there was a simple time in torts

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target
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there was a simple time in torts

Postby target » Wed Sep 28, 2011 1:42 am

I thought I had a good idea of what negligence is until we talked about causation, especially proximate causation and the Palsgraf case. Can some one help me distinguish between negligence and causation? When causation is a component to prove negligence? And when is causation not necessary in proving negligence? TYIA

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Veyron
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Re: there was a simple time in torts

Postby Veyron » Wed Sep 28, 2011 1:54 am

One can be the proximate cause/cause in fact without being in any way negligent. Meditate on that.

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kalvano
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Re: there was a simple time in torts

Postby kalvano » Wed Sep 28, 2011 1:56 am

The Torts E&E is gold for this stuff.

target
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Re: there was a simple time in torts

Postby target » Wed Sep 28, 2011 2:05 am

kalvano wrote:The Torts E&E is gold for this stuff.


my professor jumps around, which makes matters worse. I read the causation chapters in E&E, but am still confused when comparing causation itself to causation in negligence and to proximate causation.

target
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Re: there was a simple time in torts

Postby target » Wed Sep 28, 2011 2:08 am

Veyron wrote:One can be the proximate cause/cause in fact without being in any way negligent. Meditate on that.


I'm probably gonna dream about it tonight...

shoeshine
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Re: there was a simple time in torts

Postby shoeshine » Wed Sep 28, 2011 2:17 am

My favorite definition of proximate cause is from judge Andrews in Palsgraf:

"What do we mean by the word "proximate" is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point."

random5483
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Re: there was a simple time in torts

Postby random5483 » Wed Sep 28, 2011 2:19 am

Two types of causation. Actual cause and proximate cause (think legal cause). Actual cause is usually "but-for" causation. But-for the specific events, the incident (e.g. car accident) would not have occurred. Actual causation can also be met in some instances by the substantial factor test.

Proximate causation is legal fiction. There is no set limits for proximate causation for a torts exam purpose. You basically pick a side that you think is more likely and argue for it. The boundaries of proximate causation vary by jurisdiction. Very generally, proximate causation can be determined with intervening and superseeding causes.

Are there intervening causes or factors? If so, are the intervening factors superseeding (or aka supervening). Foreseeable intervening causes are not superseeding. Unforeseeable intervening causes can be superseeding. There is a fine line between intervening and supervening causes. The line varies based on the jurisdiction. For the purposes of your exam, use examples from the cases, if possible.

Palsgraf is a case that impacts duty not causation. Arguably, some of the elements of negligence can overlap (e.g. some people use Palsgraf for breach rather than duty since the two elements are related). Palsgraf limits your duty of care to those within the zone of danger of the incident (close enough to have been impacted or under physical threat....though this is not a very accurate definition). The minority or aka Andrews view in the Palsgraf dissent applies a duty of care to all those in the world (no geographical limits).


Note: I took Torts a year ago so all I can give is a big picture as I no longer recall the specifics.

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kalvano
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Re: there was a simple time in torts

Postby kalvano » Wed Sep 28, 2011 2:20 am

target wrote:
kalvano wrote:The Torts E&E is gold for this stuff.


my professor jumps around, which makes matters worse. I read the causation chapters in E&E, but am still confused when comparing causation itself to causation in negligence and to proximate causation.


One can be the cause of something without being negligent, but you cannot be negligent without meeting the element of causation.

target
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Re: there was a simple time in torts

Postby target » Wed Sep 28, 2011 2:36 am

thanks all for reinforcing my understanding. I probably will go back and hammer those concepts more.

As long as I am confused,

kalvano wrote:One can be the cause of something without being negligent, ....


wouldn't the elements of duty and breach have been met in this case? So, there is no negligent because there are no damages, right?

random5483
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Re: there was a simple time in torts

Postby random5483 » Wed Sep 28, 2011 2:40 am

target wrote:thanks all for reinforcing my understanding. I probably will go back and hammer those concepts more.

As long as I am confused,

kalvano wrote:One can be the cause of something without being negligent, ....


wouldn't the elements of duty and breach have been met in this case? So, there is no negligent because there are no damages, right?



