480 --> 00:00:16,040
Right, so a classic super minor 
Fender Bender. 

8
00:00:16,040 --> 00:00:19,560
Right now, a normal person in 
that car would maybe suffer, I 

9
00:00:19,640 --> 00:00:23,520
don't know, a slightly stiff 
neck, yeah, or perhaps no injury

10
00:00:23,520 --> 00:00:24,920
at all. 
Yeah, you just exchange 

11
00:00:24,920 --> 00:00:29,080
insurance and go home. 
Exactly, but the driver of the 

12
00:00:29,080 --> 00:00:32,520
car you just hit happens to 
suffer from osteogenesis 

13
00:00:32,520 --> 00:00:35,880
imperfecta. 
Oh wow, the ultra rare brittle 

14
00:00:35,880 --> 00:00:36,960
bone disease. 
Yep. 

15
00:00:37,080 --> 00:00:41,160
So because of this incredibly 
rare pre-existing condition, the

16
00:00:41,160 --> 00:00:44,560
minor jolt from your five mile 
per hour impact causes their 

17
00:00:44,560 --> 00:00:47,600
entire spine to shatter. 
That is just catastrophic. 

18
00:00:47,600 --> 00:00:50,800
It is we are talking permanent 
paralysis, you know, $5,000,000 

19
00:00:50,800 --> 00:00:53,880
in lifelong medical bills. 
So the question is, are you on 

20
00:00:53,880 --> 00:00:58,960
the hook for a $500 bumper 
replacement or are you buying 

21
00:00:58,960 --> 00:01:02,000
that $5,000,000 medical bill? 
I mean, it's the ultimate 

22
00:01:02,000 --> 00:01:04,120
nightmare scenario for a driver,
right? 

23
00:01:04,560 --> 00:01:07,840
Intuitively, your brain just 
screams that it isn't fair. 

24
00:01:07,840 --> 00:01:10,280
Exactly because you couldn't 
possibly have known the person 

25
00:01:10,280 --> 00:01:12,600
in front of you had glass bones.
Right. 

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00:01:12,600 --> 00:01:16,840
Your conduct was barely even 
careless, but in the wild world 

27
00:01:16,840 --> 00:01:19,520
of tort law, you might just be 
buying the millions. 

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00:01:19,560 --> 00:01:22,800
And that is exactly where we're 
going today. 

29
00:01:24,000 --> 00:01:26,560
Welcome back to our deep dive on
the Negligence Mountain. 

30
00:01:26,680 --> 00:01:28,200
The mountain just keeps getting 
steeper. 

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00:01:28,280 --> 00:01:30,280
It really does. 
If you've been following our 

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00:01:30,280 --> 00:01:32,680
journey, you know we've already 
mapped out the first half of the

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00:01:32,680 --> 00:01:35,120
terrain, right? 
We established duty. 

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00:01:35,280 --> 00:01:39,080
Which is the legal obligation to
act like a reasonably prudent 

35
00:01:39,120 --> 00:01:40,440
person? 
Exactly. 

36
00:01:40,720 --> 00:01:43,560
And we tackled BREACH, which is 
proving that a defendant failed 

37
00:01:43,560 --> 00:01:46,200
to meet that standard. 
But here's the thing about tort 

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00:01:46,200 --> 00:01:48,640
law, and I think this is where 
students get tripped up. 

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00:01:49,000 --> 00:01:52,120
Being careless in and of itself 
is not a tort. 

40
00:01:52,320 --> 00:01:55,320
It is absolutely not and this is
a fundamental trap. 

41
00:01:55,320 --> 00:01:58,000
We see it all the time when 
people look at a real world 

42
00:01:58,000 --> 00:02:00,800
scenario or you know, a complex 
exam fact pattern. 

43
00:02:00,960 --> 00:02:03,880
Right, your heart rate goes up, 
you spot the negligent behavior,

44
00:02:04,040 --> 00:02:06,480
and you immediately just want to
hold someone liable. 

45
00:02:06,480 --> 00:02:10,759
Yeah, but careless conduct alone
does not equal a lawsuit. 

46
00:02:10,759 --> 00:02:14,400
I mean, think about a driver 
going 100 mph through a crowded 

47
00:02:14,400 --> 00:02:16,240
school's. 
Terrifying. 

48
00:02:16,360 --> 00:02:17,720
Totally. 
They're texting, they have 

49
00:02:17,720 --> 00:02:20,200
blindfold on. 
They are essentially doing 

50
00:02:20,200 --> 00:02:22,760
everything wrong. 
It's a massive, undisputed 

51
00:02:22,760 --> 00:02:27,960
breach of the duty of care. 
But if by some sheer miracle, 

52
00:02:28,040 --> 00:02:30,760
they make it all the way through
that school zone without hitting

53
00:02:30,760 --> 00:02:33,520
a single person, without 
scratching a single parked car, 

54
00:02:33,640 --> 00:02:36,200
without damaging one blade of 
grass. 

55
00:02:36,200 --> 00:02:37,520
There's no lawsuit. 
Exactly. 

56
00:02:37,520 --> 00:02:40,320
There's no civil lawsuit now. 
The criminal justice system will

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00:02:40,320 --> 00:02:41,800
absolutely step in. 
Right. 

58
00:02:41,800 --> 00:02:43,520
Oh for sure. 
They'll lose their license, 

59
00:02:43,640 --> 00:02:47,720
maybe go to jail for reckless. 
Yeah, but the civil justice 

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00:02:47,720 --> 00:02:52,160
system, the world of torts, 
requires an actual injury, and 

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00:02:52,160 --> 00:02:55,840
more importantly, it requires a 
direct, proven link between the 

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00:02:55,840 --> 00:02:58,400
careless act and that specific 
injury. 

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00:02:58,400 --> 00:03:01,160
So our mission for this deep 
dive is to build that link. 

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00:03:01,440 --> 00:03:03,880
We're going to construct a 
bridge between a careless act 

65
00:03:03,880 --> 00:03:07,640
and a compensable injury. 
And we call this causation. 

66
00:03:07,640 --> 00:03:08,520
Right. 
Causation. 

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00:03:08,840 --> 00:03:12,680
And once we cross that bridge, 
we have to put a dollar value on

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00:03:12,680 --> 00:03:14,880
that injury, which brings us to 
damages. 

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00:03:14,960 --> 00:03:17,480
And finally, because the 
courtroom is an adversarial 

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00:03:17,480 --> 00:03:20,320
arena, we have to look at how a 
defendant can fight back. 

71
00:03:20,320 --> 00:03:23,800
Yeah, the affirmative defenses, 
how a defendant can reduce or 

72
00:03:23,800 --> 00:03:27,320
even eliminate their liability 
even when they've been proven 

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00:03:27,320 --> 00:03:29,840
entirely negligent. 
And as we dig into this, you 

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00:03:29,840 --> 00:03:32,160
have to remember that this isn't
just a list of rules to 

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00:03:32,160 --> 00:03:34,600
memorize. 
This is a framework for arguing.

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00:03:34,640 --> 00:03:37,600
Right lawyers use these concepts
to stretch the limits of 

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00:03:37,600 --> 00:03:40,840
liability or, you know, to shut 
down claims entirely. 

78
00:03:40,840 --> 00:03:42,840
So we aren't just going to look 
at what the rules are, we're 

79
00:03:42,840 --> 00:03:46,280
going to look at how lawyers 
twist them, how judges push back

80
00:03:46,600 --> 00:03:48,600
and where the legal exam traps 
are hidden. 

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00:03:48,640 --> 00:03:50,720
OK, let's jump right into 
causation. 

82
00:03:51,120 --> 00:03:54,160
This is arguably the most 
legally complex area of a 

83
00:03:54,160 --> 00:03:56,720
negligence case, I think. 
Oh, without a doubt, because it 

84
00:03:56,720 --> 00:04:00,880
forces us to blend cold, hard 
physics with the highly 

85
00:04:00,880 --> 00:04:03,920
subjective, deeply debated 
concept of fairness. 

86
00:04:04,320 --> 00:04:06,760
Exactly. 
To win a negligence claim, a 

87
00:04:06,760 --> 00:04:09,840
plaintiff has to prove 2 
completely distinct types of 

88
00:04:09,840 --> 00:04:11,960
causation. 
It's like a 2 headed dragon. 

89
00:04:12,720 --> 00:04:13,880
Let's start with the physics 
side. 

90
00:04:14,000 --> 00:04:17,120
Factual cause. 
Right, sometimes called cause in

91
00:04:17,120 --> 00:04:21,480
fact, and the foundational tool 
we use for factual cause is the 

92
00:04:21,480 --> 00:04:24,720
but for test. 
The famous But for test, it's 

93
00:04:24,720 --> 00:04:28,080
essentially a mental exercise in
alternate realities. 

94
00:04:28,520 --> 00:04:31,320
Yeah, you asked the jury to look
at the timeline of events and 

95
00:04:31,320 --> 00:04:34,440
ask one very simple question. 
But for the defendant's 

96
00:04:34,440 --> 00:04:36,880
negligent act, would the 
plaintiff's injury have 

97
00:04:36,880 --> 00:04:38,760
occurred? 
You're literally asking the jury

98
00:04:38,760 --> 00:04:41,480
to mentally erase the 
defendant's carelessness from 

99
00:04:41,480 --> 00:04:43,920
the universe and see what 
happens to the plaintiff in that

100
00:04:43,920 --> 00:04:45,120
alternate timeline. 
Right. 

101
00:04:45,120 --> 00:04:49,760
So if the answer is no, meaning 
if we erase the defendant's bad 

102
00:04:49,760 --> 00:04:53,800
driving, the pedestrian does not
get hit, then the defendant is a

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00:04:53,840 --> 00:04:55,960
factual cause of the injury. 
Easy enough. 

104
00:04:56,080 --> 00:04:58,800
But if the answer is yes, 
meaning even if we erase the 

105
00:04:58,800 --> 00:05:00,920
defendant's actions, the injury 
still would have happened 

106
00:05:00,920 --> 00:05:04,400
exactly the same way, then the 
defendant is not the factual 

107
00:05:04,400 --> 00:05:06,400
'cause. 
It's a beautifully mechanical, 

108
00:05:06,400 --> 00:05:08,480
doesn't it? 
It feels like pure, undeniable 

109
00:05:08,480 --> 00:05:11,080
logic. 
It does, but the reality is that

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00:05:11,240 --> 00:05:13,600
the Butford test is incredibly 
fragile. 

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00:05:13,840 --> 00:05:17,720
I mean, it works perfectly about
95% of the time in simple 

112
00:05:17,720 --> 00:05:20,440
one-on-one accidents. 
Like a car running a red light 

113
00:05:20,440 --> 00:05:22,320
and hitting a bicyclist. 
Exactly. 

114
00:05:22,560 --> 00:05:24,920
But for running the red light, 
the bicyclist is fine. 

115
00:05:25,000 --> 00:05:28,240
But what happens when that 
mechanical test completely 

116
00:05:28,240 --> 00:05:29,840
fails? 
Which happens more than you'd 

117
00:05:29,840 --> 00:05:30,680
think. 
Right. 

118
00:05:30,840 --> 00:05:34,440
What happens when you have 
multiple negligent actors and 

119
00:05:34,480 --> 00:05:37,000
either one of their actions 
alone could have caused the 

120
00:05:37,000 --> 00:05:39,960
exact same harm? 
OK, let's illustrate this with a

121
00:05:39,960 --> 00:05:43,680
classic scenario often drawn 
from historical cases like Cory 

122
00:05:43,680 --> 00:05:46,960
V Havener. 
Imagine 2 separate campers, 

123
00:05:47,160 --> 00:05:49,960
Camper A and Camper B. 
OK, I'm visualizing it. 

124
00:05:50,200 --> 00:05:52,640
They're completely unrelated to 
each other, they don't know each

125
00:05:52,640 --> 00:05:55,120
other, and they're camping in 
different parts of a massive, 

126
00:05:55,400 --> 00:05:59,800
incredibly dry forest. 
Camper A negligently leaves his 

127
00:05:59,800 --> 00:06:01,520
campfire burning when he packs 
up. 

128
00:06:01,760 --> 00:06:04,640
Bad move. 
And Camper B negligently leaves 

129
00:06:04,640 --> 00:06:06,520
her campfire burning when she 
packs up. 

130
00:06:06,800 --> 00:06:08,760
So both are clear breaches of 
duty. 

131
00:06:08,800 --> 00:06:11,160
Exactly. 
Now the wind picks up. 

132
00:06:11,400 --> 00:06:14,080
Camper A's fire spreads into a 
massive blaze. 

133
00:06:14,320 --> 00:06:17,200
Camper B's fire also spreads 
into a massive blaze. 

134
00:06:17,480 --> 00:06:20,560
I see where this is going. 
Yeah, eventually these two 

135
00:06:20,560 --> 00:06:24,800
distinct infernos merge into one
giant wall of fire, and it 

136
00:06:24,800 --> 00:06:27,560
sweeps across the valley and 
burns down the plaintiff's 

137
00:06:27,560 --> 00:06:30,360
house. 
And here is where the strict but

138
00:06:30,360 --> 00:06:33,200
for logic creates a massive 
legal headache. 

139
00:06:33,400 --> 00:06:35,680
Right, let's role play this. 
I'm the plaintiff. 

140
00:06:36,160 --> 00:06:40,000
My house is ashes. 
I sue camp array as Camper A's 

141
00:06:40,000 --> 00:06:41,680
defense lawyer, What is your 
argument? 

142
00:06:42,000 --> 00:06:45,880
My argument is pure cold logic. 
I stand up and tell the judge, 

143
00:06:46,160 --> 00:06:47,800
Your Honor, apply the but for 
test. 

144
00:06:47,960 --> 00:06:50,880
But for Camper A's fire, would 
the plaintiff's house have 

145
00:06:50,880 --> 00:06:52,640
burned down? 
And the answer is yes. 

146
00:06:52,640 --> 00:06:55,480
Exactly. 
Even if my client had perfectly 

147
00:06:55,480 --> 00:06:59,200
extinguished his fire, Camper 
B's massive inferno was already 

148
00:06:59,200 --> 00:07:00,800
sweeping across the valley. 
Right. 

149
00:07:00,800 --> 00:07:03,840
Camper B's fire was more than 
sufficient to destroy that house

150
00:07:03,840 --> 00:07:07,120
all by itself. 
Therefore, my client camper A is

151
00:07:07,120 --> 00:07:09,280
not the but for cause of the 
destruction. 

152
00:07:09,560 --> 00:07:12,320
Case dismissed. 
And it works under strict, but 

153
00:07:12,320 --> 00:07:13,880
for logic you are absolutely 
right. 

154
00:07:13,960 --> 00:07:15,920
But then I turn around and I sue
Camper B. 

155
00:07:15,960 --> 00:07:19,320
And Camper B's lawyer uses the 
exact same argument. 

