torts negligence question

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beta
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torts negligence question

Postby beta » Wed Nov 21, 2012 8:50 pm

quick question--

if D negligently runs into a truck carrying a toxic substance which leaks into the city's water supply--is this extent of damage within the scope of the risk (i.e. property damage regardless of extent is within scope of risk)?

or would D only be liable for the damages caused to the truck and the driver?

thank you!!

JG7773
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Re: torts negligence question

Postby JG7773 » Wed Nov 21, 2012 8:59 pm

If the truck is marked, I would say that it is foreseeable. This is really a twist on Plasgraf. Cardozo v. Andrews and the argument of proximate cause. No right or wrong answer, so form the best argument.

uvabro
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Re: torts negligence question

Postby uvabro » Wed Nov 21, 2012 9:33 pm

beta wrote:quick question--

if D negligently runs into a truck carrying a toxic substance which leaks into the city's water supply--is this extent of damage within the scope of the risk (i.e. property damage regardless of extent is within scope of risk)?

or would D only be liable for the damages caused to the truck and the driver?

thank you!!

i'd say even if it was marked it's not necessarily foreseeable (generally, people try not to crash into trucks whether or not they contain toxic substances).... even if it were marked, it would depend on how long the 2 cars were in contact with each other.

the real issue of foreseeability to me is how far the water was. it's kind of like andrews' shit in palsgraf - closeness in time and space. look at kinsman for the threshold.

nucky thompson
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Re: torts negligence question

Postby nucky thompson » Wed Nov 21, 2012 10:02 pm

you could argue that the type of harm sustained is within the foreseeable class of harms if that foreseeable class of harms is construed very broadly (ie: just property damage) but if you construe the foreseeable class of harm narrowly (ie: foreseeable property damage resulting from a car accident) you can argue that the harm sustained was not foreseeable and D therefore should not be held liable

Also, you could argue about foreseeable plaintiffs. when you negligently cause a car accident, who are the foreseeable P's? - are people far away from this car accident that suffer property damage as a result of toxic water foreseeable p's?

personally, i do not think a negligent driver should be held liable for such harm. I mean... car accidents happen, and tpically when they happen it is a fender bender or in bad situations fatality but how often does such property damage occur? andrews dissent in palsgraf spoke about a using a rough sense of justice when determining if a breach proximately caused the harm... doesnt seem just (based off the limited facts available) to hold driver liable for harms resulting from hitting truck carrying toxins, toxins spill out of truck, spilt toxins go into water supply -- too attenuated

NotMyRealName09
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Re: torts negligence question

Postby NotMyRealName09 » Thu Nov 22, 2012 12:22 pm

Foreseeability is a fact question for the fact finder, so you always argue both possibilities. There isn't a "right" answer, but you can argue for the best one.

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Scotusnerd
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Re: torts negligence question

Postby Scotusnerd » Thu Nov 22, 2012 12:32 pm

If you're dealing with a toxic chemical, a strict liability argument might not be a bad thing to throw in there as well, along with the ultrahazardous test.

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JamMasterJ
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Re: torts negligence question

Postby JamMasterJ » Thu Nov 22, 2012 12:37 pm

for: arguably a direct or proximate cause
against: not foreseeable. In calculating whether D was driving negligently, the risk of harm to all the people not on the street or close to it is not foreseeable, making them unforeseeable plaintiffs.

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Re: torts negligence question

Postby z0rk » Thu Nov 22, 2012 8:11 pm

Scotusnerd wrote:If you're dealing with a toxic chemical, a strict liability argument might not be a bad thing to throw in there as well, along with the ultrahazardous test.


I think it's important to remember two things:

1.) law suits don't involve cherry picking parties if you are a plaintiff (unless, as a matter of strategy a plaintiff chooses to leave a well positioned adverse party, but that is circumstantial and not something your torts professor wants to hear on your exam). Remember this analogy: throw spaghetti at the wall and see what sticks. In light of this, look to potential liabilities of other parties and reasonably assess whether or not they could be culpable.

2.) It is fundamental to causation analysis that when the risk perceived manifests itself it becomes less likely that an intervening mode of incitement will break the chain of causation.

beta wrote:if D negligently runs into a truck carrying a toxic substance which leaks into the city's water supply--is this extent of damage within the scope of the risk (i.e. property damage regardless of extent is within scope of risk)?


In the very brief hypothetical you supplied there are a few issues in play:
1 - liability of the negligent driver to:
a.) the hazmat shipping company
b.) parties affected by the spill

2 - liability of the hazmat shipping company to:
a.) the custodian of the water supply (either utility company or likely the city)
b.) injured consumers of water, assuming that there are any.

3 - liability of the water company to:
a.) injured consumers of water, assuming there are any.


