Dewey v. A. F. Klaveness & Co.

reargued reargued July 2, 1962, February Argued February 6, affirmed March & CO. A. F. KLAVENESS DEWEY 2d 560 379 P. Wood, Erskine B. Portland, Holden O.

John the cause appellant. With reargued argued them on the briefs were Wood, Wood, Mosser Tatum, & Portland. Brooke, argued

Donald Atchison, Portland, cause for respondent, reargued July Philip 2, 1962; A. reargued February Levin, Portland, the cause on 1963. With Levin on the briefs were Levin & Pozzi, Portland. Wilson,

James H. Clarke and William M. Port- Dale, Jr., each land, filed brief as amicus curiae.

Before McAllister, Chief Justice, and Rossman, and Denecke, Perry, Sloan, O’Connell, Goodwin Justices.

SLOAN, J. longshoreman, injured

Plaintiff, was while work- ing Bougainville. brought aboard the vessel He against action the owner of the vessel. The case was jury. parties tried to a both However, moved for a directed verdict. The court dismissed the findings judgment plaintiff. entered in favor of appeals. Defendant appeal argued has been three times. The last

argument questions was based on the discussed in concurring opinion filed herewith. As there indicated, advantage prepared the court has also had the of well requires ultra-sensory briefs of amici curiae. no perception subject to know that this case has been the of more than a considerable amount of' discussion within this court. as..they taken the

We have statement of facts were tersely appellant’s stated brief: longshoreman.

“Plaintiff is a Defendant is the operator of the owner motor vessel BOUGAIN- January ship was VILLE. in Portland docked 17, 1960, On

taking cargo. Brady-Hamilton Company acting independent Stevedore an contracting employer master and was the stevedore plaintiff of and all of and was in co-workers, his loading. exclusive control of the storing “Plaintiff and his co-workers were heavy paper rolls one the vessel’s holds. weighed pounds, The rolls about 1800 and were position moved hand truck. means into of a three-wheeled cargo paper being “The stowed over bagged flooring dunnage A flour. had been placed longshoremen. top the flour over On dunnage longshoremen placed ‘walking (sheets plywood square) boards’ 4-feet so as flooring runway to form a the hand truck. over which to roll “As and three of his co-workers were rolling flooring, a loaded hand truck over this through left front wheel of the hand truck broke walking dunnage the boards and the underneath. No one was hurt this. longshoremen “Plaintiff his fellow sur- veyed possible the situation and discussed means getting the hand truck out of the hole. Five to they manually ten later minutes decided to lift paper the hand truck and its load of out of the hole. lifting “While on handle of the hand truck plaintiff cage. strained the muscles his rib eight longshoremen a

“There were total working injured in the area. After was the hand truck and its load was removed from by using longshoremen hole more of the to lift on together longshoremen pulling the truck with on a rope which was tied to the handle of the hand truck. flooring “The court below found that the was (unseaworthy) and insufficient that defendant was negligent respect, in this that this concluded proximate plaintiff’s injury.” was a cause of unseaworthy. that the vessel

Defendant concedes brought only assignment the court here was that The * * “* flooring finding that the insufficient erred injury.” proximate cause of problem divided the court is whether that has The should be decided within and similar this, cases, proximate concepts of more traditional adopt expressed in the ideas the court should majority concurring opinion. of the believe that Some as it has become cause, the doctrine of preferable to the theories this state, established concurring opinion. expressed of the Others majority if it is wise transition, that such believe enduring has should merit, at all and to be made if evolutionary practice trial into the be woven atrophy historically prevented process that has majority regardless reason, But law. common upon presented prefer the issues decide this case original arguments and in the here. court to the trial primarily rests its ease on Zickriek Defendant Defendant et Or 252 P2d 185. al, 1953, Cooke undistinguish and this case are Zickriek claims agree. In Zickriek case the de do able. We of the failure to use consisted fendant’s logs chains to hold load on binder sufficient had hauled a short distance the load been After trailer. logs loading broke loose from the area from bindings upset. plaintiff, trailer to be caused the upon as a and, volunteer, the scene krick, came Zic process help situation. In the relieve the endeavored injured. in the instant relies Defendant, case, he was opinion part that holds that the Zickrick in that had negligence Cooke, case, the defendant an actor. Zickrick became What rest before come is that Zickrick was volun- overlooks this any teer. Zickrick was in no different situation than may along person who have chanced the road other participated up. in the clean The effect of the opinion in that case was to hold that when defendant, negligently obliged he loaded the was not trailer, anticipate probable that the natural and result of his injure stranger might would be to who by negligent aid in a removal of the debris caused loading. relationship

In the instant case the between the distinctly parties is different. A reasonable man could anticipated “walking provided have that the boards” support defendant would not the loads that were upon intended to be used them. And it would follow probable aas natural and result that when a load did through including plaintiff, charged break that those, duty putting place with the loads use would remedy the available means at hand to the fault. Ac- cordingly anticipated defendant could or should have injured that one of the workmen could be as a result negligence. of its Further, and in contrast to the facts relationship plaintiff in the Zickriek case, between and defendant was one in which defendant owed a “* * * duty to conform to a standard (1955 Ed), conduct.” Law of Prosser, 2nd Torts, Chapter § supports 9, 47, 252. The evidence here findings judgment trial court’s and the is affirmed. specially concurring. O’CONNELL, delay long handing opinion down the case was occasioned the court’s interest re-ex amining purpose cause formula for the determining whether formula should be orally argued abandoned. The case was three times. argument The last concerned proximate the “doctrine”

whether should be deciding used in the ease at bar. The court was aided pursuing study by very helpful in matter its curiae. ‹ by prepared amici These were briefs briefs prepared by response to an invitation the court in by inquiry following the which it delineated the area statement: presented in

“The case was the briefs and argument along oral conventional lines with re spect proximate question to the but the cause; considering whether doctrine Court has been proximate it has as been understood cause, past, applied should abandoned favor be by recognized expressed some of the of views perhaps supplemented scholars in this or be field, by by expressed such views. these views, Of essays, Leon in various some of which are Green significant. appears be noted the most below, position, It is causation should be limited to we that the it, his understand term physical causation inquiry and that the as to the defendant’s actually fully him can be con acts caused jury and answered in terms of the sidered negligence. defendant’s theory