156
00:07:19,320 --> 00:07:21,920
Right. 
But for Camper B's fire, would 

157
00:07:21,920 --> 00:07:24,960
the house have burned? 
Yes, because Camper A's fire was

158
00:07:24,960 --> 00:07:28,320
going to destroy it anyway. 
So if we stick rigidly to the 

159
00:07:28,320 --> 00:07:32,920
but for test, both negligent 
campers get off Scott free and 

160
00:07:32,920 --> 00:07:35,680
the innocent plaintiff is left 
with a pile of ashes and 0 

161
00:07:35,680 --> 00:07:38,160
compensation. 
Which is just a deeply offensive

162
00:07:38,160 --> 00:07:40,320
legal fiction. 
Yeah, judges look at that 

163
00:07:40,320 --> 00:07:43,880
outcome and their blood boils. 
Because the entire policy behind

164
00:07:43,880 --> 00:07:48,040
tort law is twofold right to 
compensate the innocent victim 

165
00:07:48,200 --> 00:07:51,760
and to deter careless behavior. 
Yes, and letting both campers 

166
00:07:51,760 --> 00:07:54,520
win completely subverts both of 
those goals. 

167
00:07:54,960 --> 00:07:58,400
You cannot have two negligent 
parties escape liability simply 

168
00:07:58,400 --> 00:08:01,240
because they had the sheer luck 
of being negligent at the exact 

169
00:08:01,240 --> 00:08:03,400
same time. 
So the law had to evolve. 

170
00:08:03,720 --> 00:08:07,520
When a mechanical rule produces 
an absurd result, courts create 

171
00:08:07,520 --> 00:08:09,600
an exception. 
And in the case of multiple 

172
00:08:09,600 --> 00:08:12,320
concurrent causes where any one 
of them would have been 

173
00:08:12,320 --> 00:08:15,440
sufficient to cause the injury 
on its own, we throw out the 

174
00:08:15,440 --> 00:08:18,080
buffer test entirely. 
We replaced it with what is 

175
00:08:18,080 --> 00:08:19,880
called the substantial factor 
test. 

176
00:08:19,880 --> 00:08:21,480
Right. 
And the substantive factor test 

177
00:08:21,480 --> 00:08:23,400
asks a much more holistic 
question. 

178
00:08:23,720 --> 00:08:26,920
It asks was the defendants 
conduct a substantial factor in 

179
00:08:26,920 --> 00:08:29,440
bringing about the harm. 
The court doesn't care if 

180
00:08:29,440 --> 00:08:31,080
another fire could have done the
job. 

181
00:08:31,360 --> 00:08:34,280
If Camper A's fire was a 
material contributing force to 

182
00:08:34,280 --> 00:08:37,960
the inferno that destroyed the 
house, Camper A is liable. 

183
00:08:37,960 --> 00:08:41,039
It's a brilliant fix, and if 
you're trying to analyze a 

184
00:08:41,039 --> 00:08:45,480
complex legal scenario like on 
an exam, this is a major trap to

185
00:08:45,480 --> 00:08:47,320
watch out for. 
Oh, huge trap. 

186
00:08:47,560 --> 00:08:51,280
If you see a fact pattern where 
two independent forces merged to

187
00:08:51,280 --> 00:08:54,400
cause an injury and either force
could have done it alone, do not

188
00:08:54,400 --> 00:08:56,440
even try. 
Try to apply the butt for test. 

189
00:08:56,520 --> 00:08:58,400
The defense will use it to trip 
the judge. 

190
00:08:58,480 --> 00:09:00,880
You have to go straight to the 
substantial factor test. 

191
00:09:00,960 --> 00:09:03,880
Now let me introduce an even 
Wilder scenario, because this is

192
00:09:03,880 --> 00:09:06,840
where the courts really had to 
perform some legal gymnastics. 

193
00:09:06,840 --> 00:09:10,360
We just talked about a situation
where two people are negligent 

194
00:09:10,360 --> 00:09:12,720
and both of their actions 
actually combined to cause the 

195
00:09:12,720 --> 00:09:14,520
harm. 
Both fires burn the house, 

196
00:09:14,520 --> 00:09:16,640
right? 
But what if you have a scenario 

197
00:09:16,640 --> 00:09:19,680
where two people are negligent, 
but only one of them actually 

198
00:09:19,680 --> 00:09:22,640
caused the injury and we have 
absolutely no idea which one it 

199
00:09:22,640 --> 00:09:22,960
was? 
Ah. 

200
00:09:23,200 --> 00:09:26,240
Yes, the landmark case of 
Summers V Tice. 

201
00:09:26,480 --> 00:09:29,880
This is one of the most famous 
cases in American law for a 

202
00:09:29,880 --> 00:09:32,400
reason. 
It totally bends the fundamental

203
00:09:32,400 --> 00:09:34,640
rules of the justice system. 
It really does. 

204
00:09:34,840 --> 00:09:36,200
Let's paint the picture for this
one. 

205
00:09:36,200 --> 00:09:39,440
You have a plaintiff, Mr. 
Summers, and two defendants, Mr.

206
00:09:39,440 --> 00:09:42,760
Tice and Mr. Simonson. 
They are out hunting quail in 

207
00:09:42,760 --> 00:09:44,760
the woods. 
OK, so three guys with guns. 

208
00:09:44,960 --> 00:09:47,720
Right. 
They're walking in a triangular 

209
00:09:47,720 --> 00:09:50,920
formation. 
A quail flushes from the brush 

210
00:09:51,160 --> 00:09:53,440
and flies right between the 
plaintiff and the two 

211
00:09:53,440 --> 00:09:56,000
defendants. 
Both defendants Tice and 

212
00:09:56,000 --> 00:09:59,800
Simonson raise their shotguns 
and both of them act completely 

213
00:09:59,800 --> 00:10:02,880
negligently by firing in the 
direction of the plaintiff. 

214
00:10:03,200 --> 00:10:05,280
Two guns go off at the exact 
same time. 

215
00:10:05,480 --> 00:10:09,360
A single stray birdshot pellet 
strikes the plaintiff squarely 

216
00:10:09,360 --> 00:10:11,960
in the eye, causing severe 
permanent damage. 

217
00:10:11,960 --> 00:10:14,040
Just a tragic, reckless 
accident. 

218
00:10:14,040 --> 00:10:16,760
Very Now here is the factual 
impossibility. 

219
00:10:17,080 --> 00:10:20,720
Both defendants were carrying 
the exact same gauge of shotgun.

220
00:10:20,720 --> 00:10:23,320
Oh boy, they were firing the 
exact same manufacturer as 

221
00:10:23,320 --> 00:10:25,920
ammunition. 
The birdshot pellet extracted 

222
00:10:25,920 --> 00:10:28,640
from the plaintiff's eye is a 
mass produced piece of lead. 

223
00:10:28,760 --> 00:10:31,800
So it's scientifically 
impossible to prove whose gun 

224
00:10:31,800 --> 00:10:34,600
fired the specific pellet that 
caused the blinding injury. 

225
00:10:34,840 --> 00:10:37,280
Exactly. 
And if you understand how a 

226
00:10:37,280 --> 00:10:41,880
civil trial works, you realize 
the plaintiff has a massive, 

227
00:10:41,960 --> 00:10:44,040
seemingly insurmountable problem
here. 

228
00:10:44,040 --> 00:10:47,080
Yeah, because in a civil case, 
the plaintiff carries the burden

229
00:10:47,080 --> 00:10:48,040
of proof. 
Right. 

230
00:10:48,040 --> 00:10:51,000
They have to prove every single 
element of their case by a 

231
00:10:51,000 --> 00:10:54,000
preponderance of the evidence. 
Which means they have to show it

232
00:10:54,000 --> 00:10:57,480
is more likely than not that a 
specific defendant caused the 

233
00:10:57,480 --> 00:10:59,520
harm. 
We quantify that, as you know, 

234
00:10:59,520 --> 00:11:02,560
51% certainty. 
So Mr. Summers goes to court. 

235
00:11:02,840 --> 00:11:05,520
He points at Mr. Tice. 
The math is brutal. 

236
00:11:06,320 --> 00:11:08,400
There were two shooters, one 
pellet. 

237
00:11:08,440 --> 00:11:11,200
So the statistical probability 
that Mister Tice fired the 

238
00:11:11,200 --> 00:11:15,040
blinding shot is exactly 50%. 
And since 50% is not greater 

239
00:11:15,040 --> 00:11:18,680
than 50%, the plaintiff cannot 
meet that 51% threshold. 

240
00:11:18,840 --> 00:11:22,120
So the claim against Tice fails.
Right then he points at Mr. 

241
00:11:22,120 --> 00:11:25,320
Simonson. 
Same math, 50% probability. 

242
00:11:25,680 --> 00:11:27,200
The claim against Simonson fails
too. 

243
00:11:27,280 --> 00:11:30,560
So under stripped traditional 
rules of Civil Procedure, the 

244
00:11:30,560 --> 00:11:34,480
plaintiff loses completely and 
both reckless shooters walk away

245
00:11:34,480 --> 00:11:38,240
without paying a dime. 
Wait, hold on, in a civil system

246
00:11:38,240 --> 00:11:41,240
where the plaintiff always has 
to prove their case, the court 

247
00:11:41,240 --> 00:11:43,160
just decided to flip the rules 
because they felt bad for the 

248
00:11:43,160 --> 00:11:43,920
guy. 
I mean. 

249
00:11:44,440 --> 00:11:47,080
How is that legally justified? 
It feels like the court is just 

250
00:11:47,080 --> 00:11:49,720
making it up as they go it. 
Does feel like that. 

251
00:11:49,720 --> 00:11:52,520
And believe me, defense 
attorneys screamed bloody murder

252
00:11:52,520 --> 00:11:54,000
when this happened. 
I get to imagine. 

253
00:11:54,160 --> 00:11:57,440
But the California Supreme Court
looked at this and said this is 

254
00:11:57,440 --> 00:12:01,000
fundamentally unjust. 
You have a wholly innocent 

255
00:12:01,000 --> 00:12:04,360
plaintiff who is permanently 
named, and you have two 

256
00:12:04,360 --> 00:12:07,840
defendants who were both 
demonstrably reckless. 

257
00:12:08,400 --> 00:12:11,480
The court reasoned that it's 
unfair to let the reckless 

258
00:12:11,480 --> 00:12:15,640
parties hide behind a veil of 
evidentiary uncertainty and 

259
00:12:15,640 --> 00:12:18,640
uncertainty that they themselves
created by shooting at the same 

260
00:12:18,640 --> 00:12:21,120
time. 
So the court invented a new 

261
00:12:21,120 --> 00:12:24,800
doctrine, alternative liability,
and here's how it works. 

262
00:12:24,800 --> 00:12:27,560
This is the magic trick. 
When two or more defendants are 

263
00:12:27,560 --> 00:12:31,280
both negligent, but only one 
could have caused the harm, and 

264
00:12:31,280 --> 00:12:34,920
it is impossible to tell which 
one did it, the court literally 

265
00:12:34,920 --> 00:12:38,560
rewrites the rules of the trial.
The burden of proof shifts. 

266
00:12:38,880 --> 00:12:41,640
It shifts away from the 
plaintiff and lands squarely on 

267
00:12:41,640 --> 00:12:44,680
the shoulders of the defendants.
The judge effectively looks at 

268
00:12:44,680 --> 00:12:48,240
the 2 hunters and says you 2 
figure it out. 

269
00:12:48,800 --> 00:12:50,800
You proved to me that it wasn't 
your bullet. 

270
00:12:51,320 --> 00:12:53,600
And of course, based on the 
facts, neither defendant can 

271
00:12:53,600 --> 00:12:54,840
prove that they don't know 
either. 

272
00:12:54,960 --> 00:12:57,480
And since they can't prove their
innocence, the court holds both 

273
00:12:57,480 --> 00:13:00,600
of them liable. 
Specifically, they are held 

274
00:13:00,600 --> 00:13:04,000
jointly and severally liable for
the entire injury. 

275
00:13:04,440 --> 00:13:08,160
Let's unpack that phrase jointly
and severally liable, because it

276
00:13:08,160 --> 00:13:10,720
is a vital concept, especially 
for exam mechanics. 

277
00:13:10,840 --> 00:13:12,960
Absolutely. 
It means the plaintiff doesn't 

278
00:13:12,960 --> 00:13:15,760
just get half the money from one
guy and half from the other. 

279
00:13:16,080 --> 00:13:19,200
The plaintiff gets a judgement 
for the total amount of damages.

280
00:13:19,200 --> 00:13:22,640
Let's say it's $1,000,000. 
The plaintiff can go to defend 

281
00:13:22,640 --> 00:13:26,120
an A and demand the entire $1 
million. 

282
00:13:26,120 --> 00:13:29,800
Even if defendant A was only a 
50% statistical probability. 

283
00:13:29,800 --> 00:13:33,880
Yes, the law allows the 
plaintiff to collect 100% of the

284
00:13:33,880 --> 00:13:36,600
money from whichever defendant 
has the deepest pockets. 

285
00:13:36,760 --> 00:13:38,920
It is incredibly plaintiff 
friendly. 

286
00:13:39,080 --> 00:13:42,160
Wow, so defendant A just takes 
the massive hit. 

287
00:13:42,360 --> 00:13:46,360
Well, once Defendant A pays the 
full million, it is now 

288
00:13:46,360 --> 00:13:50,080
Defendant A's problem to go 
chase down Defendant B and sue 

289
00:13:50,080 --> 00:13:52,040
them for their half. 
I see. 

290
00:13:52,280 --> 00:13:54,960
The law prefers putting the 
burden of collection and the 

291
00:13:54,960 --> 00:13:58,600
risk of someone being bankrupt 
on the wrongdoers rather than on

292
00:13:58,600 --> 00:14:01,200
the innocent victim. 
It's a fascinating piece of 

293
00:14:01,200 --> 00:14:05,280
legal engineering, and if you 
were studying this or trying to 

294
00:14:05,280 --> 00:14:09,640
understand how lawyers analyze a
case, look for the trigger face.

295
00:14:10,080 --> 00:14:11,520
Always look for the trigger 
phrase like. 

296
00:14:11,520 --> 00:14:14,960
We don't know whose bullet it 
was, or in a products liability 

297
00:14:14,960 --> 00:14:18,640
context, we don't know which 
manufacturer made the specific 

298
00:14:18,640 --> 00:14:21,000
generic pill the plaintiff took.
Right. 

299
00:14:21,160 --> 00:14:23,800
When you see a factual 
impossibility combined with 

300
00:14:23,800 --> 00:14:28,240
multiple negligent actors, that 
is a lawyer's cue to argue 

301
00:14:28,240 --> 00:14:30,680
alternative liability and shift 
the burden. 

302
00:14:30,800 --> 00:14:32,880
All right, So we have 
established factual causation. 

303
00:14:32,920 --> 00:14:36,600
We used the but for test or we 
use the substantial factor or 

304
00:14:36,600 --> 00:14:38,520
alternative liability exceptions
we've. 

305
00:14:38,520 --> 00:14:41,600
Proven that the defendants act 
is physically linked to the 

306
00:14:41,600 --> 00:14:44,080
injury. 
Right, we have crossed the first

307
00:14:44,080 --> 00:14:47,160
half of the causation bridge, 
but factual cause is just 

308
00:14:47,160 --> 00:14:49,560
physics, and physics doesn't 
care about fairness. 

309
00:14:49,560 --> 00:14:52,280
It really doesn't. 
If we only used factual cause, 

310
00:14:52,840 --> 00:14:55,680
liability would be infinite. 
Let me give you an example. 

311
00:14:55,840 --> 00:14:57,840
Think about your alarm clock. 
OK, my alarm clock. 

