1 rule foreseeability most important variable in

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1. Rule: foreseeability most important variable in determining duty – suicide was foreseeable, harm did not cease to be foreseeable just b/c Eisel denied intent. d. Ways to establish a duty: 1. Balance of social interest 2. Severity of risk 3. Burden on the defendant 4. Relationship b/w the parties 5. Foreseeability of the harm 6. Victim’s ability to protect himself 7. Cost of protection 8. Business relationship (haunted house) 2. Proximate Cause a. Introduction 1. Plaintiff must do more than show a but-for cause – must also satisfy the proximate cause requirement: i. In some cases it would be unfair to make defendants pay for all harm associated with their conduct – must have a connection that is reasonably close . 2. Complex Doctrines - In legal causation, “a defendant’s act must satisfy whatever policy criteria a jurisdiction uses to treat the harm a person causes as one the person must pay for (instead of one that a person may inflict for free.) All of these are proximate cause: i. Directness test – no intervening forces between the defendant’s acts and the plaintiff’s harm ii. Foreseeability test – if it was reasonably foreseeable iii. Substantial Factor test – if the conduct is important enough, compared to other causes of harm, to justify liability. 3. Simple Applications - Courts treat proximate cause as a question of fact for the jury, which limits appellate review. Courts generally reject appeals on proximate cause grounds if the jury received proper instructions and some evidence supports their verdict. i. General instructions: a. “a proximate cause is one which in natural and continuous sequence, unbroken by an efficient intervening cause produced the injury and without which the result would not have occurred.” (all doctrines incorporated here) b. Directness - if there is a direct connection between the act and the injury , act treated as a cause-in- fact. 1. In Re An Arbitration Between the Polemis and Furness, Withy & Co., Ltd. – stevedores dropped plank, ship burned; characters argue not liable b/c whole ship burning was not foreseeable. i. Holding – lack of foreseeability doesn’t matter, dropping plank was proximate cause. Once the act is negligent, fact that its exact operation was not foreseen is immaterial. 2. Laureano v. Louzoun – banged pots of boiling water together b/c tenant had no heat, and burned herself. i. Holding: no proximate cause b/w lack of heat and the incident ii. D’s conduct gave rise to P boiling water, but boiling water was not the direct cause of the injuries; rather P banging pots together caused the injuries. Injuries would not have resulted from failure to supply hot water alone. 12
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iii. Directness broken due to her act – two but for causes. 3. HYPO in class: i. When you don’t deliver hot water to your tenants, is it foreseeable that they will burn themselves? No – there was the intervening and superseding cause of her banging the pots together. (the more likely it is for something to happen, it’s probability is greater) ii.
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Christopher Reinemann
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