“Applying present to the case, (if held it were decided that would be the ease was proper jury) to a one submitted two jury: questions to the should be submitted furnishing conduct in “1. Was defendant’s de- dunnage a substantial factor fective physically producing injury, and if so, negligent? (This “2. Was defendant would em- plaintiff’s whether con- brace attempting the cart to extricate duct foreseeable event.) hand, other under the conventional “On ‹ Amicus prepared by briefs were James curiae H. Clarke Dale, Jr. M. and William questions proximate to be view of sub- cause, mitted would be: negligent, “1. “2. the defendant Was Was defendant’s cause of con- intervening superseding duct an cause? this latter

“Under view instruction would along given be 249 Wis the lines of that in Hatch v. Small, 746. › NW2d 166 ALE solely

“The Court desires briefs directed change whether it is desirable to the law of in causation the manner above indicated. It argument does not on desire the merits particular case now before the Court.” majority The has the court decided to continue proximate with conventional cause formula. I adopt, approach would abandon in essence, the suggested by explained by Leon Green as him in the previously my posi references noted. The reasons for developed tion are below. presented along

As was noted the case above, argues conventional lines. Defendant that his tortious plaintiff’s conduct was not cause of the injuries argued as a matter of law. that de- “spent fendant’s tortious conduct itself” and “came › The court then listed the following “For references: Leon point Green, of view referred Green’s to above see The Causal Negligence Law, 543; Green, Relation Issue in Foreseeability 60 Mich L Rev Negligence Law, in 61 Colum L Rev 1401. Green point legal periodicals has written on this to of Proximate Cause. in other from time developed book, time and has also the thesis in a Rationale See, Judge Jury. also, Green, Related Malone, Cause-In-Fact, are on references Ruminations 9 Stan L 60; Gregory, Negligence—A Proximate in Rev Cause Retreat Rationalization, 39; ‘Palsgraf Prosser, from visited’ Honoré, U Chi L Rev Re Topics Torts, 191; Selected the Law of Hart and (1959); Miller, Causation the Law Becht and The Negligence Liability Test Cases Factual Causation in and Strict (1961).” flooring through'the the hand fell when truck rest” attempting act to extricate

and that superseding truck was cause. principally upon Zickrick

Defendant relies (1953). In case 252 P2d 185 Cooke, 197 Or loading logging trail one of their truck defendants, of the load with usual failed bind front ers, consequence two As a one of the three binder chains. tipped and the load over on chains broke binder log upon highway. plaintiff, came another hauler, The clearing aid the work the scene volunteered assistance the of the obstruction. With his road away logs pulled and the re from the trailer was maining cut. After the chain was binder chain was logs plaintiff under the to retrieve his tools. cut went causing injuries log upon rolled him At time a brought action. he which legal de- “in a sense” the court held that nothing in- do with the “had fendant’s Id. at 252 P2d at suffered,” logical consequence failure “the because namely, spilling the of the load, to use a third chain, already accomplished the forces an fact before was injury which resulted in the were set motion plaintiff.” 252 P2d at The court said: Id. at 189. 95,

*“* # distinguished proximate, as from The idea of cause, ‘involves course the the remote continuously continuity, negligent ex the act that every through and fact, act occurrence event, tends the to the tortious conduct of defendant related logical the natural cause of and is itself injury complained of.’ 1 Shearman Redfield (rev ed) quoting § Negligence Holler v. 92, 33, Lowery, A 149, Md 200 353. The substance many foregoing has been times stated recently v. most in Birks East Side court, Transfer P2d 120. The ‘idea Co., 7, 19, 194 Or continuity’ wholly 92-93, here.” Id. at absent P2d at 188. any did “not in the case held that court further superseding

way at 94, cause.” Id. rule of involve P2d at 188. Zickrick of the attacks defendant’s use Plaintiff (1) present is dis case on three fronts: case plaintiff tinguishable in the Zickrick case in that present case a mere volunteer whereas duty undoing “charged with the negligence, and further that of defendant’s results duty provide plaintiff with a safe owed a to defendant incorrectly (2) place the Zickrick case was work”; to recognize failed stated because it rule decided (1934), § 443 in 2 Torts one who Restatement, dangerous negligently creates a situation will not be say of others to undo the heard that the efforts reasonably danger foreseen; could not have been inapplicable Zickrick case is because the governed present maritime law which case is re quires causation to the submission there is the “faintest scintilla of where evi of causation. fi on the issue dence” argues provide that the failure ade-

Defendant flooring plain- quate was not the cause of injury. we have indicated above, As tiff’s superseding conduct was contends having “spent of defendant it- cause, self.” solely regarded as a matter of fact,

If causation fi Plaintiff Corporation, Lazzari States Marine 220 Or cites case, support (1960), a Jones Act of this P2d 857 proposition. no issue of causation to' submit to the

there would he jury in case because it is clear that the defendant’s this dunnage supply proper a failure to substantial injury bringing plaintiff. in to the factor about the Unfortunately, inquiry made as to however, “proximate whether defendant’s conduct is cause” to determine whether there is an actual causal connection between conduct causally injury, to determine whether but also liability gives particu connected conduct rise to in the inquiry lar case. The latter for the calls formulation policy person as to the circumstances under which causing who causes or contributes to the of harm damages. required respond in The court should be jury, sphere, participate each in and the its own policy the formulation of this which the existence liability per and the extent of is defined. The court respect deciding forms its function whether regarded owing duty defendant should be (e.g., type of case before it as to whether person imposed upon unintentionally should be causing shock). nervous in turn decides conduct whether the defendant’s meets the minimum community, standard of reasonable conduct i.e., negligence. fl the issue of Assuming duty type the existence of a may upon case before the court also be called it, determining its function of exercise usual whether of factual there is sufficient evidence cause or of the submitting to warrant defendant’s the case always jury. clear in is not made the cases fl deciding asserted that the function of It has been whether bringing particular conduct was a substantial factor in about policy Malone, formulation.' the result also involves Rumina Cause-In-Fact, L 9 Stan Rev 60 tions on addressing problem itself to the the court is whether sufficiency question duty of evidence to of or duty. prove the In some cases conclusion a breach proximate was not the the defendant’s conduct that judicial pronounce- injury is, fact, of the duty class of And it exists that case. ment that no that the in some of the cases conclusion seems evident proximate not a defendant’s conduct was that nothing plaintiff’s injury is more than a cause of finding negligent. judicial In that defendant was not by holding, of these cases this result is reached some person a matter of reasonable could as law, injury flowing particu- foreseen an from the not have impossible lar conduct. It is to determine what basis declaring has used most cases in the court or the defendant’s conduct is is injury. cause of the respective functions of court and become

