Wilma Williams v. Kfc National Management Company

Inquiry apply Sarbanes-Oxley 804 of B. Notice Section ret- roactively to plaintiffs’ revive stale securi- argues McBride the alternative ties fraud claims. E & Y is not against claim plaintiffs’ pre-Sarbanes-Oxley under the time-barred Accordingly, respec- the District Courts’ limitations, because, McBride statute of plaintiffs’ tive dismissals of claims as time- contends, of whether a rea hereby barred are AFFIRMED. inquiry notice put

sonable investor was liability by a series of potential

of E & Y’s published

articles in The New York Times Newsday prior to October 2001— engag had been suggested CA other

ing “accounting gimmicks” accounting” practices an is

“creative —was fact that should have been decided sue of WILLIAMS, Plaintiff-Appellant, Wilma judgment concur in the jury. We is without Judge argument Platt that this McBride, & Order at 8- merit. See Mem KFC NATIONAL MANAGEMENT Partners, 9; L.P v. Capital see also LC COMPANY, Defendant- Inc., Group, Ins. 318 F.3d Frontier Appellee. Cir.2003) (“Where (2d the facts needed No. Docket 03-7309.

for determination when reasonable ordinary intelligence would investor Appeals, United Court of States aware of the existence of fraud have been Second Circuit. complaint and gleaned can be from the Argued: Jan. 2004. complaint,

papers integral resolution Dec. Decided: appro of the issue on motion dismiss is (internal quotation marks and priate.” omitted)). therefore affirm

omissions We

Judge Platt’s dismissal of McBride’s com E Y

plaint against & as time-barred.

CONCLUSION reasons, foregoing

For the we conclude

(1) Congress clearly provide did not application of Section 804 of

retroactive

Sarbanes-Oxley; previously revival of stale securities impermissible

fraud claims has an retroac- effect;

tive congressional in the absence of clear result, favoring we decline to

intent such Exchange рortions appropriate not be to those Securities Chevron deference proac- arguably a more ‘expertise’ [the SEC] ... Act as to which takes where the “SEC’s role"). day-to-day respect tive compelling less than it would be with Falk, Klebanoff, P.C., Falk Jeffrey P. & NY, Plaintiff-Appel- Hempstead, West lant. Wayne,

Timothy Shanley, E. St. John & NY, L.L.C., York, New for Defendant- Appellee. NEWMAN, CALABRESI, and

Before: PARKER, Judges. B.D. Circuit concurs Judge CALABRESI separate opinion. PARKER, JR., Judge:

B.D. Circuit Plaintiff-appellant ap- Williams Wilma judgment from a of the United peals District for the Eastern Dis- States Court (I. Glasser, Judge) trict of New York Leo Management National favor (“KFC” formerly known as Company Chicken”) “Kentucky dismissing Fried her injury claim. The District Court personal to raise a concluded that Williams failed responsi- of fact as to KFC’s material issue alleged- bility for a condition that sidewalk injuries. ly to fall and suffer caused her appeal expired, time to After Williams’s extension, which was she moved for granted The District Court unopposed. fully was appeal extension. After the Court, in this KFC moved dis- briefed that untimely, contending it as miss For was an abuse of discretion. extension follow, that we conclude the reasons objection mo- of an in the absence time, say cannot for extension of we tion discre- Court abused its that the District According- the extension. granting tion must be de- ly, motion dismiss KFC’s conclude nied. Because we also of material genuine raised issues Williams where fact, summary judgment across the stretch sidewalk she we vacate fell, garbage out of the proceedings. grease for further leaked remand dumpster, causing slippery

bags and the I. BACKGROUND sidewalk, and that these conditions.- the. slippery conditions caused her fall and her light in the most The facts considered injuries. liability Sep- theory indicate that on Her alternate favorable to Williams walking down “special tember she was that since KFC made use” of Lafayette sidewalk, Avenue towards Bedford Ave- under New York law it had Brooklyn, evening of, nue in N.Y. The knowledge actual or constructive dark, raining heavily, and she fell on for, condition, responsibility dangerous abutting a locked section sidewalk proved even if she had.not that KFC affir- from a gate separates the sidewalk matively caused it. dumpster storage area located behind a discovery, After KFC moved for sum- According KFC restaurant. to the assis- mary judgment, which the District Court restaurant, about manager tant that, granted. The Court al- concluded day employees place ‍​‌​‌​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​​‌‌‌​‍twice a KFC trash though genuine had raised a is- Williams bags filled with refuse such as food con- of material fact as to the existence of sue tainers, materials, preparation food sidewalk, grease on the she had raised dumpster. food into the uneaten Over- responsibility none as to KFC’s for the dumpster night, gate area is left grease, finding Williams contentions in this dumpsters can be unlocked so regard too speculative. The Court also by drag

removed refuse carters who them concluded that had failed tо Williams es- through gate the unlocked and across the tablish that.KFC was liable as a conse- emptied garbage sidewalk to be into quence any “special use” of the side- In morning, employees trucks. KFC walk. drag dumpsters back over the sidewalk storage area. Judgment January was entered on that, fall,

