The great Liveblogging experiment happens today at 1:50PM. It will occur in the comment thread of this post. Here are some important ground rules:
-Keep the discussion about what is happening in torts: Feel free to ask questions or answer the Professor's or other students questions but keep the subject matter about torts. Be respectful of your fellow livebloggers.
-If you get called on, stop blogging: If you get called on, move away from the blogging page; we will know you are trying to get your answers from here and we won't be happy and it's not the purpose. This is for the students not being engaged directly by the professor.
-Don't try to do too much at a time: If you can't add to the discussion, pay attention to the professor, and take notes at the same time don't. However, if you prefer to take your notes on the blog - feel free to. The blog will stay up and you can copy/paste later into your personal notes. This is suppose to augment your class experience, not hinder it.
-Don't forget this blog is public: Any comments you make can be read by anyone; the professor, fellow students, etc.
Content for today's class* (if I missed something, add it in the comments) is mostly on Proximate Cause:
Medcalf v. Washington Heights Condominium Ass'n, Inc (2000)
Palsgraf v. Long Island Railroad Co. (1928)
Hughes v. Lord Advocate (1963)
Derdiarian v. Felix Contracting Group (1980)
*note cases not listed, this is just an estimate based on 15-20 pages from the start of proximate cause
Because there is a lot of discussion about trains and sparks and fires in the notes of these cases, I was reminded of the Coase Theorem. Check it out; it's a pretty interesting idea.
If this works out well, we'll try it again. If it doesn't, we'll figure something else out.
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Principle of proximate cause is fairness
know your basic principles Ross
Modern foundation of proximate cause - scope of risk principle.
What makes one an intentional tortfeaser as opposed to a negligent tortfeaser?
Intentional(knowing) likely consequence?
PC - when does it makes sense to limit liability even when defendant is a wrongdoer
No transferred negligence like we have transferred intent
you are a wrongdoer
Reasonable = no risk foreseeable?
Is it reasonable to risk foreseeable injury to another?
essence of negligence: being able to foresee a risk to someone else, and knowing that a class of persons may be harmed that I know of and choose to take that risk
Why does negligence amount to a wrong: because a reasonable and prudent person would not have taken a risk which foreseeably could cause harm to another.
unreasonable risk = the damage that could be caused by the risk outweighs the benefits that could be gained by the risk?...
attempt to figure out what that family of risks that I should have foreseen was - if you are among that group of people - if you are - I am negligent
How far does the duty of care extend?
key issue for PC - foreseeability
could risk foreseeably lead to harm that results
Key issue under risk principle of proximate cause: was the harm foreseeable? What would the reasonable person think is foreseeable? What is the problem in this? Reasonable minds can differ.
Thoughts on Medcalf?
Did the bad buzzer really cause the harm?
Problem 1: reasonable minds can differ
- we all have different experiences
Problem 2: judges don't always agree on what the proximate cause principle should be
bad buzzer didn't cause the harm because the buzzer wasn't installed to keep people from being assaulted.
What harm was intended to be avoided by creating a statute requiring a working buzzer?
This descriptive talk is overwhelming. I need commentary!
-Mike
Interesting question. She could have been attacked coming out of the building or even going in if the attacker was intent on harming her.
My humble opinion; buzzer not at fault---and if it was, that's an episode of Jackass or something.
Commentary?
Richardson dressed nicely today.
Sometimes PC rules get manipulated to justify outcome.
How do I know when to apply but-for cause as opposed to proximate cause? The example with the target shooting, he was the but-for cause, but the risk wasn't foreseeable that someone was standing behind the hay.
Was there a statute requiring a working buzzer?
a buzzer is only meant to provide benefits to the building's tenants, making that building preferable over those without buzzers -- I know all to well about this...
Wait, did I miss something? Was there a statute requiring a working intercom system?
-Mike
end of third paragraph
doesn't say if its a statute but that is what jury found
you should just install one of those chatrooms onto your blog. refreshing is getting old.
could it be said that when you have a but-for cause you have proximate cause, but not vice versa?
The American Law of Torts Treaties says the test for Proximate cause is two pronged in that it is a substantial factor test AND a "but-for" test. I think it was in section 11.6 (or 7).
I did like the "negligence in the air" formulation.
-Mike
ricky - i was thinking about that today and i think you're right
if I have a duty and breach it unreasonably - why shouldn't I pay?
Well your decision about whether to breach (even if it's unreasonable) will be based on the consequences as your predict them.
-Mike
basic risk principle - if i acted unreasonably and caused in fact harm to you, when I acted unreasonably should I have 4seen that you were at risk and the 4seen that harm you experienced would happen
yes - PC
no - PC
Richardson uses the analytical version on page 236 rather than the conflated version.
I don't like the conflated version but I think that's what R.R.'s study flashcards use. You don't want to leave out an important element...
-Mike
conflated = confusion
Conflated changes substantial factor?
I really think Derdiarian v. Felix on page 256 really helps to clarify this PC thing
Yeah I can see how substantial factor could prove both cause in fact and prox. cause, in a sense...
-Mike
Here we go with Medcalf...
I really need a tie like Richardson's.
Duty to tenants AND guests?
Likely harm?
don't you know you are supposed to raise your hand when he does?
Is the mugging foreseeable?