312
00:14:57,960 --> 00:15:00,960
But for your alarm clock waking 
you up exactly when it did this 

313
00:15:00,960 --> 00:15:04,840
morning, you wouldn't have left 
your house at exactly 80 AM. 

314
00:15:05,160 --> 00:15:06,960
You wouldn't have been driving 
through that specific 

315
00:15:06,960 --> 00:15:10,960
intersection at 8:15 AM, and you
wouldn't have been rear-ended by

316
00:15:10,960 --> 00:15:12,880
a careless driver. 
That's true. 

317
00:15:12,880 --> 00:15:16,600
So, under the strict laws of 
physics, is the company that 

318
00:15:16,600 --> 00:15:19,920
manufactured your alarm clock 
the factual cause of your 

319
00:15:19,920 --> 00:15:23,000
whiplash? 
Technically yes if we run the 

320
00:15:23,000 --> 00:15:25,600
butt for test, but for the alarm
clock you wouldn't be hurt. 

321
00:15:25,600 --> 00:15:27,600
So yes, they are a factual 
cause. 

322
00:15:27,600 --> 00:15:29,240
But should they be legally 
liable? 

323
00:15:29,440 --> 00:15:31,680
Of course not. 
Or what about the person who 

324
00:15:31,680 --> 00:15:34,400
invented the wheel? 
Right, but for the wheel, No 

325
00:15:34,400 --> 00:15:36,400
cars, no crash. 
Exactly. 

326
00:15:36,600 --> 00:15:39,800
Factual cause is like throwing a
massive boulder into a pond. 

327
00:15:40,240 --> 00:15:43,400
The ripples go out forever, 
affecting everything, tracing 

328
00:15:43,400 --> 00:15:46,400
back to the dawn of time. 
And the courts recognized early 

329
00:15:46,400 --> 00:15:48,640
on that they needed a way to 
stop the madness. 

330
00:15:48,720 --> 00:15:51,000
They needed a boundary line. 
Which brings us to the 

331
00:15:51,000 --> 00:15:54,200
second-half of the causation 
bridge, proximate causation. 

332
00:15:54,320 --> 00:15:56,160
Also known as legal cause. 
Right. 

333
00:15:56,480 --> 00:16:00,200
If factual cause is the boulder 
hitting the pond, proximate 

334
00:16:00,200 --> 00:16:03,880
cause is the judge standing on 
the shore pointing at a ripple 

335
00:16:03,880 --> 00:16:07,600
50 feet out and saying that 
ripple is too faint. 

336
00:16:07,600 --> 00:16:10,520
We are drawing the line here. 
It's the loss fairness filter. 

337
00:16:10,760 --> 00:16:14,040
It is the mechanism courts used 
to say even though your action 

338
00:16:14,040 --> 00:16:18,240
caused this event in a literal, 
physical sense, the result is 

339
00:16:18,240 --> 00:16:22,520
simply too remote, too bizarre, 
or too unforeseeable to hold you

340
00:16:22,520 --> 00:16:25,320
financially responsible. 
And the standard, the golden 

341
00:16:25,320 --> 00:16:28,680
word that governs proximate 
cause, is foreseeability. 

342
00:16:28,680 --> 00:16:30,480
Foreseeability is everything 
here. 

343
00:16:30,480 --> 00:16:33,960
We limit a defendant's liability
to the type of harm that was a 

344
00:16:33,960 --> 00:16:37,000
reasonably foreseeable 
consequence of their negligence.

345
00:16:37,040 --> 00:16:40,640
It prevents liability for those 
freakish Rube Goldberg machine 

346
00:16:40,640 --> 00:16:43,760
style chains of events. 
And to truly grasp how this 

347
00:16:43,760 --> 00:16:47,040
works, we have to talk about the
most famous, most fiercely 

348
00:16:47,040 --> 00:16:49,440
debated torts case in American 
legal history. 

349
00:16:51,240 --> 00:16:53,760
Oh. 
Helen Paulsgraph If you walk 

350
00:16:53,760 --> 00:16:56,840
into any law firm in the country
and whisper the word Paulsgraph,

351
00:16:57,200 --> 00:16:59,880
every lawyer in the room will 
instantly have a flashback to 

352
00:16:59,880 --> 00:17:02,120
their first year of law school. 
It's universally known. 

353
00:17:02,320 --> 00:17:05,280
It is the ultimate story of 
cutting off liability for 

354
00:17:05,280 --> 00:17:09,240
bizarre outcomes. 
Let's travel back to 1924. 

355
00:17:09,880 --> 00:17:13,760
It's a Sunday in August. 
Helen Paulsgraph is a 40 year 

356
00:17:13,760 --> 00:17:15,760
old mother taking her daughters 
to the beach. 

357
00:17:15,760 --> 00:17:18,280
Sounds nice. 
She is standing on a platform at

358
00:17:18,280 --> 00:17:20,800
the East New York station of the
Long Island Railroad. 

359
00:17:21,599 --> 00:17:23,800
She's waiting for her train, 
minding her own business. 

360
00:17:24,400 --> 00:17:26,520
At the other end of the 
platform, a different train is 

361
00:17:26,520 --> 00:17:29,200
pulling out of the station. 
Right, so you have two men come 

362
00:17:29,200 --> 00:17:31,720
running down the platform 
desperately trying to catch this

363
00:17:31,720 --> 00:17:34,040
moving train. 
The first man jumps aboard 

364
00:17:34,040 --> 00:17:36,440
successfully. 
The second man carrying a 

365
00:17:36,440 --> 00:17:39,120
package leaps for the moving 
train car. 

366
00:17:39,400 --> 00:17:42,680
Now 2 railroad employees, a 
guard on the train and a 

367
00:17:42,680 --> 00:17:46,520
platform guard try to help him 
and they are acting carelessly. 

368
00:17:46,560 --> 00:17:49,600
Instead of telling him to stop, 
the guard on the train reaches 

369
00:17:49,600 --> 00:17:52,600
out and pulls the man forward 
while the guard on the platform 

370
00:17:52,600 --> 00:17:55,360
shoves him from behind. 
It's a clumsy, negligent 

371
00:17:55,360 --> 00:17:58,880
struggle, and in the chaos, the 
passenger drops his package. 

372
00:17:59,040 --> 00:18:01,920
Now, to the naked eye, there's 
nothing dangerous about this 

373
00:18:01,920 --> 00:18:04,480
package. 
It's about 15 inches long. 

374
00:18:04,680 --> 00:18:07,680
Wrapped in ordinary newspaper, 
it looks completely innocuous. 

375
00:18:07,920 --> 00:18:11,760
But inside that newspaper is a 
massive bundle of fireworks. 

376
00:18:11,840 --> 00:18:13,840
Which is crazy to carry on a 
train. 

377
00:18:13,840 --> 00:18:17,080
Completely, and when the package
hits the rails, the impact 

378
00:18:17,080 --> 00:18:19,440
triggers an explosion. 
A massive explosion. 

379
00:18:19,520 --> 00:18:21,400
The shockwave rips through the 
station. 

380
00:18:21,600 --> 00:18:24,480
The force of the blast travels 
all the way down the platform 

381
00:18:24,680 --> 00:18:28,280
and the vibration knocks over a 
set of heavy coin operated penny

382
00:18:28,280 --> 00:18:31,240
weighing scales that were 
standing near Missus Paul's 

383
00:18:31,240 --> 00:18:33,760
graph. 
The scales fall over and crush 

384
00:18:33,760 --> 00:18:35,480
her. 
She suffers severe injuries. 

385
00:18:35,720 --> 00:18:38,600
She sues the railroad for the 
negligence of their employees. 

386
00:18:38,600 --> 00:18:40,680
And she actually won at trial. 
She did. 

387
00:18:40,800 --> 00:18:44,480
The jury awarded her a massive 
sum for the time, and the 

388
00:18:44,480 --> 00:18:47,720
appellate court upheld it. 
The logic was simple, right? 

389
00:18:47,960 --> 00:18:50,480
The guards were negligent. 
Their negligence caused the 

390
00:18:50,480 --> 00:18:53,280
package to fall. 
The package exploded and the 

391
00:18:53,280 --> 00:18:56,680
explosion hurt Helen. 
It was a clear, unbroken chain 

392
00:18:56,680 --> 00:19:00,760
of factual cause, but Railroad 
appeals it all the way to the 

393
00:19:00,760 --> 00:19:04,240
highest court in New York, and 
the case lands in front of Chief

394
00:19:04,240 --> 00:19:07,320
Judge Benjamin Cardozo. 
Who is an absolute Titan of 

395
00:19:07,320 --> 00:19:11,080
American jurisprudence? 
And Cardozo reverses the 

396
00:19:11,080 --> 00:19:13,480
decision. 
He wipes out Mrs. Paul's Graf's 

397
00:19:13,480 --> 00:19:16,040
verdict entirely. 
Cardozo's logic is the 

398
00:19:16,040 --> 00:19:19,120
foundation of our modern 
proximate cause analysis. 

399
00:19:19,760 --> 00:19:22,280
He essentially said that 
negligence is not a free 

400
00:19:22,280 --> 00:19:25,800
floating concept in the air. 
You can't just be negligent 

401
00:19:25,800 --> 00:19:28,640
generally. 
Negligence is relational. 

402
00:19:28,720 --> 00:19:32,880
You only owe a duty of care to a
foreseeable plaintiff who is 

403
00:19:32,880 --> 00:19:35,960
within the zone of danger. 
Cardozo looked at the guards and

404
00:19:35,960 --> 00:19:39,520
said, sure, They were negligent 
toward the man with a package. 

405
00:19:40,000 --> 00:19:42,120
Maybe they were negligent toward
the package itself. 

406
00:19:42,280 --> 00:19:45,160
But there was absolutely no way 
they could have foreseen that 

407
00:19:45,480 --> 00:19:48,840
pushing a passenger would cause 
an explosion that would injure a

408
00:19:48,840 --> 00:19:52,040
woman standing at the complete 
opposite end of the platform. 

409
00:19:52,040 --> 00:19:55,000
Because the package looked 
harmless, the explosion was 

410
00:19:55,000 --> 00:19:56,960
unforeseeable. 
And because the explosion was 

411
00:19:56,960 --> 00:19:59,960
unforeseeable, the harm to Mrs. 
Paul's graph was entirely 

412
00:19:59,960 --> 00:20:02,240
unforeseeable. 
Their four approximate cause was

413
00:20:02,240 --> 00:20:04,880
severed. 
The railroad is not liable for 

414
00:20:04,880 --> 00:20:07,400
the falling scales. 
But I think it's important to 

415
00:20:07,400 --> 00:20:10,320
mention the dissent here written
by Judge Andrews, because it 

416
00:20:10,320 --> 00:20:12,120
shows how subjective this all is
0. 

417
00:20:12,280 --> 00:20:16,040
Andrews was furious. 
He vehemently disagreed. 

418
00:20:16,160 --> 00:20:19,800
He argued that if you act 
negligently and your negligence 

419
00:20:19,800 --> 00:20:22,920
sets off a direct chain of 
events, you should be liable for

420
00:20:22,920 --> 00:20:24,960
whatever happens, no matter how 
bizarre. 

421
00:20:25,040 --> 00:20:27,680
As long as the chain isn't 
broken by some outside force. 

422
00:20:27,840 --> 00:20:30,960
Exactly. 
He thought the law owed a duty 

423
00:20:30,960 --> 00:20:34,080
to society at large, not just 
the people in the immediate zone

424
00:20:34,080 --> 00:20:36,160
of danger. 
It's a brilliant philosophical 

425
00:20:36,160 --> 00:20:41,200
divide, but Cardozo's view one 
out Foreseeability is the law of

426
00:20:41,200 --> 00:20:43,400
the land. 
If you speed through a red 

427
00:20:43,400 --> 00:20:45,800
light, it's foreseeable you will
hit another car. 

428
00:20:46,520 --> 00:20:49,680
It is not foreseeable that the 
sound of your tires screeching 

429
00:20:49,840 --> 00:20:53,480
will startle A pedestrian a 
block away, causing them to drop

430
00:20:53,480 --> 00:20:56,680
a priceless Ming vase. 
You pay for the car crash. 

431
00:20:56,720 --> 00:20:59,960
You do not pay for the vase. 
But this foreseeability analysis

432
00:20:59,960 --> 00:21:03,280
gets incredibly twisted when we 
introduce events that happened 

433
00:21:03,280 --> 00:21:05,440
after the defendant's initial 
negligent act. 

434
00:21:05,520 --> 00:21:07,520
Because things rarely happen in 
a vacuum. 

435
00:21:07,560 --> 00:21:09,440
Exactly. 
This brings us to the realm of 

436
00:21:09,480 --> 00:21:11,520
intervening and superseding 
causes. 

437
00:21:11,680 --> 00:21:14,680
This is a critical area for 
anyone trying to analyze real 

438
00:21:14,680 --> 00:21:17,120
world liability. 
So an intervening cause is 

439
00:21:17,120 --> 00:21:19,440
simply anything that happens 
between the defendant's 

440
00:21:19,440 --> 00:21:22,280
negligent act and the 
plaintiff's final injury. 

441
00:21:22,320 --> 00:21:26,040
Right, the timeline goes, 
Defendant acts negligently, then

442
00:21:26,040 --> 00:21:28,000
event X happens, then the 
plaintiff is hurt. 

443
00:21:28,160 --> 00:21:31,840
And the legal question is always
does event X relieve the 

444
00:21:31,840 --> 00:21:35,480
original defendant of liability?
Does it let them off the hook? 

445
00:21:35,480 --> 00:21:38,960
And the answer once again comes 
down to our golden word, 

446
00:21:39,160 --> 00:21:41,040
foreseeability. 
Right. 

447
00:21:41,040 --> 00:21:44,440
If event X is a foreseeable 
intervening cause, the chain of 

448
00:21:44,440 --> 00:21:47,480
liability remains intact. 
The defendant is still on the 

449
00:21:47,480 --> 00:21:50,040
hook. 
Let's use a harrowing but common

450
00:21:50,160 --> 00:21:52,480
example. 
You negligently run a stop sign 

451
00:21:52,640 --> 00:21:55,160
and hit a pedestrian. 
OK, The pedestrian suffers a 

452
00:21:55,160 --> 00:21:57,760
badly broken leg. 
An ambulance takes them to the 

453
00:21:57,760 --> 00:21:59,960
hospital. 
While in the operating room, the

454
00:21:59,960 --> 00:22:02,440
surgeon commits flagrant medical
malpractice. 

455
00:22:02,440 --> 00:22:04,680
Oh, that's awful. 
They set the bone completely 

456
00:22:04,680 --> 00:22:07,360
wrong. 
Use unsterilized equipment and 

457
00:22:07,360 --> 00:22:10,120
it leads to a severe infection 
resulting in permanent nerve 

458
00:22:10,120 --> 00:22:12,240
damage. 
Now, intuitively, the driver 

459
00:22:12,240 --> 00:22:14,880
might argue, wait a minute, I 
caused a broken leg. 

460
00:22:14,880 --> 00:22:18,240
I didn't cause nerve damage. 
That terrible doctor caused the 

461
00:22:18,240 --> 00:22:20,600
nerve damage. 
I should only pay for the broken

462
00:22:20,600 --> 00:22:23,000
leg and the doctor should pay 
for the rest. 