The more indistinct or confused when, even problem liability present is discussed in case, intervening whether the interven- cause, i.e., terms of ing of another breaks the “chain” of causation. conduct may Occasionally inquiry be an as to whether de- produc- was a substantial factor in fendant’s conduct injury—a question ing of actual causation. More way appears saying frequently to it be that al- though be conduct can connected with the defendant’s may way, he in a substantial found to be negligence if a reasonable man from would not free intervening force. have foreseen question is the case at bar whether de- In injury occurring for an should be liable under fendant intervening involve an force. The circumstances intervening here would be force conduct in attempting extricate the cart from the hole. Can duty owing is no that there law, as a matter

be said, Assuming duty .plaintiff? can it be said is owed, not have foreseen the man could that a reasonable part intervening conduct on the attempting the hole or that de- lift the cart from reasonable care? fendant exercised duty type of risk clear. The seems Defendant’s duty scope of defendant’s within the involved here was negli if he was be held liable and defendant should present gent. case involved in negligent. (cid:176) Whether defendant was whether negligence, proxi duty, regarded as one of issue is ultimately inquiry i.e., the same, mate causation, liability upon to be limits a defendant’s are the how established? liability upon important limits how these

But it is particularly the court or as to whether examined, are defining proxi- jury them. The of has the function the ques- inquiry the in one formula combines mate cause liability policy should a matter of tion of whether (the imposed the court of case before the class issue); question duty con- of whether defendant’s producing factor a substantial duct was any physical (the free from idea cause issue actual or (cid:176) Prosser, causation, question Torts of see not a That is 1955): (2d ed problem apparent that, of inter- so far as the “It must be question vening concerned, is one of the de- causes is changes subsequent responsibility in the situation for fendant’s he brought independent created, new about has causation; question in all of the cases of This is not factors. referred fendant’s is a above, connection the de- the causal between resulting quite harm clear. and the conduct negligence—of question the extent of the defendant’s of held obligation. responsible indicate that he will be decided cases intervening forces which he could have fore- of are normal incidents the risk seen, those which or for created.” pp. James, §20.5, Harper also, Torts & See there is suf- culpability); of whether of the case to to submit evidence ficient ruling upon (the jury court function the sufficiency usual negligence, evidence); question of assuming evidence on the issue is sufficient there jury (the submitting usual function it to the warrant foreseeability apply test and to de- failed to exercise reason- termine whether circumstances). Each of these under the able care negli- separately questions if a be considered must judicial proper gence treatment. And is to receive case inquiry as to the defendant’s true whether this is proximate liability put in terms of cause or some say discarding I do not other form. any makes it easier to answer these

eause formula separate questions. I that the assert elimination questions makes it easier to see the of the formula But there which must be answered. is less likelihood jury’s will its function and the that the court confuse setting the limits of a function defendant’s any if term is used free from causation notions culpability. argued suggested simply that the reform It was places apt metaphor The more old new bottles. wine proposal put the wine of actual cause is that the would whiskey culpability in another in one and the bottle mix as we now do under the and not the two bottle, proximate cause formula. expressed theory in the cases decided

Under scope is deter of defendant’s this court foreseeability. applied of This test is the test mined negli determining only whether defendant determining negligence gent, whether his also in but injury. gen proximate cases cause of the Our foreseeability requirement erally of for describe 528

negligence and causation in the same stat terms, it is not ing essential the precise he injury foreseen. – If the court jury apply exactly same test to determine both cause and proximate negligence, the use of the proximate cause formula is repetitious, confusing. † unnecessary Even if Green’s pro posal is rejected, of majority the court should remove from our law negligence anomaly speak ing negligence and if they cause as were distinct yet them as if were one treating they and the same thing. for the under the foreseeability

test is whether a reasonable person position of the defendant would have foreseen that his conduct would have created the risk which probably encountered and which caused his The issue injury. is narrower. appeal authority We have de- cide whether trier of fact under the eircum- – Herring Packing Springbrook Company Cooperative, v. 208 (1956); 191, 604, Or 299 P2d P2d Madden 300 473 Stout v. & Wil (1956); al, liams, 294, et 208 Or 300 P2d 461 Shelton v. Lowell Schweiger Solbeck, 430, (1952); 191 196 Or 249 P2d 958 et ux v. (1951); Schnitzer, 454, 175, P2d 29 ALR2d 435 Arneil v. Or 230 Ludwig al, (1944); 179, et 167 Or Or 144 P2d v. Zidell 173 707 Oregon Railway, (1941); 488, Trunk 151 P2d 1073 Aune 118 v. City (1935); Mollencop Salem, 622, 139 Or v. Or 51 P2d 663 Brady Oregon Co., (1932); 137, 783, Lumber v. 8 P2d 83 ALR 315 (1926); 732, 96, 15, 188, 245 P 45 ALR 812 P 118 Or 117 Or 243 237, Co., Or 240 P 891 116 Northern Pac. Terminal Voshall v. Seaborg Packing 362, Quarry Co., (1925); Or 103 Co. v. Miami (1921); 585, (1922); Tilford, P 99 Or 71 Or 195 1114 Poole v. P 492 204 Chambers Everding 885, Farrell, P P 136 143 & (1890). Cf., Hartvig Co., (1914); Or 25 P 358 v. N.P.L. (1961). Amsberg al, P2d 227 Or et Danner v. jurisdictions is described in terms of In some foreseeability injury foreseeability contrasted with the some 20.5, Harper James, & Torts precise § in causation. (1956). pp. 1136-37 † Green, p. pas 77, and Cause Proximate Rationale Negligence Law, 28 Tex in Texas Green, Cause sim; Proximate L Rev