Yeah, I think the building owners might have a duty to tenants, to let them into their homes, but not to guests. I mean what's the difference between that and the owner of a locked store when I'm trying to escape an assailant? This might be a duty issue, though.
-Mike
Depends on neighborhood?
Would the outcome have been the safe if the building was located in say... a really bad neighborhood, or a place where 4 muggings had taken place in a week?
same*
oops
Is it b/c the guest isn't in the protected class or is the mugging unforeseeable?
He is reading last paragraph of p235
Medcalf decided as matter of law, is that right?
Palgraf is clearer then Medcalf. Not being buzzed in is a closer link to the mugging then someone who is trying to help someone on to a train and a package wrapped in newspaper just happens to contain explosives. The latter is completely unforeseeable.
maybe thats fine b/c guest is not in protected class?
Maybe the duty is to the tenant. I have a duty to allow my tenants to use their homes as safe havens for friends. But then the plaintiff can't sue for lack of standing, must be the tenant.
-Tangent
sounds like neighborhood is very important in the consideration ...
even in the worst neighborhood a guest is within the tenants duty not the landlord's?
medcalf is more about the protected class of persons.
I think it would be bad public policy to hold building owners liable for maintaining buzzers if someone is mugged outside.
I really feel like these are duty distinctions...
-Mike
buzzers were never installed to eliminate risk, they are for convenience.
This case is pretty lame if you ask me.
I'm with Ricky Railroad on this. That door is to keep (dangerous) people out, not allow fleeing victims in...
-Mike
Nice use of the word "gendarme." Per Wikipedia:
Gendarme (historical): a horseman, usually of noble birth, belonging to the cavalry of the French army in the late-Medieval to Early Modern periods of European history
A member of a gendarmerie. The word is often incorrectly used in English to refer to any French policeman.
Mike -
Yeah at first I thought this was more about foreseeability but I am leaning toward protected class.
What if tenant gets mugged outside the door?
there are risks one assumes by living in a certain neighborhood.
neighborhood looks risky? MOVE!
If tenant is mugged outside because locked outside his/her own home... I'm saying Negligence with a capital N.
-Mike
Nice point Ross.
Ricky that's rude. What if I can't afford to move out?
-Mike
Or even it was a tenant is the victim do we go back to 4seeing the harm?
the law isn't gonna help you.
get a job.
Medcalf looks at core principle
I don't think 4seeability has anything to do with this because the buzzer wasn't meant to lower risk to tenants and guests.
I think you still have to analyze foreseeability, but I think it's foreseeable in general that if you're locked out of your own home you can suffer harm... that's why doors, with locks, exist, no?
-Mike
Note case - ambulance won't come, pregnant lady's driver runs red light - hit and kills the baby
intervening force is not the key here
note about liveblogging - if a question goes unanswered but it tickles your mind you can come back to it at a later date
We're going to get messed up in torts.
-See DMR
Palsgraf -
Shouldn't the RR protect against loose scales? Isn't is reasonable to believe something could shake the station?
4seeable risk of pushers would be physical damage of pushee - others near the pushee
I think the note on this ambulance case helped me:
"I'd better send an ambulance to this caller, otherwise she might use a private car which would b in a collision"
If the causation chain sounds ridiculous, it probably isn't a proximate cause.
shouldn't we assume the man wanted the help onto the train?
if so, isn't he guilty of contrib negligence?
B/c package has explosives - injury not 4seeable
that ambulance comment helped me also
the man getting on the train is the only one who knew of the contents of the package....
if anyone is liable, it's him.
the judge also discusses protected class here - why?
class is only those within the danger of 4seeable risk or immediate action?
all those who are customers of the train station are protected class?
If a scale fell on her head because the train roared through and shook the building--yeah RR would be liable.
Because a package explodes due to some dummy carrying it on the train, in an unmarked bag, and drops it---not negligent. Not foreseeable.
Scales falling because of roaring train---foreseeable.
i c - it's b/c the degree of shaking by an explosion is not 4seeable
anyone notice what time it is?
it's a good time
we should live-blog every torts class
class has flown by... i like it.
I agree with the dissent, then. I don't see any breach of duty in the Palsgraf case. Maybe on his part for having those fireworks, but even that's a stretch.
A reasonable person wouldn't jump to catch a train because he could predict that Rube Goldberg device? No.
-Mike
Shortest torts class ever - most engaged torts class ever
Get ready for Monday.
It seems like the class of people in proximate cause is different than the class of people we discussed in negligence per se. There we talked about more general groups like pedestrians.
she can see us?
Ross makes me pay attention in torts.
radius of 4seeability = duty
so that early conclusion was right
if the man was hurt by his own fireworks, would he have been able to recover?
i would doubt it.
I think if this happened in 2007 they would see the explosion as being foreseeable with our nation's focus on protection for terrorism... Maybe Palsgraf 100 years later would consider the RR liable?
I don't think that's really smith - her call sign is screaming eagle - see 1st liveblogging description
you might be right ashley...
and the man would be in guantanamo
Your ass is grass, Ross
ms. smith is meaner than ricky rude.
-bill
what if it was a well marked fireworks pckg?
Question for Monday:
In Hughes vs Lord advocate - a burn is a burn is a burn
but Doughty v. Turner - a splash is not a splash
yeah we can all do that.
- Ricky
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