Read the question carefully and answer only what is asked. No points
will be awarded for extraneous discussion. You may assume that
jurisdiction and venue are proper, and focus exclusively on torts
issues. You will have 30 minutes to read the question and outline your
answer. You may not write in your blue books during this time. You
will then have 30 minutes to write your answer to the question. You
must stop immediately when time is called. You must place your
outline/scrap paper inside your blue books and turn the entire set in.
However, the outlines will be discarded before I grade the test. No
credit will be awarded for anything outside the blue book itself.
Two terrorists hijacked a USAir flight bound from Chicago to Mexico
City. As Hijacker stood in the cockpit, holding a gun to Pilot's head,
he heard a sound behind him. Hijacker turned and saw Passenger
approaching with something in his hand. Thinking that Passenger had a
knife and was trying to stab him, Hijacker fired two shots at Passenger.
The first shot killed Passenger, and the second shot pierced the hull of
the plane. In fact, Passenger had been holding a note from Hijacker's
Partner in the rear of the plane. Pilot informed Hijacker that unless
they landed immediately the decompression process would tear the plane
apart. This was a lie, but Hijacker believed it, and ordered Pilot to
land the plane in the Arizona desert. Pilot spotted what looked like a
large bonfire burning in an irrigated field next to a road. Thinking
that rescue was more likely there than in the desert, he prudently crash
landed in the field, destroying crops and irrigation equipment worth
$200,000. The landing gear malfunctioned as a result of a lapse in
USAir's standard maintenance procedures. This lapse would have had no
effect at all if the plane had landed on a normal runway, since the
purpose of the omitted maintenance procedure was to assure crash landing
capacity. Because of the malfunction, the plane swerved 100 feet in the
direction of the bonfire, tilted, lost a wing and began to leak
gasoline. Discovery has established that the Owner of the field had
been having a cookout. The party got out of hand and the guests,
without objection from Owner, piled more and more fuel on the fire in
flagrant violation of a local ordinance prohibiting bonfires in the dry
season. A burning twig from the bonfire flew 30 feet, landed in the
gasoline, and caused an explosion that destroyed the plane and injured
several people including Guest.
Assuming that USAir was not negligent in allowing the hijacking to occur
and is not strictly liable for the hijacking, discuss the tort claim(s)
of Guest against USAir, the defenses USAir will raise, and the probable
outcome of the litigation.
ANSWER KEY -- ESSAY, TORTS EXAM FALL 1993
To establish a negligence claim, Guest must show duty, breach, causation
and actual harm. USAir will try to show that one or more of the
required elements are missing. Harm was established by the facts as
stated in the question and will not be considered further.
Every actor has a duty to be as careful as an ordinary reasonable person
in the same or similar circumstances. To win his negligence claim,
Guest must establish that USAir failed to do something that a reasonably
prudent airline would have done, or that USAir did something that a
reasonably prudent airline would not have done. Because corporations
can act only through their employees, USAir will be responsible if its
employees, including Pilot, were less careful than ordinary reasonable
people in the same or similar circumstances.
In determining what a reasonable airline or pilot would have done in the
same or similar circumstances, factors to consider are the magnitude of
the harm to be anticipated from a proposed course of action, the
probability that the harm will occur, and the cost of avoiding the harm.
These factors can be considered in an informal way, or you can apply the
Hand test. If the cost of avoiding the harm is less than the cost of
the harm discounted by its probability, then it is unreasonable
(negligent) to fail to avoid the harm. B < PL Under either version of
the test, the harm must be foreseeable before the defendant has a duty
to prevent it. There is no duty to guard against extraordinary
occurrences. Blyth. However, the harm need not be likely. The
question is whether there is a possibility of harm of such magnitude
that a reasonable person would act to avoid it. Gulf v. Williams. The
customary practices of other airlines may be considered (compliance with
industry custom would be some evidence that USAir was not negligent,
deviation from industry custom would be some evidence that USAir was
negligent) but will not be conclusive.
Because the question states that USAir was not negligent in allowing the
hijacking to occur, we must focus on other acts and omissions that
caused or contributed to Guest's injury. Here, we can allege negligence
based upon Pilot's lie to Hijacker that the plane had to be landed
immediately, Pilot's decision to land near the fire rather than out in
the desert, and the deviation from standard maintenance procedures that
caused the landing gear to malfunction. However, the first thing that
we must establish is that USAir had any duty whatsoever to Guest. USAir
will argue that it had no duty to Guest, and/or that it did not breach
any duty that it did have. Because Guest's arguments on duty and breach
are the same as his response to the "no duty/no breach" defense, I will
discuss them all together.
