Top Law Schools

...

If you remember back to negligence per se, where a defendant violates a statute. There was a two-part test to determine if the violation of the statute:

1. Is the plaintiff within the class of people the statute intended to protect?
2. Is the harm that resulted a harm the statute was designed to prevent?

The "harm within the risk" test of proximate cause is very similar to the second question. Ask yourself: Defendant had a duty to act reasonably; was the harm that occurred a harm that one could reasonably foresee happening if they fail to perform that duty?


Think of the Wagon Mound case: the defendant spilled oil into the water under a wharf where the plaintiff was performing welding, and the welding sparks ignited the oil and caused an explosion. A reasonable person would consider them-self to have a duty to protect against environmental damage, and an oil spill is clearly a breach of that duty.

Now ask yourself: Is the harm of an explosion one that could be reasonably foreseen from failing to protect the environment? And the answer is no. One could foresee damage to wildlife, plant life, damage to drinking water, and so on. But an explosion?? Come on...


Same thing with the Palsgraf case: Train employees negligently help a man board a train. Do you think exploding fireworks shaking the building so that a scale falls onto a woman at the other side of the platform was a harm that could be reasonably foreseeable from that negligence? Yeah right


Just try to ask yourself every time, "if someone behaved like this, would I have expected this harm to occur?"

Also keep in mind these things are debatable...

Wagon Mound broadened things back out to "foreseeability" being the key factor. Yes, you could say that it wasn't a harm within the scope of risk which made the defendant negligent. But you could also say that perhaps liability should be imposed on the defendant anyway, because the defendant's negligence, though leading to an unforeseeable kind of harm, led to harm of some kind i.e. coating the dock-owner's dock with oil, polluting dock's water, which automatically circumscribes liability to just that dock, for whatever the oil does, so D should be liable for all consequences (i.e. Polemis). The purpose of the test is to limit liability, but of the scope of liability is the question, there are other options other than just "harm within the risk." OR you could say that the harm IS foreseeable, oil is flammable, floats on water, and/or people who work with this all the time should have known that massive fire on water (or on the coated dock) could happen if crap's floating in the water too. Of course if you do that, plaintiff would be contributorily negligent for starting the fire...

You could do the same with Palsgraf, where Andrews dissents and says other factors matter, and limiting liability only to those plaintiffs you foresee ignores all other factors, like proximity in time and space, etc.

My only advice is to keep the big picture in mind - limiting the scope of liability. Whatever "test" are developed can be overturned, just try to figure out the principles under which the court operates.

This is kind of why your prof says "dutybreach." I don't know exactly what he means, but my guess is that when court's determining whether there is a duty, cour'ts determining it in light of the fact that there has already been a breach. If there was no breach, you wouldn't care about duty. My prof has never said it that way, but seems to make sense.

....

...