463
00:22:23,360 --> 00:22:27,000
Right, but the law says no. 
The law considers ordinary 

464
00:22:27,000 --> 00:22:29,880
medical malpractice to be a 
foreseeable risk of putting 

465
00:22:29,880 --> 00:22:32,680
someone in the medical system. 
When you hit someone with your 

466
00:22:32,680 --> 00:22:36,000
car, it is highly foreseeable 
that they will need an 

467
00:22:36,000 --> 00:22:38,120
ambulance, a hospital and 
doctors. 

468
00:22:38,480 --> 00:22:42,360
And it is a sad but foreseeable 
reality that doctors are human 

469
00:22:42,360 --> 00:22:45,480
and sometimes make mistakes. 
Therefore, the medical 

470
00:22:45,480 --> 00:22:48,960
malpractice is a foreseeable 
intervening 'cause it does not 

471
00:22:48,960 --> 00:22:52,080
sever the chain. 
You, the driver, are liable for 

472
00:22:52,080 --> 00:22:54,360
all of it. 
The broken leg, the infection 

473
00:22:54,360 --> 00:22:57,040
and the nerve damage. 
It is a brutal reality of tort 

474
00:22:57,040 --> 00:22:59,760
law and the same rule applies to
rescuers. 

475
00:22:59,840 --> 00:23:03,160
Ah. 
Yes, the famous legal maxim 

476
00:23:03,320 --> 00:23:06,400
danger invites rescue. 
If you leave a massive unmarked 

477
00:23:06,400 --> 00:23:09,640
trench in the sidewalk and a 
pedestrian falls in, it's highly

478
00:23:09,640 --> 00:23:11,600
foreseeable that a Good 
Samaritan will try to pull them 

479
00:23:11,600 --> 00:23:13,720
out. 
And if that Good Samaritan 

480
00:23:13,800 --> 00:23:16,680
accidentally dislocates the 
pedestrian shoulder while 

481
00:23:16,680 --> 00:23:18,920
pulling them out? 
You, the person who dug the 

482
00:23:18,920 --> 00:23:21,320
trench, are liable for the 
dislocated shoulder. 

483
00:23:21,520 --> 00:23:24,600
Because it's foreseeable that if
you create a perilous situation,

484
00:23:24,600 --> 00:23:27,400
someone will try to help, and 
they might clumsily make it 

485
00:23:27,400 --> 00:23:29,840
worse. 
But what if event X is totally 

486
00:23:29,840 --> 00:23:32,440
bizarre? 
What if it's completely outside 

487
00:23:32,440 --> 00:23:34,920
the realm of normal human 
probability? 

488
00:23:35,040 --> 00:23:38,320
That is when an intervening 
cause escalates into a 

489
00:23:38,320 --> 00:23:41,280
superseding cause. 
A superseding cause is an 

490
00:23:41,280 --> 00:23:45,920
unforeseeable act that is so 
massive or so unexpected that it

491
00:23:45,920 --> 00:23:48,320
severs the chain of proximate 
causation. 

492
00:23:48,440 --> 00:23:51,560
It acts like a giant pair of 
legal scissors, cutting the link

493
00:23:51,560 --> 00:23:53,240
between the defendant and the 
injury. 

494
00:23:53,480 --> 00:23:56,760
And the classic examples of 
superseding causes are acts of 

495
00:23:56,760 --> 00:23:59,920
God, like a freak lightning 
strike or intentional 

496
00:23:59,920 --> 00:24:02,240
unforeseeable crimes by third 
parties. 

497
00:24:02,680 --> 00:24:05,000
Let's go back to the driver who 
hit the pedestrian. 

498
00:24:05,040 --> 00:24:06,600
You hit the pedestrian, breaking
their leg. 

499
00:24:06,600 --> 00:24:08,800
They're lying on the sidewalk 
waiting for the ambulance. 

500
00:24:08,960 --> 00:24:13,800
OK, Suddenly a totally 
unpredicted localized microburst

501
00:24:13,800 --> 00:24:17,000
tornado touches down and throws 
a heavy tree barge at the 

502
00:24:17,000 --> 00:24:20,440
pedestrian, breaking their arm. 
Are you liable for the broken 

503
00:24:20,440 --> 00:24:22,320
arm? 
No, you are liable for the car 

504
00:24:22,320 --> 00:24:25,720
crash in the broken leg, but a 
freak tornado is a superseding 

505
00:24:25,720 --> 00:24:28,120
'cause. 
You couldn't possibly foresee 

506
00:24:28,120 --> 00:24:31,360
that your liability ends the 
moment the tornado hits. 

507
00:24:31,360 --> 00:24:34,640
Let's put this into a complex 
multi layered hypothetical. 

508
00:24:35,600 --> 00:24:37,960
This is how lawyers train to 
spot issues. 

509
00:24:37,960 --> 00:24:39,680
I call this the clinical 
challenge. 

510
00:24:39,760 --> 00:24:42,920
We're going to force you, the 
listener, to apply these rules 

511
00:24:42,920 --> 00:24:44,600
simultaneously. 
Here are the facts. 

512
00:24:45,080 --> 00:24:47,840
An amateur mechanic is working 
on a high-powered electric 

513
00:24:47,840 --> 00:24:52,120
scooter in his open garage. 
He's careless and decides to use

514
00:24:52,120 --> 00:24:56,720
a visibly frayed, damaged wire 
to connect the lithium ion 

515
00:24:56,720 --> 00:24:59,000
battery. 
Which is a clear breach of duty.

516
00:24:59,040 --> 00:25:02,440
Unsurprisingly, the moment he 
connects it, the frayed wire 

517
00:25:02,440 --> 00:25:06,400
sparks, causing a small, intense
chemical fire on the workbench. 

518
00:25:06,400 --> 00:25:09,000
OK, so a fire starts. 
The mechanic panics. 

519
00:25:09,160 --> 00:25:11,600
He runs out of the garage and 
down the driveway to grab the 

520
00:25:11,600 --> 00:25:13,840
garden hose. 
Just as he reaches the end of 

521
00:25:13,840 --> 00:25:17,280
the driveway, a freak, 
localized, completely 

522
00:25:17,280 --> 00:25:20,800
unpredicted earthquake occurs. 
The violent tremors cause a 

523
00:25:20,800 --> 00:25:24,040
heavy, poorly secured brick 
retaining wall at the edge of 

524
00:25:24,040 --> 00:25:27,240
the driveway to collapse and it 
falls, completely crushing the 

525
00:25:27,240 --> 00:25:29,040
mechanic's foot. 
All right, let's break this down

526
00:25:29,040 --> 00:25:30,720
piece by piece. 
You have to bifurcate your 

527
00:25:30,720 --> 00:25:32,240
analysis here. 
That's a great tip. 

528
00:25:32,560 --> 00:25:36,720
You have two distinct harms, the
fire damage to the workbench and

529
00:25:36,720 --> 00:25:38,840
the scooter, and the crushed 
foot. 

530
00:25:39,200 --> 00:25:40,600
Let's take the crushed foot 
first. 

531
00:25:41,000 --> 00:25:45,200
Step one is the mechanic, the 
factual cause of his own foot 

532
00:25:45,200 --> 00:25:49,080
injury. 
Apply the butt for test, but for

533
00:25:49,080 --> 00:25:52,640
the mechanic using the frayed 
wire, would his foot have been 

534
00:25:52,640 --> 00:25:54,720
crushed? 
Let's trace the ripples. 

535
00:25:55,200 --> 00:25:57,760
If he hadn't used the bad wire, 
there wouldn't have been a 

536
00:25:57,760 --> 00:25:59,560
spark. 
If there was no spark, there 

537
00:25:59,560 --> 00:26:01,640
would be no fire. 
If there's no fire, he wouldn't 

538
00:26:01,640 --> 00:26:03,200
have panicked and run out to the
driveway. 

539
00:26:03,240 --> 00:26:05,800
If he wasn't standing in that 
exact spot in the driveway, he 

540
00:26:05,800 --> 00:26:07,800
wouldn't have been under the 
wall when the earthquake hit. 

541
00:26:08,080 --> 00:26:11,920
So yes, physically speaking he 
is absolutely the factual, but 

542
00:26:11,920 --> 00:26:15,480
for cause of his crushed foot. 
But Step 2 is the fairness 

543
00:26:15,480 --> 00:26:17,880
filter. 
Is he the proximate cause? 

544
00:26:18,160 --> 00:26:21,120
Was the crushed foot a 
reasonably foreseeable result of

545
00:26:21,120 --> 00:26:23,040
using a frayed wire on a scooter
battery? 

546
00:26:23,080 --> 00:26:25,200
Absolutely not. 
The earthquake is the very 

547
00:26:25,200 --> 00:26:28,000
definition of an unforeseeable 
superseding cause. 

548
00:26:28,440 --> 00:26:31,920
When you wire a battery poorly, 
you foresee sparks, you foresee 

549
00:26:31,920 --> 00:26:34,840
fire, you foresee coccyx smoke, 
you foresee burns. 

550
00:26:35,240 --> 00:26:38,600
You do not foresee tectonic 
plates shifting and dropping a 

551
00:26:38,600 --> 00:26:41,840
brick wall on you. 
The earthquake is the giant pair

552
00:26:41,840 --> 00:26:44,040
of scissors. 
It severs the chain of 

553
00:26:44,040 --> 00:26:46,760
liability. 
So the legal conclusion here is 

554
00:26:46,760 --> 00:26:48,600
vital. 
You have to divide the damages. 

555
00:26:49,040 --> 00:26:52,080
Is he legally responsible for 
the fire damage to the 

556
00:26:52,080 --> 00:26:53,160
workbench? 
Yes. 

557
00:26:53,600 --> 00:26:56,320
Factual cause and proximate 
cause are both met. 

558
00:26:56,720 --> 00:27:00,080
A fire is a highly foreseeable 
consequence of a frayed wire. 

559
00:27:00,160 --> 00:27:02,360
Is he legally responsible for 
the crushed foot? 

560
00:27:02,440 --> 00:27:06,720
No factual cause is met, but 
proximate cause fails due to a 

561
00:27:06,720 --> 00:27:09,600
superseding event. 
If you try to treat the entire 

562
00:27:09,600 --> 00:27:13,560
fact pattern as one single BLOB 
of injury, you will completely 

563
00:27:13,560 --> 00:27:15,480
fail to understand how the law 
applies. 

564
00:27:16,040 --> 00:27:18,480
Bifurcate the harms. 
That is exactly how you have to 

565
00:27:18,480 --> 00:27:21,160
think about it on an exam, and 
it provides the perfect 

566
00:27:21,160 --> 00:27:23,160
transition to our next major 
topic. 

567
00:27:23,160 --> 00:27:25,880
Because, as we just noted, you 
have to look at the specific 

568
00:27:25,880 --> 00:27:30,120
harms that brings us to damages.
You established a duty, a 

569
00:27:30,120 --> 00:27:33,800
breach, and a clear, unbroken 
chain of factual and proximate 

570
00:27:33,800 --> 00:27:36,360
causation. 
But to get into court, you need 

571
00:27:36,360 --> 00:27:38,560
an actual, legally recognized 
injury. 

572
00:27:38,680 --> 00:27:41,440
And this is a massive contrast 
with intentional torts. 

573
00:27:41,600 --> 00:27:44,200
Think back to things like 
battery or trespass to land. 

574
00:27:44,320 --> 00:27:47,600
With an intentional tort, a 
plaintiff can sue for what we 

575
00:27:47,600 --> 00:27:50,800
call nominal damages. 
Meaning they can sue you for 

576
00:27:50,800 --> 00:27:54,000
exactly $1.00 just to get a 
court order proving that you 

577
00:27:54,000 --> 00:27:55,360
violated their rights. 
Right. 

578
00:27:55,360 --> 00:27:58,560
If you step onto my perfectly 
manicured lawn intentionally 

579
00:27:58,560 --> 00:28:01,720
without permission, I can see 
you for trespass. 

580
00:28:01,880 --> 00:28:04,840
Even if you didn't damage a 
single blade of grass, you can 

581
00:28:04,960 --> 00:28:07,960
win a judgement for $1.00 just 
to prove it's your property. 

582
00:28:08,320 --> 00:28:11,200
But in negligence that is 
entirely prohibited. 

583
00:28:11,200 --> 00:28:14,360
There are no nominal damages in 
negligence. 

584
00:28:14,600 --> 00:28:19,200
If you act carelessly but no one
gets hurt, the law simply does 

585
00:28:19,200 --> 00:28:22,120
not care. 
There must be actual compensable

586
00:28:22,120 --> 00:28:25,960
harm, either physical harm to a 
person or economic harm to 

587
00:28:25,960 --> 00:28:28,400
property. 
But once we establish that there

588
00:28:28,400 --> 00:28:32,440
is an actual physical injury, we
run into one of the most famous,

589
00:28:32,440 --> 00:28:35,560
heavily debated, and sometimes 
mind bending rules in all of 

590
00:28:35,560 --> 00:28:37,160
torts. 
The eggshell skull rule. 

591
00:28:37,160 --> 00:28:39,920
Or, as it's sometimes called in 
other jurisdictions, the thin 

592
00:28:39,920 --> 00:28:42,440
skull rule. 
This rule dictates exactly how 

593
00:28:42,440 --> 00:28:45,560
we value the damages once 
liability is firmly established.

594
00:28:46,120 --> 00:28:48,440
And the core maxim, the phrase 
you will hear in every 

595
00:28:48,440 --> 00:28:51,160
courtroom, is you take your 
plaintiff as you find them. 

596
00:28:51,320 --> 00:28:54,200
This loops us all the way back 
to the scenario we open the show

597
00:28:54,200 --> 00:28:56,560
with. 
Let's revisit it with our new 

598
00:28:56,560 --> 00:28:58,760
legal tools. 
You're driving in traffic. 

599
00:28:59,480 --> 00:29:02,840
You negligently tap the bumper 
of the car in front of you at 5 

600
00:29:02,840 --> 00:29:05,200
mph. 
The driver of that car suffers 

601
00:29:05,200 --> 00:29:09,240
from osteogenesis imperfecta, 
the brittle bone disease. 

602
00:29:09,320 --> 00:29:12,880
The minor jolt causes their 
spine to shatter, resulting in 

603
00:29:12,880 --> 00:29:16,040
$5,000,000 in medical bills and 
lifelong care. 

604
00:29:16,400 --> 00:29:19,240
Now, if you are the defense 
lawyer, your immediate instinct 

605
00:29:19,240 --> 00:29:22,840
is to stand before the judge and
say, Your Honor, this is absurd.

606
00:29:22,840 --> 00:29:26,200
Go back to proximate 'cause. 
We just learned that liability 

607
00:29:26,200 --> 00:29:29,120
is limited by foreseeability. 
Exactly. 

608
00:29:29,720 --> 00:29:32,000
A normal person wouldn't have 
been hurt that badly. 

609
00:29:32,000 --> 00:29:35,560
I shouldn't have to pay millions
for a five mile per hour tap. 

610
00:29:35,880 --> 00:29:37,920
I couldn't possibly have 
foreseen that the driver had 

611
00:29:37,920 --> 00:29:40,640
glass bones. 
The damages should be capped at 

612
00:29:40,640 --> 00:29:43,440
the cost of a stiff neck, maybe 
$1000. 

