But for/proximate cause & NPS & Intentional Torts

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RR320
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But for/proximate cause & NPS & Intentional Torts

Postby RR320 » Sat Dec 17, 2011 10:02 pm

1. Can you use but for with intentional torts, but not proximate cause?

2. With negligence per se do you do a but for & proximate cause analysis?

3. Can anyone explain with proximate cause: person within the risk, harm within the risk, and manner within the risk?

kaiser
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Re: But for/proximate cause & NPS & Intentional Torts

Postby kaiser » Sat Dec 17, 2011 10:19 pm

With intentional torts, there isn't really much of a need to do proximate cause (though I guess you may want to say a word about it just as formality). Think about it. If you intend for something to happen (we do call them "intentional" torts for a reason), then harm would never be out of the realm of expectation or foreseeability. Proximate cause is merely a test as to whether the events are close enough such that we should legally hold you accountable. That link inherently exists when one actually intends to harm another (or any other iteration of intent within the realm of intentional torts).

Though I could see a hypothetical chain of events involving an intentional tort with a consequence so far off that it would just seem silly to hold D liable for it. So it can never hurt to just put on the checklist of your intentional tort analysis.

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denimchickn
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Re: But for/proximate cause & NPS & Intentional Torts

Postby denimchickn » Sat Dec 17, 2011 10:48 pm

I'm pretty sure it would be wrong to apply proximate cause to an intentional tort because the injury to the plaintiff doesn't have to be reasonably foreseeable for someone to be liable. If an injury occurs to anyone because of the tortious conduct, no matter how unforeseeable it was, the doctrine of transferred intent would make the tortfeasor liable.

Think about the Palsgraf scenario, but imagine the guy with the package didn't know it had fireworks in it and he just threw it on the rails in an effort to derail the train. Although it might not be reasonably foreseeable that the package would explode and knock down the scale, the guy would still be liable for Palsgraf's injury.

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denimchickn
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Re: But for/proximate cause & NPS & Intentional Torts

Postby denimchickn » Sat Dec 17, 2011 10:57 pm

Also, with negligence per se, you apply both but-for and proximate cause like you would with any other negligence analysis. The question is just whether D's violation of the law was the cause of P's injury.

As far as defining proximate cause, there are a few different approaches used by different courts. You'll definitely want to run through Palsgraf (which, if I remember correctly, is more of a "person within the risk" thing because Cardozo talks a lot about how negligence requires that you have a duty of care to someone). I don't really feel like looking it up, but I seem to remember my professor talking a lot about how the new Restatement had a different way of dealing with proximate cause.

kaiser
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Re: But for/proximate cause & NPS & Intentional Torts

Postby kaiser » Sat Dec 17, 2011 10:59 pm

denimchickn wrote:I'm pretty sure it would be wrong to apply proximate cause to an intentional tort because the injury to the plaintiff doesn't have to be reasonably foreseeable for someone to be liable. If an injury occurs to anyone because of the tortious conduct, no matter how unforeseeable it was, the doctrine of transferred intent would make the tortfeasor liable.

Think about the Palsgraf scenario, but imagine the guy with the package didn't know it had fireworks in it and he just threw it on the rails in an effort to derail the train. Although it might not be reasonably foreseeable that the package would explode and knock down the scale, the guy would still be liable for Palsgraf's injury.


This is pretty much what I was implying. The fact that it was intentional is all the "legal" link you need between the act and the harm. There is really no determination of whether the cause is proximate enough, because we are willing to greatly expand the scope of the proximate cause link when the act itself is intentional.

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arvcondor
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Re: But for/proximate cause & NPS & Intentional Torts

Postby arvcondor » Sat Dec 17, 2011 11:08 pm

I don't know the answer to 1 or 3, but:

denimchickn wrote:with negligence per se, you apply both but-for and proximate cause like you would with any other negligence analysis. The question is just whether D's violation of the law was the cause of P's injury.

RelativeEase
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Re: But for/proximate cause & NPS & Intentional Torts

Postby RelativeEase » Sun Dec 18, 2011 4:11 am

like others have said, Neg Per Se speaks to duty and breach. So you still have to do prox. cause analysis.

3. Can anyone explain with proximate cause: person within the risk, harm within the risk, and manner within the risk?


was the person/harm/manner it which harm occurred foreseeable?

depending on jurisdiction it may matter whether the specific person/risk was foreseeable or just the general person/risk.

LSATNightmares
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Re: But for/proximate cause & NPS & Intentional Torts

Postby LSATNightmares » Sun Dec 18, 2011 9:39 am

I'm pretty sure you have to mention actual and proximate cause for intentional torts. My professor said so on multiple occasions. Usually it's not a big issue, and it can quickly be dispensed with. I'm no expert, but I think I can think of a hypo where it might be more of an issue... imagine you intend to commit an assault, but you end up hitting someone. And then that person rolls down the hill and hits someone else. The latter person ends up getting hit. Are you liable to that latter person?

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sundance95
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Re: But for/proximate cause & NPS & Intentional Torts

Postby sundance95 » Sun Dec 18, 2011 12:53 pm

LSATNightmares wrote:I'm pretty sure you have to mention actual and proximate cause for intentional torts. My professor said so on multiple occasions. Usually it's not a big issue, and it can quickly be dispensed with. I'm no expert, but I think I can think of a hypo where it might be more of an issue... imagine you intend to commit an assault, but you end up hitting someone. And then that person rolls down the hill and hits someone else. The latter person ends up getting hit. Are you liable to that latter person?

In intentional torts, proximate cause is much less an issue. D would probably be liable to the 2nd person in your hypo. D is liable for all consequences of his intentional tort except those that are grossly bizarre. The rationale is that it is easy to avoid intentional tort liability by simply not committing intentional torts. For example, if D batters P and P goes to hospital; later, P dies because the hospital burns down. D would be liable for the medical costs of going to the hospital, but not liable for wrongful death because death from the fire was a utterly bizarre consequence.




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