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
II. PROXIMATE CAUSE
A. HISTORICAL DEVELOPMENT
1. Casebook, pp. 265-71
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
connection).
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
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
foreseeability?
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
271-75
Cause in fact
Direct causation
Foreseen or not
Palsgraf (1928)
Cardozo
Duty/foreseeability
Polemis still lives
Andrews
Proximate cause/foreseeability
Polemis seems to live
Wagon mound 1 and 2 (1961-1966)
Polemis dead
Foreseeability/proximate cause
Union Pump (1995)
Owen
Substantial factor test/ cause in fact?
Substantial factor test/ foreseeability?
Coryn
Substantial factor test/cause in fact only
Foreseeability case
What is foreseeable
Contributory negligence?
Mason (2006)
Substantial factor test/cause in fact
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
liable)
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
it
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
Britton
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
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
liable
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
Express
Implied
Immunities
charitable
governmental
family
Statutes of Limitation/repose
IV. DEFENSES TO NEGLIGENCE
A. CONTRIBUTORY NEGLIGENCE [INCLUDING THE LAST CLEAR CHANCE
STANDARD]
377-81
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