613
00:29:43,520 --> 00:29:46,600
It sounds like a great argument,
but the law firmly shuts it 

614
00:29:46,600 --> 00:29:49,120
down. 
Under the eggshell skull rule, 

615
00:29:49,240 --> 00:29:51,400
you are liable for the entire 
injury. 

616
00:29:51,520 --> 00:29:55,360
The entirety of the $5,000,000 
and here is why the 

617
00:29:55,360 --> 00:29:59,120
foreseeability filter we talked 
about in proximate cause applies

618
00:29:59,120 --> 00:30:02,280
to the type of harm. 
A physical impact injury from a 

619
00:30:02,280 --> 00:30:04,800
car crash is a foreseeable type 
of harm. 

620
00:30:04,840 --> 00:30:07,840
But you do not need to foresee 
the extent of the harm. 

621
00:30:07,840 --> 00:30:10,720
Exactly. 
The courts decided long ago that

622
00:30:10,720 --> 00:30:13,680
between an innocent plaintiff 
with a fragile body and a 

623
00:30:13,680 --> 00:30:17,720
negligent defendant who caused 
crash, the burden must fall on 

624
00:30:17,720 --> 00:30:20,000
the wrongdoer. 
You don't get a discount on your

625
00:30:20,000 --> 00:30:22,240
negligence just because you 
happen to hit someone 

626
00:30:22,480 --> 00:30:24,600
vulnerable. 
If you break the plaintiff, you 

627
00:30:24,600 --> 00:30:27,160
buy the plaintiff. 
Pre-existing fragilities and 

628
00:30:27,160 --> 00:30:29,280
all. 
It is an incredibly powerful 

629
00:30:29,280 --> 00:30:32,880
rule for plaintiffs, but the law
loves nuance, and there is a 

630
00:30:32,880 --> 00:30:35,800
massive distinction here that 
defense lawyers use to fight 

631
00:30:35,800 --> 00:30:37,320
back. 
Yes, there is a difference 

632
00:30:37,320 --> 00:30:40,240
between an eggshell skull 
condition and a crumbling skull 

633
00:30:40,240 --> 00:30:42,040
condition. 
They sound similar, but the 

634
00:30:42,040 --> 00:30:45,400
mathematical calculations for 
damages are vastly different. 

635
00:30:45,680 --> 00:30:48,640
This is a brilliant distinction,
and it really shows the economic

636
00:30:48,640 --> 00:30:51,880
reality of the courtroom. 
An eggshell or thin skull 

637
00:30:51,880 --> 00:30:54,880
condition, like the brittle bone
disease we just discussed, is a 

638
00:30:54,880 --> 00:30:57,560
stable but fragile condition. 
The plaintiff was living their 

639
00:30:57,560 --> 00:31:00,040
life. 
Their bones are fragile, yes, 

640
00:31:00,520 --> 00:31:01,840
but they weren't actively 
breaking. 

641
00:31:02,120 --> 00:31:05,440
But for your car crash, their 
spine would not have shattered 

642
00:31:05,440 --> 00:31:08,760
that day because your negligence
triggered the catastrophic 

643
00:31:08,760 --> 00:31:10,760
outcome. 
You pay for everything. 

644
00:31:10,760 --> 00:31:14,360
But a crumbling skull condition 
is an actively deteriorating 

645
00:31:14,360 --> 00:31:16,360
condition. 
Let's change the facts. 

646
00:31:16,360 --> 00:31:18,680
OK, let's hear it. 
Let's say the plaintiff didn't 

647
00:31:18,680 --> 00:31:22,400
have brittle bones, but they had
a severe degenerative spinal 

648
00:31:22,400 --> 00:31:25,400
disease that was already 
actively destroying their 

649
00:31:25,400 --> 00:31:27,600
vertebrae. 
So they were already declining. 

650
00:31:27,600 --> 00:31:28,840
Right. 
Their doctors had already 

651
00:31:28,840 --> 00:31:31,520
evaluated them and said, I'm 
sorry, but your spine is 

652
00:31:31,520 --> 00:31:34,440
deteriorating. 
In exactly 6 months you will 

653
00:31:34,440 --> 00:31:37,240
require major spinal fusion 
surgery and you will have 

654
00:31:37,240 --> 00:31:38,840
chronic pain for the rest of 
your life. 

655
00:31:38,840 --> 00:31:43,400
OK, then you tap their bumper. 
The impact exacerbates the 

656
00:31:43,400 --> 00:31:47,360
condition, making them need the 
surgery today instead of six 

657
00:31:47,360 --> 00:31:50,120
months from now. 
In a crumbling cell scenario, 

658
00:31:50,120 --> 00:31:52,160
the defense lawyer finally gets 
a win. 

659
00:31:52,600 --> 00:31:56,200
The defendant does not pay for 
the entire spinal fusion and all

660
00:31:56,200 --> 00:31:59,040
the lifelong care because the 
plaintiff was going to need that

661
00:31:59,040 --> 00:32:01,240
anyway. 
Your negligence didn't cause the

662
00:32:01,240 --> 00:32:04,080
need for surgery, it just speed 
up the timeline. 

663
00:32:04,440 --> 00:32:07,800
So the defendant only pays for 
the acceleration of the harm. 

664
00:32:07,960 --> 00:32:10,840
You pay for the pain and 
suffering of having to undergo 

665
00:32:10,840 --> 00:32:13,480
the surgery six months earlier 
than expected. 

666
00:32:13,600 --> 00:32:17,440
You perhaps pay for the economic
loss of them missing work sooner

667
00:32:17,440 --> 00:32:20,000
than they had planned. 
You are liable for speeding up 

668
00:32:20,000 --> 00:32:23,560
the inevitable, but you are not 
liable for the pre-existing 

669
00:32:23,560 --> 00:32:26,600
inevitable damage itself. 
It's a vital distinction for 

670
00:32:26,600 --> 00:32:29,880
assessing damages. 
You do not get a free pass for 

671
00:32:29,880 --> 00:32:32,880
hurting someone who is already 
sick, but you also don't have to

672
00:32:32,880 --> 00:32:35,840
cure a disease you didn't cause.
So let's take stock of the 

673
00:32:35,840 --> 00:32:38,320
battlefield. 
The plaintiff has stood before 

674
00:32:38,320 --> 00:32:40,120
the court. 
They have proven duty. 

675
00:32:40,360 --> 00:32:42,320
They've proven breach. 
They've linked it up with 

676
00:32:42,320 --> 00:32:45,840
factual and proximate causation.
They've demonstrated actual 

677
00:32:45,840 --> 00:32:49,160
damages calculated using the 
eggshell skull rule. 

678
00:32:49,640 --> 00:32:52,640
The plaintiff rests their case. 
They are demanding millions. 

679
00:32:53,040 --> 00:32:56,840
But the trial is only half over 
because now the burden shifts. 

680
00:32:56,840 --> 00:32:58,840
We turn our attention to the 
defense table. 

681
00:32:59,120 --> 00:33:02,200
The defendant gets to stand up 
and say, OK, maybe I was 

682
00:33:02,200 --> 00:33:03,880
careless, maybe I did 'cause the
injury. 

683
00:33:04,240 --> 00:33:07,040
But plaintiff, you are not 
entirely innocent in this 

684
00:33:07,080 --> 00:33:09,640
either. 
How does a defendant fight back 

685
00:33:10,200 --> 00:33:14,280
to reduce or even entirely 
eliminate the massive judgement 

686
00:33:14,280 --> 00:33:16,200
they're facing? 
We are going to look at 

687
00:33:16,200 --> 00:33:18,880
affirmative defenses to 
negligence. 

688
00:33:19,200 --> 00:33:22,400
This brings us to the historical
evolution of plaintiff blaming. 

689
00:33:22,920 --> 00:33:25,240
And to understand the rules 
today, you really have to 

690
00:33:25,240 --> 00:33:28,680
understand the history, because 
it's a fascinating look at how 

691
00:33:28,680 --> 00:33:31,840
the law bends to protect 
economic interests. 

692
00:33:31,960 --> 00:33:35,000
We start with the old rule, the 
draconian standard known as 

693
00:33:35,000 --> 00:33:38,400
contributory negligence. 
Contributory negligence was born

694
00:33:38,400 --> 00:33:40,840
in the 19th century, right 
alongside the Industrial 

695
00:33:40,840 --> 00:33:43,280
Revolution. 
You had railroads cutting across

696
00:33:43,280 --> 00:33:46,080
the country, massive factories 
being built, heavy machinery 

697
00:33:46,080 --> 00:33:48,600
everywhere. 
Accidents were skyrocketing. 

698
00:33:48,680 --> 00:33:51,800
And judges were genuinely 
terrified that if companies had 

699
00:33:51,800 --> 00:33:55,240
to pay for every single injury, 
these fledgling industries would

700
00:33:55,240 --> 00:33:58,080
go bankrupt and the economic 
progress of the nation would 

701
00:33:58,080 --> 00:34:00,760
stall. 
So, to protect capital and 

702
00:34:00,760 --> 00:34:04,480
industry, the courts adopted A 
brutally hard line approach 

703
00:34:05,000 --> 00:34:08,600
under pure contributory 
negligence, if the jury finds 

704
00:34:08,600 --> 00:34:12,400
that the plaintiff was even 1% 
at fault for their own injury. 

705
00:34:12,520 --> 00:34:14,520
The plaintiff gets absolutely 
nothing. 

706
00:34:15,120 --> 00:34:18,040
It is a total 100% bar to 
recovery. 

707
00:34:18,040 --> 00:34:21,440
Think about how harsh that is. 
Imagine a scenario where a 

708
00:34:21,440 --> 00:34:23,679
pedestrian is waiting at a 
crosswalk. 

709
00:34:24,120 --> 00:34:27,360
They step off the curb a half 
second before the walk signal 

710
00:34:27,360 --> 00:34:29,800
turns green. 
Technically, that is jaywalking.

711
00:34:30,040 --> 00:34:32,520
It's negligent. 
At that exact moment, a driver 

712
00:34:32,520 --> 00:34:34,960
comes tearing down the street. 
The driver is drunk, they are 

713
00:34:34,960 --> 00:34:38,000
speeding at 90 mph, they are 
texting and they are driving on 

714
00:34:38,000 --> 00:34:40,320
the wrong side of the road. 
And they hit the pedestrian, 

715
00:34:40,520 --> 00:34:43,400
causing catastrophic injuries. 
Under pure contributory 

716
00:34:43,400 --> 00:34:45,040
negligence, the jury does the 
math. 

717
00:34:45,400 --> 00:34:48,800
They say the drunk driver was 
99.9% at fault, but the 

718
00:34:48,800 --> 00:34:52,120
pedestrian was .1 1% at fault 
for stepping off the curb early.

719
00:34:52,120 --> 00:34:54,920
The result? 
The drunk driver pays $0.00. 

720
00:34:55,560 --> 00:34:58,560
The slightly impatient 
pedestrian bears the entire cost

721
00:34:58,560 --> 00:35:01,560
of their hospital bills. 
It is so harsh that juries 

722
00:35:01,560 --> 00:35:03,560
actively started ignoring the 
law. 

723
00:35:03,920 --> 00:35:07,000
Juries would look at a drunk 
driver and say we refuse to let 

724
00:35:07,000 --> 00:35:09,560
this guy off the hook just 
because the plaintiff made a 

725
00:35:09,560 --> 00:35:12,480
tiny mistake. 
When juries start openly 

726
00:35:12,480 --> 00:35:15,600
rebelling against the law, the 
law has to change. 

727
00:35:16,040 --> 00:35:18,120
So the vast majority of the 
country abandoned it. 

728
00:35:18,280 --> 00:35:22,040
However, and this is a massive 
caveat for anyone studying law 

729
00:35:22,040 --> 00:35:25,720
or living in these specific 
areas, contributory negligence 

730
00:35:25,720 --> 00:35:28,640
is not dead. 
It's still the law in a handful 

731
00:35:28,640 --> 00:35:31,640
of jurisdictions today. 
States like Maryland, Virginia, 

732
00:35:31,640 --> 00:35:35,400
North Carolina, Alabama and 
Washington, DC still cling to 

733
00:35:35,400 --> 00:35:39,240
this old draconian rule. 
If you are injured in DC and you

734
00:35:39,240 --> 00:35:41,600
are 1% at fault, your case is 
over. 

735
00:35:41,840 --> 00:35:44,200
But assuming you're in the 
modern world, which most of the 

736
00:35:44,200 --> 00:35:47,120
country is, we use a much more 
equitable system called 

737
00:35:47,120 --> 00:35:49,360
comparative negligence. 
Or comparative fault. 

738
00:35:49,360 --> 00:35:50,880
This is essentially fairness 
math. 

739
00:35:51,000 --> 00:35:54,160
Instead of an all or nothing 
system, the jury listens to the 

740
00:35:54,160 --> 00:35:56,960
evidence and assigns a 
percentage of fault to everyone 

741
00:35:56,960 --> 00:35:59,760
involved, including the 
plaintiff, so that it all adds 

742
00:35:59,760 --> 00:36:02,880
up to exactly 100%. 
But even within comparative 

743
00:36:02,880 --> 00:36:06,520
negligence, states are divided 
into two distinct philosophical 

744
00:36:06,520 --> 00:36:10,040
camps, pure comparative and 
modified comparative. 

745
00:36:10,520 --> 00:36:13,360
Let's start with pure 
comparative negligence, which is

746
00:36:13,360 --> 00:36:16,040
used by states like California, 
New York, and Florida. 

747
00:36:16,480 --> 00:36:19,120
This is the most forgiving 
system for a plaintiff. 

748
00:36:19,440 --> 00:36:22,840
Under pure comparative, the 
plaintiff can recover damages 

749
00:36:22,920 --> 00:36:25,560
even if they are primarily at 
fault for the accident. 

750
00:36:26,120 --> 00:36:29,120
The math is simple. 
You take the total damages and 

751
00:36:29,120 --> 00:36:31,160
you subtract the plaintiff's 
percentage of fault. 

752
00:36:31,400 --> 00:36:34,360
Let's use some numbers. 
A plaintiff gets into a horrible

753
00:36:34,360 --> 00:36:38,720
accident and the jury determines
the total damages are $100,000. 

754
00:36:39,200 --> 00:36:41,800
But the jury also decides that 
the plaintiff was driving 

755
00:36:41,800 --> 00:36:45,160
recklessly and was 99% at fault 
for the crash. 

756
00:36:45,600 --> 00:36:47,720
The defendant was only 1% at 
fault. 

757
00:36:47,800 --> 00:36:50,440
In a pure comparative state, the
plaintiff still wins a 

758
00:36:50,440 --> 00:36:52,960
judgement. 
Right, they get their $100,000 

759
00:36:53,000 --> 00:36:56,560
minus their 99% share of the 
blame, which is $99,000. 

760
00:36:57,040 --> 00:36:58,960
So the defendant still has to 
write a check to the plaintiff 

761
00:36:58,960 --> 00:37:02,000
for $1000. 
Now, a lot of lawmakers looked 

762
00:37:02,000 --> 00:37:03,880
at that and said, wait, that's 
absurd. 

