November 30, 2009

COURT ADOPTS NEW RESTATEMENT FOR “ENHANCED INJURY” CLAIMS

In the decades after Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), approved enhanced injury claims – based on the conclusion that a car company has a “reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents” – judges and scholars have debated: (1) plaintiff’s burden-of-proof on apportioning harm; and (2) whether principles of comparative fault apply.

On the first question, the Huddell approach obligates the plaintiff to prove that the “sole cause” of an enhanced injury was a product defect – meaning that the plaintiff has the burden of apportioning the loss.

An alternative line of cases – called the Fox-Mitchell approach – merely requires the plaintiff to prove that the product defect was a “substantial factor” in causing harm that exceeded the damages that would have otherwise been caused in the underlying accident.

As for the second question, the majority rule is that the usual principles on concurrent causation and contributory fault apply in enhanced injury cases.

Section 16(c) of the Restatement (Third) of Torts: Products Liability adopts the Fox-Mitchell approach to burdens-of-proof in enhanced injury cases, while section 17(b) applies general principles of comparative fault.

Sorting through the “clash of court cases and academic antlers,” the Iowa Supreme Court adopted sections 16 and 17 of the new Restatement. Jahn v. Hyundai Motor Co., 2009 WL 3232781 (October 9, 2009).

Glen Jahn was seriously injured when Grace Burke zoomed past a stop sign and rammed into the side of his Hyundai Elantra. Exacerbating the harm, the driver-side airbag on the Elantra allegedly failed to function.

After settling with Burke, Jahn sued Hyundai Motor America (HMA), alleging enhanced injury because of a product defect.

A federal district judge asked the Iowa Supreme Court whether it would adopt sections 16 and 17.

Section 16 provides:

“(a) When a product is defective at the time of commercial sale or other distribution and the defect is a substantial factor in increasing the plaintiff’s harm beyond that which would have resulted from other causes, the product seller is subject to liability for the increased harm.

“(b) If proof supports a determination of the harm that would have resulted from other causes in the absence of the product defect, the product seller’s liability is limited to the increased harm attributable solely to the product defect.

“(c) If proof does not support a determination under Subsection (b) of the harm that would have resulted in the absence of the product defect, the product seller is liable for all of the plaintiff’s harm attributable to the defect and other causes.

“(d) A seller of a defective product that is held liable for part of the harm suffered by the plaintiff under Subsection (b), or all of the harm suffered by plaintiff under Subsection (c), is jointly and severally liable or severally liable with other parties who bear legal responsibility for causing the harm, determined by the applicable rules of joint and several liability.”

And Section 17 says:

“(a) A plaintiff’s recovery of damages for harm caused by a product defect may be reduced if the conduct of the plaintiff combines with the product defect to cause the harm and the plaintiff’s conduct fails to conform to generally applicable rules establishing appropriate standards of care.

“(b) The manner and extent of the reduction under Subsection (a) and the apportionment of plaintiff’s recovery among multiple defendants are governed by generally applicable rules apportioning responsibility.”

Here are highlights of the Supreme Court’s opinion (with omissions not noted in the text):

As late as 1966, courts rejected the notion that a product manufacturer could be liable for defective products where the negligence of another party was the cause of the underlying accident.

The rationale was generally that manufacturers could be held liable only for injuries resulting from intended use. Despite the forseeability of automobile collisions, they were not considered an intended use.

In the seminal case of Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), the Eighth Circuit broke new ground. The court noted, “No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury all are foreseeable.”

As a result, the Larsen court saw no reason “why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents.”

The Larsen approach was further refined by the Fourth Circuit in Dreisonstok v. Volkswagenwerk, A. G., 489 F.2d 1066 (4th Cir.1974).

In Dreisonstok, the court stated that a manufacturer’s duty extended only to designing a vehicle to avoid “unreasonable risk of injury in the event of a collision.” Dreisonstok, 489 F.2d at 1070 n. 11. See generally Barry Levenstam & Daryl J. Lapp, Plaintiff’s Burden of Proving Enhanced Injury in Crashworthiness Cases: A Clash Worthy of Analysis, 38 DePaul L.Rev. 55, 61 (1988) [hereinafter Levenstam & Lapp].

Under an enhanced injury theory, the product defect is not the cause of the initial accident. As a result, the manufacturer cannot be held liable for injuries arising out of the initial collision.

The manufacturer, however, is liable for enhanced injuries over and above the injuries caused by the initial collision.

Burden of proof

A question arises regarding the plaintiff’s burden of proof to sustain an enhanced injury claim.

One line of cases, often named the Huddell approach after a leading case, holds that the plaintiff has the burden of showing that the “sole cause” of the enhanced injury was a product defect. See Huddell v. Levin, 537 F.2d 726 (3d Cir.1976).

According to the court in Huddell, a plaintiff in an enhanced injury case must prove: (1) the existence of a safer, practicable, alternative design, (2) the extent of the injuries the plaintiff would have suffered had the alternative design been used, and (3) “some method of establishing the extent of enhanced injuries attributable to the defective design.” Id. at 737-38.

The Huddell approach was elaborated upon in Caiazzo v. Volkswagenwerk A. G., 647 F.2d 241 (2d Cir.1981).

