21 Negligence: Foreseeability in Duty and Proximate Cause Analysis (Socratic Script)
Warning: The next case features a pretty gory fact pattern. Steel yourselves.
Zokhrabov v. Park, Circuit Court of Illinois (2010)
(2010 WL 7198225) (Ill.Cir.Ct.) (Trial Order)
*1 These matters come before the court on plaintiff Gayane Zokhrabov’s motion for partial summary judgment and defendant Jeung-Hee Park’s cross-motion for summary judgment pursuant to 735 ILCS 5/2-1010. This case arises out of a September 13, 2008 incident wherein an Amtrak train struck and killed Hiroyuki Joho (“decedent”), defendant’s son. The impact of the collision caused decedent’s body to fly through the air and hit plaintiff, causing her multiple injuries. Plaintiff filed a two-count complaint against decedent’s estate (count I) and Northeast Regional Commuter RR Corporation (count II). Count I sounds in negligence and count II has been voluntarily dismissed.
[Editor’s note, on appeal, the court provided a fuller statement of facts, which I include here.]
Hiroyuki Joho was killed when he was struck by an Amtrak train at the Edgebrook Metra station at Lehigh and Devon Avenues in Chicago. Joho’s accident occurred just before 8 a.m. on Saturday, September 13, 2008, when the 18–year–old man was crossing in a designated crosswalk from the eastside passenger platform where Metra commuter trains arrive from Chicago, to the westside passenger *1038 platform where Metra commuter trains depart toward Chicago. Joho was about five minutes early for the next scheduled Metra departure to Chicago. The sky was overcast and it was raining heavily as he proceeded west across the double set of tracks, holding an open, black umbrella over his head and a computer bag on a strap across his shoulder. The Metra station was not a destination for the Amtrak train that was traveling south at 73 miles an hour, and the engineer in the bright blue locomotive maintained speed, but sounded a whistle which triggered automatic flashing headlamps. Witnesses, nonetheless, disagreed as to whether Joho realized the train was approaching. He was smiling at the commuters standing on the southbound platform when the train hit him. A large part of his body was propelled about 100 feet onto the southbound platform where it struck 58–year–old Gayane Zokhrabov from behind, knocking her to the ground. She sustained a shoulder injury, a leg fracture, and a wrist fracture. (963 N.E.2d 1035) [***]
Plaintiff moves for summary judgment on the issues of negligence and proximate causation Defendant moves for summary judgment on the issue of duty. Plaintiff alleges that defendant’s decedent owed plaintiff a duty of reasonable and ordinary care, and breached that duty when he:
(a) carelessly and negligently failed to keep a proper lookout for approaching trains; or
(b) carelessly and negligently ran in the path of an approaching train; or
(c) carelessly and negligently failed to yield the right of way to approaching trains.
She also attempts to impose a legal duty on decedent by citing to 625 ILCS 5/11-11-1011(c), which states:
No pedestrian shall enter, remain upon or traverse over a railroad grade crossing or pedestrian walkway crossing a railroad track when an audible bell or clearly visible electric or mechanical signal device is operational giving warning of the presence, approach, passage, or departure of a railroad train.
[***] *2 To determine the existence of a duty, the court looks to the “relationship between defendant and plaintiff, the likelihood of injury, the magnitude of guarding against the injuries, and the consequences of placing that burden on defendant.” [c] However, “even if an injury was foreseeable, foreseeability alone will not create a legal duty.” Establishing legal duty “requires more than a mere possibility of occurrence.” Cunis v. Brennan, 56 Ill.2d 372, 376 (1974). One cannot be “expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.” Id. An “actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.” Id. The court must be careful not to examine “what may appear through exercise of hindsight” and must “consider what was apparent to the defendant at the time of his now complained of conduct.” Id. When an “injury results from freakish, bizarre or fantastic circumstances, no duty exists and no negligence claim can be asserted for injuries that were not reasonably foreseeable.” [c]
“Statutes and ordinances designed to protect human life or property establish the standard of conduct required of a reasonable person.” [c] These types of law “fix the measure of legal duty.” Id. “A party injured by such a violation may recover only by showing that the violation proximately caused his injury and the statute or ordinance was intended to protect a class of persons to which he belongs from the kind of injury that he suffered.” [c]
In Cunis, supra, plaintiff was involved in a collision and was injured when he was thrown from his car and landed on a pipe in a parkway 30 feet away. He sued, inter alia, the Village of LaGrange which owned the parkway. After discussing statistics showing the frequency with which passengers were ejected from cars after collisions, the Supreme Court nevertheless found that no duty was owed because this accident was not reasonably foreseeable. Specifically, the court stated:
The circumstance here of the plaintiff’s being thrown 30 feet upon the collision with a third person’s automobile and having his leg impaled upon the pipe was tragically bizarre and may be unique. We hold that the remote possibility of the occurrence did not give rise to a legal duty on the part of the Village to the plaintiff to protect against his injury. [c]
The instant case is similar. The circumstance that a portion of decedent’s body would be thrown 100 feet into the plaintiff is “tragically bizarre”. In fact, this outcome was even less foreseeable to decedent as his negligently crossed in front of the train than was that in Cunis. Also, plaintiff is not in the class of those persons who were intended to be protected by 625 ILCS 5/11-1011(c). Section 11-1011 is intended to protect pedestrians from being struck by a train.
Accordingly, defendant’s Cross-Motion for Summary Judgment is GRANTED, and plaintiff’s Motion for Partial Summary Judgment is DENIED. This order is final and disposes of this case.
Zokhrabov v. Park, Appellate Court of Illinois (2011)
(963 N.E.2d 1035)
[***] It is axiomatic that pedestrians on or near active train tracks are at great risk of suffering severe, even fatal, injuries. This court recently held that the personal danger posed by stepping in front of a moving train is an open and obvious danger. Park v. Northeast Illinois Regional Commuter R.R. Corp., 2011 IL App (1st) 101283, 960 N.E.2d 764, 771. The law generally assumes *1039 that persons who encounter obvious, inherently dangerous conditions will take care to avoid the danger. Park, 960 N.E.2d at 771. “‘The open and obvious nature of the condition itself gives caution * * *; people are expected to appreciate and avoid obvious risks.’” [cc] [***] Numerous cases indicate that death or great bodily harm is the likely outcome of failing to exercise due care when walking on or near active train tracks. [cc] [***] In addition to these cases indicating that active trains pose an open and *1040 obvious danger to pedestrians, there is an Illinois statute regarding pedestrian rights and duties which states: “No pedestrian shall enter, remain upon or traverse over a railroad grade crossing or pedestrian walkway crossing a railroad track when an audible bell or clearly visible electric or mechanical signal device is operational giving warning of the presence, approach, passage, or departure of a railroad train [or railroad track equipment].” 625 ILCS 5/11–1011(c) (West 2006).