USAir will probably try to argue that it had no duty to Guest because it
could not foresee that Guest would be in the zone of danger created by
its acts and omissions. Palsgraf. Guest will counter that it is not
necessary that USAir be aware of his presence at the landing site, only
that USAir can be charged with a general knowledge that if a plane lands
somewhere other than an airport, especially if its landing gear fails,
it is likely to pose a hazard to whoever happens to be on the ground.
In other words, there is a general duty of care as long as it is
foreseeable that anyone may be injured by a action or omission. Guest's
position is even stronger here, because it was foreseeable to Pilot that
there would be people near the fire, and Pilot aimed for the fire for
that very reason. On balance, Guest has the better argument on this
Was Pilot's decision to tell Hijacker that the plane had to be landed
immediately negligent? Guest will argue that there was no reason to
provoke a crash landing in the desert. Landing at an airport would have
been safer for the passengers, would have eliminated risks to innocent
picnickers, and probably would have made for a safer response by
authorities to the hijackers. USAir will defend by arguing that the
Pilot made his decision in the face of an emergency and the decision
should not be criticized with the benefit of hindsight. This one could
go either way, but Guest should get to the jury with it.
Was Pilot's decision to land near the fire negligent? Here, Guest will
argue that Pilot intentionally increased rather than decreased the
likelihood that there would be people in the vicinity of the crash, and
that decision posed an unreasonable risk to those on the ground.
However, the question says that he "prudently" landed in the field.
Further, it appears that he had no way of knowing that his landing gear
would fail, and that in the absence of that failure the landing was both
safe and sufficiently far from the fire to avoid any substantial risk.
Therefore, the decision was probably not negligent.
Guest's best argument on negligence stems from USAir's deviation from
its own standard maintenance procedures and the resulting failure of the
landing gear. While a crash landing is certainly unlikely, it is not so
"extraordinary" as to excuse the airline from taking some precautions to
make crash landings safe. USAir did in fact foresee the possibility of
the need for a crash landing, and USAir considered it a serious enough
risk to warrant specific maintenance procedures. USAir will argue that
the maintenance procedure was above and beyond any duty they had and
that failure to comply with this self imposed standard does not
constitute negligence. However, deviation from what USAir itself had
earlier determined to be the reasonable and prudent course of action is
likely to be very persuasive to the jury, and Guest should be able to
establish negligence on this ground.
Assuming that Guest can establish duty and breach, the next step is to
establish that USAir's breach of duty caused Guest's injury. Plaintiff
must establish that USAir's negligence was the cause in fact (but-for
cause) of the harm, that USAir's negligence was the proximate cause of
the harm, and that there was no superseding cause that would operate to
cut off USAir's liability.
A. Cause in Fact
Guest must first establish that his injury occurred because of USAir's
negligence and would not have happened without it. (But-for causation).
He does not have to show that USAir's negligence was the sole cause of
the harm, just that it was a "substantial factor". Perkins. The fact
that the injury would not have happened but for Hijacker's actions
and/or the presence of the illegal bonfire will not save USAir. Where
separate acts of negligence combine to produce a single injury, each
tortfeasor is liable for the entire result even though his act alone
might not have caused it. Hill v. Edmonds. The issue is whether
USAir's negligence increased the chance of harm to plaintiff and was of
a character naturally leading to its occurrence. Reynolds.
Guest should have no trouble establishing but-for causation here. But-
for the crash landing of the plane, the failure of the landing gear and
the explosion of USAir's gasoline, Guest would not have been injured.
The fact that the landing was influenced by Hijacker or the spark
generated by the bonfire may or may not effect proximate causation or be
superseding causes, but they do not alter the fact that USAir's
negligence was a but-for cause of the injury to Guest.
B. Proximate Cause
Even where it is established that defendant's negligence was a but-for
cause of plaintiff's injury, liability is sometimes limited for reasons
of policy. If it is determined that the defendant should not have to
pay because his act was too far removed from the result, we say that the
defendant's act was not the "proximate cause" of the harm. Because
there are competing lines of caselaw in this area, we will need to
consider which cases help or hurt Guest, then decide which line of cases
the court is likely to apply in this case.
USAir will argue that its negligence was not the proximate cause of the
harm because, even given the occurrence of various negligent acts by
USAir, no harm results without the (unforeseeable) acts of parties for
whom USAir is not responsible. USAir will argue that there is no
proximate cause under Wagon Mound I because the explosion and resulting
harm to plaintiff was not the "probable consequence" of any or all of
USAir's negligent acts. Even with the failure of the landing gear, no
explosion happens without both the illegal bonfire and the freak
occurrence of a spark traveling over 30 feet to get to the gasoline.
The Palsgraf dissent requires that the occurrence be "reasonably
foreseeable" and even Wagon Mound II requires that it be at least
"remotely foreseeable". USAir will argue that this accident would not
have happened without the concurrence of a long and bizarre chain of
events that simply was not even remotely foreseeable. (The hijacking,
the shot piercing the hull, the illegal bonfire, the failure of the
landing gear and the freak behavior of the spark). Further, USAir will
argue that not even Polemis, the causation case most favorable to
plaintiffs, helps Guest here because, unlike the defendant in Polemis,
USAir was not responsible for the spark and therefore did not directly
cause the harm.
