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Actual v. proximate defining scope of responsibility

Cause in fact?
Protected class?
Substantial factor test
Summers v. Tice: Two guys shot the same guy
Market share
No real causality wrong corrected, but not necessarily by the right party
A. Summers v. Tice, Casebook, pp. 257-60
B. Notes and Questions, Casebook, pp. 260-62
Causation and Burden-shifting: P who face systematic challenges in proving breach sill
sometimes be allowed to proceed without evidence showing exactly what D did
Summers v. Tice 199 P.2d 1 (Cal. 1948) (257)
Two hunters shot the same guy at the same time with the same gun
because each acted negligently, each was responsible to plaintiff for damages from the
injuries he sustained.
Both defendants brought about situation that caused harm to P even though, both bullets did
not hit P.
Case shifts burden to defendant to prove didnt harm P

Concert of action (like conspiracy): all actors held liable (both drivers racing cars, even
though only one actually caused harm, both brought about situation)
Market share liability: P couldnt prove which manufacturer of generic drug was responsible
for her harms
1. Casebook, pp. 265-71
Proximate cause alignment concepts of duty and breach
Proximity v. remoteness (probability)
Causes v. conditions
Polemis even though directly cause, wasnt foreseeable (anticipation) modified by Wagon
Mound to turn on the foreseeability of harm
Williams v. Steves, 699 S.W.2d 570 (Tex. 1985) [Exhibit 32]
Williams ran out of gas on a familiar route. she could have foreseen this circumstance
proximate cause of the accident
Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991). [Exhibit 33]
Perez was killed when a van driven by Lerma, a sleeping driver, struck a traffic control sign
that decedent was transporting.
Allege that the manufacturer was responsible because of a defect in the sign, putting him in a
zone of danger
Holding: defect not a legal cause of the accident (not direct enough, too remote, not causal
Bell v. Campbell, 434 S.W.2d 117 (Tex. 1968). [Exhibit 34]
Facts: Campbell and Marshall collided on the highway. A trailer attached to one of the
vehicles became disengaged and overturned. Three men stopped to remove the trailer from
the road.
Fore (who had been drinking) struck the trailer Two of the men died from their injuries. The
third lived, but sustained injuries.

Holding: the conduct of Campbell and Marshall, even if negligent, was not the proximate
cause of the second accident (their accident was concluded before Fore hit them)
2. Palsgraf v. Long Island Rail Road. Casebook, pp. 292-300
Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (292)
fireworks thing on the train
R.R. had a duty to passengers (special relationship), but in this case, the explosion was not
foreseeable (ie the RR could not have been negligent in not taking precautions for an
accident that was not probable) scope of duty/liability limited by foreseeability
the risk reasonably to be perceived defines the duty to be obeyed
No notice to RR that package was dangerous scope of duty limited by what would
ordinarily be aware of
Risk + harm = liability
Anderson (dissent): talks about proximate cause, but never really defines it Ill know it when
I see it look at factors like continuity, substantial factor, intervening causes, probability
Connection bw negligence and harm = proximate cause
Wagonmound I & II
Ship burned down after taking on furnace fuel and being ignited with an acetalyne torch
Union Pump fire broke out (271)
Issue: does substantial factor have a role to play? Or is it a policy inquiry contained in
Scope of duty limited by foreseeability (294)
Union Pump Co. v. Allbritton, 898 S.W.2d 773 (271)
Spector: the events have not come to rest liable
2. Elements of Proximate Cause, Cause in Fact and Foreseeability
a. Union Pump Co. v. Albritton. Casebook, pp. 271-75

Union Pump Co. v. Allbritton, 898 S.W.2d 773 (271)

Issue: remoteness
Albritton went to put out a pump fire, then went to turn off nitrogen purge valve. When coming
back, she slipped on the pipe rack.
Proximate cause = foreseeability; cause in fact = substantial factor
Perez: sign went out on highway, struck when went to fix it create condition = not enough
Bell: cleaning up wreck on highway intervening action cuts the chain
Holding: Pump fire = create condition
b. IHS Cedars Treatment Center of DeSoto, Texas, Inc., et al v. Mason, et al., 143
S.W.3d 794 (Tex. Sup. Ct. 2004) [see Exhibit 2 to the Fall Syllabus]
IHS Cedars Treatment Center of DeSoto, Texas, Inc., v. Mason 143 S.W.3d 794 (Tex.
2004). [Exhibit 31]
Facts: Mason voluntarily entered the mental health care facility seeking treatment for
depression. Three weeks later, the physician discharged her at her request. Soon after her
discharge, she was severely injured in a single-car accident (due to a psychotic episode)
while she was a passenger in Thomas, her roommate, car.
Claim: The patient alleged negligent treatment and negligent discharge.
Holding: merely creating the condition that makes the harm possible falls short to
establish proximate cause; although the physician had a duty of reasonable care, he was not
an insurer of the patient's post-discharge well-being for any dangerous circumstance in which
she placed herself. Moreover, hospital policies and procedures governing the patient's
discharge had nothing to do with the accident.
Scope of risk/liability foreseeability
General harm (doesnt have to be exact series of injuries)
Superceding/intervening cause breaks the chain of legal causality
1st has come to rest
TPJC 2.4
natural and continuous sequence
not included: substantial factor