Breach of a statute enacted to protect human life or property, which is the obvious purpose of this statute, is an indication that a person has acted with less than reasonable care. [c] [***] Thus, the precedent and statute indicate that Joho failed to act with due regard for his own safety and self-preservation. The record indicates the Amtrak engineer triggered an audible warning whistle and flashing headlamps before proceeding through the Edgebrook Metra station. Even if Joho mistook the Amtrak train which was not stopping at the station for the Metra train which he intended to board, the record indicates he failed to exercise reasonable care for his own safety when he failed to look down the train tracks before attempting to cross the tracks in front of an approaching train.
The question we must answer is whether Joho owed a duty of care to Zokhrabov as he approached and entered the active Edgebrook station and she stood down the tracks in the waiting area designated for intended passengers. [***]
One justification for imposing liability for negligent conduct that causes physical harm is corrective justice; imposing liability remedies an injustice done by the defendant to the plaintiff. An actor who permits conduct to impose a risk of physical harm on others that exceeds the burden the actor would bear in avoiding the risk impermissibly ranks personal interests ahead of others. This, in turn, violates an ethical norm of equal consideration when imposing risks on others. Imposing liability remedies this violation.
Restatement (Third) of Torts § 6, cmt. d (2010).
Another justification for imposing liability for negligence is to give actors appropriate incentives to engage in safe conduct. The actor’s adoption of appropriate precautions improves social welfare and thereby advances broad economic goals.
*1041 Therefore, when determining whether a duty of care exists in a particular set of circumstances, an Illinois court will consider, among other factors, the reasonable foreseeability that the defendant’s conduct may injure another. Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill.App.3d 32, 40 (1997). The court’s other considerations in a duty analysis include the reasonable likelihood of an injury, the magnitude of the burden imposed by guarding against the harm, and the consequences of placing this burden on the defendant. Colonial Inn, 288 Ill.App.3d at 40.
It is a “well-established principle of tort law that the particular manner or method by which a plaintiff is injured is irrelevant to a determination of the [defendant’s] liability for negligence.” Nelson v. Commonwealth Edison Co., 124 Ill.App.3d 655, 660 (1984). The existence of a duty depends on whether there was a potential for initial contact with and thus an injury to the plaintiff, meaning that the plaintiff was a foreseeable plaintiff. Colonial Inn, 288 Ill.App.3d at 42 (“Focusing on the potential for injury rather than on the specifics of the harm that did occur, we find the duty problem is relatively simple.”). “It is generally accepted that where the plaintiff’s injury resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort expectable, unforeseeability of the exact developments and of the extent of loss will not limit liability.” Nelson, 124 Ill.App.3d at 661. “For example, if a ship owner fails to clean petroleum out of his oil barge moored at a dock, he has created an undue risk of harm through fire or explosion. The fact that a fire is ignited by the unusual event of lightning striking the barge does not relieve the ship owner from liability to foreseeable plaintiffs who are injured.” Nelson, 124 Ill.App.3d at 661. Thus, a foreseeable injury, even through unforeseen means, is actionable.
However, in a duty analysis, we must take care to differentiate between “two distinct problems in negligence theory,” the first being the foreseeable injury resulting from unforeseen means, which is an actionable injury, and the second being the unforeseen plaintiff, who is not owed a duty of care. Nelson, 124 Ill.App.3d at 660. Furthermore, while the foreseeability of injury to the particular plaintiff is properly considered in a duty analysis, the foreseeability of the particular injury or damages are more appropriately considered in determining the factual issue of proximate causation (Colonial Inn, 288 Ill.App.3d at 40–41), and we must differentiate between these two circumstances in order to properly apply the “foreseeability” test (Nelson, 124 Ill.App.3d at 662). In this case, the trial judge concluded it was not reasonably foreseeable and was instead tragically bizarre that when Joho crossed in front of the oncoming Amtrak train in Edgebrook he would be struck and thrown 100 feet to where Zokhrabov stood on the Metra customer platform.
The trial judge based his conclusions on Cunis v. Brennan, 56 Ill.2d 372 (1974), which involved a two-car collision in suburban La Grange, Illinois, in which a passenger was ejected and thrown 30 feet to the public parkway, where his leg was impaled on an abandoned municipal drain pipe, necessitating amputation of the limb. *1042 Id. at 373. The passenger alleged the municipality was negligent in leaving the broken drain there. Id. at 374. The likelihood that the collision would cause the passenger to be ejected and propelled 30 feet to the exact location of a broken pipe that was 4.5 feet from one curb and 5.5 feet from the other, and then impaled, seemed very remote and led the trial and supreme courts to conclude that the circumstances were “tragically bizarre” and possibly even a “unique” outcome. Id. at 377. The fact that the “misplaced drainpipe would cause any injury to someone riding in a car 30 feet away was an example of “ ‘the freakish and the fantastic,’”” for which the village was not liable. (Emphasis in original.) [c] (quoting Cunis, 56 Ill.2d at 376 (quoting William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 27 (1953))).
The passenger’s injury would appear to involve many variables, including the speed and weight of the two vehicles, the angle of their collision, the weather conditions, the extent and direction of any evasive maneuvers, and the passenger’s height, weight, and position within the vehicle, as well as whether he was wearing a seatbelt. The supreme court affirmed the trial judge’s ruling that the injured passenger had not alleged what occurred was reasonably foreseeable and therefore a basis for holding the Village of La Grange liable for negligently breaching its duty of care. Cunis, 56 Ill.2d at 378.
Thus, Cunis may be cited generally for the proposition that there is no duty to anticipate and prevent injuries that occur due to unusual and extraordinary circumstances. We do not find Cunis helpful here, however. The two-car collision, ejectment, and impalement in La Grange bear little similarity to the train-pedestrian collision in Edgebrook that caused a third, unconnected person to be struck and injured. In contrast to the complex and unique combination of factors in La Grange, the potential outcome of Joho’s conduct in Edgebrook appears to be relatively limited, since the path of the train was fixed, the pedestrian crosswalk was marked, the train ran within the established speed limit, its speed, weight, and force grossly exceeded any pedestrian’s, and commuters were congregating to the side of the train tracks for the next scheduled public departure.