In Caiazzo, the court stressed that the plaintiff had the burden of showing not only the fact of enhanced injury but the extent of enhanced injuries attributable to the defective design.

According to Caiazzo, if the plaintiff cannot identify what portion of the injury occurred as a result of the design defect by a preponderance of evidence, the enhanced injury claim fails.

The practical impact of the Huddell rule as applied in Caiazzo is that the plaintiff has the burden of apportioning the loss and loses his enhanced injury claim if he fails to offer proof of apportionment.

This approach has been adopted in a number of cases. See, e.g., Barris v. Bob’s Drag Chutes & Safety Equip., Inc., 685 F.2d 94 (3d Cir.1982) (applying Pennsylvania law); Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir.1980) (applying New Jersey law).

The Huddell approach pulls apart and segregates the injuries and, as a result, principles of joint and several liability do not apply in an enhanced injury case.

A second line of cases imposes a less stringent proof requirement on plaintiffs. Under this second line of cases, often referred to as the Fox-Mitchell approach, the plaintiff must prove only that the product defect was a “substantial factor” in creating damage greater than that attributable solely to the underlying accident. See Mitchell v. Volkswagenwerk, AG, 669 F.2d 1199 (8th Cir.1982); Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir.1978).

If the factfinder is unable to segregate the harm caused by the initial collision from the harm caused by the product defect, the manufacturer is liable for the entire injury.

The rationale of the Fox-Mitchell approach is generally that injuries are often indivisible and that the Huddell approach imposes an unfair burden by requiring the plaintiff to “prove the impossible.”

In addition, the Huddell approach is criticized as inconsistent with orthodox concurrent tortfeasor theory in which apportionment of injuries is not required to impose joint liability for the entire injury.

As is apparent, the Fox-Mitchell approach, which has been adopted in a number of cases, see, e.g., Fouche v. Chrysler Motors Corp., 103 Idaho 249 (Idaho Ct.App.1982); Lee v. Volkswagen of Am., Inc., 688 P.2d 1283 (Okla.1984), produces the opposite result of Huddell in the event of indivisible injury.

Under Huddell, the plaintiff has the burden of showing apportionment, usually through expert testimony, and has no enhanced injury claim if the claim is indivisible.

Application of comparative fault

Another disputed issue relates to the relationship between enhanced injury claims and comparative fault.

The majority view is that the principle of concurrent causation applies to cases involving enhanced injuries and, as a result, the principles of comparative fault apply. See, e.g., Montag by Montag v. Honda Motor Co., 75 F.3d 1414 (10th Cir.1996); Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209 (Alaska 1998); Daly v. Gen. Motors Corp., 20 Cal.3d 725 (Cal.1978); Estate of Hunter v. Gen. Motors Corp., 729 So.2d 1264 (Miss.1999); Harsh v. Petroll, 584 Pa. 606 (Pa.2005); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984).

The majority view may be supported in part on the ground that it imposes upon users the responsibility to safely use products and that it would be unfair to impose costs of substandard plaintiff conduct on manufacturers, who would presumably pass on some or all of those costs to users and consumers, including those who use and consume products safely and wisely. See William J. McNichols, The Relevance of the Plaintiff’s Misconduct in Strict Tort Products Liability, the Advent of Comparative Responsibility, and the Proposed Restatement (Third) of Torts, 47 Okla. L.Rev. 201, 283-84 (1994).

A minority of cases, however, do not apply comparative fault principles or at least limit their application in the enhanced injury context. See, e.g., Binakonsky v. Ford Motor Co., 133 F.3d 281 (4th Cir.1998); D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla.2001); Andrews v. Harley Davidson, Inc., 106 Nev. 533 (Nev.1990); Green v. Gen. Motors Corp., 310 N.J.Super. 507 (N.J.Super.Ct.App.Div.1998); Alami v. Volkswagen of Am., Inc., 97 N.Y.2d 281 (N.Y.2002).

Some of these cases, however, arise in jurisdictions applying contributory negligence and may have been motivated by a desire to prevent the harsh result of completely denying a plaintiff recovery where the plaintiff’s negligence was modest.

The minority viewpoint has its adherents in the academic literature. See generally Robert C. Reichert, Limitations on Manufacturer Liability in Second Collision Actions, 43 Mont. L.Rev. 109 (1982).

The reasoning behind the minority line of cases is often that a manufacturer has a duty to minimize the injurious effect of a crash no matter how the crash is caused and has a duty to anticipate foreseeable negligence of users and third parties.

As noted by the New Jersey Supreme Court, “once it is established that the defendant has a duty to protect persons from the consequences of their own foreseeable faulty conduct, it makes no sense to deny recovery because of the nature of the plaintiff’s conduct.” Green v. Sterling Extruder Corp., 95 N.J. 263 (N.J.1984) (quoting Patricia Marschall, An Obvious Wrong Does Not Make a Right: Manufacturer’s Liability for Patently Dangerous Products, 48 N.Y.U. L.Rev. 1065, 1088 (1973)).