With respect to the City/Water Utility company:
The city/water ultility party could sue the chemical trucking company alleging that the substance was ultra-hazardous and therefore strict liability should apply. In the alternative, if strict liability were to be thrown out by the court, a negligence standard could be explored by a reasonable fact finder. A reasonable fact finder would look at whether the container was safely secured in the event that a motor vehicle accident would occur. Although this specific motor vehicle incident was not directly foreseeable, accidents do occur on the road and it is reasonably foreseeable that one *could* occur involving a chemical transportation vehicle. Those on this forum who have posted "did the vehicle contain a sign that it was a hazmat truck" are mistaken. A sign would not lessen liability if the company itself was in negligent breach of a duty of care to secure hazardous materials from reasonably foreseeable hazards. In determining the negligence of the trucking company, a risk utility test should apply.

One throw away element to consider in analysis of this claim is whether or not a bing authority exists (i.e. a statute, regulation, etc), that forbade the presence of the hazmat truck on a road that was near a water source. If such a statute existed a case for negligence perse could be established, which you would want to briefly explore before moving on with your answer.

With respect to injured consumers:
It is very unlikely the injured consumers could have a claim against the negligent driver, because their injuries are an unforeseeable consequence as a result of a car crash (this should be readily apparent to anyone, if you missed this point then review palsgraf and your causation notes). This was not a risk that is remotely perceived, although it manifested. WHen you get further away from a reasonably foreseeable risk the less likely the actor that incited the consequence will be found liable.

The consumers likely claims could be against 1 -- the utility company and/or 2 -- the hazmat trucking company. The utility company has a duty to protect this natural resource from harmful agents. They have an elevated duty of care as a common carrier to provide safe and usable water to all. This is a quasi product liability issue (see henningsen, where it was found that a product that is advertised for use or consumption carries with it an implied warranty that it is safe for use, the violation of such implicit warranty could give rise to a negligence tort). If the water or utility company failed to stop the water there could be a viable claim. With respect to the hazmat trucking company, a finding that the substance was ultrahazardous and suceptible to a strict liability standard could create liability. Additionally, a negligence perse standard could create a rebuttable presumption of liability (there you have causation issues, would the negligence standard apply to the injuries to the water supply? or both the water supply and the consumers? what role does contributory negligence or comparative fault play?)

Don't look at a simple fact statement so simply, there is a lot of analysis to be done here.

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Re: torts negligence question

Postby Scotusnerd » Thu Nov 22, 2012 9:19 pm

z0rk wrote:
Scotusnerd wrote:If you're dealing with a toxic chemical, a strict liability argument might not be a bad thing to throw in there as well, along with the ultrahazardous test.


I think it's important to remember two things:

1.) law suits don't involve cherry picking parties if you are a plaintiff (unless, as a matter of strategy a plaintiff chooses to leave a well positioned adverse party, but that is circumstantial and not something your torts professor wants to hear on your exam). Remember this analogy: throw spaghetti at the wall and see what sticks. In light of this, look to potential liabilities of other parties and reasonably assess whether or not they could be culpable.

2.) It is fundamental to causation analysis that when the risk perceived manifests itself it becomes less likely that an intervening mode of incitement will break the chain of causation.


I agree that lawsuits do not, but law exams might (and in my case do). Our torts professor would expect and encourage a Ryland/Restatement analysis under this, in addition to the proximate cause argument. That is just how they teach. They'd expect us to throw that in there and explain why it doesn't apply. Their quote was 'I don't know that you've learned what you haven't written down, so if you think of it, put it down!'

I highly recommend that any law student, first and foremost, knows their professor. Knowing the law is expected, but knowing how to analyze a situation in the manner your professor has taught you is also expected. This is where a lot of people will miss points. Know the law, know the test, and know your peers. You'll learn how to do it right in the real world.

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Re: torts negligence question

Postby Maximized » Thu Nov 22, 2012 9:51 pm

JG7773 wrote:If the truck is marked, I would say that it is foreseeable. This is really a twist on Plasgraf. Cardozo v. Andrews and the argument of proximate cause. No right or wrong answer, so form the best argument.
This is what I thought after reading your question, OP. I would say it depends on whether there was any reason to believe that the truck was carrying toxic substances. So, it's an issue, and you should explore both possibilities in writing your answer.

z0rk
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Re: torts negligence question

Postby z0rk » Fri Nov 23, 2012 2:24 pm

Scotusnerd wrote:
z0rk wrote:
Scotusnerd wrote:If you're dealing with a toxic chemical, a strict liability argument might not be a bad thing to throw in there as well, along with the ultrahazardous test.


I think it's important to remember two things:

1.) law suits don't involve cherry picking parties if you are a plaintiff (unless, as a matter of strategy a plaintiff chooses to leave a well positioned adverse party, but that is circumstantial and not something your torts professor wants to hear on your exam). Remember this analogy: throw spaghetti at the wall and see what sticks. In light of this, look to potential liabilities of other parties and reasonably assess whether or not they could be culpable.

2.) It is fundamental to causation analysis that when the risk perceived manifests itself it becomes less likely that an intervening mode of incitement will break the chain of causation.