529 reasonably stances of this case could find that attempting conduct in to lift the cart from the hole was foreseeable. adoption foreseeability

In our of the test of for purport we to draw liability non-liability upon the line between failing of fault. basis Defendant at fault in is to con- injury, duct himself in a manner to avoid the if a reasonable man could have it. However, foreseen difficulty applying in this test is that there is little guide judgment more than intuition to in one’s de- ciding injury whether a risk or an is foreseeable. controversy leading in the on torts treatises as to what are foreseeable illustrates the diffi events culty arriving judicially at a serviceable formula deciding go whether the evidence is sufficient to jury-—Which, repeat, I is our function in these cases. ‡ And it seems quite evident in some of foreseeability ostensibly where the cases test applied predicated upon that is not foresee foreseeability ability is ascribed to de but rather upon conduct after it has been decided some fendant’s required ground other should injury. · many respond damages In for the cases BK 560. pointed out n. 38 plaintiffs, corporations, industrial cause’ considered agreeing “Rationalization,” · Gregory, ‡ event in In For has been observed are with Goodhart example, and see before, disagreeing large measure Proximate conduct fixing re Polemis & see U Chi L Rev Ibid, of a commercial enterprises, defendants that the fact with Harper Cause limits of § 20.5, p. 1134, 1135, 1140, railroads, public Seavey Prosser as to who are foreseeable Furness, & automobile Negligence—A Retreat From James, his as to the that defendant these cases liability. enterprise Withy Torts § utilities, owners & foreseeability “As has been Co., 18.2, p. n. ‘proximate and others causes the commonly municipal ^[1921] dis clearly recognized may it" is that defendant be held consequences. (cid:181)

liable for apply unforeseeable Thus, ing recognized the formula of it has been causation, may that defendant held be liable where an interven ing is a normal incident the risk created, even foreseeable. n There though intervening cause not through who position, liability are in a rates, insurance, taxes or pass damages resulting to the inevitable from their on activities general public, or at least them a to distribute over rela- tively large group. particular In the decision whether loss by originally defendant, is to be such at if a fault borne by way, helpless plaintiff, in a lesser or the innocent and it entirely supposed disregarded cannot that be this factor will be by courts, expected nor can it all and defendants according by any all losses will be treated all to courts one Topics Prosser, formula from rule.” Selected the Law of Torts, pp. (1953). 238-239 Harper p. (1956); § 20.4, James, 2 Torts 1133 See & Loss- Shifting Quasi-Negligence; Interpretation A of the Pals and New Trespass (1941); graf 729, Gregory, Case, U Chi L Rev 732-737 8 Negligence (1951). Liability, to L Rev 359 37 Va to Absolute (cid:181) 286, Assn., 120 Or 249 Crematorium Gillilan v. Portland (marble (1927) in defendant’s mausoleum vault shutter P 627 attempting off); child; lift it Voshall v. died on mother fell (plain (1921) 237, Co., Or 240 P 891 Terminal 116 Northern Pac. lung, polish part job, using of his suffered tiff, oxalic acid persons did not affect other which and heart diseases bronchial using Com., Cf., 128 polish). Industrial Acc. v. State Baker during (employer (1929) for liable death 369, P 905 274 Or operation plaintiff had prior been operation because cancer while suffered his collarbone of an aas result weakened 258-266; 1955) (2d pp. ed Prosser, job). See, Torts § 48 on 1139, 20.5, pp. 1141 James, Harper § Torts & 2 n (de (1944) Schnitzer, 179, P2d 707 Or 144 173 v. Arneil fire-fighting equipment from a lumber all removed fendant lying a fire started and piles about camp of debris and left by hobo; for dam held liable cigarette dropped defendant by a ages to Co., Power Mount. States v. adjoining property); Sullivan company (defendant (1932) electric 282, 1038 9 P2d Or 139 causing a wires on electric a tree blew wind when liable held Hoffman property); plaintiff’s Johnson spread to fire (defendant lean (1930) left ladder 46, P 567 284 al, Or et caught person a third pulled and marquee a sidewalk over ing on down ladder nail aon his overcoat Seaborg Quarry liable); Co. v. Miami held plaintiff; defendant barge (a (1922) left 362, sunken P 492 Packing Co., 103 Or are some who take the foreseeability view that is not accident cases. n a sine non of in qua It is apparent of the cases ac many involving tions an his brought by employee against employer relation an factor employment important determining liability. of defendant’s scope rationale of these eases is terms usually expressed and fault. n of foreseeability portion up on the beach which blew a was broken storm barge jetty; held because into liable barge light line); Tilford, it had 99 Or fastened the Poole v. with building 585, (1921) (defendant 195 P 1114 with defective owned door; person elevator third moved elevator held liable when leaving shaft); open plaintiff employee stepped door into the Oregon Telephone Company, 24 Or 33 P Ahern v. company (telephone P held liable LRA 635 wire; had moved electrocution loose wire been placed company telephone pole to another electric from one charged wire). Prosser, See, Torts contact with electric § Contra, Carpenter, (2d 1955) pp. Rules for ed Workable 278-280. 396, Determining 229, Cause, at Calif L Rev 471 Proximate 20 (1932). 516 n Ehrenzweig, (1951) (liability Negligence Fault Without damages typical predicated upon in the enter are whether by defendant); prise Rules for Deter Workable carried (1932) (proposal 229, mining Cause, L 396 20 Calif Rev Proximate cases); all up rules to cover and detailed to set Legal a set of fixed (1924) (proximate 211, is a Cause, L 343 72 Penn Rev “average by of justly sense cause determined attachable Tort, Legal L Rev 25 Harv justice”); Smith, in Action of Cause factor (1911) (defendant’s be a substantial 103, 223, act must 229 damage). producing n liability of cases is in this class that asserted has been foreseeability, ground reason but for the imposed of on the enterprise the loss. proper bear to make the is deemed

that Ehrenzweig, (1951); As Negligence Fault Ehrenzweig, Without Study, Comparative 1950 & Contem Oblige—A Law surance Negli Review of Malone, Brave New World—A 445; This Prob gence Loss-Shifting (1951); Fault, L Rev 14 25 Calif So Without Palsgraf Case, Interpretation of the Quasi-Negligence: A New and (1941). L Rev 729 Chi 8 U present liability course, is, enterprise of theory of The Harper James, liability. Torts See, 2 & involving vicarious cases Independent and Steffen, Contractor (1956); pp. §26.7, 1374-1382 Douglas, (1935); 501, Vicarious 507 Rev Life, L 2 U Chi The Good 532