This viewpoint was reiterated in Jimenez, where the court observed that “the concept of ‘enhanced injury’ effectively apportions fault and damages on a comparative basis; defendant is liable only for the increased injury caused by its own conduct, not for the injury resulting from the crash itself.” Jimenez v. Chrysler Corp., 74 F.Supp.2d 548 (D.S.C.1999), rev’d in part and vacated in part by Jimenez v. DaimlerChrysler Corp., 269 F.3d 439 (4th Cir.2001).

In addition, some cases support the minority rule on the ground that product manufacturers should be encouraged to design products that protect the user in the event of an accident. Andrews, 796 P.2d at 1095.

Restatement (Third) of Torts.

Against the above clash of court cases and academic antlers, the American Law Institute in the Restatement (Third) of Torts: Products Liability considered the proper approach to enhanced injury claims in sections 16 and 17.

Section 16 of the Restatement (Third): Products Liability provides:

“(a) When a product is defective at the time of commercial sale or other distribution and the defect is a substantial factor in increasing the plaintiff’s harm beyond that which would have resulted from other causes, the product seller is subject to liability for the increased harm.

“(b) If proof supports a determination of the harm that would have resulted from other causes in the absence of the product defect, the product seller’s liability is limited to the increased harm attributable solely to the product defect.

“(c) If proof does not support a determination under Subsection (b) of the harm that would have resulted in the absence of the product defect, the product seller is liable for all of the plaintiff’s harm attributable to the defect and other causes.

“(d) A seller of a defective product that is held liable for part of the harm suffered by the plaintiff under Subsection (b), or all of the harm suffered by plaintiff under Subsection (c), is jointly and severally liable or severally liable with other parties who bear legal responsibility for causing the harm, determined by the applicable rules of joint and several liability.” Restatement (Third) of Torts: Products Liability § 16 (1998).

Section 17 provides:

“(a) A plaintiff’s recovery of damages for harm caused by a product defect may be reduced if the conduct of the plaintiff combines with the product defect to cause the harm and the plaintiff’s conduct fails to conform to generally applicable rules establishing appropriate standards of care.

“(b) The manner and extent of the reduction under Subsection (a) and the apportionment of plaintiff’s recovery among multiple defendants are governed by generally applicable rules apportioning responsibility.” Id. § 17, at 256.

With respect to the issue of indivisible harm in an enhanced injury case, the language of section 16(c) supports the Fox-Mitchell approach.

This interpretation is confirmed by the Reporter’s Note to section 16, which expressly states that the Fox-Mitchell approach is the majority viewpoint and is embraced in the Restatement (Third).

The Reporter’s Note emphasizes, however, that section 16(c) does not formally shift any burden of proof to the defendant. Instead, according to the Reporter’s Note,

“if the plaintiff has established that the product defect increased the harm over and above that which the plaintiff would have suffered had the product been nondefective, and if, at the close of the case, proof does not support a determination of the harm that would have resulted in the absence of the product defect, then the defendant is liable for all the harm suffered by the plaintiff.”

On the issue of application of comparative fault, the Restatement (Third) section 17(b) indicates that generally applicable comparative fault principles should apply among multiple defendants.

The official comments to section 17, however, address only the issue of apportionment of plaintiffs’ fault. The Reporter’s Note emphasizes that a majority of courts utilize comparative fault to reduce the recoveries of product liability plaintiffs, but does not discuss the issue of applying comparative fault principles among defendants.

Adoption of Fox-Mitchell Approach to Causation and Rejection of Divisible Injury Requirement

As stated in the Reporter’s Note, the Restatement (Third) section 16(c) expressly adopts the Fox-Mitchell approach to indivisible harm.

Although Hubbell has a few adherents, on this issue of first impression, we adopt the Fox-Mitchell approach. We believe the Fox-Mitchell approach to causation and the rejection of a requirement that plaintiff show a divisible harm is the soundest approach.

Specifically, we hold that in an enhanced injury case, the plaintiff has the burden of showing the fact of enhanced injury. This burden can be met by offering evidence that the design defect was a substantial cause of injury above and beyond that which would have occurred without the design defect. There is no requirement that a plaintiff prove a divisible injury.

We regard the above statement of law as consistent with Restatement (Third) of Torts: Products Liability section 16(b) and (c).

Application of Comparative Fault and Joint and Several Liability

In light of the Restatement (Third), the evolving case law from other jurisdictions, we align our law with the Restatement (Third) and the majority of jurisdictions.

Conclusion.

We adopt the Fox-Mitchell approach to the required causation in enhanced injury cases.

We further hold that the principles of comparative fault and joint and several liability apply in enhanced injury cases.

November 23, 2009

Court Uses New Restatement To Clarify “Substantial Factor” Test

Trying to prove causation, 27 plaintiffs who alleged bodily injury from exposure to radiation in Uravan, Colorado, invoked the substantial factor test from the Restatement (Second) of Torts.

To clarify this doctrine, the 10th U.S. Circuit Court of Appeals turned to the “the more precise, and clearer, treatment of multiple possible causes in the Proposed Final Draft of the Restatement (Third) of Torts: Liability for Physical Harm.”