Williams claims after her she appeal but Williams failed to within grease discovered on her clothes and days the 30 allowed the Federal Rules shoes, police and that a officer who re- Appellate R.App. Procedure. Fed. See sponded to the accident told her she had 4(a)(1)(A). Rather, P. on March she slipped grease on pri- on the sidewalk. A moved for extension of time to file the investigator vate retained Williams re- 4(a)(5). appeal. RApp. Fed. P. See KFC later, days turned to the scene two noted the motion on March received 27 but failed slippery, photo- that the area was and took oppose granted it. The District Court graphs showing discoloration on the the motion and Williams filed her notice of stretch of sidewalk where the fall oc- later, appeal on March 31. Months addition, curred. In manager assistant appellate briefing November after had that on in question, testified the date been completed, KFC moved to dismiss dumpster area where the was located was appeal jurisdiction for lack of because dirty, garbage bags and that the broke on of filing. Williams’s late We reserved de- occasion. deny cision. We now KFC’s motion to and, merits, reaching the York dismiss conclude Williams sued KFC New state court, raised a genuine and KFC removed to federal court. Williams issue of complaint, In her fact alleged responsibility Williams that material as KFC’s day twice a rolled dumpster its the accident. We therefore vacate the proceed- “good appeal” cause for the instant be- and remand for further judgment cause evidence demonstrated that ings. “there is material of fact con- II. DISCUSSION cerning the creation of the defect on the premises that defendant’s caused Appellate A. Jurisdiction injuries.” to fall and sustain Id. This lat- 4(a), in a appeal Rule a notice of Under was, course, ter contention irrelevant days filed within 30 after civil case must be appropriate inquiry since the is not wheth- R.App. Fed. P. entry judgement. merit, underlying er the claim has but 4(a)(1)(A). court extend The district neglect good whether excusable or cause (i) party if moves for the period that time exists for the failure to file the notice of days than after the extension no later timely appeal previously manner. As 4(a) prescribed by expires time Rule and noted, none of Williams’s excuses were (ii) moving party establishes excusable motion, contested and her without opposi- R.App. Fed. P. neglect good or cause. tion, granted. 4(a)(5). Court, Supreme The in Pioneer Invest- 4(a) Rule is Compliance with ment Services Co. v. Brunswick Associates jurisdictional.” “mandatory and Browder Partnership, Ltd. 507 U.S. 113 S.Ct. Director, Corr., Dep’t v. 434 U.S. of adopted 123 L.Ed.2d (1978); 556, 54 L.Ed.2d 521 98 S.Ct. assessing neglect liberal test for what is Cruises, Inc., Celebrity v. Silivanch excusable, emphasizing that “the determi- Cir.2003). (2d This F.3d Court one, equitable nation is at bottom an tak- explained power previously “[t]he has circumstances,” all ing account of relevant to this time of the federal courts extend (1) including: danger prejudice of to severely En limitation is circumscribed.” (2) non-moving party, length of Liberty v. Mut. Ins. Corp. dicott Johnson delay judicial impact proceedings, and (2d Cir.1997). 116 F.3d We delay, including the reason for the for abuse of discretion a district review it reasonable con- whether was within the grant deny to or an exten court’s decision moving party, trol of the and whether if appeal, sion of time to file a notice of but moving party good acted in faith. limita appeal an is filed outside the time sure, To at 113 S.Ct. 1489. be 4(a)(5), in Rule we lack provided tions readily could have conclud- District Court Winkler, jurisdiction. 252 F.3d Goode aspects of this ed that Williams met three (2d Cir.2001). 242, 245 any four-factor In the absence of test. objection part, nothing on KFC’s there is sought Williams’s motion to es suggest prejudice to the defendant due neglect” solely tablish “excusable Further, delay. counsel inadver to the three-week ground “plaintiffs was, course, competent to ... the District Court tently closed case after judi- delay conclude that thе did not affect had dismissed her case and the Court Finally, finding proceedings. failed to instruct cial [her counsel] part was “plaintiff, good and that faith on Williams’s warrant- Appeal” file a Notice of 21, 2003, familiarity given ed the District Court’s recently, on March contacted [her any and the lack of evidence and indicated that she wanted with the case counsel] contrary adduced KFC. We have Appeal file a Notice of herein.” [counsel] however, it the third emphasized, Appellant Mot. for Ext. of Time. The mo delay-that pre- for the had factor-the reason tion further contended that Williams dominates, signifi- conclusion that the District Court’s exten- the other three are because But have sion was abuse of discretion only in close cases. we cant only reason for her lateness solely in cases Williams’s this factor emphasized not meet the standards of Silivanch. does made an ob- non-moving party where validity explanation of the jection to the we on the record before us While Silivanch, at delay. 333 F.3d for the given say delay cannot that the reason for would 366. fall under Silivanch’s definition excusa Silivanch, Thus, that it we held neglect, ble we note a critical difference: for the lower court an abuse of discretion the motion for an extension of Silivanch opposing on an to have found reliance specifically adequacy of the time— about a fil- counsel’s erroneous statеment vigorously third factor —was chal Pioneer neglect.” Id. ing deadline to be “excusable lenged through filing opposition pa at concern that “the expressed 370. We pers participation argument. oral weight legal system groan would under the Silivanch, Here, 333 F.3d regimen uncertainty of a which time nothing. respond did It did not rigorously enforced” limitations were not motion, request oral Williams’s did and, case, vigorous opposi- in that where argument, nothing and it said after the neglect for the explanations tion to the granted District Court the extension. “ - presented, we that the ‘excus- reaffirmed later, objection KFC’s came months after neglect able standard can never be met appeal the notice of was filed and after the showing inability or refusal to read already appeal had been briefed to this plain language comprehend below, Court. As set forth we hold that ” (quoting federal rules.’ 368-69 oppose, the failure to in circumstances Gottlieb, Cleary, & Weinstock v. Steen where the other three Pioneer factors (2d Hamilton, Cir.1994), 501, met, 16 F.3d 503 readily could be found to have been 43 F.3d Hooper, and United States v. a in created context which the District (2d Cir.1994)) (eases 29 in which forfeiture grant Court’s discretion to the motion issue). object and failure to were not at without further examination not was an argues compels KFC that our case law the abuse of discretion.1 Here, 4(a)’s only 1. Because we that the District Court act- it is Rule time find limits for discretion, filing juris- ed we need not decide Appeal within its the of a Notice of that are whether, dictional, therefore, alternatively, and KFC has forfeited and unforfeitable. Cf. Co., opportunity object. say Griggs its to This is not to v. Provident Consumer Discount argument may validity. such an not have 459 U.S. 103 S.Ct. 74 L.Ed.2d Silivanch, Browder, (holding timely ap- 225 notice of on and En- relies peal jurisdictional appeal argue analy- is and that filed dicott Johnson to that forfeiture "nullity”); time inapplicable appeal outside the limits is Sili- sis is because the time to vanch, 4(a) by jurisdictional (finding 333 F.3d at set Rule is and mandato- 363 that if no ry. legally appeal by no notice of is filed the relevant dead- Since Williams offered satisfac- 4(a), tory specified by ap- time excuse to extend the limit set line Rule the court of 4(a)(1), case). argument goes, peals jurisdiction Rule the District lacks to the hear No extending disputes Court abused its discretion in one that Williams received an exten- and, did, fact, untimely, appeal, appeal appeal time to was sion of time to file an in jurisdiction timely appeal because tire absence cannot be file her in a in of manner accor- forfeited, 4(a)(5), i.e., appellate jurisdic- days waived or we lack dance with Rule within 60 of ignore impor- January Consequently, tion. But these contentions even looked at view, point question tant distinction between time limitation to from a forfeiture is appeal, jurisdictional, simple jurisdictional which is and the deci- not the one of whether extension, grant timely may appeal sion well be Williams filed her in fashion. Rather, quite question not. it is the different inadequate respect with to the efficiency ap- deemed finality and promote To right ap- in an third Pioneer factor lost the operate proceedings, “[w]e pellate peal. further held that such circum- ... in which substantial We environment be, are, meeting if of the other Pioneer forfeited stances may and often rights place did not suffice to an exten- time limits factors are not asserted within they Silivanch, the district dis- 333 F.3d sion decision within court’s by law.” established Silivanch, logic we adhere to the reasoning cretion. While In at 367. Silivanch, find that it to the appeal we leads party that a that failed meant any in the neglect opposite conclusion absence and whose claim of excusable time law, and, court of the questioning a matter of the district traversed whether, jurisdiction diversity matter such as a lack of opposing her motion for time, opportunity question). or a federal Hamilton v. Aetna KFC forfeited the more Life (2d Cir.1993); Cas. F.3d did not merit an & demonstrate that Williams 1447(c). § good U.S.C. This is the rule in other based on cause or extension of time example, as well. For in Williams v. neglect. Circuits excusable Plugs jurisdictional Spark Division General Motors between limi- AC This distinction Cir.1993), (5th pro- Corp., 985 F.2d 783 the Fifth be and other tations that cannot forfeited conditiоns, Circuit held that: cedural such as exhaustion venue, analy- statutory provision prohibits subject if a [E]ven can be to forfeiture See, removing Eldridge, the action and e.g., Mathews v. defendant from sis is common. 319, 328, statutory despite S.Ct. 47 L.Ed.2d defendant removes 424 U.S. removal, proscription against (noting to obtain such that one condition plaintiff object improper agency must remov- judicial review of an decision removal, thirty days al after the or "purely 'jurisdictional' in the sense that within " objection. Only procedural waives his in the case of 'waived' while other he cannot be waived); subject Abbey jurisdiction v. Sulli- lack of matter conditions could be —such Cir.1992) van, (2d (holding diversity citizenship, absence as no or the 978 F.2d requirement Medi- of a federal if that were the sole that the "final decision” elements, ground ob- care claims cases has two "one removal— (non-waivable) ject thirty-day jurisdictional pruden- to removal after the limit. and one (waivable)"). Any objection procedural Similarly, dealing other with tial thirty days. waived after requirement that administrative remedies Co., 787; In re Shell Oil 932 a Title claim can be see also be exhausted before VII court, (5th Cir.1991) (acknowl- brought F.2d 1521 in federal we framed the issue edging waivable de- proper exhaustion the distinction between as "whether administrative procedure removal and unwaivable jurisdictional prerequisite” a or "a waiva- fects in jurisdiction); bringing subject Air- precedent suit.” lack of Shields, matter ble condition Fullam, York, F.2d 65-66 City Inc. v. Francis v. New 235 F.3d (3d Cir.1989) (2d Cir.2000); (finding sua Jekyll v. that district court’s accord Fouche Island- Auth., (11th sponte procedural decision to remand on State Park 713 F.2d Cir.1983) days filing (holding procedur- grounds than 30 after the that all Title VII more prece- the court's requirements are conditions notice of removal exceeded al to suit authority). jurisdictional requirements). dent and not object to Finally, dealing When and whether the failure to when with the removal of courts, statutory jurisdiction is based actions state to federal an issue facts on which from one, complex clearly ju- constitutes a valid forfeiture is that raises concerns about federal 4(b) risdiction, 1441; e.g., applications of Rule Stephen- § and its in the context 28 U.S.C. see See, Co., (2d by e.g., no means clear. v. Chem. 346 F.3d extensions is son Dow Aviation, Inc., Cir.2003); Mignogna v. Ind. Bell Tel. 76 F.3d 132 v. Sair Prizevoits (2d Cir.1991), (7th Cir.1996) (characterizing, analy- without we have held 937 F.2d sis, that, good objection finding of cause statutorily improp- an to a even if removal was er, 4(a)(5) objection subject as an party opposing removal must move to under Rule and, therefore, jurisdiction unwaiva- day matter remand within the 30 limitation or however, one, ble). we (except objec- It is need not objection will be forfeited for given subject the facts of the case before us. implicate constitutional decide tions that “gone against” has them. an that she has met the third sion Such movant’s claim if possible. incentive is to be avoided at all factor. reаch this conclusion Pioneer We other three Pioneer at least where the us, avoiding before such an On the facts found to run in the easily can be factors readily The possible. undesirable result is movant’s favor. reviewing grant standard for of a mo- 4(a) tion to extend is of discretion. abuse requests for ex- requires Rule factors, Three of the four Pioneer on then- in the district court. tensions be made face, 4(a). support ruling the court’s favor of requirement This R.App. Fed. P. ’delay” that extension. The “reason for familiar with insures that the court most factor, concededly important, the most position in the best litigation, extension, support does not an but its ade- request, of a rule assess the merits quacy challenged was not before the Dis- objection an first instance. The lack of validity trict of the this Court. Where request an extension the district court to goes unchallenged, factor and the other deprives the district court of the basis for extension, say that factors favor we cannot sufficiency exploration focused District Court abused its discretion ability and limits the of courts request, granting deciding or in extension granting to determine whether appeals to, sponte, sua examine the facts in more was an exercise of discre- appropriate one depth. R.App. tion the district court. See Fed. 4(a)(5)(B) (requiring