Defendant’s in tbe at ease bar can be meas theory ured the framework of within our of foresee ability. jury finding would be warranted in defendant could have foreseen failure fur to adequate might dunnage prompted plaintiff nish have generally act recognized to he did. It is that a de liability by intervening fendant is not relieved an response act which is a common to the situation human defendant’s conduct. n Specifically, jury created plaintiff’s attempt could find that the to lift the cart response from the hole was a normal of a workman under the circumstances and, therefore, was foreseea ble. n Liability (1929); Risk, L and Yale 584 Administration 38 J Note, 28 LOr Rev 83 n See, (1952); al, 430, 196 249 P2d 958 Shelton v. Lowell et Or City Mollencop Salem, 783, P2d ALR 315 139 Or 8 83 v. (1932); Assn., 286, 249 v. Portland Crematorium 120 Or Gillilan Co., (1927); 200, 146 P 627 & N.R.R. 75 Or Salmi v. Columbia (1934); 1915D, (1915); Restatement, 2 Torts P § 443 LRA pp. (1956); Harper James, § 16.12, Hart 940-942 & Torts 139-140; pp. Prosser, Honoré, (1959), Torts in the Law Causation (2d 1955) p. ed 271. § n Ludwig (1941) al, P2d 167 Or Zidell et v. pair operating (jury plaintiff, a of motorized find that while could machinery expected to into the shears, could be reach metal piece harm to the threatened metal which out small pul) a Navigation Ry. Co., Oregon 10 Or machine); & v. Walsh expected that (jury find that it could was allowed strange out stick his head response would noise Somogyi moving train); N.O. & v. Cincinnati of the window (plaintiff (6th 1939) hit on the Ry. Cir Co., 101 F2d 480 T.P. voluntarily into machine pulley backed head skull; held, find that this was could his fractured situation”); Erie R. to the stimulation reaction “normal 1920) (in (’6th order to set brakes Cir Caldwell, 264 Fed 947 Co. jumped company railroad employee of defendant plaintiff separated aof because moving had become car which railroad Ry. Chicago liable); A.& bar; held defendant draw defective (plaintiff (1905) his lost 75 NE Walters, Co. v. manually open trying a defective frantically to hand while cars; prop held, converging case railroad two coupling between Shenango Co., 107 Furnace jury); Arko v. erly to submitted possible distinguish

It is to the case at bar from Zickrick (1953), Cooke, 87, Or 252 P2d 185 relied by upon plaintiff defendant. In the Zickrick case was stranger enterprise to defendant to which engaged; defendant plaintiff was in the instant case employed very purpose was furthering for the enterprise engaged. carry in which In defendant was ing plaintiff out perform the work which hired to was necessary it was equipment for him to use the which obligated supply. defendant was to Thus defendant placed relationship plaintiff himself in a with imposed upon duty him the same kind of which he employees; would have owed to his own to that equipment place furnish safe and safe to work. Hav ing duty, this then is whether defendant negligent. It is not unreasonable to conclude that reasonably plain defendant could have foreseen the tiff’s reaction the situation created the defective dunnage. relationship Mnd This did not exist in the Zickrick case. The court held as a matter of law appears that defendant was not liable. It that the court upon theory based its decision that defendant owed duty plaintiff. no that said the defendant’s “negligence spent had itself”; was in jured completely “as a result of forces disassociated original negligence”; from the and that therefore the failure to use a third binder chain “could not have been cause of the for which this action brought.” at at Id. 252 P2d 187-188. This say duty seems to defendant’s did include the injured person helping would be while risk that clear attempted stop (plaintiff loaded Minn 119 NW thrusting pinch bar brakes failed under ore car when wheel; employer held, should liable he have antici- pated response sort). 534

the wreck' caused defendant’s carelessness. The duty of whether the defendant owes to a person position in the of the such under by saying is not circumstances answered that defend negligence “spent Negligence ant’s itself.” not some thing gas.” concept which can “run out of It is a. liability. cause formula invites use continuity, and the remoteness like such'notions from a diverts court consideration of the fac tors which should determine whether there is a basis particular under the circumstances of the jury, case and as between court and should decide who, question. n opinion the' I am of the the risk to exposed plaintiff'in Zickrick case was fell duty ques thé ambit of defendant’s within .that negligence should have been left tion of defendant’s jury. present attempts bring the case within Plaintiff under which defendant doctrine the so-called rescue injured effort to an rescue liable to those is made imperiled by negligent property person defendant’s ’ duct. n quite reach the does The doctrine con similarity present defend in' that is a ease. There n may be called court factors which the For discussion Doctrines, Risks, Green, Duties, Causation upon to see consider L Rev 42 41 Tex n Ry. Co., Wagner Judge Cardozo, Opinion v. International (attempt (1921); Annotations: 437, 1 176, 19 ALR NE NY 133 life) 232 199; (attempting to save 4, ing 158 ALR 19 ALR to save property) 515; (attempting life to save property) ALR 64 579; property) attempting to 61 ALR 752; save (servant 166 ALR Harper (1934); 2 & 290, k Restatement, comment Torts § 2 § (2d Prosser, ed (1956); Torts p. § 49 James, § 16.12, 940 Torts Q (1947); L Rev Mich 43 605 271-272; 1955) pp. 32 L. Cornell (1950); 476 (1946); L Rev 3 Okla Rev (1945); L 11 Mo 317 980 25 Tex Q (1943). Cf., U L (1947); 28 Wash L Rev P2d Executrix, Witt, 215 Or Jamerson, v. Adm’x. Assn., 120 Or Crematorium (1959); Portland Gillilan . (1927) P 627 negligent ant’s conduct in each instance creates a situ generating compulsion ation others to act. How degree compulsion ever, is not the same in the types two of cases. The humanitarian instinct which strongly impels present the rescuer to act is not in the instant case. n If there compulsion present job plain case, was in the sense that the employed perform tiff completed to had to be the cart had to be complete extricated from the hole to the work.