“Roughly speaking,” the 10th Circuit explained – affirming summary judgment for the defendants – “under the Restatements a Plaintiff could recover from Defendants only if either (1) Uravan radiation was a but-for cause of the Plaintiff’s ailments or (2) that radiation (either alone or with other factors) would have caused the ailments.”

Although the American Law Institute approved the proposed final draft on Liability for Physical Harm, publication is being held up by work on other portions of the new Restatement. Yet, the 10th Circuit explained, “the ultimate legal standards in the two Restatements are essentially identical for our purposes.”

“To sum up,” the Court of Appeals recounted – after providing a useful introduction to the new Restatement’s “innovative” notion of “causal sets” – “as we understand the Restatement (Second) and the Restatement (Third), a defendant cannot be liable to the plaintiff unless its conduct is either (a) a but-for cause of the plaintiff’s injury or (b) a necessary component of a causal set that (probably) would have caused the injury in the absence of other causes.” June v. Union Carbide Corp., 577 F.3d 1234 (10th Cir.) (2009).

The plaintiffs alleged that they or their decedents suffered bodily injury from exposure to radiation in Uravan, Colorado.

Named after the metals mined in the area – uranium and vanadium – Uravan was contaminated from the radioactive residue of operations to process uranium ore.

When the radiation hazard was recognized and Uravan was placed on the EPA’s National Priorities List in 1986, the residents were evacuated and the entire town was torn down.

The 27 bodily-injury plaintiffs sued Union Carbide Corporation and Umetco Minerals Corporation in federal court. Eleven of these claimants contend that the exposure to radiation caused nonthyroid cancer, while 16 alleged thyroid disease (including one case of thyroid cancer).

Another group of plaintiffs pursued medical-monitoring claims under a federal law: the Price-Anderson Nuclear Industries Indemnity Act.

Granting defense requests for summary judgment, the district judge ruled that (1) the bodily injury claimants failed to establish causation, and (2) medical-monitoring claims are not permitted under the Price-Anderson Act.

On appeal, the bodily injury claimants argued that they did not have to prove but-for causation. Instead, they maintained, they merely had to prove that exposure to radiation in the tailings left behind after milling uranium ore in Uravan was a substantial factor in causing their cancers and thyroid diseases.

Contending that negligence by the defendants in exposing them to radiation was a “legal cause” of their bodily injuries, the 27 plaintiffs invoked the substantial-factor test from Section 431 of the Restatement (Second) of Torts § 431.

According to Section 431,

“The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.”

The bodily injury plaintiffs also relied on the portion of Comment a that says:

“The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using the word in the popular sense, in which there always lurks the idea of responsibility . . . .

Here are highlights of the 10th Circuit’s opinion (with omissions not noted in the text):

The term substantial factor appears in the treatment of causation in the Restatement (Second) of Torts (as well as its predecessor, the original Restatement of Torts). It has been abandoned, however, in the Restatement (Third) of Torts because of the misunderstanding that it has engendered. See id. § 26 cmt. j.

Causation under the Restatement (Third) has two components. First, the tortious conduct must be the “factual cause” of the physical harm to the plaintiff. See id. §§ 26, 27.

Ordinarily, a cause is a “factual cause” only if it is a but-for cause, see id. § 26, although there is a potential exception, which we will discuss shortly, when there are multiple causes, see id. § 27.

Second, the harm must be among the “harms that result from the risks that made the actor’s conduct tortious.” Id. § 29.

Traditionally, this second component has been referred to as “proximate cause,” a term that has baffled law students (to say nothing of jurors, lawyers, and judges) for generations; but the Restatement (Third) has wisely redescribed the subject matter as “scope of liability.” See id. Ch. 6, Special Note on Proximate Cause; id. § 29 cmt. b.

We need not dwell on this topic – the focus of our attention is on factual cause – but an illustration in the Restatement (Third) conveys what is necessary to show that an injury factually caused by the defendant is within the scope of liability:

“Richard, a hunter, finishes his day in the field and stops at a friend’s house while walking home. His friend’s nine-year-old daughter, Kim, greets Richard, who hands his loaded shotgun to her as he enters the house. Kim drops the shotgun, which lands on her toe, breaking it. Although Richard was negligent for giving Kim his shotgun, the risk that made Richard negligent was that Kim might shoot someone with the gun, not that she would drop it and hurt herself (the gun was neither especially heavy nor unwieldy). Kim’s broken toe is outside the scope of Richard’s liability, even though Richard’s tortious conduct was a factual cause of Kim’s harm.” Id. cmt. b, illus. 3.

Returning to the concept of factual cause, § 26 states that “conduct is a factual cause of harm when the harm would not have occurred absent the conduct.”

As comment b to the section states, this standard “is familiarly referred to as the ‘but-for’ test.” That test “requires a counterfactual inquiry” in which the court considers “what would have occurred if the actor had not engaged in the tortious conduct.” Id. cmt. e.

If the harm complained of would have occurred notwithstanding the actor’s conduct, then that conduct is not a but-for cause. See id.

Section 27, however, recognizes that it is sometimes appropriate to impose liability even when the harm would have occurred without the defendant’s act. This exceptional circumstance is narrowly defined to impose liability only “when a tortfeasor’s conduct, while not necessary for the outcome, would have been a factual cause if the other competing cause had not been operating.” Id. § 27 cmt. a.