P. notice to the other Judgment B. Summary party if the motion for extension is filed prescribed after the time for allow- appeal, summary judgment We review de ing opportunity opposition). Since Dep’t novo. Hellstrom United States (2d no this determination would be made with Affairs, 201 Veterans F.3d Cir. 2000). answering reply papers or and without the granted The District Court KFC benefit of the views of the district court summary' judgment theory developed proceeding, a contested a genuine while Williams raised issue of be, likelihood, would in all a less informed material fact as to the existence of a haz decision, unnecessarily sidewalk, one that enhances ardous condition on the she But the risk of an incorrect result. responsibili failed to raise one as to KFC’s alternative, back to the to send the matter ty appeal, for the condition. On Williams findings, district court for further would contends that she raised these issues give delay rise to the sort of precisely ways: respect fact two with (as uncertainty fail- appellee’s created, a result of whether and consequently fashion) that timely for, ure to act Rule responsible was condi hazardous 4(a) designed to avoid. injuries, tions that caused her whether, law, under New York KFC made fundamentally, allowing appellees More “special use” of the sidewalk and therefore belatedly question the District Court’s charged could be constructive with knowl any at extension as an abuse of discretion of, for, edge responsibility the hazard (since objection jurisdic- time goes ous condition. tion) manipulation. invites It allows the see,” appellee use,” respect “special to “wait and and raise the With it is un- jurisdictional ap- argument is one the clear that this issue—-which was raised below. pellate “[pjlaintiffs court can often discern on its own The District Court noted that only if difficulty only argu- allege argue any with the oral do not or made — but, perhaps appellate special any ment or even the deci- use of the sidewalk”

419 owns, specifically where a local ordinance re- case, evidence that KFC “there is no controls, to maintain the quires use of landowner side- special or makes occupies, liability and imposes walk for failure to do appeal, Williams con- On sidewalk.” Hausser, 453, so. 88 N.Y.2d 646 argument use special that the tends 490, appeal, N.Y.S.2d 669 N.E.2d 470. On averred that raised below when she “special contends that KFC made cause of the fall was Williams creating condition use” of the sidewalk dumpster dragging across the the movement of the dumpster over the and that sidewalk, actual or con- sidewalk this and that KFC had impose duty use was sufficient to of care knowledge of this condition. structive on KFC that it breached. question that if the of it is true While before “special use” had not been raised argument We find this unconvinc Court, it would have been the District York, ing. “special In New excep use here, 2 Keppler, v. waived United States tion for is reserved situations where a (2d Cir.1993), not F.3d we need property public landowner whose abuts a it is definitively resolve this since special street or sidewalk derives a benefit to us as it was to the court below as clear property public from that unrelated to the place “special that the use” doctrine has no use, required and is therefore to maintain can Accordingly, proceed case. we this portion property.” of that Poirier v. assumption that the District Court 310, 315, City Schenectady, 85 N.Y.2d granted summary judgment respect with (1995). 624 N.Y.S.2d 648 N.E.2d 1318 question as well as to the special use doctrine, considering the York When New affirmatively-eaused-defect theory. Fama consistently required have courts Servs., 235 F.3d v. Comm’r Correctional “[bjefore liability imposed, can be side Cir.2000) (2d (noting 816 n. in a man special walk must be constructed jurisdic may hypothetical courts assume abutting ner” for the benefit of the land jurisdictional requirement tion where a Thompson, owner. Kieman v. 137 A.D.2d constitutional). 957, 958, Div., (N.Y.App. N.Y.S.2d 1988) cases). Dep’t (gathering 3d Cases ‍​‌​‌​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​​‌‌‌​‍Special Use in applying typically the doctrine have law, object installation of some Under New York it is well volved the liability injuries the sidewalk or a variance the construc established that result public specifically tion of the sidewalk intended ing negligently from maintained See, lies, all, adjacent e.g., municipali if at with the benefit owner. sidewalks York, adjacent City v. New 211 A.D.2d ty, not the landowner. Hausser Granville Giunta, 452-53, Div., 1st (N.Y.App. 627 N.Y.S.2d 88 N.Y.2d (1996). 1995) Dep’t (involving step a concrete 669 N.E.2d 470 N.Y.S.2d However, exist, the ele exceptions abutting and an mounted on the sidewalk beneath restaurant); doorway presumed to have construc vated Santorelli owner will be York, 77 A.D.2d dangerous City conditions v. New knowledge tive Div., Dep’t resulting injuries: (N.Y.App. N.Y.S.2d 618 1st be liable for 1980) (1) cap in (involving heating constructed in a oil filler where the sidewalk was sidewalk); benefit, Nickelsburg City New for in other v. special a manner his York, words, A.D. 34 N.Y.S.2d “special use” of where he makes 1942) (2) Div., (involving sidewalk, affirmatively Dep’t (N.Y.App. where he 1st (3) defect, in the side iron bars that were embedded negligently caused the where he refuse). sidewalk, and walk to facilitate removal repaired constructed or Here, allege any Finding does not that residue on the sidewalk. these Williams attenuated, the sidewalk were con- inferences too the District special features on concluded that Williams had failed benefit. Court structed KFC’s genuine a issue of fact as raise material New York courts have re- Significantly, responsibility for the hazardous KFC’s a special to find use even peatedly refused disagree. condition of the sidewalk. We con- abutting when landowners have made siderably use of the side- more intrusive law, Under New York Williams See, e.g., walk than did KFC. Thomas v. required was not to adduce the most rea A.D.2d Triangle Realty accident, explanation sonable for the nor Div., Dep’t (N.Y.App. N.Y.S.2d 394 1st all required was she eliminate other 1998) (finding that maintenance of an ATM possible causes for her fall. To avoid sum adjaсent not a machine to sidewalk was mary judgment, obligated simply she was use); Foods, Inc., special Tortora v. Pearl a probability to establish reasonable that 200 A.D.2d 606 N.Y.S.2d 235 negli the accident was caused KFC’s 1994) (N.Y.App. Dep’t (finding Div. 1st In gence. Ingersoll Liberty Bank of that a a business whose customers formed Buffalo, 278 N.Y. N.E.2d 828 making line was not a on the sidewalk York Appeals the New Court of considered special public property). use of In negligence claim arising from a defec contrast, KFC’s use sidewalk the. tively repaired stairway. Appellate The dumpster special; move it was complaint, Division had dismissed the find use, entirely indistinguishable an routine ing that plaintiff proven had a defect myriad ways in public from the side- but had failed to show a causal connection every day. are Consequently, used walks injury between the defect and the because special use doctrine does not apply. proffer the defendant had been able to explanation injury. alternative for the Causation Affirmative 5-6, 14 N.E.2d 828. The of Ap Court peals reversed: Alternatively, Williams claims that affirmatively proven KFC is liable because it Where facts show that dangerous caused the condition. The Dis there are several possible causes of an trict crediting injury, Court Williams’s for one or more of which the found— testimony as to the grease she found on defendant not responsible, and it is clothes, just her the statements of respond probable as reasonable and that the officer, ing police testimony injury and the of the was the result of one cause as the private investigator other, plaintiff Williams had recovery, cannot have a —that presented sufficient evidence to prove raise since he has failed to that genuine issue of material fact as to the negligence of the defendant caused the injury. existence of the hazard. The District This does not mean that on, however, plaintiff Court went to conclude that every pos- must eliminate other finding responsible for the condition sible cause. The was not re- required an speculative quired accumulation of in to offer positively evidence which (1) ferences: garbage bags placed every excluded possible other cause of (2) leaked, inside dumpster had the accident. The existence of remote leaked, the dumpster possibilities itself had that the that factors other than the dumpster had being leaked while it was defendant have sidewalk, accident, moved across the require caused the does not during greasy holding leaks this movement left a. that plaintiff has failed to make enough that inferences' to be drawn from the evi- facie case. It is prima out a dence. conditions from facts and he shows of the defendant negligence Although plaintiff attempt