manner, extent, nature 3 parts of analysis

1. Definitions
a. Negligence and Ordinary Care Texas Pattern Jury Charges (2006 Ed.)
[TPJC] 2.1 [see Exhibit 1 to this Syllabus]
Exhibit 1: Texas Pattern Jury Charges (TPJC) 2.1
Negligence: failure to use ordinary care; to do what an OPP would do under the same or
similar circumstances
Ordinary care: degree of care that would be used by an OPP under the same or similar
b. Proximate Cause TPJC 2.4 (see Exhibit 2 to this Syllabus)
Exhibit 2: TPJC 2.4
Proximate cause: cause which, in a natural and continuous sequence, produces an event,
and without which cause such event would not have occurred. In order to be a proximate
cause, the act or omission complained of must be such that a person using ordinary care
would have foreseen that the event, or some similar event might reasonably result therefrom.
There may be more than one proximate cause of an event.
Independent cause
Doesnt have to be persons action, can be force
Concurrent cause
Doesnt relieve liability
Making Sense of Proximate Cause
Intervening Cause
Concurrent Cause.New and Independent Cause
Inferential Rebuttal
Polemis (1921)

Cause in fact
Direct causation
Foreseen or not
Palsgraf (1928)
Polemis still lives
Proximate cause/foreseeability
Polemis seems to live
Wagon mound 1 and 2 (1961-1966)
Polemis dead
Foreseeability/proximate cause
Union Pump (1995)
Substantial factor test/ cause in fact?
Substantial factor test/ foreseeability?
Substantial factor test/cause in fact only
Foreseeability case
What is foreseeable
Contributory negligence?
Mason (2006)
Substantial factor test/cause in fact

Is this a foreseeability case?

Inferential rebuttal
Question for the jury superceding/proximate cause Attacks element of prima facie case
Doesnt relieve of liability proportional liability (%)
Concurrent causes:
Foreseeability: if intervening force foreseeable, concurring cause
Lack of foreseeability: only concurrent if cooperates with original negligent act (doesnt break
Has the car come to rest?
Did D create a condition?
What is the role of foreseeability?
Can be more than one proximate cause concurrent cause because cooperated with
original negligent act
Doesnt have to be immediate, but just within chain
If a new and independent cause is foreseeable, it doesnt break the chain.
When does negligence stop? After stops = condition.
Burke: he was the intervening cause in his own
What is a new and independent cause?
What is the role of foreseeability>?
Any intervening acts which exploited this inadequacy did not fundamentally alter the
foreseeable consequences of Crown Derricks original negligence.
Inferential Rebuttals see Affirmative Defenses

See excerpts from Buls v. Fuselier, 55 S.W.3d 204, 211-12 (Tex. App. Texarkana 2001, no
pet.) [see Exhibit 3 to this Syllabus]
Buls v. Fuselier
consulted multiple doctors foot surgeries advised not to do both feet at once and
disregarded more foot problems
inferential rebuttal: challenging causation analysis (even if all of Ps evidence is true, not
1952: TSC including inferential rebuttals as special issues in favor of simply including them as
definitional instructions
2. J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659 (Tex. App. Fort Worth 1999, pet.
denied) [see Exhibit 4 to this Syllabus]
trucker missed exit huge car wreck negligence suit
Kirby 20% liable = proportionate liability
3. Dew v. Crown Derrick Erectors, 208 S.W.3d 448 (Tex. Sup. Ct. 2006) [see Exhibit 5
to this Syllabus]
Fell through a hole and died no proper safety precautions only a couple of ropes blocking
Risk foreseeable and within scope of original negligent act
4. Various Inferential Rebuttals
a. New and Independent Cause. TPJC 3.1 [see Exhibit 6 to this Syllabus]
the act or omission of a separate and independent agency, not reasonably foreseeable, that
destroys the causal connection, if any, between the act or omission inquired about and the
occurrence in question and thereby becomes the immediate cause of such occurrence.
b. Sole Proximate Cause TPJC 3.2 [see Exhibit 7 to this Syllabus]
Sole Proximate Cause: There may be more than one proximate cause of an event, but if
an act or omission of any person not a party to the suit was the sole proximate cause of an
occurrence, then no act or omission of any other person could have been a proximate cause.
c. Emergency. TPJC 3.3 [see Exhibit 8 to this Syllabus]
If a person is confronted by an emergency arising suddenly and unexpectedly, which was
not proximately caused by any negligence on his part and which, to a reasonable person,
requires immediate action without time for deliberation, his conduct in such an emergency is

not negligence or failure to use ordinary care if, after such emergency arises, he acts as a
person of ordinary prudence would have acted under the same or similar circumstances.