Guest will argue that there is proximate cause under Polemis because the
explosion was the direct result of USAir's negligent spillage of
gasoline near a fire that Pilot knew was there. Further, under Polemis
it is not necessary that either the nature or extent of the harm be
foreseeable. Once some harm is foreseeable, defendant is liable for all
of the harm that actually happens. Guest will argue that he should win
under either the Palsgraf dissent or Wagon Mound II, because once we
have both a known fire and landing gear failure the explosion was
reasonably foreseeable, and certainly at least remotely foreseeable.
Wagon Mound I is more problematic because it requires that the harm be a
"probable consequence". However, unlike the oil on the water situation,
the fact that gasoline and fire will cause an explosion rises to the
level of a probable consequence.
On balance, it is likely that proximate cause will be found. There is
no apparent policy reason why negligent airlines should not have to pay
for the harm caused by crash landings, and it is unlikely that the court
will choose to let the injury fall on the innocent plaintiff. We do not
want to remove incentives for airlines to properly maintain their
C. Was there a superseding cause?
To successfully argue that its liability is cut off by a superseding
cause, USAir must first demonstrate that there was some intervening
wrongful conduct by someone other than USAir that was also a but-for and
proximate cause of Guest's injury. That accomplished, USAir can move on
to the issue of whether the intervening cause was "superseding".
Here, USAir will argue that the criminal actions of Hijacker and the
negligent and/or criminal acts of Owner and others responsible for the
bonfire are intervening, superseding causes.
It would appear that both the acts of Hijacker and those responsible for
the fire were clearly wrongful. They also appear to qualify as
"intervening" in the sense that they occurred after the negligent
maintenance and before the explosion. Both appear to be but-for causes
of the injury to Guest. Establishing that they were proximate causes of
the injury is more debateable, but under any of the proximate cause
cases it would appear that Guest was within the scope of foreseeable
danger associated with the wrongful act.
To keep USAir on the hook, Guest will have to argue that, while
intervening, the other causes of his harm were not superseding. Guest
will argue that the acts of Hijacker and those responsible for the fire
were simply concurrent causes for which USAir should have joint and
several liability. USAir will argue that, under Derdiarian, the
question is whether the intervening act is a normal or foreseeable
consequence of the situation created by the defendant's negligence.
Here, while USAir's negligence contributed to the explosion, it had
nothing to do with Hijacker's takeover or the building of the fire.
Further, even if Derdiarian does not preclude continuing liability, both
of the intervening causes were intentional criminal acts, and there is
no duty to foresee the criminal acts of another. Watson.
Establishing that the criminal nature of the intervening acts should not
make them superseding is the hardest part of Guest's case. It is true
that the common law rule that there is no duty to foresee the criminal
acts of another would have the effect of cutting off USAir's liability
unless Guest could argue that an existing exception to the rule applies
or that one of the exceptions should be extended to cover this case, or
that a new exception should be created.
One approach would be to argue that the fire was not really "criminal"
in any sense that should cut off USAir's liability. The question just
says that there was a local ordinance, not that it was a criminal
ordinance. Even if it is a criminal ordinance, it is probably a minor
misdemeanor and Guest will argue that a statute with a maximum penalty
of a $50 fine should not be construed to cut off the massive civil
liability properly assigned to a negligent airline for harm to people
and property on the ground. Further, the fire was not intervening
between Pilot's decision to land where he did and the resulting harm.
In fact, the presence of the fire and the likelihood that there would be
people on the ground near it was precisely what made the decision to
land there negligent.
It will be harder to finesse the intervening criminal act of Hijacker,
but Guest will have to give it a shot. There is a sense in which the
hijacking is not an intervening act when considering the negligent
maintenance. The fact that it was foreseeable that a crash landing
might become necessary is the risk that made the maintenance procedure
necessary. It does not matter whether the crash landing was
necessitated by a hijacking or a mechanical failure or a bolt of
lightening. Anything that happens to cause the plane to make an
emergency landing would be intervening and might look superseding, but
actually is squarely within the scope of the risk created by the
negligent conduct. Any other holding would remove all incentive for
preventive maintenance. Further, there is a sense in which the crash
landing was not really caused by Hijacker, but by Pilot's lie which
tricked Hijacker into ordering the crash landing. If Pilot had landed
at an airport (which was apparently Hijacker's original intention) there
would have been no problem with the landing gear and certainly no
problem for picnickers in the Arizona desert.
On balance, Guest should be able to get to a jury on the question of
whether there was a superseding cause, and is likely to prevail.
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