which the her by proof of the accident that to meet that burden include tend- the causation reasоnably ing negate significance inferred. the of other may be negligence causes, possible we have on numerous (internal 7, citations at 14 N.E.2d 828 Id. jury’s upheld occasions or reinstated omitted). marks The Court quotation logic expe- where the of common verdict natural and reasonable found that “the itself, circum- applied rience the plaintiff is that the was descend- inference n evidence, stances shown the led to box, stairway with the when ing negli- the conclusion that defendant’s tread broke under his foot defective injury. gence plaintiffs was the cause 8,14 828, fall,” him to id. at N.E.2d caused Ctr., Kings Highway Hosp. v. Schneider explanation, that and that the defendant’s Inc., 743, 744-45, 67 N.Y.2d 500 N.Y.S.2d a heart attack and plaintiff suffered (internal 95, N.E.2d 1221 cita fell, at probability.” a “remote Id. was but omitted). that tions The Court found though 14 N.E.2d Even there was 828. plaintiff prima had established a facie case that the suffered from evidence through hospital evidence that the had a that could have caused the heart condition to be raised for policy requiring guardrails accident, possibility this the Court found patients all over 70 and that it was more eliminate, at the insufficient to at least likely hospital pa for a worker than the summary judgment phase, the competing tient herself to have lowered the rails. repairs caused inference that the defective evi though Even the defendant offered the accident. Id. patient previously dence that the had low Aрpeals York has The New Court rails, the that ered the Court concluded degree a fair applied reasoning this with the inconvenient location of the mechanism adequacy consistency evaluating when adjusted frail plaintiffs that the rails and negligence of circumstantial evidence likely a hospi condition made it more that example, considering cases. For employee tal had lowered them. Id. hospital patient who fell out case of N,Y.S.2d N.E.2d 1221. had been guardrails her bed because its Court, according to the Significantly, lowered, the Court stated: required prove “not plaintiff was prima To establish a facie case negligence.” nature of exact defendant’s negligence wholly based on circumstan- York, Similarly, Gayle City New evidence, enough [plain- that tial “[i]t N.Y.S.2d 92 N.Y.2d facts and conditions from shows tiff] Appeals the Court of N.E.2d 758 of the defendant claim, based on circumstan considered causation of the accident and the evidence, puddle on a large tial that a negligence may reasonably be inferred.” resulting negligently from a roadway require plaintiffs The law does not drainage system proxi was the maintained proof “positively every exclude other of an accident. The Court mate cause cause” of the accident but de- Division had possible Appellate concluded that the Rather, proof her were negligence. determining fendant’s “erred plausible thоse other causes suffi- to rule out variables required must render all con that could have caused or ciently “remote” or “technical” to enable and factors Id. at tributed to the accident.” jury to reach its verdict based Following 703 N.E.2d upon logical but N.Y.S.2d upon speculation, facts, Schneider, emphasized that the these we conclude that Williams the Court to exclude all other establishing not have carried her burden of that plaintiff did accident, only of the but possible causes reasonable factfinder could conclude that to render those other proof had to offer responsible grease KFC was for the on “technical.” Id. “A causes “remote” or summary judgment the sidewalk and that only that it ‘more prove need of the was not warranted basis that al likely’ or ‘more reasonable’ facts the District before Court. by injury was caused the defendant’s leged agency.” than other some III. CONCLUSION omitted). (internal Lower citation deny We KFC’s motion to dismiss this in followed courts New York have also this jurisdiction. for lack appeal We vacate See, e.g., N.Y. Tel. Co. v. Harri standard. judgment of the District Court and Inc., Contractors, Bridge son & Burrowes proceedings remand for further consistent (N.Y.App. 3 A.D.3d 771 N.Y.S.2d 187 opinion. with this 2004) Div., (finding that Dep’t 3d evidence 5,000 pound steel dropped defendant had CALABRESI, Judge, Circuit plaintiffs cables sufficient to beams near concurring. summary judgment holding withstand and presents simple This case fact pat- required that plaintiff was nоt establish slip-and-fall tern' —a on a sidewalk outside liability to an defendant’s “unassailable implicates complex, a restaurant —but certainty”). longstanding, concerning issues circum- Applying principles, these we conclude mind, stantial in evidence. With that that, summary judgment purposes, I readily opinion while concur of the in presented

Williams sufficient circumstan- Court, I separately provide write some probability tial evidence to render analysis key on substantive that than someone other re- underlying appeal: this What does the law sponsible grease sufficiently for the “re- tell type torts us about the amount and comparison mote” or “technical” in to the of circumstantial that plaintiffs evidence explanation she offered. As the District adduce, circumstances, must different realized, grease Court on Williams’ jury? order reach clothing, responding the statement police presence grease, officer as to the I. private the statements investi- A review of the doctrine reveals three gator greasy spots, point as to all related) (closely areas which this sort of grease existence of on the sidewalk. Ad- has proven determination difficult: ditionally, significant testimony from the manager assistant of the restaurant estab- 1. There is sufficient that evidence de- lishing bags trash injury. KFC’s had leaked fendant caused occasion, bags contained negligent Whether the defendant was residue, so, however, grеasy food dump- doing is uncertain. This is dirty ster area behind the restaurant was the situation in which the notion of res supports ipsa on the date of Williams’ accident loquitur was first articulated Boadle, the inference that responsible Byrne KFC was 1863 case of Eng. (1863).2 greasy for the In light Rep. conditions.