Cunis does not inform us about the factual circumstances in Edgebrook—it does not indicate that what occurred at the train station was such an unusual and extraordinary combination of facts that Joho could not reasonably foresee the potential for causing injury to the waiting passengers when he decided to cross the tracks. Cunis does not suggest that what occurred in Edgebrook was similarly “freakish” “fantastic” or tragically bizarre. Cunis, 56 Ill.2d 372.
There are no reported cases we have found in which a pedestrian who was struck and injured by a flying body sued the deceased person’s estate. There are a few cases in which a pedestrian was struck by a train or car and flung into another person. In these cases, however, the injured person sued the railroad or automobile driver. We do not find these opinions particularly helpful because they concern the alleged negligent operation of a rail yard or a train or other vehicle, which is not analogous to Joho’s alleged negligence as a pedestrian traversing train tracks. [cc] Thus, there are a few reported cases involving flying pedestrians, but none of them are analogous to Joho’s conduct with respect to Zokhrabov.
Accordingly, rather than relying on cases which are factually and procedurally dissimilar, we apply a traditional duty analysis to determine whether Zokhrabov was a foreseeable plaintiff and thus owed a duty of care. Colonial Inn Motor Lodge, Inc. v. Gay, 680 N.E.2d 407 at 414 (1997) (a duty of care exists if there was a potential for initial contact with and thus an injury to the plaintiff, meaning that the plaintiff was a foreseeable plaintiff; “[f]ocusing on the potential for injury rather than on the specifics of the harm that did occur [makes a duty analysis] relatively simple”).
At the outset of this opinion, we cited cases regarding pedestrians struck by trains and a statute regarding pedestrian rights and safety as indicators that Joho acted without due regard for his own person and self-preservation in the active train station. We reiterate that the potential outcome of his conduct appears to be relatively limited, since the path of the train was fixed, the pedestrian crosswalk was marked, the train ran within the established speed limit, its speed, weight, and force grossly exceeded any pedestrian’s, and commuters were congregating to the side of the train tracks for the next scheduled public departure. Accordingly, we further find that it was reasonably foreseeable that the onrushing Amtrak train would strike, kill, and fling his body down the tracks and onto the passenger platform where Zokhrabov was waiting for the next scheduled Metra departure. We find that the trial court erred in concluding that Joho could not reasonably foresee that his negligence in the active train station would cause injury to someone standing in the passenger waiting area.
Continuing with the four elements of a duty analysis, we find that the reasonable likelihood of injury occurring was great given the relative force of the approaching Amtrak train, that the magnitude of the burden imposed by guarding against the harm was insignificant, since Joho needed only to pause, look down the tracks, and then time his crossing accordingly, and that the consequences of placing the burden on Joho would have been minimal.
*1045 We, therefore, find that the trial judge erred in holding that the defendant owed the plaintiff no duty of care. We reverse the entry of summary judgment as to duty and remand Zokhrabov’s case for further proceedings. We express no opinion regarding the additional elements of her negligence action, including breach, proximate causation, and damages, which are issues usually decided by a jury. Reversed and remanded.
Note 1. The appellate court remands to allow the case to proceed to a jury on the several issues, including proximate causation, but it is notable that duty failed to limit liability here. What factors would you consider in deciding whether Joho had breached his duty to Zokhrabov? What sorts of facts, if true, would cause you to limit the liability of his estate to compensate Zokhrabov for her injuries?
Note 2. How would Justices Cardozo and Andrews in Palsgraf each have resolved this case, do you think?
Expand On Your Understanding – Socratic Script: Zokhrabov v. Park
Question 1. What are plaintiff’s and defendant’s main arguments, respectively?
Question 2. How does the court frame the central legal question?
Question 3. How does the court conduct its duty analysis? Does its analysis strike you as familiar from another context?
Question 4. For what purpose does the court discuss the open and obvious doctrine?
Question 5. Why does the court refuse to apply negligence per se?
Question 6. How does the court frame its reasoning in terms of tort law’s purposes?
Check Your Understanding (3-8)
Read this excerpt from a recent case in Connecticut reviewing its jury instructions and answer the questions below.
Connecticut Pattern Jury Instruction: Proximate Cause
Once you’ve gotten past factual causation, you need to address proximate cause. Proximate cause means that there must be a sufficient causal connection between the act or omission alleged, and any injury or damage sustained by the plaintiff.
An act or omission is a proximate cause if it was a substantial factor in bringing about or actually causing the injury. That is, if the injury or damage was a direct result, or a reasonable and probable consequence of the defendant’s act or omission, it was proximately caused by such an act or omission.
In other words, if an act had such an effect in producing the injury that reasonable persons would regard it as being a cause of the injury, then the act or omission is a proximate cause. In order to recover damages for any injury, the plaintiff must show by a preponderance of the evidence that such injury would not have occurred without the negligence of the defendant.
If you find that the plaintiff complains about an injury which would have occurred even in the absence of the defendant’s conduct, or is not causally connected to this accident, you must find that the defendant did not proximately cause that injury.
Under the definitions I have given you, negligent conduct can be a proximate cause of an injury, if it is not the only cause, or even the most significant cause of the injury, provided it contributes materially to the production of the injury, and thus is a substantial factor in bringing it about.
Therefore, when a defendant’s negligence combines together with one or more other causes to produce an injury, such negligence is a proximate cause of the injury if its contribution to the production of the injury, in comparison to all other causes, is material or substantial.
Question 1. What test does Connecticut appear to apply? You might take stock of how it has been modified, too.
Question 2. The proximate cause jury instructions contain references to causation in fact (as many jury instructions do, combining both prongs in negligence’s causation analysis). Can you see where that language arises?
Question 3. Setting aside jurisdictional differences, proximate cause is generally satisfied when:
Question 4. Complete the sentence: The question of proximate cause goes to the jury ____.
The next case involves an intersection of three areas or doctrines: proximate cause, res ipsa loquitur and the rescue rule. It provides helpful practice in seeing how courts apply each to the facts, often in light of conflicting priorities set out in the given doctrines. It may be helpful to know that professional rescuers and public-safety responders are barred, in many jurisdictions, from bringing a negligence action against a tortfeasor whose alleged conduct is the impetus for the rescue or bringing the officer to the scene of emergency where they were injured. Such rescuers cannot usually recover in negligence for liability for their injuries. The rationale is either that they may recover for injuries in workers’ compensation or that they assumed the risk (and perhaps higher pay) associated with this line of employment. This is often known as the firefighter rule (or the professional rescuer rule). Some states have eliminated the Firefighter’s Rule entirely, finding it to be an outdated concept that is unfair to emergency responders—for instance, Oregon abolished the Firefighter’s Rule by case law, see Christensen v. Murphy, 296 Or. 610 (Or., 1982), and New Jersey abolished it by statute, see New Jersey Public Statutes 2A:62A-21.