What is foreseeable
3rd Party negligence
Forces of nature
Acts of God inferential rebuttal PJC 3.5
Exhibit 10: not controlled by humans
Other forces of nature and Ds negligence
Cant be used as defense if human negligence a part of (not maintaining life boats)
Criminal and intentional conduct RS 449
Criminal acts not foreseeable per se rule but if contributed (Britton), not relieved of liability
Aggravating Harm -- 457
Rescuers RS 457
Not foreseeable
Inferential Rebuttal Defenses
New and Independent Causes exhibit 6
Sole Proximate Cause Exhbit 7
Emergency Exhibit 8
Unavoidable Accident Exhibit 9
Landlord doesnt keep up premises in high-crime area liable for increasing risk
Buls v. Fuselier exhibit 3
Inferential rebuttal: refutes element of case jury instructions; burden of persuasion on P
(unlike affirmative defenses); dont have to plead specifically (unlike affirmative defenses

e. Act of God. TPJC 3.5 [see Exhibit 10 to this Syllabus]

If an occurrence is caused solely by an act of God, it is not caused by the negligence of any
person. An occurrence is caused by an act of God if it is caused directly and exclusively by
the violence of nature, without human intervention of cause, and could not have been
prevented by reasonable foresight or care.
B. Intervening Causes and Concurrent Causes
1. Casebook, pp. 281-87
Superseding/Intervening Cause
Britton v. Wooten, 817 S.W.2d 443 (282)
Wootens Pic Pac Grocery burned down when trash stacked next to the building caught on
fire when the dumpsters next to it were set aflame
Lease insulates lessee from liability for negligently storing garbage the arsonists actions
were a superceding cause
Stacking boxes = creating condition
Arneil: If the criminal act can be reasonably foreseen, the causal chain is not broken.
DHedouville: apply the general principle of foreseeability to the intervening criminal acts
Mozer: negligent maintenance of hotel = proximate cause of fire
Hodge: injury bc no way out = proximate cause
Probability that somebody will commit a crime or act negligently is high (even though most
people do not)
House, Peterson: to be a superceding cause, must be highly extraordinary
Inferential Rebuttal
Unavoidable Accident
Environmental (not human)
must be out of the ordinary
No contributory Negligence -- Kid (under 5) cant be held accountable
Roadkill: cow escapes

Foreseeability not an element

Different from act of god (usually weather), which cant be foreseeable
Sole Proximate Cause
Jury Instructions
Some courts use unavoidable accident as catchall
Usually can plea all, and court will pick out one
Affirmative defenses
D has burden of
production and
Relieves D of liability
Contributory Negligence: Ps conduct that creates an unreasonable risk of harm to Ds
person or property
Or? 3rd party creates risk
Not treated as new and independent cause
Has basis in new duty to general class of persons not to subject to harm (Palsgraf would say
duty owed to society; Cardoza owed to a particulary section of society/plaintiffs)
Cause in fact
Harm reasonably foreseeable
Actual harm

Bars recover, no matter the degree of negligence reformed to take into account degree
(comparative fault)
d. Unavoidable Accident. TPJC 3.4 [see Exhibit 9 to this Syllabus]
An occurrence may be an unavoidable accident, that is, an event not proximately caused by
the negligence of any party to it.
Inferential rebuttals: Attacks proximate cause element of prima facie case
New independent cause
Sole proximate cause
Acts of god
Unavoidable accident
Ex: Buls case usually have to specifically plead it
Affirmative Defenses: relieves D of liability even if P has a prima facie case of
negligence (concedes) burden on whoever pleads this
Contributory negligence or comparative fault
If P is responsible for over 50% of the accident, they are barred from recovery
Greater than: in excess of 50% barred
last clear chance or discovered peril
incompatible with comparative fault eliminated in TX
P put himself in peril, then D discovers with sufficient time to avoid if using ordinary care. D
perilous situation brought about by P
D has means to prevent harm to P
D failed to use such means
D believes P could not extricate himself from the perilous situation
Assumption of Risk: consenting DIDNT GET ALL OF THIS

Statutes of Limitation/repose
affirmative defenses: mitigate liability
contributory negligence: no recovery if actions contribute to injury contributory
responsibility (partial responsibility does not apply to intentional torts):
last clear chance: if D could have avoided the accident by taking reasonable action, and
didnt, liable.
Divided damages: based on % of blame -- Carroll Towing