The black letter of § 27 states: “If multiple acts exist, each of which alone would have been a factual cause under § 26 of the physical harm at the same time, each act is regarded as a factual cause of the harm.” Again, an illustration clarifies the concept:

“Rosaria and Vincenzo were independently camping in a heavily forested campground. Each one had a campfire, and each negligently failed to ensure that the fire was extinguished upon retiring for the night. Due to unusually dry forest conditions and a stiff wind, both campfires escaped their sites and began a forest fire. The two fires, burning out of control, joined together and engulfed Centurion Company’s hunting lodge, destroying it. Either fire alone would have destroyed the lodge. Each of Rosaria’s and Vincenzo’s negligence is a factual cause of the destruction of Centurion’s hunting lodge.” Id. cmt. a, illus. 1.

The formulation of the requirements for causation in the Restatement (Third) employs different nomenclature from that in the Restatement (Second), but it does not impose a stricter requirement for factual causation. We explain.

Section 430 of the Restatement (Second) states that a negligent person is liable for another’s harm only if the negligent conduct was a “legal cause” of the harm.

Section 431 then introduces the notion of “substantial factor,” stating that “negligent conduct is a legal cause of harm to another if ... his conduct is a substantial factor in bringing about the harm” and no rule of law exempts him from liability.

Section 433 sets forth considerations that are “important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another.” Those considerations are:

“(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time.” Restatement (Second) of Torts § 433.

Reading the black letter of §§ 430, 431, and 433, one could easily conclude that courts and juries have substantial leeway to depart from but-for causation in imposing liability. It would appear to be enough if the considerations listed in § 433 suggest that liability is appropriate.

This is how Plaintiffs appear to understand the doctrine. But this conclusion cannot stand once one reads § 432, which imposes a requirement for liability that is at least as stringent as the factual-cause requirement in the Restatement (Third).

Section 432(1) sets forth the general requirement of but-for causation; and § 432(2) recognizes what has become the exception in Restatement (Third) § 27 for “multiple sufficient causes.” Section 432 states:

“(1) Except as stated in Subsection (2), the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.

“(2) If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about the harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about.”

Thus, as we understand the substantial-factor requirement in the Restatement (Second), it adopts essentially the same standard for factual cause as the Restatement (Third). And that standard is different from what Plaintiffs advocate.

What Plaintiffs would apparently use to determine whether conduct is a substantial factor – the conditions set forth in § 433 – are actually limitations on what conduct can qualify as a substantial factor.

Once conduct satisfies one of the alternative requirements in § 432(1) and (2) – which in the Restatement (Third) §§ 26, 27 are the alternative grounds for being a factual cause – it must still qualify under § 433 if it is to be considered a substantial factor. (The counterpart to § 433 in the Restatement (Third) is § 36, which states that “when an actor’s negligent conduct constitutes only a trivial contribution to a causal set that is a factual cause of physical harm under § 27, the harm is not within the scope of liability.” An actor’s trivial contribution thus would still be a factual cause, but the actor would not be liable because the harm was outside the scope of liability. It should be noted that § 36, unlike Restatement (Second) § 433, applies only to one of multiple sufficient causes, not to a but-for factual cause.)

There are two further nuances regarding factual cause that need to be explained: the notion of causal sets and the meaning of the term sufficient cause.

The notion of a causal set is a helpful innovation in the Restatement (Third). A number of factors (often innocent) generally must coexist for a tortfeasor’s conduct to result in injury to the plaintiff.

Even when the defendant drives his car into the plaintiff’s car, no injury would have resulted if the plaintiff had not entered her car and driven to the accident site. That there are many factors does not mean that the defendant’s conduct was not a cause. As comment c to § 26 of the Restatement (Third) explains:

“A useful model for understanding factual causation is to conceive of a set made up of each of the necessary conditions for plaintiff’s harm. Absent any one of the elements of the set, the plaintiff’s harm would not have occurred. Thus, there will always be multiple (some say, infinite) factual causes of a harm, although most will not be of significance for tort law and many will be unidentified. That there are a large number of causes of an event does not mean that everything is a cause of an event. The vast majority of acts, omissions, and other factors play no role in causing any discrete event.

“This causal-set model does not imply any chronological relationship among the causal elements involved, although all causes must precede the plaintiff’s harm. An actor’s tortious conduct may occur well before the other person suffers harm and require a number of subsequent events to produce the harm. Thus, a gas valve negligently constructed may not fail for many years. Toxic substances may be sold without adequate warnings but not produce harm for decades. Conversely, the tortious conduct may occur after a number of other necessary events have already occurred but close in time to the occurrence of harm. Nor does this model imply any relationship among the causal elements; causal elements may operate independently, as when a property owner neglects a patch of ice on a sidewalk and a careless pedestrian fails to notice the condition, producing a fall.”

When § 27 of the Restatement (Third) speaks of “multiple sufficient causes,” it could more precisely speak of “multiple sufficient causal sets.See id. § 27 cmt. f.

For example, the evidence at trial may show (1) that conditions A, B, C, D, E, and F were present; (2) that if only A, B, and C had been present, the injury would probably have occurred; and (3) that if only D, E, and F had been present, the injury would probably have occurred.