Clinkscales v. Nelson Securities, Supreme Court of Iowa (2005)
(697 N.W.2d 836)
“Danger invites rescue.” A marine out for a drink at a Davenport bar rushed to the scene of a gas leak at a grill on the premises. While attempting to turn off two propane gas tanks, a grease fire reignited and he was badly burned. The district court dismissed the marine’s negligence claim against the bar. The court held as a matter of law the marine was solely to blame for his injuries. The court of appeals affirmed. Because a jury could find the bar’s negligence proximately caused the marine’s rescue attempt and injuries, we reverse the district court, vacate the court of appeals, and remand for a trial on the merits.
Late one Friday afternoon in the summer of 2002, James Clinkscales went to The Gallery Lounge, a Davenport pub. Approximately fifty people were there. Clinkscales, an active-duty marine in town as a recruiter, stationed himself at the bar next to a blonde woman known only as “Dimples.” The two began to share a pitcher of beer together.
On Fridays in the summer, The Gallery regularly grilled hamburgers outside and served them to its customers. The grill stood directly outside of the bar on a patio ten feet away from where Clinkscales and Dimples sat. Two tanks of propane gas placed underneath the grill fueled it. The grill was custom-made and large enough to grill twenty burgers at a time.
The Gallery employed Joe Moser to grill the burgers. The first batch of burgers Moser placed on the grill that evening were particularly greasy. When Moser flipped them over, a fire flared up on the grill. Moser did not consider this to be a problem. All of a sudden, however, Moser heard something abnormal—“a pop and a hiss.” A ball of fire erupted underneath the grill and engulfed the propane tanks.
Caroline Nelson co-owns The Gallery with her husband and regularly works there. When the fire started Nelson was standing at the patio door. Moser told Nelson to get a fire extinguisher. Nelson and Moser testified Nelson and other Gallery employees made general announcements to the patrons to leave and then one employee called the fire department. Clinkscales testified he was alerted to the fire when he saw Nelson come into the bar looking for a fire extinguisher, but did not believe Nelson said anything to him or anybody else about what was happening.
Nelson came back outside with a fire extinguisher and gave it to a patron. The patron extinguished the flame, and Moser managed to turn the knobs on the grill to *840 “the off” position. Moser could still smell gas escaping from the tanks, however, and Moser said aloud that he wanted to shut the tanks off. Moser pulled the grill away from a wall to access the tanks, but he found the valves were too hot to touch. There were customers in the patio and adjacent bar. Clinkscales came out to the patio and asked a man holding a fire extinguisher if anyone had turned the gas off. The man told Clinkscales the handle was too hot.
Clinkscales, who had received extensive training in fire suppression in the military, recognized the situation was “very dangerous.” Clinkscales took off his shirt, wrapped it around one of hands, and turned the gas off. No one asked Clinkscales to do so. He reacted instinctively:
[I]t’s like running after a kid when he runs into the street, you don’t think about it, that there’s a car coming, you just try to grab the child, and, you know, hope for the best. You could get killed doing it, but you just do it.
As Clinkscales was turning off the gas, the fire flared up. Clinkscales was burned on his face, neck, chest, arms, and legs.
Skin hanging from his arms, Clinkscales continued his rescue efforts by helping a frightened young woman in the patio over a fence. A frequent patron of the bar, a man named Norm, took Clinkscales to the hospital just as the fire department arrived.
II. Prior Proceedings
Clinkscales sued The Gallery for negligence. He claimed The Gallery owed him a duty of care as a business invitee. Clinkscales alleged The Gallery was specifically negligent because it (1) failed to properly design, manufacture, maintain, and operate the grill; (2) did not adequately train its employees in the use and maintenance of the grill; (3) did not have enough fire-suppression equipment and did not properly use the fire extinguishers it did have; and (4) did not have emergency procedures in place necessary to protect its customers. In the alternative, Clinkscales also pled res ipsa loquitur to show general negligence. Clinkscales contended that even if he could not prove the precise cause of the mishap, the defendants had exclusive control over the instrumentalities involved in the fire. [fn]
The defendants filed a motion for summary judgment, which the district court granted. As a matter of law the district court found employees of The Gallery told Clinkscales to evacuate the premises; there was no evidence there was imminent risk to life when he turned off the gas; and “a reasonable person would not determine that the benefits of approaching a fire outweigh the risk of being seriously burned or injured.” The district court ruled the defendants were not liable because (1) Clinkscales’s injuries were caused by a known and obvious danger and (2) the defendants’ alleged negligence was not the proximate cause of Clinkscales’s injuries. The court also concluded res ipsa loquitur was not applicable because grease fires can occur without negligence. The court of appeals affirmed. It declined to apply the rescue doctrine and held, as a matter of law, Clinkscales “suffers from a self-inflicted wound.”
III. Principles of Review [omitted]
IV. The Merits
A. The Rescue Doctrine
The rescue doctrine was forged at common law. It involves heroic people doing heroic things. The late Justice Cardozo aptly summarized the commonsense observations about human nature that led to the doctrine’s widespread recognition across this nation when he wrote:
Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid. The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path…. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.
Wagner v. Int’l Ry., 232 N.Y. 176, 133 N.E. 437, 437–38 (1921) (citations omitted). That is, those who negligently imperil life or property may not only be liable to their victims, but also to the rescuers. … *842 We have consistently and liberally applied the rescue doctrine in this state for over one hundred years. [***] Historically the doctrine arose in questions of proximate cause and contributory negligence. [c] “In other words, did the act of the injured [rescuer] so intervene as to break the chain of causation from [the] defendant’s negligence, or constitute such contributory negligence as to bar recovery?” [c] The general rule was a rescuer would not be deemed to have broken the chain of causation or charged with contributory negligence for reasonable attempts to save the life or property of another. [c] Since the advent of comparative negligence, the doctrine has only arisen on appeal in questions of proximate cause, i.e., when, as here, the defendant claims the rescuer’s actions were a superseding cause of the rescuer’s injuries. See, e.g., Hollingsworth, 553 N.W.2d at 598 (holding rescuer’s actions not a superseding cause).
The Gallery contends its alleged negligence was not the proximate cause of Clinkscales’s injuries. The Gallery asserts the facts show its employees ordered patrons to leave the premises, it had called the fire department, and at the time of the rescue attempt Moser was retrieving a rag to turn off the propane valves. The court of appeals held as a matter of law that the rescue doctrine did not apply in this case because “no one was in any danger until the plaintiff placed himself there.”