763
00:37:04,040 --> 00:37:06,960
Why should the person who caused
almost the entire accident be 

764
00:37:06,960 --> 00:37:09,560
allowed to walk away with a 
check from the person who barely

765
00:37:09,560 --> 00:37:12,240
did anything wrong? 
It felt counterintuitive to 

766
00:37:12,240 --> 00:37:15,320
justice, which is why the 
majority of states use the 

767
00:37:15,320 --> 00:37:18,400
second system. 
Modified comparative negligence.

768
00:37:18,560 --> 00:37:22,240
Modified comparative negligence 
introduces a threshold, a cut 

769
00:37:22,240 --> 00:37:24,840
off point. 
The plaintiff can only recover 

770
00:37:24,840 --> 00:37:27,840
money if their fault falls below
a certain line. 

771
00:37:28,040 --> 00:37:31,280
Once they cross that line, they 
are completely barred from 

772
00:37:31,280 --> 00:37:34,720
recovery, just like the old 
contributory negligence days. 

773
00:37:35,320 --> 00:37:38,040
There are two variations of this
threshold, but they operate on 

774
00:37:38,040 --> 00:37:40,800
the same principle. 
In some states like Arkansas, 

775
00:37:40,800 --> 00:37:43,960
Colorado and Idaho, it is a 50% 
bar. 

776
00:37:44,280 --> 00:37:47,520
The plaintiff recovers only if 
they are 49 percent or less at 

777
00:37:47,520 --> 00:37:50,000
fault. 
If they hit exactly 50%, they 

778
00:37:50,000 --> 00:37:52,240
get absolutely zero. 
They must be less at fault than 

779
00:37:52,240 --> 00:37:54,240
the defendant. 
Other states like Delaware, 

780
00:37:54,240 --> 00:37:58,360
Hawaii, and Massachusetts use a 
51% bar, meaning the plaintiff 

781
00:37:58,360 --> 00:38:00,960
recovers if their fault is 50% 
or less. 

782
00:38:01,040 --> 00:38:04,680
If they are equally at fault, 
you know 5050, they can still 

783
00:38:04,680 --> 00:38:07,360
recover half their damages. 
They only get zeroed out if 

784
00:38:07,360 --> 00:38:10,720
their fault reaches 51%. 
And then there is South Dakota, 

785
00:38:10,800 --> 00:38:14,000
which just has to be weird. 
South Dakota uses a truly 

786
00:38:14,000 --> 00:38:17,720
bizarre slight. 
Gross comparative negligence 

787
00:38:17,720 --> 00:38:19,520
rule. 
In South Dakota, the plaintiff 

788
00:38:19,520 --> 00:38:22,440
can only recover if their 
negligence was slight in 

789
00:38:22,440 --> 00:38:25,400
comparison to the gross 
negligence of the defendant. 

790
00:38:25,440 --> 00:38:27,120
It isn't tied to a specific 
number. 

791
00:38:27,120 --> 00:38:30,480
It is highly subjective. 
It drives lawyers crazy because 

792
00:38:30,480 --> 00:38:33,760
it's so hard to predict what a 
jury will consider slight. 

793
00:38:33,880 --> 00:38:36,560
But the core take away for the 
modern era is that a plaintiff's

794
00:38:36,560 --> 00:38:39,080
own carelessness will usually 
reduce their damages 

795
00:38:39,080 --> 00:38:42,320
mathematically rather than 
destroy their case entirely. 

796
00:38:42,360 --> 00:38:45,560
However, there is one final 
ultimate shield the defendant 

797
00:38:45,560 --> 00:38:48,360
can raise, and this this one 
doesn't just reduce the damages,

798
00:38:48,600 --> 00:38:51,680
it destroys the duty entirely. 
It is a complete defense. 

799
00:38:51,680 --> 00:38:53,520
I am talking about the 
assumption of risk. 

800
00:38:53,600 --> 00:38:55,480
This is an incredibly powerful 
argument. 

801
00:38:55,960 --> 00:38:58,960
If a defendant can prove 
assumption of risk, the case is 

802
00:38:58,960 --> 00:39:02,040
completely over. 
The rule is this If a plaintiff 

803
00:39:02,040 --> 00:39:05,720
knew of a specific subjective 
risk and voluntarily chose to 

804
00:39:05,720 --> 00:39:08,920
encounter that risk anyway, they
cannot turn around and sue the 

805
00:39:08,920 --> 00:39:12,040
defendant when that exact risk 
harms them. 

806
00:39:12,120 --> 00:39:14,120
They have legally consented to 
the danger. 

807
00:39:14,480 --> 00:39:18,200
We divide this into two 
categories, express and implied.

808
00:39:18,560 --> 00:39:20,960
Express assumption of risk is 
straightforward. 

809
00:39:20,960 --> 00:39:23,920
It is contractual. 
Have you ever gone scuba diving 

810
00:39:23,920 --> 00:39:25,920
or indoor rock climbing or 
skydiving? 

811
00:39:25,920 --> 00:39:27,080
Yeah, you have to sign your life
away. 

812
00:39:27,080 --> 00:39:30,080
Exactly, before they let you 
anywhere near the equipment, 

813
00:39:30,080 --> 00:39:33,360
they make you sign a dense multi
page liability waiver. 

814
00:39:33,520 --> 00:39:37,120
That waiver explicitly says I 
understand this activity is 

815
00:39:37,120 --> 00:39:40,480
dangerous, I understand I could 
suffer grievous bodily harm or 

816
00:39:40,480 --> 00:39:43,960
die, and I expressly agree not 
to sue the company for 

817
00:39:43,960 --> 00:39:46,120
negligence. 
If you sign that waiver and the 

818
00:39:46,120 --> 00:39:49,920
risk materializes, say you 
sprain your ankle rock climbing,

819
00:39:50,360 --> 00:39:52,920
you are barred from suing for 
ordinary negligence. 

820
00:39:52,920 --> 00:39:55,880
You expressly assumed the risk. 
But implied assumption of risk 

821
00:39:55,880 --> 00:39:58,760
is much more common, there's 
more heavily litigated and much 

822
00:39:58,760 --> 00:40:01,400
trickier. 
This is where there is no signed

823
00:40:01,400 --> 00:40:05,240
piece of paper, no contract, but
the plaintiff's actions 

824
00:40:05,240 --> 00:40:08,160
demonstrate that they understood
the danger and accepted it 

825
00:40:08,160 --> 00:40:10,400
anyway. 
Let's use a classic 

826
00:40:10,400 --> 00:40:13,560
hypothetical. 
Imagine you go to a summer 

827
00:40:13,560 --> 00:40:16,240
carnival. 
You see a ride called the 

828
00:40:16,240 --> 00:40:18,760
Bonecrusher Bumper Cars. 
Sounds safe. 

829
00:40:18,760 --> 00:40:22,160
You stand in line and you watch 
people slamming into each other.

830
00:40:22,320 --> 00:40:24,120
You see their heads whipping 
back and forth. 

831
00:40:24,360 --> 00:40:26,040
You hear the crashes? 
So you know what you're getting 

832
00:40:26,040 --> 00:40:28,040
into. 
You voluntarily hand over your 

833
00:40:28,040 --> 00:40:31,200
tickets, you strap yourself into
the little plastic car and the 

834
00:40:31,200 --> 00:40:35,640
ride starts. 5 minutes later 
someone T bones your car at high

835
00:40:35,640 --> 00:40:38,480
speed and you suffer severe 
whiplash. 

836
00:40:38,640 --> 00:40:41,240
Can you sue the carnival for 
negligence? 

837
00:40:41,240 --> 00:40:42,480
Let's run it through the legal 
test. 

838
00:40:42,920 --> 00:40:44,880
Did you act voluntarily? 
Yes. 

839
00:40:44,880 --> 00:40:46,920
No one forced you onto the ride 
at gunpoint. 

840
00:40:47,000 --> 00:40:49,560
You weren't under duress. 
Did you know of the specific 

841
00:40:49,560 --> 00:40:51,080
risk? 
Well, you watched the ride. 

842
00:40:51,080 --> 00:40:53,960
You saw people crashing. 
You subjectively understood that

843
00:40:53,960 --> 00:40:56,720
getting violently jerked around 
was the entire point of the 

844
00:40:56,720 --> 00:40:58,640
ride. 
Therefore, by voluntarily 

845
00:40:58,640 --> 00:41:02,000
participating, you impliedly 
assumed the risk of whiplash. 

846
00:41:02,120 --> 00:41:04,720
You cannot sue the carnival. 
But here is where defense 

847
00:41:04,720 --> 00:41:08,040
lawyers get overly confident and
where plaintiffs can strike 

848
00:41:08,040 --> 00:41:09,600
back. 
Let's tweak the facts. 

849
00:41:10,040 --> 00:41:13,440
You are on the bumper cars. 
You are crashing around, but 

850
00:41:13,440 --> 00:41:16,600
suddenly instead of getting 
whiplash from another car, the 

851
00:41:16,600 --> 00:41:21,480
massive metal ceiling grid above
the ride abruptly collapses and 

852
00:41:21,480 --> 00:41:24,120
crushes your car. 
Did you assume the risk of the 

853
00:41:24,120 --> 00:41:26,040
ceiling collapsing? 
Absolutely not. 

854
00:41:26,200 --> 00:41:27,960
That is the critical nuance of 
the rule. 

855
00:41:28,200 --> 00:41:32,160
The injury must be related to 
the specific known inherent risk

856
00:41:32,160 --> 00:41:34,080
of the activity. 
The inherent risk of bumper cars

857
00:41:34,080 --> 00:41:36,440
is getting bumped. 
The inherent risk is not 

858
00:41:36,640 --> 00:41:38,680
catastrophic structural 
engineering failure. 

859
00:41:38,800 --> 00:41:42,360
You assume the risk of whiplash.
You did not assume the risk of a

860
00:41:42,360 --> 00:41:45,880
roof collapse. 
The carnival's defense fails and

861
00:41:45,880 --> 00:41:48,040
they are fully liable for the 
collapsed ceiling. 

862
00:41:48,200 --> 00:41:50,560
Let's apply this to another 
famous, highly specific 

863
00:41:50,560 --> 00:41:54,280
scenario, the firefighter rule. 
This is a specialized 

864
00:41:54,280 --> 00:41:57,160
application of implied 
assumption of risk that comes up

865
00:41:57,160 --> 00:41:59,960
constantly on exams. 
A firefighter responds to an 

866
00:41:59,960 --> 00:42:02,960
emergency call. 
The homeowner negligently left a

867
00:42:02,960 --> 00:42:05,480
candle burning and now their 
house is ablaze. 

868
00:42:05,640 --> 00:42:09,000
The firefighter runs inside, 
breathes in heavy, toxic smoke, 

869
00:42:09,200 --> 00:42:10,960
and suffers permanent lung 
damage. 

870
00:42:11,680 --> 00:42:14,720
Can the firefighter sue the 
homeowner for negligently 

871
00:42:14,720 --> 00:42:16,960
starting the fire? 
The answer is no. 

872
00:42:17,480 --> 00:42:20,600
Under the firefighter rule, 
emergency professionals, police,

873
00:42:20,720 --> 00:42:25,120
firefighters, EMT's are deemed 
to have impliedly assumed the 

874
00:42:25,120 --> 00:42:27,960
risks inherent in their highly 
dangerous jobs. 

875
00:42:28,360 --> 00:42:32,000
Being exposed to smoke, fire and
collapsing structures is the 

876
00:42:32,000 --> 00:42:34,400
exact risk a firefighter is 
hired to face. 

877
00:42:34,560 --> 00:42:36,840
It is a known occupational 
hazard. 

878
00:42:36,880 --> 00:42:40,400
Society compensates them through
salary, pensions and workers 

879
00:42:40,400 --> 00:42:44,160
compensation funds, not through 
individual tort suits against 

880
00:42:44,160 --> 00:42:45,800
the panicked people they're 
rescuing. 

881
00:42:45,800 --> 00:42:47,920
But again, let's look at the 
boundaries of that rule. 

882
00:42:48,000 --> 00:42:50,120
What if the risk is not inherent
to the job? 

883
00:42:50,400 --> 00:42:53,040
Let's say a firefighter is 
rescuing a little kitten out of 

884
00:42:53,040 --> 00:42:56,040
a tree outside a local dive bar.
OK, classic cat in a tree 

885
00:42:56,040 --> 00:42:58,440
scenario. 
A drunken patron stumbles out of

886
00:42:58,440 --> 00:43:01,680
the bar, gets belligerently 
angry at the noise, and sucker 

887
00:43:01,680 --> 00:43:04,160
punches the firefighter in the 
face, breaking their jaw. 

888
00:43:04,360 --> 00:43:06,400
Yikes. 
Can the drunk patron claim, hey,

889
00:43:06,400 --> 00:43:09,240
you're a firefighter, you 
assumes the risk of a dangerous 

890
00:43:09,280 --> 00:43:11,760
job? 
Definitely not being a 

891
00:43:11,760 --> 00:43:15,360
firefighter is dangerous, but 
getting assaulted by a random 

892
00:43:15,360 --> 00:43:19,080
drunk bystander is not the 
specific inherent risk of 

893
00:43:19,080 --> 00:43:22,320
climbing a tree to save a cat. 
The injury must relate to the 

894
00:43:22,320 --> 00:43:24,200
specific risk they signed up 
for. 

895
00:43:24,440 --> 00:43:26,880
The drunk patron is fully 
liable. 

896
00:43:27,200 --> 00:43:28,800
But let me push it one step 
further. 

897
00:43:29,040 --> 00:43:33,160
What if the person who punched 
the firefighter was the owner of

898
00:43:33,160 --> 00:43:35,080
the burning house? 
Oh, it's interesting. 

899
00:43:35,080 --> 00:43:38,440
The house is engulfed in flames.
The homeowner is screaming, 

900
00:43:38,600 --> 00:43:41,360
demanding the firefighter go 
back into the inferno to save a 

901
00:43:41,360 --> 00:43:43,960
family photograph. 
The firefighter refuses, saying 

902
00:43:43,960 --> 00:43:46,880
it's too dangerous. 
The homeowner, blinded by panic 

903
00:43:46,880 --> 00:43:48,760
and rage, punches the 
firefighter. 

904
00:43:49,080 --> 00:43:52,240
Is that related to the job? 
Now that is a fascinating Gray 

905
00:43:52,240 --> 00:43:54,080
area. 
Arguably, yes. 

906
00:43:54,520 --> 00:43:57,240
Dealing with panicked, irate, 
irrational and physically 

907
00:43:57,240 --> 00:44:00,600
combative victims at the chaotic
scene of an emergency is an 

908
00:44:00,600 --> 00:44:03,280
inherent, foreseeable part of 
being a first responder. 

909
00:44:03,360 --> 00:44:05,800
A court might very well find 
that the firefighter assumed the

910
00:44:05,800 --> 00:44:08,160
risk of an altercation with the 
homeowner in the heat of the 

911
00:44:08,160 --> 00:44:10,120
moment. 
It perfectly illustrates how 

912
00:44:10,120 --> 00:44:12,760
incredibly fact dependent these 
defenses are. 

913
00:44:13,080 --> 00:44:16,160
You have to microscopically 
examine the specific context of 

914
00:44:16,160 --> 00:44:18,320
the risk. 
And that comprehensive look at 

915
00:44:18,320 --> 00:44:21,480
the defenses brings us to the 
end of our doctrinal journey for

916
00:44:21,480 --> 00:44:23,720
today. 
We have successfully built the 

917
00:44:23,720 --> 00:44:26,720
bridge from careless act to 
courtroom judgement. 