2. Scott v. London & St. Katherine Docks precise more articulation of the doctrine: Boadle, years decided two after contains

423 injury. But the evidence that There is sufficient 2. negli negligence— whether it was defendant’s injured on account of

plaintiff just non-negligent rather than some act open question But it is an gence. defendant’s, or was the defen of the some actions negligence that whether instead, was, party, including plaintiff— else’s. another someone dant’s or See, injury up grabs.3 that is Spangard, 25 Cal.2d caused e.g., Ybarra (1944). 486, 154 P.2d 687 II. defen- particular evidence that a

3. The sufficient, years, In recent all three of these areas negligent clearly dant was of the generally that the defendant’s have been framed terms as is the evidence evidence; implicated sufficiency in the of the circumstantial activities were acts or States, See, negli- e.g., v. United be reasonable evidence of There must Zuchowicz (2d Cir.1998), thing is gence. sh[o]wn But where the F.3d 381 where the evidence management of the defendant be under the support finding that a was sufficient to servants, the accident is such as or his and disease, specific drug plaintiff's caused the things ordinary course of does not in the negligently prе- the defendant and where management happen if those who have the drug plain- to the scribed an overdose of care, evi- proper it affords reasonable use tiff, it was not clear the over- but where that dence, by explanation in the absence of drug— against proper dose—as dose defendants, arose from that the accident malady. plaintiff's In Zu- was the cause of care, want of chowicz, we this area as fol- described third (1865). Eng. Rep. put precisely defen- lows: "To it more —the Nearly every jurisdiction em- American has causally negligence strongly linked dant’s version of the doctrine of res braced some accident, and the defendant was un- to the traditionally ipsa loquitur. courts American harm, doubtedly a cause of the but but for proof three elements to required at least of. say this allow a fact finder to does suffice to (1) one trigger the doctrine: the event is not that the defendant's was a but for normally occur in the absence of that would cause?” at 390. (2) negligence; was caused the event instrumentality exclu- within the defendant’s including This third area often is treated as control; (3) and has not sive only cases in which a defendant's affirma- voluntarily to the event. contributed not, act, negligent contributed tive whether or call for exclusive The Restatement does not (for example, injury the defendant’s to an instrumentality, see Restate control over the drugs plaintiff in Zuchow- presсribing (Second) § of Torts 328D ment ), situations where the defendant’s but also icz similarly expressly have omitted some states as passive involvement in an accident —such Johnson, requirement. See Matthew R. this staircase, ownership upon which the of a Further, Note, Rolling "Barrel” a Little falls, injures plaintiff slips, himself—is (1997) Mary 1202-04 Wm. & L.Rev. implicated accident. It includes situa- in the approaches (describing the various American words, tions, some in which there is in other loquitur). ipsa Even to the doctrine of res example, negligence by the defendant —for nominally maintain the exclusive those which light there is no the staircase —but failure rule, rigid apply often do not it as control negligence was a that that direct evidence say concept, rather that it is "subordinat injury. plaintiff's In both ‍​‌​‌​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​​‌‌‌​‍scenar- cause of the indicating general purpose, that of ed to its ios, be certain that the defendant's we cannot negli probably that was the defendant's behavior, opposed to the defen- negligent gence the accident." Corcoran which caused relationship to the dant’s otherwise-innocent Mkt., Inc., Super v. Banner 19 N.Y.2d accident, party's together with some other (1967). 227 N.E.2d N.Y.S.2d actions, injuries. plaintiff's To resulted in the Dobbs, Keeton, W. D. R. Keeton & D. See also starkly, evidence on put we lack direct it more Owen, on Law Torts Prosser and Keeton caused 'Control,' that defendant 1984) (" two crucial issues: (5th § ed. if it at 250 plaintiff was plaintiff’s injury, and misleading, pernicious and must is not to be term.”). negligence. injured as a result of very be a flexible (Second) sufficient, is, of A is stairs.” if the evidence Restatement Torts find, § c.5 jury experience, common 328D cmt. can a B than not? But in probable is more cases, B. Two: Relative Knowl- fact, Consideration to understand these one must edge Parties separate examine three considerations. of inquiry The is an into which of second parties position is in a better either Strength A. One: Consideration Cir- of explanatory reveal or to seek out evidence. cumstantial Evidence (Such can evidence be direct or circum straight The first is the circumstantial stantial, will but most cases the focus be strong inquiry-how evidence is the evi- evidence). teasing on out direct This con decisively dence and how does it tilt us sideration is often cast terms of which accepting plaintiffs allegations? toward knowledge side has more and therefore cases, ipsa example, In res for courts look which side should bear the incentive to past experience for “a basis of which rea- come forward with the evidence. See Grif sonably permits the conclusion that such Manice, 188, 925, v. 166 N.Y. 59 N.E. fon ordinarily events do not occur unless (1901) (the of ipsa doctrine res is negligent.” someone has been Restate- partly premised on the fact that the defen (Second) § ment of Torts cmt. c 328D ability “produce dant has the evidence (1965). Keeton, Dobbs, See also W. D. R. of the actual that produced cause the acci Owen, D. Keeton & Prosser and Keeton on dent, which the plaintiff pres is unable to ed.1984) (5th 39, § Law Torts at 243 ent.”). regard, In this some states have of (hereinafter Keeton”) (indi- “Prosser and requirement added a to the traditional res cating key ipsa that the to res is a reason- ipsa doctrine the relevant evidence be inference, upon able “based the evidence See, more accessible to e.g., defendants. given, together with a sufficient back- Stilwill, 587, Wilson v. 411 Mich. ground experience justify of human N.W.2d (listing this ele conclusion”).4 Thus, “fall an of eleva- requirement); ment as one v. Bass Noo “explosion (Mo.1983) tor” or the provides Co., of boilers” ney 646 S.W.2d (same); a stronger finding negligence Co., case for Equip. Goedert Newcastle (same). the basis of circumstantial than (Wyo.1990) evidence 802 P.2d Oth courts, however, does fact ... that a man “[t]he falls down er commentators and may properly 4. Whether the inference be An illustration of this is found in Judson v. drawn "is a often matter of the details of the Giant Powder in which the court con- § evidence.” Prosser and at Keeton 247. nitroglycerine explosion dyna- fronted a in a cases, And in some even where a basis of factory: mite knowledge experience common or human is Appellant engaged in the manufacture lacking, testimony may "expert provide a suf- dynamite. ordinary of In the course of ficient foundation.” Id. things, explosion does not such occur in proper manufacture if care is exercised. Or, as a New York court stated in the centu- occur, explosion Ergo, An did the real ry-old case of Kaiser v. Latimer: "But as such explosion being unexplained, cause of the it negligence may proved by be the circum- probable is that it was occasioned a lack accident, attending stances or the loss of unassailable, proper logic care. The goods, may proved by so it also be principle itself, presumptions and the lawof mere accident if the accident is of such logic fact erected thereon is as sound as the presumption negli- character as to raise 149, 151, gence.” upon 40 A.D. which it 57 N.Y.S. 833 is based. (1895). (N.Y.App.Div.1899). 107 Cal. 40 P. immediately plaintiffs eye, eye and the reluctant understandingly been- have pained, inflamed and additional became aspect requirement thereafter make this all plaintiff eventually sight circumstantial evidence and the lost of sufficient to that Speiser, eye, 1 Stuart M. “it could not be said negligence. See because Loquitur Ipsa Res condition would not Negligence The Case: that” the cases); (1972) (collecting Pros- § n. 15 except negligence). 2:27 have existed Ulti- 254-55; § Restate- and Keeton mately, adequacy ser an assessment of the (Second) § k 328D cmt. of Torts ment the circumstantial evidence driven (1965).6 be that this con- Although which side part by a court’s about intuition Pros- controlling, is seldom see sideration should beаr the costs of mistaken assess- does, § it as we Keeton at ser and strength ment as to the of that evidence. see, important “persuasive still have will circumstances, at 255. in id.