*843 It is well settled that questions of proximate cause are, absent extraordinary circumstances, for the jury to decide. Iowa R.App. P. 6.14(6)(j); [c]. The line between what is sufficiently proximate and what is too remote is a thin one:
“If upon looking back from the injury, the connection between the negligence and the injury appears unnatural, unreasonable, and improbable in the light of common experience, such negligence would be a remote rather than a proximate cause. If, however, by a fair consideration of the facts based upon common human experience and logic, there is nothing particularly unnatural or unreasonable in connecting the injury with the negligence, a jury question would be created.” [c]
Here we are concerned with Clinkscales’s rescue attempt, which The Gallery characterizes as a “superseding cause” of his injuries. A superseding cause is an intervening force that “prevent[s] the defendant from being liable for harm to the plaintiff that the defendant’s antecedent negligence is a substantial factor in bringing about.” Id. (citing Restatement (Second) of Torts § 440 (1965) [hereinafter Restatement]).
When a rescue attempt is involved, matters are particularly thorny and a court should be especially wary to grant a defendant’s motion for summary judgment. [c] The rescue doctrine recognizes not all intervening forces are superseding causes:
If the actor’s negligent conduct threatens harm to another’s person, land, or chattels, the normal efforts of the other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts.
Restatement § 445 (quoted in Hollingsworth, 553 N.W.2d at 598). That is, so long as the rescuer’s response is “normal,” the negligent actor will not escape liability for the rescuer’s injuries.
What are “normal” rescue efforts? Although in Hollingsworth we loosely characterized the question of “normal efforts” as one solely of foreseeability, see 553 N.W.2d at 598, in truth the term “normal” is not used “in the sense of what is usual, customary, foreseeable, or to be expected.” Restatement § 443 cmt. b; see also id. § 445 cmt. b. Rather, “normal” (referred to in our pre-Restatement cases as “natural”) is used as “the antithesis of abnormal, of extraordinary.” Restatement § 443 cmt. b.
[T]he only inquiry should be whether the conduct of the plaintiff was ‘natural’ under the circumstances, which is to be ascertained by a counter-chronological examination of the facts. Here the term ‘natural’ must be taken to embrace those qualities of human nature leading to risk-taking in an effort to preserve property, to rescue other persons, or to save oneself. It necessarily includes actions which these well recognized and familiar human feelings bring about. Thus ‘natural’ conduct includes not only cool and well-reasoned action but also the frantic, excited and apparently illogical movements which are too commonly exhibited by a large percentage of human beings in moments of stress.
In these situations, the defendant may negligently have exposed the person or property of another to unreasonable risk of loss or destruction. ‘Natural’ instincts will move some persons to make efforts at rescue. The movements of the rescuer may not be well judged and may result in harm either to the goods, to the person endangered by the defendant, or to the rescuer himself. In any *844 such case the defendant will be held liable, for the ‘natural’ conduct of the rescuer leaves no break or gap in the chain of causation.
Clayton v. Blair, 254 Iowa 372, 377-378 (1962); accord Restatement § 443 cmt. b.
What constitutes normal or natural conduct depends upon the circumstances and “is in most cases a question to be decided by the jury.” [cc] If the jury determines the rescuer’s actions are a normal or natural result of the defendant’s actions, the defendant’s actions were a proximate cause of the rescuer’s injuries.
We think the facts are sufficiently in conflict on the issue of proximate cause to warrant a jury determination. The dangers of fire and gas leaks are well known to all. See Johannsen, 232 Iowa at 807 (upholding jury instruction on rescue doctrine when plaintiff rushed onto defendant’s property to stop unattended gas leak; as plaintiff shut off valve, leak burst into flames severely injuring plaintiff); see also Von Tersch v. Ahrendsen, 251 Iowa 115, 120 (1959) (“The danger of fire is well-known to all.”). There is evidence the danger was imminent in this case, or at least apparently so. See Henneman, 260 Iowa at 72 (rescue doctrine applies not only when danger is imminent, but also when “the conduct of the rescuer is that of an ordinarily prudent person under existing circumstances”); accord Silbernagel v. Voss, 265 F.2d 390, 391–92 (7th Cir.1959) (approving of jury instruction that was “phrased to elicit an answer as to whether the situation … induce[d] a reasonable belief on part of [the] plaintiff that [the victim] was in imminent peril”); Wagner, 133 N.E. at 438 (refuting view that rescue doctrine should not apply when, in fact, rescue attempt was futile); cf. Fullerton v. Sauer, 337 F.2d 474, 482 (8th Cir.1964) (construing Iowa law to hold rescue doctrine did not apply when “only apparent or imminent danger” had passed).
This summary-judgment record shows customers, employees, and property of The Gallery were in the vicinity of the fire and subsequent gas leak. While it is undisputed employees of The Gallery called the fire department and asked some patrons to evacuate, a jury could find Clinkscales’s rescue efforts were a normal or natural reaction under the circumstances. He may have reasonably thought danger was imminent and, given his extensive training, his help was needed.
Exhortations to leave do not, as a matter of law, preclude liability in all cases. If a defendant sets into course a series of events that induces a rescue attempt, the defendant does not necessarily insulate itself from liability when it tells the rescuer to leave. In any event, in this case there is evidence no one effectively ordered Clinkscales to leave, and some evidence The Gallery enlisted the help of other customers to fight the fire. There is nothing inconsistent with an express general call to evacuate and an implicit individual invitation to help. Even if we were to assume Clinkscales was told to leave, however, this would be but one fact for the jury to consider in evaluating his rescue attempt.
We cannot say as a matter of law that the rescue doctrine does not apply to this case. A reasonable jury could find Clinkscales’s rescue of Gallery employees, customers, and property was an act done in normal or natural response to the fear or emotional disturbance caused by The Gallery’s negligence. Summary judgment on *845 the issue of proximate cause was not proper.
C. An Open and Obvious Danger is No Bar to Recovery
The district court and court of appeals applied the premises-liability law that persisted at common law and found Clinkscales was an invitee of The Gallery at the time the fire started. Under the common-law trichotomy of invitees, licensees, and trespassers, an invitee is a person “who is invited to enter or remain on land for the purpose directly or indirectly connected with business dealing with the possessor of land.” [c] Invitees are owed the highest standard of care under the trichotomy: the possessor of land is obligated to use ordinary care to keep the premises reasonably safe for invitees, to ascertain the actual condition of the premises, and to make the area reasonably safe or give warning of the actual condition and risks involved. Id.