If F is the defendant’s misconduct, then F was not a but-for cause of the injury; even without F, the injury would have occurred (all it took was A, B, and C). But since D, E, and F would also have caused the injury, F is a component of a second causal set.

F must, of course, be a necessary component of the second causal set to be a factual cause of the injury. See id. That is, F would not be a factual cause if D and E alone would have been enough to cause the injury; F must be a “but for” component of at least one causal set for liability to attach.

Moreover, multiple causal sets may share some components. If A, B, and C would probably have caused the injury (with each of A, B, and C being necessary) and so would have A, B, and D, the tortfeasor who committed D would be liable. The Restatement (Third) provides the following example:

“Able, Baker, and Charlie, acting independently but simultaneously, each negligently lean on Paul’s car, which is parked at a scenic overlook at the edge of a mountain. Their combined force results in the car rolling over the edge of a diminutive curbstone and plummeting down the mountain to its destruction. The force exerted by each of Able, Baker, and Charlie would have been insufficient to propel Paul’s car past the curbstone, but the combined force of any two of them is sufficient. Able, Baker, and Charlie are each a factual cause of the destruction of Paul’s car.” Id. § 26 cmt. f, illus. 3.

A real-world example would be a typical asbestosis lawsuit. A person suffering from asbestosis may have been exposed to asbestos from a number of sources (say, four), and the total exposure may have been more than enough to cause asbestosis.

It may well be (1) that asbestosis would probably have arisen even without exposure of the victim to Source A, so Source A is not a but-for cause; and (2) that Source A by itself would not have caused asbestosis. But Source A may be a factual cause if it was a necessary component of a causal set that included, say, two of the other sources and the three together would probably have caused asbestosis.

Finally, we attempt to dispel some confusion that may arise from use of the word sufficient in the provisions of the Restatement (Second) and the Restatement (Third) that provide an alternative to but-for causation in limited circumstances.

Restatement (Second) § 432(2) employs the phrase “forces . . . sufficient to bring about harm to another” and Restatement (Third) § 27 is entitled “Multiple Sufficient Causes.”

The use of the word sufficient in both Restatements does not mean that either of them would impose liability for conduct that is not a but-for cause if only the conduct could have caused the injury. Rather, it is necessary for the plaintiff to show that the conduct (or the causal set of which it is a necessary part) would in fact have caused the injury.

As we all know, in the modern world of many hazardous substances, there may be many possible causes of a particular cancer. Each could be said to be sufficient to cause a specific person’s cancer. But one who suffers that cancer does not have a cause of action based on each such substance to which he was exposed, regardless of how unlikely it is that the cancer resulted from that exposure.

Only a substance that would have actually (that is, probably) caused the cancer can be a factual cause without being a but-for cause. This is clear in the black letter of Restatement (Third) § 27, which states:

“If multiple acts exist, each of which alone would have been a factual cause under § 26 of the physical harm at the same time, each act is regarded as a factual cause of the harm.” Id. (emphasis added).

And the illustrations to the section confirm this reading. We have already quoted the illustrations involving two fires, each of which “alone would have destroyed the lodge,” id. cmt. a, illus. 1, and involving three persons leaning on a car, “the combined force of any two of [whom] is sufficient [to propel the car],” id. cmt. f, illus. 3.

A third illustration, the one most pertinent to the case before us, requires proof that a drug “would have caused” the birth defect that could also have been caused by an unrelated genetic condition. Id. cmt. e, illus. 2. It is not enough that the drug could have caused the defect, as might be inferred from use of the term sufficient cause.

The Restatement (Second) is not as clear as the Restatement (Third) in excluding conduct that merely “could have” caused the injury, but the sole illustration to the point in Restatement (Second) § 432 is essentially the same as the concurrent-fires illustration in Restatement (Third) § 27.

In any event, the very notion of two (or more) causes (or causal sets), neither of which is a but-for cause, necessarily assumes that each of the causes would have caused the injury.

Say there are two such causes, A and B. The reason that A is not a but-for cause is that the injury would probably have occurred even if A had not been present. But that is merely another way of saying that even in the absence of A, B probably would have caused the injury; it would not be enough (to prevent A from being a but-for cause) that B may have caused the injury on its own but probably would not have.

To sum up, as we understand the Restatement (Second) and the Restatement (Third), a defendant cannot be liable to the plaintiff unless its conduct is either (a) a but-for cause of the plaintiff’s injury or (b) a necessary component of a causal set that (probably) would have caused the injury in the absence of other causes.

In particular, conduct was not a “substantial factor”, within the meaning of the term in the Restatement (Second), in bringing about a plaintiff’s injury unless it satisfied (a) or (b), and also was a sufficiently significant factor under the considerations set forth in Restatement (Second) § 433.

Thus, Plaintiffs’ substantial-factor argument misconceives the meaning of substantial factor in the Restatement (Second).

We therefore hold that Defendants would be liable only upon proof of one of the following: (1) that exposure of a Plaintiff to Uravan radiation was a but-for cause of the Plaintiff’s medical condition or (2) that such exposure to Uravan radiation was a necessary component of a causal set that would have caused the medical condition.