918
00:44:26,920 --> 00:44:29,800
Let's do a quick recap of the 
terrain we just covered. 

919
00:44:29,960 --> 00:44:32,360
First, we tackled factual 
'cause. 

920
00:44:32,720 --> 00:44:35,520
We use the ripples in the pond, 
but for test we looked at 

921
00:44:35,520 --> 00:44:38,800
concurrent camper fires and use 
the substantial factor test. 

922
00:44:38,920 --> 00:44:42,320
We looked at the simultaneous 
Quail hunters in Somersby Tice 

923
00:44:42,480 --> 00:44:45,200
and use the alternative 
liability burden shift, 

924
00:44:45,200 --> 00:44:48,680
exploring the terrifying power 
of joint and several liability. 

925
00:44:48,880 --> 00:44:51,880
2nd, we applied the fairness 
filter of proximate cause. 

926
00:44:52,400 --> 00:44:55,400
We traveled to the Long Island 
Railroad with Helen Paul's graph

927
00:44:55,640 --> 00:44:57,760
to ask if the type of harm was 
foreseeable. 

928
00:44:58,000 --> 00:45:00,840
We examined intervening acts 
like medical malpractice, which 

929
00:45:00,840 --> 00:45:04,280
keeps the defendant on the hook,
and superseding acts like freak 

930
00:45:04,280 --> 00:45:08,200
earthquakes and tornadoes, which
cut off liability entirely. 3rd,

931
00:45:08,520 --> 00:45:11,880
we valued the harm with damages.
We established that negligence 

932
00:45:11,880 --> 00:45:14,480
requires actual physical or 
economic harm. 

933
00:45:14,680 --> 00:45:18,600
And we locked in the eggshell 
skull rule, taking the plaintiff

934
00:45:18,600 --> 00:45:22,040
as you find them, paying for the
shattered spine while carefully 

935
00:45:22,040 --> 00:45:24,920
distinguishing it from the 
pre-existing deterioration of a 

936
00:45:24,920 --> 00:45:27,680
crumbling skull. 
And finally, we examined how the

937
00:45:27,680 --> 00:45:31,000
defense fights back. 
We track the history from the 

938
00:45:31,000 --> 00:45:36,600
draconian 1% bar of contributory
negligence to the modern math of

939
00:45:36,600 --> 00:45:38,920
comparative fault. 
And we looked at the ultimate 

940
00:45:38,920 --> 00:45:41,960
duty destroying shield of 
assumption of risk, exploring 

941
00:45:41,960 --> 00:45:45,320
the nuances of waivers, bumper 
cars, and the firefighter rule. 

942
00:45:45,760 --> 00:45:48,680
It is a massive, interconnected 
architecture of logic and 

943
00:45:48,680 --> 00:45:50,920
policy. 
But I want to leave you with a 

944
00:45:50,920 --> 00:45:54,120
teaser, a final provocative 
thought to Mull over before our 

945
00:45:54,120 --> 00:45:56,240
next deep dive. 
I love a good teaser. 

946
00:45:56,800 --> 00:45:59,880
We have spent hours across 
multiple sessions talking about 

947
00:45:59,880 --> 00:46:02,400
how incredibly hard you have to 
work to prove that someone was 

948
00:46:02,400 --> 00:46:04,480
at fault. 
You have to prove duty. 

949
00:46:04,480 --> 00:46:06,800
You have to prove breach. 
You have to trace the factual 

950
00:46:06,800 --> 00:46:11,120
cause, prove foreseeability, 
calculate damages, and survive a

951
00:46:11,120 --> 00:46:12,880
gauntlet of affirmative 
defenses. 

952
00:46:12,880 --> 00:46:15,120
It is a grueling process to 
prove fault. 

953
00:46:15,480 --> 00:46:18,160
But what if there are situations
in the law where you don't have 

954
00:46:18,160 --> 00:46:19,640
to prove fault at all? 
Wait, what? 

955
00:46:19,840 --> 00:46:22,960
What if a defendant can do 
everything perfectly safely, 

956
00:46:23,360 --> 00:46:26,760
take every reasonable precaution
known to science, act like the 

957
00:46:26,760 --> 00:46:31,120
ultimate prudent person, make 0 
mistakes, and still be held 

958
00:46:31,120 --> 00:46:33,760
strictly liable for millions of 
dollars in damages? 

959
00:46:33,760 --> 00:46:36,080
It sounds like a total 
contradiction of everything we 

960
00:46:36,080 --> 00:46:38,120
have just learned about the 
civil justice system. 

961
00:46:38,120 --> 00:46:41,080
But I can confirm that is the 
exact wild frontier we will 

962
00:46:41,080 --> 00:46:43,880
tackle next time. 
When we return, we will 

963
00:46:43,880 --> 00:46:46,920
abandoned the negligence 
framework entirely and dive into

964
00:46:46,920 --> 00:46:48,920
the terrifying realm of special 
duties. 

965
00:46:48,920 --> 00:46:52,200
Strict liability, products 
liability and the law of 

966
00:46:52,200 --> 00:46:54,840
nuisance. 
Until then, review your mental 

967
00:46:54,840 --> 00:46:58,160
outlines, trace those causal 
chains, and keep looking for the

968
00:46:58,160 --> 00:47:00,360
legal traps hidden in the 
everyday world. 

969
00:47:00,560 --> 00:47:03,880
All right, welcome back. 
So far we've nailed down the 1st

970
00:47:03,880 --> 00:47:07,640
2 pillars of a negligence case. 
We know the defendant had a duty

971
00:47:07,880 --> 00:47:10,280
and we know they breached it. 
But that's not the end of the 

972
00:47:10,280 --> 00:47:13,720
story, not even close. 
We've got this careless act over

973
00:47:13,720 --> 00:47:16,040
here and the plaintiffs harm 
over there. 

974
00:47:16,400 --> 00:47:18,560
We still need to build the 
bridge that connects the two. 

975
00:47:19,160 --> 00:47:22,640
You know, in the world of torts,
just being careless by itself 

976
00:47:22,840 --> 00:47:25,040
doesn't need a thing. 
Seriously, you could be 

977
00:47:25,040 --> 00:47:26,680
reckless. 
You could speed through a school

978
00:47:26,680 --> 00:47:28,480
zone, which is a huge breach of 
duty. 

979
00:47:28,800 --> 00:47:31,680
But if you don't actually hit 
anyone, if no one gets hurt, 

980
00:47:32,000 --> 00:47:34,200
well, there's no tort. 
There's no case to be made. 

981
00:47:34,560 --> 00:47:36,920
That breach has to actually 
connect to an injury. 

982
00:47:37,480 --> 00:47:40,200
So that leads us to the big 
question for today. 

983
00:47:40,320 --> 00:47:42,200
How does the law build this 
bridge? 

984
00:47:42,400 --> 00:47:45,520
This is our focus and this 
bridge, it's made of two 

985
00:47:45,600 --> 00:47:48,640
absolutely critical components. 
You have to prove every single 

986
00:47:48,640 --> 00:47:52,880
time, causation and damages. 
Causation is the link and 

987
00:47:52,880 --> 00:47:55,680
damages are the harm. 
Get these two right and you've 

988
00:47:55,680 --> 00:47:58,320
connected the defendant's breach
to the plaintiff's injury. 

989
00:47:58,600 --> 00:48:00,880
OK, let's get into it. 
We're going to start with the 

990
00:48:00,880 --> 00:48:04,000
first span of this bridge, which
is the first part of our 

991
00:48:04,000 --> 00:48:06,880
two-part causation analysis, 
factual cause. 

992
00:48:07,360 --> 00:48:08,640
You'll also hear it called 
cause. 

993
00:48:08,640 --> 00:48:10,520
In fact. 
The easiest way to think about 

994
00:48:10,520 --> 00:48:14,160
this is it's just physics. 
It's the direct physical 

995
00:48:14,160 --> 00:48:16,440
connection. 
We're not talking about fairness

996
00:48:16,440 --> 00:48:18,960
or philosophy yet. 
We're just asking, did the 

997
00:48:18,960 --> 00:48:22,160
defendant's action as a matter 
of pure fact lead to the 

998
00:48:22,160 --> 00:48:24,840
plaintiff getting hurt? 
And the main tool we use for 

999
00:48:24,840 --> 00:48:29,440
this 99% of the time is the but 
for test, the question couldn't 

1000
00:48:29,440 --> 00:48:32,320
be simpler. 
But for what the defendant did, 

1001
00:48:32,520 --> 00:48:36,120
would this injury have happened?
So a driver runs a red light, 

1002
00:48:36,200 --> 00:48:39,120
hits a pedestrian. 
We ask, but for the driver 

1003
00:48:39,120 --> 00:48:41,360
running that light, would the 
pedestrian have been hit? 

1004
00:48:41,680 --> 00:48:44,720
Well, no, of course not. 
Boom, factual cause is 

1005
00:48:44,720 --> 00:48:47,120
established. 
It's that direct chain of 

1006
00:48:47,120 --> 00:48:50,240
events. 
But, and this is a big but for 

1007
00:48:50,240 --> 00:48:53,600
your exams, what happens when 
the but for test just flat out 

1008
00:48:53,600 --> 00:48:55,480
fails? 
Well, there are two classic 

1009
00:48:55,480 --> 00:48:58,120
scenarios you have to know. 
First, the merging fires. 

1010
00:48:58,480 --> 00:49:00,920
Imagine 2 campers on opposite 
sides of a valley. 

1011
00:49:01,160 --> 00:49:03,440
Both negligently leave their 
campfires unattended. 

1012
00:49:03,880 --> 00:49:06,360
The fire spread. 
They merge into one giant blaze 

1013
00:49:06,560 --> 00:49:07,800
and burn down a house in the 
middle. 

1014
00:49:08,160 --> 00:49:10,800
Now let's try the test, but for 
Camper A's fire. 

1015
00:49:10,800 --> 00:49:12,360
Would the house have burned? 
Yeah. 

1016
00:49:12,560 --> 00:49:14,080
Camper B's fire would have done 
it anyway. 

1017
00:49:14,280 --> 00:49:16,960
The test doesn't work. 
So the law gives us a new tool, 

1018
00:49:16,960 --> 00:49:20,640
the substantial factor test. 
We just ask, was Camper A's fire

1019
00:49:20,640 --> 00:49:22,160
a substantial factor in the 
harm? 

1020
00:49:22,400 --> 00:49:25,360
Yes, he's on the hook. 
The second scenario is called 

1021
00:49:25,360 --> 00:49:27,800
alternative liability. 
The famous case is Summers V 

1022
00:49:27,800 --> 00:49:30,000
Tice 2. 
Hunters negligently fire their 

1023
00:49:30,000 --> 00:49:32,280
shotguns in the same direction 
toward their guide. 

1024
00:49:32,640 --> 00:49:34,520
A single pellet hits the guide 
in the eye. 

1025
00:49:34,920 --> 00:49:37,520
We know they were both 
negligent, but we have no idea 

1026
00:49:37,520 --> 00:49:40,600
who's gun the pellet came from. 
The but for test fails again. 

1027
00:49:40,800 --> 00:49:43,160
So what does the law do? 
It says, you know what, this 

1028
00:49:43,160 --> 00:49:45,400
isn't fair to the plaintiff, so 
it flips the script. 

1029
00:49:45,600 --> 00:49:47,720
It shifts the burden of proof to
the defendants. 

1030
00:49:48,000 --> 00:49:51,080
They now have to prove it wasn't
them, and if they can't, they're

1031
00:49:51,080 --> 00:49:53,480
both liable. 
OK, so that's the first span of 

1032
00:49:53,480 --> 00:49:55,200
our bridge. 
Now we move to the second and 

1033
00:49:55,200 --> 00:49:58,240
honestly, the much more 
complicated one, Proximate 

1034
00:49:58,240 --> 00:50:01,000
'cause you'll also hear this 
called legal cause. 

1035
00:50:01,280 --> 00:50:04,200
And this is where we leave the 
world of pure physics and enter 

1036
00:50:04,200 --> 00:50:06,840
the world of policy. 
This is the law's way of 

1037
00:50:06,840 --> 00:50:10,360
stepping back and asking, OK, we
have a factual connection, but 

1038
00:50:10,400 --> 00:50:13,480
is it actually fair to hold this
person responsible for this 

1039
00:50:13,480 --> 00:50:16,360
particular result? 
Think of it as a fairness filter

1040
00:50:16,560 --> 00:50:19,720
designed to stop liability from 
spiraling out of control 

1041
00:50:19,720 --> 00:50:22,200
forever. 
So the magic word here, the 

1042
00:50:22,200 --> 00:50:25,720
concept you have to burn into 
your brain, is foreseeability. 

1043
00:50:26,080 --> 00:50:29,160
The law says we're only going to
hold you liable for the harms 

1044
00:50:29,160 --> 00:50:31,840
that were a reasonably 
foreseeable consequence of your 

1045
00:50:31,840 --> 00:50:34,160
negligent act. 
We don't really care about the 

1046
00:50:34,160 --> 00:50:36,520
bizarre one in a million chain 
of events that actually 

1047
00:50:36,520 --> 00:50:39,040
happened. 
The real question is what could 

1048
00:50:39,040 --> 00:50:41,880
a reasonable person standing in 
the defendants choose have 

1049
00:50:41,880 --> 00:50:45,480
predicted might happen? 
If the harm is just too weird to

1050
00:50:45,480 --> 00:50:48,760
remote, the law will step in and
cut off liability even if you 

1051
00:50:48,760 --> 00:50:50,520
have a perfect but for 
connection. 

1052
00:50:51,080 --> 00:50:54,240
Now, this whole foreseeability 
thing gets really interesting 

1053
00:50:54,280 --> 00:50:58,560
and really tough on an exam when
some new event happens after the

1054
00:50:58,560 --> 00:51:01,960
defendant's initial screw up but
before the plaintiff's final 

1055
00:51:01,960 --> 00:51:04,480
injury. 
We call these intervening 

1056
00:51:04,480 --> 00:51:07,800
events, and the whole game is 
figuring out whether this new 

1057
00:51:07,800 --> 00:51:11,720
event is so bizarre and 
unexpected that it breaks that 

1058
00:51:11,720 --> 00:51:13,400
chain of causation we've been 
talking about. 

1059
00:51:13,760 --> 00:51:16,280
And this table right here 
illustrates the key distinction 

1060
00:51:16,280 --> 00:51:19,400
beautifully. 
First, you have a foreseeable 

1061
00:51:19,400 --> 00:51:22,520
intervening 'cause this does not
break the chain. 

1062
00:51:22,880 --> 00:51:25,320
The absolute classic example is 
medical malpractice. 

1063
00:51:25,640 --> 00:51:27,760
Let's say I negligently run you 
over with my car. 

1064
00:51:27,960 --> 00:51:30,480
You go to the hospital and the 
doctor negligently sets your 

1065
00:51:30,480 --> 00:51:33,040
leg, making it worse. 
Am I liable for the bad medical 

1066
00:51:33,040 --> 00:51:34,280
care? 
You bet I am. 

