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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.

FACT PATTERN

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.

Duty/Breach

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 point.

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.

Causation

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 planes.

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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