Whatever formula we use to establish limits of liability sight defendant’s we cannot lose of the .fact simply making appro- we are an allocation of the priate jury. of the functions court and “The sole func- tion aof rule of limitation in these is cases to tell go the court jury.” that it must not let the case Topics p. Prosser, Selected in the Law of 234 Torts, (1953). given The should be wide latitude setting liability, these limits of whether it be done under a formula of or causation. The dif- opinion adjudicated ferences of evidenced cases involving negligence suggest judicial or causation testing liability probably standards are no more employed by jury. scientific or stable than those The v. B. Bros., comment Jackson Lowenstew & 175 (1940) appropriate: Tenn 538, SW2d “* * * sharp [T]'he opinion difference of judges Palsgraf [in case] should be a warning appellate lightly to courts to assume n Co., 1925) (8th Barnett v. Des Electric 10 F2d 111 Cir Moines (no liability passerby attempting high to ior to remove voltage danger present anyone); wire from street because no to Oswald, Illinois Railroad Co. v. 338 111 170 NE 247 Central (rescue inapplicable held who doctrine went aid cars not to offer but out between wrecked merely two curiosity). also, Pfaelzer, v. 115 NE 126 See Devine Law, p. (1917); Honoré, Causation Hart and duty primary determining or non-

liability, duty in actions of but to tort, leave that placed jury, where the Constitution has with it, they capriciously of facts, as triers arbitrarily and if act supervise their action.” guiding principle in this class of cases is stated (2d p. 1955), ed Prosser, Torts 282: any might “In case where there be reasonable foreseeability opinion difference of as to the aof particular the reasonableness the defend char risk, respect with or the normal ant’s conduct it, intervening question is for acter of an cause, jury, subject of the from the court as to course to suitable instructions legal to be conclusion way. By either as the issue is determined drawn far the greater of the cases which have number description; and to this have of this arisen been ‘proximate may properly extent it be said that ordinarily jury, of fact for the to be good common sense in the exercise of solved particular of the evidence each consideration [Healy Hoy, 115 Minn 321, 323, 132 NW case.’ 208, (1911)].” n 209 “a reasonable a basis for difference Is there foreseeability plaintiff’s opinion” conduct as to the consequent injuries arising lifting cart and in question of de- I believe from his effort? negli- liability, formula of under the either fendant’s n See Co., 1,Or P2d 219 341 also, Portland Traction Rose v. Bros., Inc., 202 Or (1959); v. Roberts 125, Celorie P2d 375 346 128, Anders, Or 253 P2d (1954); 201 v. 671, Hicklin P2d 416 276 18, Co., 136 Or (1954); R N O-W & 897, Bevin v. 521 269 P2d 543; 21, 639, L Ed denied, 52 S Ct 76 US (1931), 284 cert. P 204 298 286, Assn., 249 P 627 240 120 Or Crematorium Portland v. Gillilan 237, Co., 116 Or Terminal Pac. (1927); v. Northern Voshall Co., 503, 133 66 Or Hicks A. (1925); v. Lewis Buchanan P 891 522, Co., Hartvig 25 19 Or P L (1913); v. N 780, 1191 134 P P 601, Semler, 250 P2d Or 197 Cf., v. (1890). Wintersteen P 358 430, al, 249 Or 196 (1953); et v. Lowell Shelton 420, 138 255 P2d Rock, P2d 297 Or 61 154 (1952); v. Kukacka 958 P2d

537 gence or causation, is for present the trier of fact in the case.

There are numerous cases in which has imposed upon been intervening defendant where the plaintiff person act or a third was no more fore- seeable than act in the instant case. Thus Cooper County, in v. Richland 76 CSo 56 SE (1907), plantiff’s caught 958 horse its foot in a bridge plaintiff hole in injured defendant’s was attempting to upon extricate the horse when fell him. jury question was presented held was as to whether or not the defendant’s failing repair bridge was the injury. The court said: “* * * plaintiff The conduct of the in at-

tempting to dangerous rescue his horse from the position placed by which it alleged wrongful act of the defendant cannot be said to independent agency causing have been an if he acted in such manner as was naturally reasonably expected to be under the circumstances.” 56 at SE 959.

The same result was reached on similar facts in Stick ney Page v. Town Maidstone, 30 Vt 738 (1874). n Bucksport, v. Me n See also, Co., Herman Markham Air v. Rifle 258 Fed 475 (E. (defendant 1918) D. Mich manufacturer sold loaded air rifle retailer; plaintiff, sold it to wholesaler who one of the retailer’s injured clerks, prospective pulled when customer trigger); Trapp Co., Standard Oil Kan 269 P2d v. having (1954) (firemen, after been called to wash gasoline spilled away street, which defendant had washed lighter to and then touched a the street the street see down washing been; resulting plain had fire how effective the Lynch Fisher, (La damaged); 1949) So2d auto was tiff’s colliding (negligence car driver in with of motorist of truck held resulting proximate when rescuer of motorist cause temporarily deranged by motorist had become who shot was

538 directly present

More related to the case are the adjudicated employer in which cases held that an required anticipate to “that workmen who are fur appliance may expected nished with a defective try (2d 1955), to to make it work.” Prosser, Torts ed p. 269. n parties stipulated only question that the

one of cause. The trial court’s conclusion regarded is sustainable whether the case be so or the .solely negli- issue treated as a of defendant’s gence suggested. theory as we have Under either conduct was foreseeable event. It is a intervening language proxi- foreseeable cause in the language mate foreseeable conduct negligence. (Tex accident); Morrow, 183 Civ as a result of Hines v. 236 SW App 1921) attempting (plaintiff, to extricate truck from hole by leg defendant, left leg his sound his wooden in road broke when Keeley trapped); 46, Co., 234 v. Ice Cream 65 Utah Shafer injured large by (1925) (plaintiff 300, P crowd 38 ALR 15-23 parade). by sponsored had attracted float which defendant n See 227, Co., 224 P2d 461 also, Or 355 Ross Lbr. Blaine v. logging operator (1960) (in two of defendant’s winch absence log loading equipped attempted not winch to use truck drivers (1928) safety 246, catch); Aitken, 271 P 730 127 Or Moen with v. carrying plank in elevator (plaintiff work from fell .used having provided employer); scaffolding been shaft, Co., 780, P 134 P 66 Or 133 Hicks v. Lewis A.