The parties do not ask us to re-examine the merits of the trichotomy, which is presently one of the most unsettled and contentious areas of Iowa law. See Sheets v. Ritt, Ritt, & Ritt, Inc., 581 N.W.2d 602, 606 (Iowa 1998) (four of nine members of court favored abolishing distinction between invitees and licensees); see also Anderson v. State, 692 N.W.2d 360, 367–68 (Iowa 2005) (use of invitee instruction instead of reasonable care instruction affirmed by operation of law); Alexander v. Med. Assocs. Clinic, 646 N.W.2d 74, 79–80 (Iowa 2002) (six of seven members of court declined to abolish common-law trespasser rule). No one challenges that Clinkscales was an invitee. Only a corollary of the common-law premises-liability law is implicated here. The defendants argue, and the lower courts held, the defendants owed no duty to Clinkscales as a matter of law because the fire and gas leak constituted a “known and obvious danger.” It is well settled that generally “[t]he possessor of land … is not liable when the injuries sustained by a business invitee were caused by a known or obvious danger.”
Clinkscales argues the open and obvious-danger principle does not apply in this case, and we agree. Fire and escaping gas is obviously dangerous. That is not in doubt. This is not your garden-variety premises-liability case, however—it involves an attempted rescue. Absent imminent danger or the appearance thereof, the rescue doctrine is not applicable. See, e.g., Weller v. Chi. & Northwestern R.R., 244 Iowa 149, 152, 55 (1952) (without imminent danger to child rescue doctrine inapplicable); Klunenberg, 256 Iowa at 740 (similar case involving cow in cemetery); cf. Fullerton, 337 F.2d at 482 (applying Iowa law and concluding rescue instruction not proper for injuries sustained after rescue completed and when no further apparent or imminent danger to life or property).
In a rescue case such as this, it is axiomatic that the danger approached is obviously dangerous. See, e.g., Hollingsworth, 553 N.W.2d at 598 (rushing into burning station wagon in victim’s garage); Clayton, 254 Iowa at 378–79 (remaining in burning apartment building to help others); cf. Kester v. Bruns, 326 N.W.2d 279, 283 (Iowa 1982) (holding rescue instruction not warranted because “it was unreasonable as a matter of law for [the plaintiff] to risk his life to prevent the remote possibility of some harm befalling his $90 pool cue”).
Danger invites the rescue. To rule the presence of a known and obvious dangerous condition would, as a matter of law, negate any duty to invitee— *846 rescuers would completely eviscerate the rescue doctrine where the rescuer happened to be an invitee of the defendant when the condition first occurred. The “open-and-obvious-danger” rule is not absolute. See Restatement § 343A cmt. f (carving out an exception “where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantage of doing so would outweigh the apparent risk”) [c].
We have not accepted similar arguments in previous cases. For example, in Johannsen, the plaintiff saw a gasoline spill in the defendant’s railroad yard. 232 Iowa at 807. The plaintiff ran onto the defendant’s property to stop the spill and suffered severe burns. He sued the landowner for negligence and pled rescue. The defendant argued it did not owe the plaintiff a duty of care because he was a trespasser. We held the plaintiff’s status as a trespasser was irrelevant because he was in a place where he had a right to be when the danger occurred. Id. at 812. The pertinent question was not whether the plaintiff trespassed upon the defendant’s land to effectuate the rescue, but rather whether the negligent acts of the defendant caused a danger that proximately caused the plaintiff’s rescue attempt. Id.; see also Clayton, 254 Iowa at 378 (rescuer “not regarded as a trespasser” for entering land of another to attempt rescue). Likewise, in the case at bar, it does not matter that Clinkscales was an invitee and that the grease fire and gas leak constituted an “open and obvious danger.” See Johannsen, 232 Iowa at 811 (remarking that the mere fact the plaintiff voluntarily encountered a known danger is not always a bar to recovery). The issue is whether the defendant’s alleged negligent acts proximately caused Clinkscales’s rescue attempt. If trespassers are not precluded as a matter of law from seeking recovery in rescue cases, nor should invitees simply because the danger encountered is a “known and obvious danger.”
In the alternative, The Gallery argues that even if it owed Clinkscales a duty of care, it did not breach that duty. The district court ruled the defendants were not negligent, as a matter of law, because they asked patrons to leave, called the fire department, and used fire extinguishers. The defendants also point out they have operated the grill for fifteen years without incident and took “precautions to ensure the utmost safety.”
We cannot say as a matter of law that The Gallery was not negligent as alleged in Clinkscales’s petition. Questions of negligence are ordinarily reserved for the jury, and only in extraordinary cases is summary judgment proper. Iowa R.App. P. 6.14(6)(j) [cc] There is testimony the defendants did not clean the grill regularly or sufficiently train their employees in grill cleaning. For example, one of the hoses leading from the propane tanks to the grill had a small “burn hole” in it. There is also evidence Moser permitted the grease fire to persist too long, at times unattended, until it became too large to contain. A jury could also find the defendants did not keep the appropriate type of fire-suppression equipment near the grill. A jury should decide whether The Gallery was negligent, and whether this negligence caused the grease fire, subsequent gas leak, and injuries to Clinkscales.
*847 E. Res Ipsa Loquitur
Res ipsa loquitur (Latin for “the thing speaks for itself”) is a type of circumstantial evidence. Brewster v. United States, 542 N.W.2d 524, 529 (Iowa 1996). In Iowa, res ipsa loquitur applies in negligence cases when
(1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such that in the ordinary course of things would not happen if reasonable care had been used. [cc]
Res ipsa loquitur permits a jury to circumstantially “infer the cause of the injury from the naked fact of injury, and then to superadd the further inference that this inferred cause proceeded from negligence.” [c] A jury is not required to draw the inference. [c] Nor must a plaintiff “eliminate with certainty all other possible causes or inferences.” “The jury simply weighs the circumstantial evidence but in the end may or may not accept it as sufficient as to negligence or causation.” In Iowa, we permit the plaintiff to plead res ipsa loquitur in addition to specific negligence as an alternate theory of the case. Clinkscales did precisely this in his petition. Ordinarily the two theories are submitted to the jury together. If the jury finds for the plaintiff on a specific negligence basis, however, it should not entertain res ipsa loquitur. [cc]
For good reasons, the defendants do not deny the grill was in their exclusive control. Instead, they claim res ipsa loquitur does not apply in this case because a grease fire could happen in the absence of any negligence. Both the district court and court of appeals held the res-ipsa loquitur doctrine was not applicable to this case because grease fires can happen in the absence of a negligent act.
