V. Torts
    C. Causation
    2. The boundaries of causation
    b. Redundant causation (cont'd.)

    Kingston v. Chicago & N. W. Ry. Co. 211 N.W. 913 (1927)

    The case illustrates a common common law story:
    A and B, out hunting, carelessly mistake C for a deer and shoot. Both hit him, and each shot is fatal. This means that, viewed separately, neither A nor B caused C's death; he would have died anyway. Yet it would be an economic mistake to let both off scot-free. (P184)

    Friedman tells the same story:
    Al and Bill both shoot Carl

    But Friedman disagrees with Posner: [I]n clear cases of redundant causation, where there is no risk of conspiracy, [tortfeasors] ought not to be held liable.... (F194)
    Rationale: MC of the 2d injurer = 0
    As a practical matter, Friedman recognizes that this risks perverse incentive effects by encouraging "redundant" causation to escape liability (F)

    In this case, I side with Posner
    Outcome: ex post MC of the 2d injurer = 0
    Efficiency: provide the right ex ante incentive

    Consider n independent, sufficient causes with = probability: p
    Total probability of avoiding injury = (1-p)ⁿ
    => marginal probability of injury (mp) = (1-p)^(n-1) - (1-p)ⁿ

    mp falls as n rises because of rising opportunities for redundant causation

    Friedman's Ex:
    probability of either hunter shooting Carl = 10%
    Value of Carl = $1M

P(Carl safe) MP(Carl shot) 1 hunter 90% 10% => Exp. MC = $100K 2 hunters .9 x .9 = 81% 9% => Exp. MC = $90K     Per Friedman text:     Efficient penalty =>     MChunter 2 = .09 x $1M for 1 hunter shooting Carl         + .01 x $0 if both shoot Carl         = $90K     Problem: Friedman doesn't consider benefits, only costs

    Friedman result can --> problems if the hunting is negligent:
   negligence => MB < MC
    => optimum = 0
    General Pigouvian rule: set price = MC at the optimal Q.
    => always pay if you shoot Carl and every injurer is negligent

    Cases with declining MC can raise some complications, but the general principle used in the common law probably gets the right outcome more often than not.

    Notice Kingston v. Chicago relied on this distinction--Chicago Ry is liable if both fires are negligent
    In Cook v. Minneapolis, one fire was natural, so the negligent party was not liable
    You are not liable if you toss a burning cigarette into a house hit by lightning and on fire.

    V. Tort law
    D. Liability

    You are driving down a busy street.
    You are distracted by an attractive pedestrian who is provocatively dressed
    You crash

    Is the provocatively dressed pedestrian liable?

    Liability requires 3 ingredients: (1) harm; (2) causation and
    breach of a duty owed to the plaintiff by the defendant

    Liability topics:
    1. negligence
    2. victim fault
    3. strict liability
    4. joint liability

    1. Negligence

    United States v. Carroll Towing Co., 159 F.2d 169 (1947)
    Cast: The Conners Marine Co., Inc., was the owner of the barge, ['Anna C'] which the Pennsylvania Railroad Company had chartered; the Grace Line, Inc., was the charterer of the tug, 'Carroll,' of which the Carroll Towing Co., Inc., was the owner. U.S. is a claimant on the lost cargo. Grace Line: chartered tug Carroll to get barge, after which Anna C got free and sank. Grace Line blamed for its harbor master not ensuring Anna C was secure; all blame Anna C for absence of bargee. Grace Line and Carroll both blamed for not ensuring secure line for Anna C and held responsible for collision damage; but absence of bargee held responsible for 1/3 of sinking damages.

1. What are the facts of the case?
2. This case is most famous for its consideration of whether Conners, the owner of the Anna C barge was negligent by not having a bargee aboard--what does the judge do to try to address this question?
3. Why not automatically assume that the bargee should have been there?
4. Did the judge consider the barge owner to be negligent?

    explicitly states the classic negligence rule (stated as B < PL)
    "if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL."

    We call B the marginal cost of safeguards (MCs) and stipulate that P is the marginal change in probability of injury |dP/dS|, but the court decision explicitly aims at defining negligence in economic terms: the failure to take cost-justified precautions.

    United States v. Carroll Towing Co. (1947) is one of the most famous of all tort cases, with a famous judge

    Judge: Learned Hand
    negligence rule = the Hand Formula
    perhaps the most famous and respected US judge who never served on the Supreme Court. (served on 2d circuit court of appeals)
    actually, his first name was Billings
    served 52 years, until his death in 1961 (officially retired in 1951)
    Famous in antitrust: his 1945 Alcoa decision made monopoly virtually per se illegal (and was designated a Supreme Court precedent since the S.Ct. could not come up with a quorum)

    Saglimbeni v. West End Brewing Co., 274 A.D. 201; 80 N.Y.S.2d 635 (1948)

1. P: Why have you filed this lawsuit?
2. D: Why do you think you shouldn't be held liable?
3. P: Any response to that line of reasoning?
4. D: Any final rebuttals on your part?
5. P: Any final arguments?
6. Others: Is defendant liable?
7. D: Did the appeals court hold you liable?

    Affirms that negligence is based on the reasonable-person standard
    People vary in fact, so someone negligent under the law per the reasonable-person standard may not be truly negligent.
    Information costs of person-specific negligence standard is high

    Where differences in capacity to avoid accidents are ascertainable at low cost, the courts do recognize exceptions to (or subclasses of) the reasonable-person rule. For example, blind people are not held to as high a standard of care as sighted ones, although within the class of blind people a uniform standard of care is imposed. (P171)

    Resulting issue: how does the court decide what is reasonable as a practical matter?

    illustrates that compliance with custom is not a defense
    "the defendant's duty [is] to exercise the care that a reasonably prudent and careful person would exercise.... Common usage is a test of negligence to be considered by the jury but not a conclusive test."

    there is no presumption that the average safety level in the industry is optimum (P172)
    major exception: medical malpractice (since the involved parties are provider and customer, no 3rd party effects)  (P172)

    Dunn v. Hoffman Beverage Co., 126 N.J.L. 556 (1941)

1. P: Why have you filed this lawsuit?
2. D: Why do you think you shouldn't be held liable?
3. P: Any response to that line of reasoning?
4. D: Is it your understanding that plaintiff is obliged to discover a specific act of negligence on your part in order to prevail?
5. D: So then, why do you contend that plaintiff's case is insufficient?
6. D: Any other points you would like to raise?
7. P: Any final arguments?
8. Others: Is defendant liable?
9. P: Did the court hold defendant liable?

    considers doctrine of "res ipsa loquitor"--"the thing speaks for itself"
    defendant negligence can be inferred by ruling out alternative causes

    For the plaintiff:
    good news: you do not have to prove exactly what defendant did
    bad news: you have to narrow causation down to the defendant

    another equally likely injurer => failure to achieve preponderance of evidence
    plaintiff in this case failed to rule out other causes: "the burden was on the plaintiff not to prove the mere possibility that the injuries complained of resulted from the negligence of the defendant, but he must exclude all other causes...."
    As a result, plaintiff proved only that an accident occurred--that is not enough