effect” certain III. mind, in I considerations re- With these Symmetry Three: C. Consideration types to the three broad of cases— turn Error Costs I at the outset —where the which identified strongly inquiry an into how The third is has con- problem circumstantial evidence in one making an error we feel about In sistently reviewing courts. all troubled other. That is to against the direction areas, been in the three the trend has erroneously to find that the say, were we easing plaintiffs, the burden on direction jury, to reach a was sufficient evidence readily permit such and courts now more as, less, or more harmful that be would But get jury. to to a the trend has cases erroneously to find that than if we were developed uniformly in the three areas. not In ipsa in sufficient? res the evidence was im- in this is sometimes particular, cases Negligence A. Whether There Is in of how close described terms properly jury toward determinations liability. The move far we are from strict or how in easily, and most happened first just one manifestation But that is question of Judson, Century, as to the example, the Nineteenth In for question. part on the of whether there was prospect court was concerned with inju- plaintiffs injuries who caused plaintiffs’ of defendant erroneously leaving the is, surprising, ry. In While this seem 40 P. at 1021. uncompensated. See fact, cases, historically understandable because by in malpractice traditional medical liability based concept of a defendant’s contrast, a concern that even the there was in common much less rooted on fault is circumstantial evidence is rela- when the that a defendant’s than the notion doctor liable could law tively strong, holding a actually harm liability presupposes some to swallow. pretty tough medicine prove anthropo- Stetson, As an See, caused the defendant. 284 Mass. e.g., Semerjian v. matter, for requirement fault —as a logical (holding that 187 N.E. relatively new notion liability applicable” where ipsa loquitur is “res —was contrast, cau- century.7 By nineteenth liquid á substance physician placed court, goals. See ipsa, implicitly the same applying serves res 6. Even when infra (discussing relationship). this emphasize defendant’s Part III.A explicitly does not knowledge relatively superior of the events Gregory, Trespass generally O. 7. See Charles injury, emphasis leading plaintiff’s Liability, hi Va. Negligence Absolute clearly, control—and most on defendant’s (1951) (discussing historical L.Rev. 359 the accident scene control —over “exclusive” well-recognized juries sation has been “a and es- inclination to allow to determine plaintiffs sential element of the case in whether defendants were negligent, based early century, chief’ since at least the 17th knowledge second consideration — Zuchowicz, n. see 140 F.3d than information —rather on the first much, probably Consider, much before.8 example, or third. Kanter v. Louis, R.R., Springfield St. & Peoria true, however, certainly It is Ill.App. 565 ipsa traditional res formulation called for judgment against secured a at trial defendants to be control. And one company defendant railroad for damages might suppose the “exclusive control” arising from a train derailment that cost attempted mitigate test errors in as- husband his life. The trial sessing sufficiency of the circumstan- originally court ipsa used traditional res tial evidence. Lack of control increases defendant, push notions to who inwas the chances that the accident occurred in control, bring sole forth evidence as to way, an unusual than through rather ordi- the, happened time, what at the unex nary, circumstantially expected, and hence plained accident. The defendant there negligence. however, important, More upon demonstrated that “the derailment causation, implicates control and assures and death of deceased was the result of that it was the circumstantially defendant’s acts of by persons vandalism committed negligence inferred that brought about the unknown” and not the fault of the railroad. harm. plaintiff Id. But ultimately won because on But if either of these were behind the defendant, the facts shown jury requirement, control necessity of ex- could conclude that a careful defendant clusive control would be overkill. For in would have seen defect which caused torts, plaintiffs only prove need to both in derailment time to avoid harm. that the defendant negligent, was and that Control, surrogate as a knowledge, for of, caused the harm complained job, had done its in even the absence probably Thus, more than not. the cer- strong circumstantial tainty evidence. For who of causation that exclusive control truly say could in seems to entail is not from common ex- generally needed. I perience, that railroad therefore believe that derailments occur traditional res not, ipsa probably more approach to than “control” rested on the due to the rail- light intuition that if a road’s fault? In defendant had of the role exclusive “control” control, Kanter, plays likely defendant was to cases like it have should not be superior knowledge, that, surprising and hence even in the as the focus on relative strong evidence, absence of circumstantial knowledge has become more self-con- could explain scious, the accident. In 4-5, such cir- supra see nn. and as the re- cumstances, easy explain to quirements courts’ eased, as to causation have see pedigrees liability of fault and analysis no-fault re figured An of cause in famous tres- gimes). Many scholars trace the Ward, American pass actions such as Weaverv. Hobart requirement injury of fault in cases of direct (K.B.1617), Eng. Rep. 80 28 and Gibbons plaintiffs by opinion defendants to the 1850 (K.B. Pepper, Ray. Eng. 1 Rep. 91 Kendall, (6 Cush.) of Brown v. 60 Mass 1695). trespass, The especially action in (1850). English And courts did not embrace annis, trespass along vi et with the later ac- fault in such situations until Baron Bram case, trespass tion of generally are Mather, opinion