No, without causation there is no breach or duty, and thus, no negligence. Remember, causation implies proximate cause and not actual cause. For example:

A hits B's car. B steps out of the car and is killed by C's car. A is the ACTUAL cause of B's death (and so is C) because but-for A hitting B's car, B would not have stepped out of his car and been killed by C. However, A is probably not the proximate cause of B's death because C's hitting B is probably an unforeseeable intervening cause (aka supervening cause).

I used a crim law example (similar to Torts) because I think it illustrates the difference between actual and proximate cause. Don't get hung up on this if you are just studying Palsgraf. Most Torts professors do not go over causation in detail till later in the semester.


Here is a Torts example of causing (in the english sense) something without being negligent:

A is on a train. The train comes to a sudden stop to avoid hitting a car stuck on the railroad. A, through no fault of his own, falls on to B. B suffers severe injury from the contact. Here, A is the actual cause of B's injury (though probably not proximate cause). However, A was not negligent as he did not breach a duty of care.

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Veyron
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Re: there was a simple time in torts

Postby Veyron » Wed Sep 28, 2011 1:51 pm

kalvano wrote:
target wrote:
kalvano wrote:The Torts E&E is gold for this stuff.


my professor jumps around, which makes matters worse. I read the causation chapters in E&E, but am still confused when comparing causation itself to causation in negligence and to proximate causation.


One can be the cause of something without being negligent, but you cannot be negligent without meeting the element of causation.


Ding. One can be negligent and not cause any mishap. If I drive with only one functional brake on my car, I am legally negligent. However, no one can sue me unless my negligence causes an accident.

GMVarun
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Re: there was a simple time in torts

Postby GMVarun » Wed Sep 28, 2011 2:12 pm

There is a confusion in this thread (and in the case law) about what "negligence" refers to. Negligence is used simultaneously to mean two different things. Negligence can mean (1) duty, (2) breach, (3) causation (4) damages; that is a person is only "negligent" if all four of the preceding elements have been met. Negligence also occasionally refers to the first two elements therein, that is a person did not act reasonably under the circumstances, but causation or damages may not actually have been met. Here, the person is "negligent" but is not liable. I think the second usage is confusing, and so you should stick with the top usage to keep these conceptually clear (thus causation is an element of negligence).

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Re: there was a simple time in torts

Postby SupraVln180 » Fri Sep 30, 2011 6:34 pm

Simple definition of Proximate Cause: Causing harm in the "right way".

Example: If you were driving reckless and hit a kid crossing the street--> There is proximate cause bc it was foreseeable that would happen

If you were driving reckless and hit a piece of metal in the road, which ricocheted off of a traffic light and then hit some guy eating his lunch down the street--> It's debateable, but I don't think there is any proximate cause b/c it is way too far down the sequence of events.


I'm a 1L and don't know shit though, so someone please correct me if I am wrong, b/c I need to know this too.

random5483
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Re: there was a simple time in torts

Postby random5483 » Fri Sep 30, 2011 9:16 pm

SupraVln180 wrote:Simple definition of Proximate Cause: Causing harm in the "right way".

Example: If you were driving reckless and hit a kid crossing the street--> There is proximate cause bc it was foreseeable that would happen

If you were driving reckless and hit a piece of metal in the road, which ricocheted off of a traffic light and then hit some guy eating his lunch down the street--> It's debateable, but I don't think there is any proximate cause b/c it is way too far down the sequence of events.


I'm a 1L and don't know shit though, so someone please correct me if I am wrong, b/c I need to know this too.



You are pretty much spot on. One of the "tests" for proximate cause is that the harm is the type of harm reasonably foreseeable based on the specific activity. Just remember that such statements are generic and for exam purposes you must do a more detailed analysis. For instance, a supervening cause is basically an unforseeable intervening cause. A lot of the analysis under proximate cause should focus on whether the intervening cause(s) are superseeding (aka supervening).