1067
00:51:34,440 --> 00:51:35,960
Why? 
Because it is absolutely 

1068
00:51:35,960 --> 00:51:38,680
foreseeable that if you injure 
someone badly enough to send 

1069
00:51:38,680 --> 00:51:41,160
them to the hospital, they might
be the victim of medical 

1070
00:51:41,160 --> 00:51:43,560
negligence. 
It's part of the risk, but an 

1071
00:51:43,560 --> 00:51:47,520
unforeseeable event, what we 
call a superseding 'cause that 

1072
00:51:47,600 --> 00:51:50,280
does break the chain. 
So let's say after I hit you, 

1073
00:51:50,280 --> 00:51:52,720
the ambulance taking you to the 
hospital gets struck by bolt of 

1074
00:51:52,720 --> 00:51:54,480
lightning. 
That is an act of God. 

1075
00:51:54,480 --> 00:51:57,440
It's completely unforeseeable. 
My liability is cut off right 

1076
00:51:57,440 --> 00:51:59,160
there. 
I'm responsible for the injuries

1077
00:51:59,160 --> 00:52:01,240
from the crash, but not for what
the lightning did. 

1078
00:52:01,760 --> 00:52:04,720
This all circles back to what is
probably the most famous torts 

1079
00:52:04,720 --> 00:52:08,200
case of all time, Palsgraf V 
Long Island Railroad. 

1080
00:52:08,560 --> 00:52:10,960
You remember the facts. 
Railroad employees help a guy 

1081
00:52:10,960 --> 00:52:13,160
onto a moving train. 
He drops a package. 

1082
00:52:13,240 --> 00:52:14,640
Turns out it's full of 
fireworks. 

1083
00:52:14,640 --> 00:52:16,920
They explode. 
The shockwave knocks over some 

1084
00:52:16,920 --> 00:52:19,240
scales at the other end of the 
platform, and they fall on poor 

1085
00:52:19,240 --> 00:52:21,920
Missus Palsgraf. 
In his legendary opinion, 

1086
00:52:22,120 --> 00:52:25,200
Justice Cardozo wrote the risk 
reasonably to be perceived 

1087
00:52:25,240 --> 00:52:29,040
defines the duty to be obeyed. 
What he meant was the risk of 

1088
00:52:29,040 --> 00:52:31,320
pushing a guy onto a train is 
that he might get hurt. 

1089
00:52:31,560 --> 00:52:34,400
The risk is not that scales 30 
feet away will fall and hit 

1090
00:52:34,400 --> 00:52:36,680
someone else. 
The harm to Mrs. Palsgraf just 

1091
00:52:36,680 --> 00:52:39,520
wasn't foreseeable, so the 
railroad wasn't liable. 

1092
00:52:39,840 --> 00:52:41,640
See, foreseeability is 
everything. 

1093
00:52:42,080 --> 00:52:45,520
OK, we've done it. 
We've built our bridge. 

1094
00:52:45,840 --> 00:52:48,480
We have a solid connection of 
causation from the defendant's 

1095
00:52:48,480 --> 00:52:50,440
breach all the way to the 
plaintiff's injury. 

1096
00:52:51,080 --> 00:52:54,040
So what's next? 
Well, now we have to figure out 

1097
00:52:54,160 --> 00:52:57,080
the toll. 
We have to value the harm. 

1098
00:52:58,160 --> 00:53:01,800
This is damages, the 4th and 
final element of every single 

1099
00:53:01,800 --> 00:53:04,880
negligence claim. 
And right off the bat, here's a 

1100
00:53:04,880 --> 00:53:08,600
massive critical distinction 
from intentional torts that you 

1101
00:53:08,600 --> 00:53:12,320
cannot get wrong on an exam. 
With an intentional tort, you 

1102
00:53:12,320 --> 00:53:15,840
might be able to win nominal 
damages like a single dollar, 

1103
00:53:16,120 --> 00:53:18,200
just to make a point that your 
rights were violated. 

1104
00:53:18,480 --> 00:53:20,760
Not here. 
Not in negligence. 

1105
00:53:21,320 --> 00:53:24,720
To win a negligence case, you 
must prove actual, tangible 

1106
00:53:24,720 --> 00:53:26,680
harm. 
We're talking medical bills, 

1107
00:53:26,880 --> 00:53:31,440
lost wages, physical pain. 
No harm, no foul, no case. 

1108
00:53:31,760 --> 00:53:35,800
Now for one of the most famous 
and most tested rules in all of 

1109
00:53:35,800 --> 00:53:37,960
tort law, the eggshell skull 
rule. 

1110
00:53:38,120 --> 00:53:40,920
The rule is simple. 
You take your victim as you find

1111
00:53:40,920 --> 00:53:42,920
them. 
So if you negligently tap 

1112
00:53:42,920 --> 00:53:45,600
someone's bumper in a parking 
lot and it turns out that driver

1113
00:53:45,600 --> 00:53:48,480
has a rare bone disease that 
causes his entire skeleton to 

1114
00:53:48,480 --> 00:53:51,760
shatter from the tiny impact, 
you are liable for the shattered

1115
00:53:51,760 --> 00:53:53,680
skeleton. 
You don't get to say, hey, a 

1116
00:53:53,680 --> 00:53:55,800
normal person would have just 
had a little whiplash. 

1117
00:53:56,000 --> 00:53:58,480
It doesn't matter. 
The extent of the harm does not 

1118
00:53:58,480 --> 00:54:01,240
have to be foreseeable as long 
as the type of harm some 

1119
00:54:01,240 --> 00:54:04,440
physical impact was. 
And right behind the eggshell 

1120
00:54:04,440 --> 00:54:07,600
skull roll is a classic exam 
trap designed to trip you up. 

1121
00:54:08,080 --> 00:54:11,600
Do not confuse the eggshell 
skull with the crumbling skull. 

1122
00:54:11,800 --> 00:54:13,720
They sound similar, but they're 
very different. 

1123
00:54:14,200 --> 00:54:16,920
An eggshell plaintiff has a 
stable but fragile condition 

1124
00:54:16,920 --> 00:54:20,000
like a thin skull. 
Your negligence is what causes 

1125
00:54:20,000 --> 00:54:22,240
the injury. 
A crumbling skull plaintiff, on 

1126
00:54:22,240 --> 00:54:25,400
the other hand, has an active, 
deteriorating condition that was

1127
00:54:25,400 --> 00:54:26,720
already getting worse on its 
own. 

1128
00:54:27,160 --> 00:54:30,200
In that case, the defendant is 
only liable for the aggravation,

1129
00:54:30,280 --> 00:54:32,720
for making the condition worse 
or making it happen faster. 

1130
00:54:32,960 --> 00:54:35,160
You don't pay for the underlying
condition itself. 

1131
00:54:35,480 --> 00:54:37,680
It's a really subtle but 
critical distinction when you're

1132
00:54:37,680 --> 00:54:40,320
calculating damages. 
So let's flip the script. 

1133
00:54:40,480 --> 00:54:41,800
Let's say the plaintiff has done
it. 

1134
00:54:41,880 --> 00:54:44,280
They've proven all four 
elements, duty, breach, 

1135
00:54:44,280 --> 00:54:47,040
causation, and damages. 
It seems like the case is over, 

1136
00:54:47,040 --> 00:54:48,920
right? 
Well, not so fast. 

1137
00:54:49,240 --> 00:54:50,840
Now we have to look at what the 
defendant can do. 

1138
00:54:51,160 --> 00:54:53,640
They have defenses, ways to 
attack the plaintiff's case and 

1139
00:54:53,640 --> 00:54:55,920
either reduce or completely wipe
out their liability. 

1140
00:54:56,480 --> 00:54:59,400
The biggest, most common defense
is arguing that the plaintiff 

1141
00:54:59,400 --> 00:55:02,560
was also being negligent. 
Now, how courts deal with this 

1142
00:55:02,560 --> 00:55:05,800
depends on the jurisdiction. 
The old school, really harsh 

1143
00:55:05,800 --> 00:55:07,760
rule is called contributory 
negligence. 

1144
00:55:08,040 --> 00:55:11,960
It says if the plaintiff is even
1% at fault, they get 0 nothing.

1145
00:55:12,000 --> 00:55:15,080
It's a complete bar to recovery.
As you can imagine, most states 

1146
00:55:15,080 --> 00:55:17,640
have moved away from that and 
adopted comparative negligence, 

1147
00:55:17,880 --> 00:55:19,560
which is basically fairness 
math. 

1148
00:55:20,160 --> 00:55:23,320
Under a peer system, a plaintiff
can recover even if they're 99% 

1149
00:55:23,320 --> 00:55:25,120
at fault. 
They'll just get 1% of their 

1150
00:55:25,120 --> 00:55:27,280
damages. 
Under a modified system, which 

1151
00:55:27,280 --> 00:55:30,000
is the most common, a plaintiff 
can only recover if their own 

1152
00:55:30,000 --> 00:55:33,480
fault is below a certain 
threshold, usually 50% or 51%. 

1153
00:55:34,200 --> 00:55:36,960
Now, because that old 
contributory negligence rule was

1154
00:55:36,960 --> 00:55:40,440
so harsh, the courts created an 
escape hatch for plaintiffs. 

1155
00:55:40,800 --> 00:55:43,160
It's called the last clear 
chance doctrine. 

1156
00:55:43,600 --> 00:55:46,680
It basically lets a negligent 
plaintiff get a full recovery if

1157
00:55:46,680 --> 00:55:49,520
they can show that the defendant
had the final opportunity to 

1158
00:55:49,520 --> 00:55:51,680
prevent the accident and just 
didn't. 

1159
00:55:52,360 --> 00:55:55,840
It's a way of asking, OK, both 
people were careless, but who 

1160
00:55:55,840 --> 00:55:59,480
really had the last best chance 
to stop this from happening? 

1161
00:55:59,920 --> 00:56:02,360
Another major defense is 
assumption of risk. 

1162
00:56:02,720 --> 00:56:05,520
This is when the plaintiff knew 
about a particular danger and 

1163
00:56:05,520 --> 00:56:07,880
voluntarily decided to encounter
it anyway. 

1164
00:56:08,320 --> 00:56:11,200
It can be expressed, like when 
you sign a waiver before you go 

1165
00:56:11,200 --> 00:56:13,480
skydiving that says you 
understand the risks. 

1166
00:56:13,760 --> 00:56:16,640
Or it can be implied from your 
actions, like when you buy a 

1167
00:56:16,640 --> 00:56:19,280
ticket to a baseball game and 
sit right behind the dugout. 

1168
00:56:19,560 --> 00:56:22,280
You are implicitly assuming the 
risk that you might get hit by a

1169
00:56:22,280 --> 00:56:24,440
foul ball. 
You knew the risk was there and 

1170
00:56:24,440 --> 00:56:27,520
you went forward anyway. 
All right, that's a lot of 

1171
00:56:27,520 --> 00:56:30,280
rules. 
So let's put it all together and

1172
00:56:30,280 --> 00:56:33,160
run it through a stress test. 
A quick clinical challenge. 

1173
00:56:33,360 --> 00:56:36,120
Just like you'd seen on an exam,
you get a set of facts and you 

1174
00:56:36,120 --> 00:56:38,920
have to apply the rules step by 
logical step. 

1175
00:56:39,440 --> 00:56:42,000
So here's our hypothetical. 
A mechanic is working in his 

1176
00:56:42,000 --> 00:56:44,040
garage. 
He negligently uses a freight 

1177
00:56:44,040 --> 00:56:46,720
electrical wire, which sparks 
and starts a small fire. 

1178
00:56:47,000 --> 00:56:49,320
He panics, jumps up to run and 
get a bucket of water. 

1179
00:56:49,560 --> 00:56:53,040
As he's running, a completely 
random freak earthquake hits. 

1180
00:56:53,400 --> 00:56:55,800
The shaking causes a heavy shelf
to fall off the wall, and it 

1181
00:56:55,800 --> 00:56:58,520
crushes his foot. 
So let's start with our first 

1182
00:56:58,520 --> 00:57:00,440
question. 
Is there factual cause 

1183
00:57:00,440 --> 00:57:02,720
connecting that frayed wire to 
the crushed foot? 

1184
00:57:03,120 --> 00:57:06,680
The answer is yes, absolutely. 
You just run the butt 4 test. 

1185
00:57:06,920 --> 00:57:09,760
But for the fire that was caused
by the negligence, where would 

1186
00:57:09,760 --> 00:57:12,000
the mechanic have been? 
Probably sitting in his chair, 

1187
00:57:12,000 --> 00:57:15,000
not running across the room. 
He would not have been in that 

1188
00:57:15,000 --> 00:57:18,560
exact spot, the zone of danger 
at the exact moment the shelf 

1189
00:57:18,560 --> 00:57:20,880
fell. 
So that physical, factual link 

1190
00:57:20,880 --> 00:57:23,800
is definitely there. 
OK, but that's just the first 

1191
00:57:23,800 --> 00:57:25,920
span of the bridge. 
That's the easy part. 

1192
00:57:26,240 --> 00:57:30,120
Now for the real question, the 
key question is there proximate 

1193
00:57:30,120 --> 00:57:32,520
cause? 
In other words, was a crushed 

1194
00:57:32,520 --> 00:57:35,800
foot from an earthquake a 
foreseeable consequence of using

1195
00:57:35,800 --> 00:57:39,520
a frayed wire? 
And here the answer is a clear 

1196
00:57:39,520 --> 00:57:42,480
and resounding no. 
A freak earthquake is the 

1197
00:57:42,560 --> 00:57:46,080
absolute textbook definition of 
an unforeseeable superseding 

1198
00:57:46,080 --> 00:57:49,240
'cause it's an act of God, it 
snaps the chain of legal 

1199
00:57:49,240 --> 00:57:51,840
causation. 
So is the mechanic liable for 

1200
00:57:51,840 --> 00:57:53,520
the damage caused by the fire 
itself? 

1201
00:57:53,520 --> 00:57:56,800
Yes, that's foreseeable. 
But he's not liable for that 

1202
00:57:56,800 --> 00:57:59,760
crushed foot because that 
specific harm was not within the

1203
00:57:59,760 --> 00:58:02,320
scope of the risk he created 
when he used that frayed wire. 

1204
00:58:02,800 --> 00:58:04,680
And that's really what it all 
comes down to. 

1205
00:58:04,920 --> 00:58:06,880
And it brings us to our final 
thought for the day. 

1206
00:58:07,040 --> 00:58:09,800
This whole structure of 
proximate cause is built on the 

1207
00:58:09,800 --> 00:58:12,400
idea of foreseeability, because 
that's what we think is fair. 

1208
00:58:12,760 --> 00:58:15,240
But that leaves us with this 
huge, difficult question you're 

1209
00:58:15,240 --> 00:58:17,160
going to wrestle with in every 
complex case. 

1210
00:58:17,600 --> 00:58:20,320
In a world that is fundamentally
unpredictable, how do we as 

1211
00:58:20,320 --> 00:58:22,480
lawyers and judges actually draw
that line? 

1212
00:58:22,680 --> 00:58:25,600
How do we decide which risks are
foreseeable enough to hold 

1213
00:58:25,600 --> 00:58:27,520
someone responsible and which 
are not? 

1214
00:58:27,840 --> 00:58:30,000
That's the central tension in 
the heart of Tortlot.