November 13, 2009

Professor Calls For Applying “Reversed Implied Preemption”

The power of Congress to expressly preempt state-law tort claims also includes a symmetrical right to overtly signal retreat by repealing preemption provisions. Congress giveth the defense of express preemption; so Congress can also taketh that tort immunity away.

Shouldn’t the same symmetry of Congressional power to signal a legislative retreat also apply to the judge-made doctrine of implied preemption?

Yes, according to Implied Reverse Preemption, a new article by Professor Anita Bernstein in Brooklyn Law Review (2009).

The notion that Congress sometimes silently signals its intent to completely block certain state-law tort claims as being inconsistent with the goals of some federal legislation is, by now, deeply chiseled into our case law.

Judges sometimes infer that Congress silently intended to occupy an entire field of law; while in other cases judges occasionally conclude that Congress intended to bar state-law claims as being inconsistent with regulations imposed by federal administrators.

Because Congress is sometimes deemed as calling for preemption without expressly saying so, Professor Bernstein argues that judges should also acknowledge that Congress can also impliedly signal that it has changed its mind on implied preemption.

Pointing to the changing Congressional attitudes on federal regulation of consumer-product safety – where Congress started out strong in 1972 with the Consumer Product Safety Act; turned around and steadily marched backwards during the anti-regulatory era; and is now moving toward stronger regulation, with the Consumer Product Safety Improvement Act of 2008 – Bernstein argues that the judge-made doctrine of implied preemption “calls for a complementary judicial inference to recognize the abandonment of an earlier regulatory design.”

“Any court empowered to infer that Congress intended to occupy a field or impose a scheme, when Congress did not announce this path expressly, is also empowered to infer a Congressional retreat,” according to Bernstein.

Just as Congress can expressly repeal express preemption, Bernstein says, “Similar reasoning should govern implied preemption. Any congressional scheme to occupy a field or establish comprehensive regulation can be abandoned.”

This is an important point because, if Congress impliedly abandoned an implied intent to block certain state-law tort claims, then judges should now permit the previously barred lawsuits. Earlier decisions that invoked implied preemption can become “obsolete” in light of subsequently inferred Congressional intent.

“Just as courts find preemption where circumstances warrant, Bernstein explains, “they must also, again only where circumstances warrant, infer a retreat from implied preemption.” This retreat is what Bernstein calls implied reverse preemption.

Bernstein discusses “markers of congressional intent” which point to the conclusion that “Congress has pulled back from an inferred early agenda and no longer forecloses tort liability.” For example, Congress can impliedly retreat signal a retreat from implied preemption by dropping the level of appropriations for a regulatory program such as product safety, or by or enacting amendments “that contract or undermine the original regulatory endeavor.” And when an agency exercises delegated authority to regulate an industry, “Reduced rulemaking activity, budgetary passivity, and a subdued public presence all manifest retreat from a regulatory agenda.”

The history of product-safety regulation provides a good illustration of reverse implied preemptions, Bernstein says, because, “at some point during a period of seventeen years, Congress ceased to intend, if it ever did, to assert a federal safety-regulatory stance that precluded tort liability for injuries attributed to consumer products. This absence or withdrawal or preemption left consumer product safety open to the powers and prerogatives of state law, especially state tort liability.”

While Bernstein acknowledges that tort liability might obstruct a “national scheme of safety regulation,” she argues that, without the doctrine of implied reverse preemption, there can be an “unprincipled gift of immunity to the injuring sector.” To counteract this unjustified tort immunity, and “enhance public welfare” in cases where Congress or an administrative agency have impliedly retreated from a regulatory program, we need state-law tort remedies.

There is a “sweet spot between” between tort claims and administrative regulation as methods for promoting general social welfare. “Courts attuned to this balance,” Bernstein concludes, “will find implied reverse preemption just as fundamental as preemption.”

November 6, 2009

Professor Invokes Economic Analysis In Calling For Expansion Of Negligence Per Se

The classic limitation on use of negligence per se is under attack, based on a law-and-economic analysis by a visiting professor at the University of Chicago.

With negligence per se, Don Defendant’s conduct qualifies as negligent if Paula Plaintiff suffers personal injury as a result of Don’s breach of a safety statute. But according to the classic formulation, the doctrine of negligence per se does not apply unless (a) Paula was a member of the class of persons that the statute was drafted to protect, and (b) she suffered the type of harm that the law was aimed at preventing.

This means that even when Paula’s injury was a reasonably foreseeable result of the breach – and even when she suffered a type of harm that was also reasonably foreseeable – the doctrine of negligence per se would not apply, because Paula was not a member of the protected class, and did not suffer the precise kind of harm the statute was aimed at preventing.

Criticizing the classic limitations on negligence per se as “misguided,” Professor Ariel Porat argues that the “the weight” that judges give to these requirements “should be drastically reduced.”

In an upcoming issue of the Wake Forest Law Review, Porat concludes “there is a strong prima facie case” for applying the doctrine of negligence per se whenever a statutory violation increases either “the risks to the class of persons to which the victim belongs,” or “the type of injury the victim suffered” – and “those risks were foreseeable.”