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Re: there was a simple time in torts

Postby YourCaptain » Sat Oct 01, 2011 12:30 am

Veyron wrote:One can be the proximate cause/cause in fact without being in any way negligent. Meditate on that.


For all of the 1L mega-quoting in this thread, Veyron's point should be taken to heart.

If you can think of an example and explain why the example works you've got the fundamentals down.

target
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Re: there was a simple time in torts

Postby target » Sat Oct 01, 2011 2:53 am

YourCaptain wrote:
Veyron wrote:One can be the proximate cause/cause in fact without being in any way negligent. Meditate on that.


For all of the 1L mega-quoting in this thread, Veyron's point should be taken to heart.

If you can think of an example and explain why the example works you've got the fundamentals down.


Can there be claim that the injured party is under contributory negligence? Or the injured party is under assumption of risk?

random5483
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Re: there was a simple time in torts

Postby random5483 » Sat Oct 01, 2011 3:05 am

target wrote:
YourCaptain wrote:
Veyron wrote:One can be the proximate cause/cause in fact without being in any way negligent. Meditate on that.


For all of the 1L mega-quoting in this thread, Veyron's point should be taken to heart.

If you can think of an example and explain why the example works you've got the fundamentals down.


Can there be claim that the injured party is under contributory negligence? Or the injured party is under assumption of risk?


Contributory negligence does not negate the negligent act (breach of one's duty of care). It just negates negligence liability. The same applies to assumption of the risk. Even if one is "negligent," the defenses can negate liability (or reduce liability in the case of comparative negligence).

In Veyron's statement he mentions that one can be the cause of an injury without being negligent in any way (simplified what he said). Think of it this way. If "A" drives a car and "B" gets hit by the car because "B" jumped in front of the car, we could hardly find that "A" breached his duty of care to "B." However, we will likely find that but-for "A" driving his car, "B" would not have been hit. Thus, "A" is the actual cause of "B's" injury, but "A" did not "breach" his duty of care and thus is not liable under the tort of negligence. In the example, even if "A" was the proximate cause, due to no finding of "breach," one cannot find him liable under the tort of negligence.

Finally, just for some clarification, as mentioned above the word negligence can have two connotations. First, there is the standard of negligence, which basically equates to a breach of one's duty of care (focus of breach and duty). The second is the tort of negligence which deals with liability if all four elements are met.

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Lawquacious
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Re: there was a simple time in torts

Postby Lawquacious » Sat Oct 01, 2011 4:01 am

target wrote:I thought I had a good idea of what negligence is until we talked about causation, especially proximate causation and the Palsgraf case. Can some one help me distinguish between negligence and causation? When causation is a component to prove negligence? And when is causation not necessary in proving negligence? TYIA



If you thought proximate causation was made clear by Palsgraf I think I know why you are confused... It was only the dissent in that case that even used that phrase, and dissent was referring to different concept than the 'proximate cause' that we consider the majority (Cardozo) to be referring to today... If you ain't confused there is a problem IMO... You'll figure it out sufficiently though I would wager...
'

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Re: there was a simple time in torts

Postby pasteurizedmilk » Sat Oct 01, 2011 11:09 am

Veyron wrote:One can be the proximate cause/cause in fact without being in any way negligent. Meditate on that.

This isn't a difficult concept to grasp. At all.

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Veyron
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Re: there was a simple time in torts

Postby Veyron » Sat Oct 01, 2011 11:24 am

pasteurizedmilk wrote:
Veyron wrote:One can be the proximate cause/cause in fact without being in any way negligent. Meditate on that.

This isn't a difficult concept to grasp. At all.


No shit?

target
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Re: there was a simple time in torts

Postby target » Sat Oct 01, 2011 12:33 pm

random5483 wrote:
Finally, just for some clarification, as mentioned above the word negligence can have two connotations. First, there is the standard of negligence, which basically equates to a breach of one's duty of care (focus of breach and duty). The second is the tort of negligence which deals with liability if all four elements are met.


This is basically what I was confused about. Now that my professor starts moving into strict liability, I hope things will get clearer.




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