well's in Holmes v. 10 Ex. regarded per- as the ancestors of the modem (1875). See also v. United Zuchowicz injury sonal suit. States, (2d Cir.1998). 140 F.3d 384 n. 1 control, 'or had of defendants were III.C, necessity for actual Part infra knowledge plaintiff, have greater than diminished.9 See has also control exclusive jury proven willing allow courts at Part II.B.l. majority opinion among several defendants determine Party Negligent The Identifying B. In party. the famous negligent was the Spangard, case of Ybarra v. Cal.2d direction of to move imthe next area The example, plain- P.2d question was the jury determination injuries certain dur- allegedly tiff received evidence negligent when the who was clearly to be the ing surgery seemed had injury: an- establish sufficient Because he was un- negligence. result of negli on account of someone’s occurred identify respon- conscious could not he that this One-might think gence. The court held party. Id. at 689. sible because, after difficulties the most posed receives- unusual that “where a cases, may well all, these defendant and in the injuries while unconscious causing no.role whatsoever played hаve treatment, all those of medical de- course emerged at yet a rule injury. And any over his who had control fendants could mid~20th-century whereby plaintiffs might instrumentalities which body or the show, more they if jury could get to -may injuries properly be have caused the injury not, that their than probably negli- to meet the -inference upon called they though by negligence, even caused their explanation gence giving as to which no direct evidence possessed conduct.” Id. 691.10 negligently. acted parties possible several the situation example was A classic adopted the jurisdictions have Several car, on-the side parked defendant’s which the medical context approach, Ybarra in injured hill, hill and rolled down the Thus, in occasionally in others. Stone had after the defendant plaintiff the hours 155, F.3d Courtyard Mgmt. Corp., 353 v. could not plaintiff The the car. parked (2d Cir.2003), “It concluded: 160 we the defendant directly demonstrate say to which of plaintiff for the impossible “tamper it was a negligent perhaps — in this was at fault two defendants the[ ] and Keeton stranger,” see Prosser ing (if either), why precisely that is case but 39, yet generally permit courts § at 249— employ to plaintiff law New York allows jury. Rob to reach a ted these cases Cf. against loquitor inference ipsa the res 280, 322 S.W.2d Ray, Tenn.App. erts v. 45 explain what and let them each defendant (1959). 435, 437-38 Id. at 160. See also Schroe happened.” Albany, Bank similar, County Sav. City if der v. & a Multiple defеndants were (1944); 370, 57, 59 but 57 N.E.2d Only in certain 293 N.Y. affair. complicated, more Hosp., Or.App. Barrett v. Emanuel circumstances, group the see generally when Gibbons, v. 66 Cal.2d See also Clark Alliance Ins. 10. Vivas Sun 9. Colmenares See Cal.Rptr. P.2d 525 where (1st Cir.1986). F.2d 1106-07 negli- evidence of was more whether the issue Colmenares, Judge recognized in Bownes As than, was, sufficient, gence if it whether a more has been toward modem trend the independent partic- jury could hold the the all "exclusivity," asking analysis one relaxed liable, and where ipants operation the in an defendant, opposed a third whether course, said, negligence and con- "Of court (though likely, by of a close party, is virtue it, facts, necting like other can with defendant exclusive) truly perhaps relationship evidence." Id. at proved by be circumstantial accident, relatively superior have (empha- Cal.Rptr. 426 P.2d 525 cause. knowledge regarding the accident’s omitted). added) (quotes citations sis (noting 669 P.2d going as that did wrong who issue —at goals Ybarra’s could “be achieved in vari- in “practically Ybarm are accessible to ways ous direct warrant socie- injured [defendants] but inaccessible to the ... tal consideration we do not think [but] (internal person.” quotes 154 P.2d at 689 objective pursued should be omitted).11 But, end, and citations in the stretching permissible beyond inference driving the intuition the California rule point underlying where there are facts seemed to be that in patient its absence a other than the result from which it can injuries who “permanent suffered of a seri- drawn”). reasonably be character, obviously ous the result of some Ybarra, merits, provides whatever its negligence, one’s entirely would be unable important insight into the considerations to recover unless the doctors and nurses play determining negligent who is voluntarily attendance chose to disclose negligence once has been established. identity of the negligent person and plaintiff injured That the in Ybarra was on That, establishing liability.” the facts account of negligence, jury or that could concluded, the court “gross would abe found, was, readily have so to the Ybarm injustice.” Id. put way, To another court, very significant result, fact. As a leaving error plaintiff the loss on the would the court focused the third consider- be more serious than that placed one “insufficiency” ation—that an error fa- loss incorrectly on some of parties vor of a might greater defendant work a group responsible for operation. injustice greater in a cost misallo- —result Id.12 “sufficiency” cation—-than a error in favor course, This readily movement more plaintiff. Of to send to the second jury consideration was not absent from cases which the lacks analysis; the court in part relied direct evidence of particular defen- fact that types is, certain course, evidence—such dant’s a limited Indeed, Bank, a New pervision always York case from the same remaining in the period exclusively focused almost possession were in instrumentality of the knowledge City element. In Schroeder v. injuries plaintiff. which caused the to County Albany, Sav. Bank 293 N.Y. of None put any of the three defendants in N.E.2d 57 three defendants—the They defense. were the ones who knew the building owner and two contractors —were collapse. cause of the necessary It is not by plaintiff injured by sued a collapse the of a applicability for the ipsa loquitur of the res street building. barricade around the None single doctrine that there person be but a in put any of the three defendants forth evi- control of that damage. which caused the explaining dence the accident. After receiv- Where, here, as one or some or all of three instruction, ing ipsa loquitor a res jury interdependent defendants are in control guilty; found all three defendants but the supervision and burdened with of a street against trial court set aside that verdict as barricade, explain it is for them to their two contractors because it considered the action collapses and conduct when with building only party owner to be the with damage resultant to another. premises. sufficient "control” over the The Id. at 59. Appeals, New York reversing Court of in ordering trial court's decision and a new trial put 12. way: Prosser and Keeton contractors, it this “The for the two made clear that of the appears quite definitely basis decision "control” was ownership not limited to or supervision, proxy special but to responsibility was instead a have been the a for the —and knowledge: loose one—for plaintiff’s safety by everyone undertaken con- simultaneously [TJhree § defendants cerned.” Prosser and either or Keeton at 252- rotation, necessary nondelegable with su- 53. plaintiff of relatively light showing Nevertheless, bottom-line Ybarra’s one.13 Interestingly, courts in negli- to the “injustice” but causation. instinct about readily shared on injured plaintiff, have focused not so much this context gently shapes often jurisdictions, to knowledge other of or access of indi- evidence circumstantial amount information, against or of “bias” for or that courts demand wrongdoing vidual first consideration— liability, as on the this context. evidence of-but circumstantial whether the strong enough. Specifically, for cause is C. Causation negligent signifi- actions did defendant’s the most in which there was The area injury chances that the cantly increase the to send reluctance cases persistent at occur? issue Would the evidence the third: where jury was in the significant movement The first was suffi- negligent was the defendant that type go this letting case direction that cient, where the evidence but Judge early as as when jury came that injured was plaintiff account highly significant Cardozo articulated is, That seemingly weak.14 negligence Herzog, test in Martin causation it often was not clear in which situations (1920).15 N.Y. 126 N.E. 814 Martin (2) (1) behavior negligent whether two nighttime collision between involved Only injury. a cause of the defendant vehicles, with- operating which was one of that recently developed has a consensus law. headlights required by jury out upon to a go should such cases compensation), that of are still hence “deserves” note that there Prosser and Keeton 13. defendant, loquitor negligent, was a ipsa is not albeit many where res whether the instances defendants, hence, sense, (and multiple where it applied "against in a cause of the harm negligent.” only one has been is respect, inferable pay). this these "deserves” to In § at And if Prosser and Keeton distinguished readily can be from cases grav knowledge, or the relative ‍​‌​‌​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​​‌‌‌​‍either relative early recovery. very led line of cases as ity burdening the innocent cases, the "hunter” mentioned These were defendant, is against or another innocent one infra, was no in which there doubt note cases, such line of what drives the Ybarra of several that each defendants fact board is apply Ybarra across the reluctance negligence was negligent and were only group some easily It is understood. plaintiffs injury. In these cases the cause of requisite that either cases defendant only caused which defendant’s liability, knowledge, or the “bias” in favor harm was unclear. See, e.g., Dement v. Olin-Mathie present. (5th Corp., 282 F.2d 80-81 son Chemical fact, is, even a much earlier аnd 15. There Cir.1960). & Reynolds v. example. See Texas broader of this to send cases the reluctance (La.1885) While (recog 37 La. Ann. 694 Pac. R. 14. glance juries at first seem to third sort that, nizing despite "the distinction between is, fact, fairly easily explainable. strange, it in hoc," where defen propter post hoc and evi- cases involved sufficient The set of first multiplies "greatly negligent behavior dant’s causation, only and defen- dence of defendant plaintiff, and is the of accident to the chances negligence doubt. second was in The dant's naturally leading to occur its of a character plaintiff was ade- which were cases in all rence, might have possibility that it mere the injured of quately to have been because shown negligence is suffi happened the without therefore, (and perhaps, to "de- negligence effect chain of cause and cient to the break only compensation) and the serve” injury” so negligence and the between the negligent defendant was the of the whether tendency” of the circum long "whole as the set of cases— party The last was unclear. with the accident "connects stantial evidence negligence involves defendant while it —leaves negligence”). plain- question of open whether both (and negligence of injured was as result tiff which, Judge pointed lights out that had foot stairway Cardozo of in violation of a statute, precisely unlighted by been mandated to avoid the risk had been left defendant, consequence, of such As a because the plaintiff accidents. had of- proof “any fered no of negligent could be inferred that ab- causal connection in between the accident lights sence of fact a cause of the and the absence of light”). accident. The burden therefore shifted to the defendant demonstrate that some time, however, Over the Martin view responsible other element had been for Gibbons, sway. came to hold In Clark v. in particular question. crash We have Cal.Rptr. 66 Cal.2d 426 P.2d Judge general characterized Cardozo’s (1967), example, the California If negligent formulation as follows: court referred to the “the low incidence of wrongful act deemed “was because that accidents when ... [such] due care is used act particular increased the chances that a proof specific combined with of acts of occur,” type of accident would and “a negligence type of a which could have mishap very of that sort happen, did this caused the complained occurrence of’ in enough support a finding by the concluding that a showing on both of these trier of fact that negligent behavior accounts permit sufficed to go case to Zuchowicz, caused the harm.” 140 F.3d jury. to the Today, Id. at 534.16 omitted). (emphasis at 390 acceptance broad approach of this is re- explained by flected