Porat’s article – Expanding Liability for Negligence Per Se – is available at tortssymposium.law.wfu.edu/papers/porat.pdf.

Judges should apply an expanded version of negligence per se, Porat continues, “even when the risks that materialized are usual or background risks that in themselves would not justify the enactment of the statute.”

As an illustration, Porat uses an example from the proposed final draft of Restatement (Third) of Torts. Example 1, in Comment g of § 14, involves: (1) a statute that requires special railings on stairways, to prevent people with disabilities from falling; and (2) an able-bodied person who is injured in a fall that would have been prevented if the owner had complied with the law.

The doctrine of negligence per se would not apply, according to Comment g, because judges would probably view the able-bodied plaintiff’s fall “as not the type of accident the statute is considering.”

Rejecting the traditional approach, Porat contends “there is a strong prima facie case for liability in this example, even if it is clear that, in the absence of a disabled person, there is no duty to install the railing.”

Although able-bodied people would benefit from the special railing, Porat reasons, the benefit to that group would probably not be great enough to prompt a statute requiring the special equipment. But the benefit to disabled persons might also not be great enough to make the statute “cost-justified.” So, Porat explains, combining the risk of harm to disabled persons, plus the additional risk of falls by able-bodied persons, might be needed to justify the cost of special railings.

“In other words,” Porat explains, “it is possible that both the cumulative weight of the background risks (to able-bodied persons) and the unusual risks (to disabled persons) combined persuaded the legislature to impose a duty to install railings. Liability for risks to both classes of victims is therefore justified.”

Plugging some numbers into the example to show why the classic limitations on negligence per se are misguided, Porat assumes that: (1) the average cost of installing the special railings is 80; (2) the risk of harm to able-bodied persons who use the stairs is 30; and (3) the risk of injury to disabled persons who use the stairs is 60.

Under a law-and-economics analysis, conduct is considered negligent if the cost of a precaution is less than the expected value of the potential harm (calculated as the probability of an accident occurring, multiplied by the likely costs of the harm that would be sustained if the accident occurs).

If there is a 10% chance of an accident that will cause $1 million in damages, for example, but the defendant can eliminate this risk by taking a precaution that costs One Dollar, general societal well-being is optimized by holding the defendant liable for negligence if he skips the precaution and causes the accident. As the economists say, holding the defendant liable for negligence in this scenario is “welfare enhancing.”

Applying this type of analysis, Porat reasons that the risk of harm to able-bodied persons would not justify the cost of the special railings, because the expected value of the potential harm (30) is less than the cost of installing the railings (80). And, significantly, the risk of harm to disabled persons does not justify the cost, because 60 is less than 80.

The only way that special railings are cost-justified in this scenario would be to consider both the risks to disabled and able-bodied persons, because the combined potential harms (30 plus 60) are greater than the costs of compliance (80).

To optimize general social well-being, Porat concludes that the doctrine of negligence per se should apply to able-bodied persons in this situation. And extending the analysis, Porat also shows how failing to apply the doctrine of negligence per se to able-bodied persons in this scenario will, at times, “result in under-protection” for the disabled.

Using the same hypothetical numbers, Porat notes that, if the doctrine of negligence per se was not applied to protect able-bodied persons in this example, “a self-interested rational wealth-maximizing employer might prefer not to spend 80 on railings and instead shoulder liability of 60 towards disabled plaintiffs.”

“This would clearly be socially inefficient and impair social welfare,” Porat concludes, because it would undermine the statutory goal of protecting the disabled.

Porat acknowledges that the results would be different with different cost assumptions:

“But we (or the courts) don’t really know what the numbers are, and there is always the possibility that they could indeed work out similarly to the first numerical assumptions for Example 1. Furthermore, there are definite advantages to a doctrine of negligence (and negligence per se) that can uniformly be applied to all cases, regardless of the numbers. That is precisely how the general doctrine of negligence works: the injurer bears liability for risks he or she could have reasonably prevented, even if lower liability would be sufficient to incentivize him or her to take adequate precautions.”

Porat therefore suggests interpreting all safety statutes “as referring prima facie to all potential classes of victims who are expected – as a positive [i.e., practical] matter – to benefit from the given statute and to all types of injury that are expected – again, as a positive [practical] matter – to be reduced or prevented if the statutory duty is upheld.”

Porat refers to this as a prima facie approach for applying negligence per se, because he is not advocating that courts abandon traditional limitations on tort liability – including what the Restatement (Third) calls “the scope of liability” (formerly known as “proximate cause”), and the doctrine that “an injurer’s liability is limited only to wrongful risks, i.e., those risks that made his behavior wrongful.”

Mindful of these potential complications, Porat argues that “a breach of statutory duty should amount to no more than a strong prima facie case for liability.”

Summing up, Porat explains (again using the term “positive” in the sense of “practical”) that:

“The most plausible interpretation of a safety statute is that all victims of its breach who are expected – as a positive matter – to benefit from its protection are entitled to recovery and all foreseeable injuries that are expected – again, as a positive matter – to result from the breach are compensable. A breach of a safety statute should therefore give rise to a strong prima facie case for recognizing liability.”