We disagree. The foregoing analysis improperly frames the question. The issue in this case is not simply whether a grease fire could happen in the exercise of ordinary care, because the “occurrence” in this case was not just a grease fire. After all, when Clinkscales approached the grill, the fire was extinguished. The problem was that gas was leaking from the propane tanks, and it appeared reignition of the fire might prove disastrous. Moser testified he heard an abnormal “pop and hiss” come from the grill before the grease fire spread to the tanks. We have repeatedly held the res-ipsa-loquitur doctrine may be applicable in gas leak cases. …see also Jay M. Zitter, Annotation, Res Ipsa Loquitur in Gas Leak Cases, 34 A.L.R.5th 1, 14 (1995) (recognizing “it is clear that in the ordinary course of things gas explosions will not occur, so that when one does occur, an inference of negligence may be reasonable and justifiable”). There is nothing exceptional about this case which indicates that this particular gas leak would ordinarily occur in the absence of negligence. Genuine issues of material fact exist, and therefore the district court erroneously excluded application of res ipsa loquitur from the case. Indeed, to rule otherwise would require Clinkscales to prove the precise cause of his injuries— *848 thus depriving him of the doctrine’s benefit. [c]
Even if we were to ignore the leaking gas, it should be noted that courts have often applied the doctrine of res ipsa loquitur in actions against the occupant of a premises for personal injury caused by fire—including grease fires. See, e.g., Aetna Cas. & Sur. Co. v. Brown, 256 So.2d 716, 718 (La.Ct.App.1971) (holding res ipsa loquitur applicable to grease fire); see also 35A Am.Jur.2d Fires § 59 (2001). In the ordinary course of things, grease fires do not occur in the absence of negligence and cannot occur unless the party in exclusive control does something or fails to do something an ordinary person would do under the circumstances. Grease fires do not just happen.
Summary judgment was not proper. This case is remanded for a trial on the merits. Decision of Court of Appeals Vacated; District Court Judgment Reversed; Remanded.
STREIT, Justice (specially concurring in part and dissenting in part).
I concur to the extent that I believe this rescuer deserves his day in court. The mere fact Clinkscales approached an open and obvious danger is not an absolute bar to recovery; rescue clearly presupposes danger or the appearance thereof. Cf. Johannsen, 232 Iowa at 811–12. I respectfully dissent, however, because I believe the majority wrongly permits Clinkscales to pursue a res-ipsa-loquitur theory. In doing so, the majority stretches that venerable doctrine far beyond its proper boundaries.
As the majority correctly points out, in Iowa res ipsa loquitur applies if (1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such that in the ordinary course of things would not happen if reasonable care had been used. Novak, 622 N.W.2d at 498.
Because Clinkscales has not presented any evidence of either element, I would affirm the district court and court of appeals on this issue.
No Exclusive Control
It is conceded The Gallery had exclusive control of the grill at the time of the accident. On the facts of this case, however, this is insufficient in itself to warrant a res ipsa-loquitur instruction. Exclusive control must be shown at the time of the alleged negligence, which is not necessarily the time of injury. [cc] As we recently stated,
The plaintiff need only show that the defendant controlled the instrumentality at the time of the alleged negligent act…. The “exclusive control” requirement is simply another way of saying that the injury must be traced to a specific instrumentality or cause for which the defendant was responsible *849 … Where causes for the injury other than a defendant’s negligence are equally probable, there must be evidence which will permit the jury to eliminate them. This means, for example, that a plaintiff injured by the explosion of a beer bottle purchased from a retailer will be required to make some sufficient showing that the bottle was not cracked by mishandling after it left the defendant’s plant. Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 832 (Iowa 2000) (citations, internal quotations, and emphasis omitted).
The record before us shows, in undisputed fashion, that several parties other than the defendants played a role that gave rise to the state of the grill as it malfunctioned on the date of Clinkscales’s injuries. The defendants special ordered the grill from two local men, who built it from standard parts. After the defendants purchased the grill, they regularly had the propane tanks switched out at a local filing station. This filling station also periodically replaced the devices that connected the tanks to the hoses that led to the grill, because the connections on the tanks themselves would change from time to time. Any of these parties, as well as any of the manufacturers of any of the parts they built, used, or serviced, could have performed a negligent act leading to Clinkscales’s injuries. The same could be said for the patron extinguishing the fire. Without proving the cause of the fire, Clinkscales has presented no evidence that would permit a jury to eliminate any of these equally potentially negligent parties. Therefore res ipsa loquitur is inapplicable, and the district court and court of appeals were correct to strike this theory from Clinkscales’s pleadings.
Grease Fires Happen
Nor has Clinkscales shown the grease fire was such that in the ordinary course of things it would not have happened if reasonable care had been used. As the district court and court of appeals both pointed out, grease fires commonly occur in the absence of negligence.
The classic English case of Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. 1863), perhaps best illustrates the sorts of cases in which res ipsa loquitur properly applies, and how it works. In Byrne, a barrel of flour fell on the plaintiff, who was walking next to the defendant’s shop. 159 Eng. Rep. at 299. Although one could readily infer the barrel came from the defendant’s shop, the plaintiff could not show precisely how the defendant was negligent. Id. Nonetheless, the court thought the accident “spoke for itself” and therefore held *850 the defendant was negligent, albeit in some unspecified way. Id. at 301.
The case at bar is manifestly unlike Byrne. Grease fires—unlike barrels of flour falling from the sky—occur in the absence of negligence. Put simply, res ipsa loquitur should not apply here because this is not the sort of case for which the doctrine was designed. In holding to the contrary, the majority stretches res ipsa loquitur beyond its proper scope.
Note 1. What do you notice about the court’s narration of the facts? What do we know about the various parties and their attributes?
Note 2. How do the majority and dissenting opinions differ with respect to their views of RIL?
Note 3. What differentiates an intervening force from a superseding cause? Does this distinction seem to you to lead to an analytic conclusion or to require one? The Restatement (Second) of Torts § 440 defines a superseding cause as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.”
The next case explores superseding cause analysis in more depth.
Chacko v. Com., Dept. of Transp., Commonwealth Court of Pennsylvania (1992)
(148 Pa. Cmwlth. 494)
*496 This personal injury action arises from an automobile accident which occurred in the City of Philadelphia on September 20, 1985. Saramma Chacko and Celinamma John were passengers in an automobile operated by defendant Ruby Matthews (Matthews). Matthews, who suffers from diabetes, lost consciousness and then control of the vehicle. The vehicle left the roadway and struck a utility pole owned by defendant Philadelphia Electric Company (PECO). Liability was asserted against the City on [various theories on which the trial court granted the City’s motion for summary judgment]. [***] “…A trier of fact could not reasonably conclude that any action of the City was a contributing factor to Plaintiffs’ injuries, given that the driver had no control over his [sic] vehicle at all.” Trial Court Opinion at 2–3. [***]
Assuming arguendo that the acts and omissions alleged against the City were legal causes of Appellants’ injuries, the proper inquiry is whether the subsequent loss of consciousness suffered by Matthews was an intervening cause, which would not absolve the City of liability, or a superseding cause, which would. See Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241 (1983). The Restatement (Second) of Torts (Restatement 2d) defines a superseding cause as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Restatement 2d § 440. Among the factors to consider in determining whether a subsequent force is an intervening or superseding cause are whether the force is operating independently of any situation created by the first actor’s negligence and whether it is or is not a normal result of that situation. Restatement 2d § 442(c).