Buchanan using power saw not (plaintiff thumb (1913) cut when Building Manning Ship Co., guard); Portland equipped with injured attempting (workman (1908) when 96 P 545 52 Or chisel); tongs provided v. Shevlin- to hold Smith defective to use 1946); (9th Lake Phillabaum v. Erie & Co., Cir 157 F2d Hixon injured (1924) (plaintiff 1-31, while NE 806 Co., Ill R. W. standing adjust coupler attempting to cars railroad two between Liberty Northern work); Ins. Co. v. Great Mutual failed injured (1928) (plaintiff when 466, 219 NW 755 Ry. Co., Minn missing device with which ratchet for a a wrench substituted he Myers car); Church v. Little dump a coal open door clerk, (hotel P2d 165 Road; 37 Wash2d Side attempting run defective ele injured operator, while elevator vator) . opinion In the course this I have noted the con- generated by fusion which is language the use of the “proximate and formula of cause.” I wish to make suggesting it clear that I am not that the use of such language in instructions would constitute re- pleadings versible error or that cast in the traditional legally terms of simply cause are defective. I open way wish to for the trial bench and ambiguous bar in state this language use the less appropriate clearly which separating is causation (actual cause) liability (negligence) from without fear adoption language that the of such would not be ac- ceptable upon appeal. objective In aid of that it is appropriate, repetition, at the risk of some to sum- my regard marize conclusions in this and to indicate briefly they present practice. how relate to already

IAs have the law of indicated, causation existing practice under is so ill-defined and confused that it offers little or no aid either to the courts or juries problems liability solution principal cases. The source of con- fusion is the treatment both as causation, factual concept, as to i.e., whether defendant’s conduct is physically injury, connected with the and as concept, as to i.e., whether, under the circumstances, injury should be defendant held liable for he present practice concepts caused. In two are these together expression “proximate fused in one cause” consequence concepts and as both become confused. separated To avoid this confusion I have the issue of questions causation from all other involved in factual and avoided the use of term the case “causation” any The issue of factual other sense. cause involves question of whether defendant’s conduct was producing factor substantial plaintiff complains. regarded, pure That is to be aas judgment of fact. It no calls for as to whether factually is to be held liable for what he caused. n In the typical automobile collision case the causal relation .sense clear—defendant’s auto mobile collides with automobile as a injured. result the fact of collision Where is established the real issue is whether defendant injury caused the but rather whether defendant should admittedly by was caused him. be held liable for what already question this is a of evaluat stated, As I have ing he determine whether defendant’s conduct to inquiry not be clouded which should should be an liable, any “proximate by casting terms of cause” init and effect If fact of cause cause. the other Mnd of language dispute, causation should of the is instruction on case an the ease. In such vanish from jury only the as is confuse there the issue serves Obviously, fact of actual causation. the no issue on support that de the contention if is evidence there in the acci not involved was automobile fendant’s physical in its involved but was or that it dent producing factor in not a substantial was volvement question one would be the injury course, of then, the jury. evidence if there is Thus, to the submission for traveling such a slow at vehicle that defendant’s type impact the not have caused could speed that the complains, plaintiff could injury of of not a substantial conduct defendant’s find that injury. producing the factor disposed of, is question factual When remaining question one of defendant’s is solely may question of liability. initial The complains plaintiff that she if Thus, court. n supra. again footnote See fail-,

suffered nervous .shock aas result of defendant’s ure to exercise care the court must decide whether, recovery policy, a matter of should be allowed for that injury. preliminary question kind of That ais any duty whether owed whatsoever respect type with to the of harm suffered by plaintiff, example injury by i.e., in the used, way of nervous shock. In most cases is there no such duty presented. duty If the issue re by plaintiff, solved the court in favor of the the sole remaining question negli is whether defendant was gent. negligence, If there is no substantial evidence of the court will, withhold the course, case from the jury. negligence, If there is evidence of that issue must jury. be decided form instruction which guides jury’s deliberation on this issue of is well known to the bench and bar. n presented jury only

Thus there two issues: (1) was defendant’s conduct a substantial factor in physically producing was defend- negligent? inquiry ant No further need be made jury negli- as to whether defendant’s conduct or n Oregon Jury Oregon Cases, 10.02, Instructions for Civil No. (1962) State Bar reads as follows: general every duty person society “In it is the in our damage to use reasonable care order in to avoid to himself person any or to another in situation in which it could be reasonably anticipated might that a failure to use such care damage. result in such persons ordinary is that the “Reasonable care care which management prudence exercise in of their affairs own in injury to or order to avoid themselves others. therefore, doing negligence, “Common law is the of some reasonably prudent person a act would not do or which something reasonably prudent person to do which failure would do, or under the same similar circumstances. keeping dangers, apparent be should in with “The care expected reasonably place ques- to be at the time and in or light hindsight.” of after effects or tion, not in the injury. “proximate