I agree that lawsuits do not, but law exams might (and in my case do). Our torts professor would expect and encourage a Ryland/Restatement analysis under this, in addition to the proximate cause argument. That is just how they teach. They'd expect us to throw that in there and explain why it doesn't apply. Their quote was 'I don't know that you've learned what you haven't written down, so if you think of it, put it down!'

I highly recommend that any law student, first and foremost, knows their professor. Knowing the law is expected, but knowing how to analyze a situation in the manner your professor has taught you is also expected. This is where a lot of people will miss points. Know the law, know the test, and know your peers. You'll learn how to do it right in the real world.


I think you and I agree. I basically said don't leave the trucking company out of the picture, as they could be strictly liable or negligent. Of course you want to go through a strict liability analysis (beyond Ryland, there is ultrahazardous strict liability and then there are the restated forms in the 2d and 3d versions). My class is reading from Prosser, and if that is what you use I suggest that you look at Indiana Harbor Belt R.R. Co. v American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990). The case addresses whether a toxic element is something for which strict liability vs. a negligence analysis should apply. In American Cyanamid Co., Posner found liability based upon negligence was a sufficient means of deterrence despite the extreme toxicity of the substance. This was applying the 2nd restatement. A rylands analysis may look different because it predates the second and third restatements.

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Re: torts negligence question

Postby paulshortys10 » Fri Nov 23, 2012 5:12 pm

tagged

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Scotusnerd
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Re: torts negligence question

Postby Scotusnerd » Fri Nov 23, 2012 9:19 pm

Good stuff, man. I think we're in agreeance as well. As long as we don't discount hazardous chemicals from the realm of strict liability entirely. The chemical in Cynamid had a social utility element to it as well. Posner was pretty serious about the value of that chemical in the society. It was an ingredient for plastics and plastic dyes. If you ran into a different chemical-say, phosphorous or nitroglycerin-you should still apply the test, because there would be an argument similar to the hot air balloon case, where the balloonist was held strictly liable due to the lack of ability to control the consequences, along with the lack of social value.

I'll admit the Ryland still confuses me (natural versus unnatural use is a pain in my rear), but I don't think our professor is going to focus on it, so I won't sweat too much about it.

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Re: torts negligence question

Postby lakerinstl » Sat Nov 24, 2012 9:16 pm

So is anybody else's Torts professor one of those "throw anything at the wall and hope that it sticks" kind of grader? Mine basically is. It'll hurt you to throw stuff at the wall that is obviously not gonna be relevant in the fact pattern, but if the professor doesn't mark off points for irrelevant issues, it's all about how much you can mash in for the whole exam. For my Torts exam, I'm throwing every issue I can in there unless it's just blatantly obvious it's not relevant. And I'm arguing both sides on every issue. I'm glad it's our last one, shit.

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Re: torts negligence question

Postby uvabro » Sat Nov 24, 2012 10:31 pm

"posner's logic was basically if D could have stopped the shit by not being douchebags then it's not a strict liability. the whole thing with strict liability to him is that there's no way to eliminate the risk of shit happening by motivating people 2b less retarded. then the issue becomes is this the kinda shit that benefits society overall so we don't just demotivate the shit outta the ring. we love chemicals so P loses."--Judge Posner's wording verbatim.

just learning strict liability, but according to posner in that chemical case there are 3 prongs to get SL -

1.) shit is really dangerous.
2.) nothing can be done to make it less dangerous (so no pt of a negligence standard because reasonable care doesn't f the risk.)
3.) harm dealt to D is the exact kind that makes the shit really dangerous.

also there's a balancing shit the courts do -

how customary is the shit? for example, in alabama people might brush their teeth with toxic fish, so it's not abnormally dangerous there.

what social benefit does the shit serve?

these are the qs ud ask about the truck. if it's exporting porn, i say d wins.

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Re: torts negligence question

Postby Maximized » Sat Nov 24, 2012 10:42 pm

uvabro wrote:"posner's logic was basically if D could have stopped the shit by not being douchebags then it's not a strict liability. the whole thing with strict liability to him is that there's no way to eliminate the risk of shit happening by motivating people 2b less retarded. then the issue becomes is this the kinda shit that benefits society overall so we don't just demotivate the shit outta the ring. we love chemicals so P loses."--Judge Posner's wording verbatim.

just learning strict liability, but according to posner in that chemical case there are 3 prongs to get SL -

1.) shit is really dangerous.
2.) nothing can be done to make it less dangerous (so no pt of a negligence standard because reasonable care doesn't f the risk.)
3.) harm dealt to D is the exact kind that makes the shit really dangerous.

also there's a balancing shit the courts do -

how customary is the shit? for example, in alabama people might brush their teeth with toxic fish, so it's not abnormally dangerous there.

what social benefit does the shit serve?

these are the qs ud ask about the truck. if it's exporting porn, i say d wins.
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