In Vattimo, the Supreme Court quoted with approval this court’s analysis of superseding causes:
[E]ven where an intervening act is wrongful it does not become a superseding cause unless, looking retrospectively from the harm through the sequence of events by which it was produced, it is so extraordinary as not to have been reasonably foreseeable. *500 502 Pa. at 253 (quoting 59 Pa. Commonwealth Ct. 1, 9–10 (1981)). Matthews’s loss of consciousness was indeed extraordinary and not reasonably foreseeable. It operated independently of, and cannot be said to be a normal result of, any situation created by the City’s purported acts and omissions.
Accordingly, we hold that the trial court did not err or abuse its discretion in concluding that the driver’s loss of consciousness was a superseding cause of Appellants’ injuries and in granting summary judgment on that basis.
For the foregoing reasons, the order of the trial court is affirmed.
Note 1. Why does the court assume, “arguendo” that the city’s alleged acts of negligence were the legal causes of appellants’ injuries and what do they mean in describing the alleged acts in that way?
Note 2. Do the Restatement’s factors for determining whether a force is intervening or a superseding cause test seem straightforward to apply? Restatement (Second) of Torts § 440: “Among the factors to consider in determining whether a subsequent force is an intervening or superseding cause are whether the force is operating independently of any situation created by the first actor’s negligence and whether it is or is not a normal result of that situation. Restatement (Second) of Torts § 442(c).
Note 3. As with proximate cause more generally, analysis to determine superseding causation exists primarily to limit liability. Thus third parties who act and create harms due to the original tortfeasor’s conduct do not usually sever the chain of causation: “If the actor’s negligent conduct threatens harm to another’s person, land, or chattels, the normal efforts of the other or a third person to avert the threatened harm are not a superseding cause of harm resulting from such efforts.” Restatement (Second) of Torts § 445. How far should this rule extend? What are “normal efforts”? Recall the discussion in Clinkscales distinguishing normal from extraordinary circumstances.
Check Your Understanding (3-9)
Question 1. The purposes of the rescue doctrine are to:
Question 2. In which of the following scenarios is the rescuer least likely to be able to apply the rescue doctrine:
Question 3. True or false: In a circumstance in which antecedent (prior) negligence has taken place, a later superseding cause effectively immunizes, or at least limits, the antecedent defendant from liability for the harmful consequences of the superseding cause.
As you have seen, plaintiffs must prove all four elements of negligence—duty, breach, causation and harm—and some kinds of harm are not cognizable, such as purely economic losses and emotional distress absent particular qualifying circumstances. However, physical injuries and property losses as well as the related expenses to treat or repair the damage wrought by a negligent tortfeasor’s conduct will generally satisfy this element. A separate module on damages works through the relevant doctrines in greater detail.
A key distinction between tort’s regimes is that plaintiffs need to prove harm with respect to negligence and strict liability claims but they need not prove harm for several of the intentional torts, namely battery, assault, false imprisonment, conversion and trespass to land. A plaintiff’s damages award will be correspondingly lower when they cannot prove that those intentional torts have left lasting harm but the liability claim does not depend on proof of harm the way it does for negligence and strict liability claims. The invasion of the interest is the harm. Recall that for trespass to chattels, a plaintiff does have to prove harm as part of the prima facie case for liability. For IIED, a plaintiff must not only prove harm but a heightened level of harm: severe emotional distress.
- Wagner v. Int’l Ry., 232 N.Y. 176, 133 N.E. 437, 437 (1921) (Cardozo, J.). ↵
- In Saylor, we apparently held the rescue doctrine did not apply when the rescuer was injured saving a person who had negligently imperiled himself. Courts and commentators alike have roundly criticized this decision. See W.C. Crais III, Annotation, Rescue Doctrine: Negligence and Contributory Negligence in Suit by Rescuer Against Rescued Person, 4 A.L.R.3d 558, 559–60 (1965) (stating all subsequent courts, commentators, and the authors of the Restatement have chosen not to follow Saylor, which is “the only authority” barring recovery in so-called first-party rescue cases; noting also that “it does not seem likely that future courts will see fit to revive its teachings”); see also Sears v. Morrison, 76 Cal.App.4th 577 (1999) (severely criticizing Saylor; noting court could find “no case following Saylor”); Britt v. Mangum, 261 N.C. 250, 252 (1964) (Saylor “has not met with favor in other jurisdictions, but instead, when it has been pressed, it has been almost invariably rejected.”); Restatement (Second) of Torts § 445 cmt. d (1965) (rejecting Saylor analysis). It appears we overruled Saylor sub silentio in Hollingsworth. 553 N.W.2d at 598. ↵
- As a related matter, it should be remembered that res ipsa loquitur is not applicable simply because Clinkscales may not be able to show which specific acts of negligence caused his injuries. As one noted commentator has pointed out, res ipsa loquitur is sometimes invoked needlessly and inappropriately. If the trier can infer that the defendant was probably guilty of one of several specific acts of negligence but cannot be sure which act it was, res ipsa [loquitur] is not properly involved.... Although the jury might not be sure which of these negligent [acts] occurred, if it can conclude that one of them did, then the case is merely one of ordinary circumstantial evidence.... When courts speak of res ipsa loquitur in cases like this perhaps no harm is done, but they risk confusing the process of inferring specific negligent acts with the process of estimating the probability of unknown acts of negligence. 1 Dan B. Dobbs, The Law of Torts § 154, at 372–73 (2001) (footnote omitted). While Clinkscales has presented a number of independent theories as to how the defendants were negligent and should be permitted to make his case to the jury on each, res ipsa loquitur is not available simply because there is uncertainty at this stage in the proceedings about which particular theory may win the day. The majority’s decision falls into precisely this trap. ↵
- In general, the issue of whether a given force is a superseding or intervening cause is a question to be resolved by the fact finder. However, in cases where a jury may not reasonably differ, it is proper for the court to make a determination of causation. Vattimo, 502 Pa. at 247, 465 A.2d at 1234; Restatement 2d § 434. ↵