gence To the cause” of the awas “proximate inquiry cause” on that this latter extent actually defendant caused whether to determine seeks relating injury, actual is an cause instruction inquiry “proxi adequate. extent that the And to the a consideration of defendant’s mate cause” calls for adequately liability, made can be that determination upon the an which instruction calls under negligent. n decide whether defendant argued plaintiff’s con it that the case at bar is In injury (and “proximate cause” of his was the duct “proximate was not conduct that defendant’s may plaintiffs cause”). conduct be injury as it was in the he suffers, fact of the clearly plaintiff’s conduct is If sub case. instant injury (as certainly producing it factor stantial bar), no issue causal relation the case at inwas presented plaintiff’s and the is conduct between given. should be Plain on causation no instruction may legitimate contributory negligence abe is tiff’s distinct from causation. n is sue, but plaintiff’s negligence is an that asserted When may contending intervening that cause, defendant (1) is the actual cause of his conduct meaning injury, conduct not a that defendant’s actually causing injury; factor substantial negligent a rea was not because position prudent person sonably his could rea sonably would act as he have foreseen n Oregon proxi instruction on the traditional a criticism For concurring opinion specially Goodwin, J. see mate cause Corp., Greyhound Or P2d Stoneburner n contributory negli injected frequently into the Causation 22.2, pp. example, Harper & 1199- See, James § gence issue. or if did; even it is conceded that defendant negligent, plaintiff contributorily negligent. This can confusion be at obviated, or least minimized, by eliminating language “proximate all of cause” from inquiry negligence. as to defendant’s relating instruction to defendant’s phrased language conduct can be free from causation plaintiff’s call the determination of whether reasonably may conduct was a foreseeable event. It they may inform the find that defendant was ordinary negligent prudent person, if as an he, should have foreseen conduct under the circum- stances but failed to exercise care reasonable to avoid injury. alleged The same is true where “inter- vening” persons conduct of is third involved. If the persons plain- two or conduct of more contributed to injury, of tiff’s the issue factual cause must be re- present. if it of solved is The conduct each of the persons may bringing be a factor substantial about may injury, or the of of conduct one them be cause. The resolution of that issue sole of fact separate question be with the should not confused person persons causing of the the harm. persons If the conduct one found not to producing injury, be a substantial factor he is, liability. free from If the course, conduct of both substantially persons injury, either contributed may negligent. necessary or both be one, inject of causation into the consideration of ideas persons negligent. were these questions might Which arise in

All of instruct- employing language ing jury without anticipated. difficulty now be Whatever cause cannot experienced making may temporarily the transi- opinion suggested bewill well worth the tion eradicating good from result the which will ultimate 'language proximate vestigial cause from our law. prob placed upon emphasis the which I have jury instructing draw the should not attention lems of away problems which face more both from basic the judges negligence appellate in cases. the trial respective problems the functions Those center around jury. part of the con the A considerable court and fusion which has attended the treatment appellate at trial and is trace cases, levels, both appro carefully the able to priate failure to examine play jury parts which the courts and should liability. deciding questions of cause and We always holding that a case made clear, have not go jury, excluding are whether we should not jury or connection, was no causal because there negligence. duty, To understand or evidence of no no activity proper spheres court and are what study. requires an area in which careful is not experience sitting reviewing judicial on cases appeal problems can alone solve them constantly Fortunately, presented. there are ex are instruction. n turn for to which we can cellent sources closely of Leon the work Green most relates these, Of taken. n position have which I of actual there no issue causa- In case at bar question is whether defendant The sole tion involved. negligent. The trial court concluded that defend- plain- negligence was a cause of the ant’s differently, injury, stated con- or, tiff’s n 2 16.10, 17.1, 17.2, (1956); Harper 15.1-15.5, 18.8 & James §§ (2d 1955). pp. 191-196, Prosser, ed Torts n Green, Jury Green, Judge (1930); of Proxi Rationale Foreseeability Negligence (1927); pp. Green, 66-72 Cause mate (1961); Green, The Causal Relation Law, L Rev Colum Negligence Law, LMich Rev 543 Issue intervening duct was not an cause. This can be re- garded plain- conclusion the trier fact that tiff’s conduct was foreseeable event and there- that, negligent. supports fore, defendant was The evidence Consequently, agree this conclusion. I with the ma- jority judgment that the should be affirmed. opinion. concurs in this J.,

Gtoodwin, specially concurring. DENECKE, J., majority opinion. I concur in the I However, con- part cur opinion in that of Mr. Justice O’Connell’s pointing terminology “proximate out that the of cause” misleading responsible is and, therefore, occasion is for erroneous results. Mr. Justice O’Connell’s rem- edy proximate tois abandon the “traditional cause” unwilling formula. I am at this time to do so because I am fully enough uncertain compre- whether or not I hend proposes the formula Mr. Justice O’Connell so as to the visualize results that would follow from its application to future cases which will be before this court. I would

Therefore, examine future cases of type knowledge language with the that the of the proximate deceiving. cause doctrine is I would like- attempt wise to the determine result which would fol- application proposal low in such cases from the of the By pro- advocated Mr. Justice O’Connell. such a hope I to cedure would determine whether or not Mr. proposal preferable Justice to what O’Connell’s entirely have. we now conceivable that some present the proposed law or modification law ultimately preferable. will be found most dissenting. J., PERRY, agree majority. my with

I am unable In negligence opinion the defendant had come to insofar, dunnage'is .breakage rest con- dunnage' it is true, cerned. After new broke, injury might out which an created, situation wás carry attempting to out no' more than in occur, but' so any lifting. work distinguish attempt Zickrick v. the case of

The that 252 P2d on the basis al., et 197 Or Cooke plaintiff does a mere volunteer in that case underlying principle forth of law set answer the negligence, having come to rest, is, therein, pro prior cause in is not injury. subsequent ducing the allegations dis- the evidence in this case The lift volunteered to and others close that the pound The same situation load. 1,800 truck and its attempted to men had these same would have existed dunnage not. broken or whether lift the load upon the doctrine relied has only applies danger doctrine but that rescue, invites “response caused disturbance” to fear or emotional Torts, negligent defendant. Restatement page § 1191. Causation, I dissent. reasons, the above For

Case Details

Case Name: Dewey v. A. F. Klaveness & Co.

Court Name: Oregon Supreme Court

Date Published: Mar 13, 1963

Citation: 379 P.2d 560

Court Abbreviation: Or.