But Prosser and Martin did not settle the debate. Keeton: courts, Some New York as well as some in jurisdictions,

other proved reluctant to ac- And whether the negligence defendant’s cept such circumstantial evidence as suffi- consists of the violation of some statuto- cient these judges sorts cases. Such ry safety regulation, or the breach of a logical continued fret over the fallacy care, plain duty common law the court (“after post ergo this, hoc propter hoc scarcely can overlook the fact that the therefore, this”), because of persisted injury pre- has fact occurred is in demanding direct evidence of cisely causation. thing proper sort of care See, e.g., Kaufmann, v. 227 A.D. part of the defendant would be Wolf (N.Y.App.Div.1929) N.Y.S. prevent, intended to and accordingly al- (denying recovery for death plaintiffs low a certain liberality jury decedent, who was found unconscious at drawing its conclusion. example Rather, A recent in New York is the case N.Y.S.2d 703 N.E.2d at 759. York, Gayle City New “upon logical N.Y.2d inferences to be drawn from evidence,” 680 N.Y.S.2d 703 N.E.2d 758 only prove "need opinion cited in the likely district court in the it was more or more reasonable that the plaintiff Gayle case before us. sought alleged injury The was caused the defendant’s prove city’s negligence that the in main agency.” than some other (internal taining drainage system omitted). a functional quotes was the and citations On proximate standard, cause of his car accident. The this the court found that the evi Appellate “many just Division found provided other dence jury a reasonable basis for the plausible variables factors which could negligence proxi to conclude that defendant’s have caused mately or contributed to the accident Significantly, caused the accident. Martin, ... none of which Gayle, were ruled out Reynolds, rep unlike and like 431, 693, plaintiffs” 247 A.D.2d 668 N.Y.S.2d resents a case in which the did not (N.Y.App.Div.1998), 696 Ap but the Court of specific statutory arise from failure to follow a peals high reversed. The court prescription, observed that plain but from the a "breach of "[pllaintiffs positively ever)' need not duty exclude common law of care.” Prosser and Kee possible other § cause of the accident.” 680 ton at 270.

431 and the circum- expectation is less clear at 270. also § See and Keeton Prosser many therefore Calabresi, and stantial evidence Concerning Cause Guido weaker — reluctant to al- Harry continue to remain Essay An courts Torts: the Law for jury. a to reach Kalven, Jr., L.Rev. 71-73 low causation Chi. 43 U. said, or fac- (1975) That the other two strands requirements (examining the three asymmetry knowledge, and violation of a safe- tors—relative establishing that the for matter, of error —are not absent significance the con- for that ty regulation —or They certainly seem to legal a in this area either. any duty travention of —was in cases like injury). played have а role Clark plaintiffs “cause” of a Zuchoivicz, come in time to well context, date, in the causation To they are significant as this context as be be less fo has seemed to inquiry critical are, All in the other two.17 three factors knowledge, or has the most cused on who all, they in this context as after as relevant from protect inclined to the court is whom they already have are in the areas which Rather, whether the it has been errors. play important role. come strong enough. evidence is circumstantial that have in this area Most of the cases rv. proof requirements relaxed cir- the treatment of Having examined patterns fact where is involved have in various areas of cumstantial evidence from the available evi to infer reasonable In law, question: tort we are left with acts negligent that the defendant’s dence ease before us category does the injury at which a but cause of were fact for dif- makes the instant case have, belong? been What part, for the most They issue. the evidence that the is ficult is that harm that occurred in which the cases negligence, while injured on account of community was harm that precisely just barely so. get jury, to a is negli énough a given to occur certain expect would and dis- See, judge district eminent v. Hobart As the e.g., Liriano gent action. —an Cir.1999) it, (2d “although put tort tinguished 170 F.3d Corp., scholar— scant, it is color- evidentiary record is (“When negligent aсt a defendant’s is fact issue of material genuine able that a it has wrongful precisely because deemed there was as to whether” type of does exist to cause the strong propensity fell at where she ensued, “grease on the sidewalk very causal ten injury that 211], [A Once of the accident.” the time enough to establish dency is evidence established, cause-in-fact.”). the case seems been that has On case prima fade neg- category fit into the second hand, can where that inference the other —whose it? is, ligence was where that easily be drawn —that not so courts, injury, were liable plaintiff's both in other caused have also led 17. These factors causal evidence absence of sufficient done it” has been in the types where "who of cases Lewis, defendant), and Cook v. assign- grabs, develop methods for to either up (2) (same), (S.Ct.Can.1952) apply- or liability more defendants ing where two or D.L.R. see, e.g., Hymowitz wrong, liability, something ing but clearly done market-share have plain- N.Y.2d specific Lilly action to the & tying their v. Eli where (1989). impossible. proves or It 539 N.E.2d injury difficult N.Y.S.2d tiff’s holding all the courts that we find: is here cases,” negligence does liable, see, a result of” Causation "as e.g., "the hunter defendants here, there Tice, pose problem because 199 P.2d 1 33 Cal.2d Summers v. spillage negligent that, enough that the evidence inde- (holding where two hunters plaintiff’s grease for cause of was a but duty plaintiff, but pendently breached injury. subsеquent regarding one fall uncertainty there resemblance, sidewalk, patch The case thus bears as the evant of and to the street. notes, majority opinion to Schneider v. dumpsters bags holding Those contained Center, Kings Highway Hosp. N.Y.2d greasy bags remains of food. Those 95, 490 500 N.Y.S.2d N.E.2d occasionally more, “burst.” isWhat there decedent, plaintiffs clearly is no other plausible candidate for elderly patient, fell hospital out of her bed Thus, negligent this act. the other poten- because the side rails had been lowered. explanations tial “sufficiently are remote There no whoever low jury [and] technical to enable the to reach negligent ered'the had a rails committed upon its verdict based” something other act, negligent and that act was a cause (internal speculation. than quotation resulting injury. inqui of the The critical omitted); marks see also Johnson v. New there, here, ry as centered on whether the Auth., York City Transit 129 A.D.2d negligent party was the defendant or (cit- 513 N.Y.S.2d 687 (NY.App.Div.1987) view, someone else. On the court’s ing relying Schneider and on circumstan- lack of direct evidence of who raised or tial evidence to reverse the a dismissal of plain lowered the rails was not fatal to the injured case where had by been tiffs case: “Although plaintiff may her flying object that appeared to from come attempt to meet that burden proof include subway defendant’s train passing by over- tending negate the significance of other head). causes, possible we have on numerous oc all, All in given strength of the cir- upheld jury’s casions or reinstated a ver case, cumstantial evidence in this the rela- logic dict where the experience common capacity tive parties explain how itself, applied to the circumstances offending grease sidewalk, got on the evidence, by shown led to the conclu and the absence of any prefer reason to sion that defendant’s was the erring favor of KFC rather than the cause of injury.” See id. at 1221 plaintiff, I am convinced that the result we (internal omitted). citation today reach is not only mandated New Here, logic experience common York law but is also with consistent support allowing

tends to go this case to modern doctrinal complicated trends at the jury. It is clear from the record that intersection of circumstantial evidence and KFC is likely spiller grease.19 the most tort law. Despite the emphasis district court’s inferences, necessary the number of

basic question a fact-finder must answer is simple given patch one: this

sidewalk dumpster is traversed with

garbage bags refuse, full greasy could a

reasonable factfinder conclude that KFC is grease source on the sidewalk?

Like the panel, rest of the I believe that law,

under New York yes. the answer is dumpsters ‍​‌​‌​​‌‌​​‌​‌​​​​‌​‌‌‌‌‌‌‌​​​‌​​​​‌‌​​​​‌​​​‌‌‌​‍rolled its a “dirty” from restaurant,

area behind the across the rel- pattern 19. The instant fact equally likely differs from that at fendants were all to have been Ybarra, issue plaintiff’s and to the advan- negligent party. Ybaira, tage: In several different named de-

Case Details

Case Name: Wilma Williams v. Kfc National Management Company

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 9, 2004

Citation: 391 F.3d 411

Docket Number: Docket 03-7309

Court Abbreviation: 2d Cir.