Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 7. Proximate Cause
beyond the offense committed. It is to be considered, also, that if the negligent party is liable to
the owner of a remote building thus consumed, he would also be liable to the insurance companies
who should pay losses to such remote owners. The principle of subrogation would entitle the
companies to the benefit of every claim held by the party to whom a loss should be paid. . . .
The remoteness of the damage, in my judgment, forms the true rule on which the question
should be decided, and which prohibits a recovery by the plaintiff in this case.
Judgment should be affirmed.
Notes
1. Rationales for Ryan. Few tort jurists today think that liability ought to be cut off as
sharply as the Ryan court believed. But virtually all observers agree that at some point, where
some point is represented by the letter N, there ought to be a distinction between the first house
and the “Nth” house. But where do we draw the line between proximate and remote damages?
Judge Hunt’s opinion in Ryan offers up a whole laundry list of possible ways to articulate the key
distinction. He talks about ordinariness, nature, expectations, accident, and immediacy. Which of
these rationales, if any, explains the location of the line as the Ryan court sees it?
2. An insurance explanation? One explanation articulated in the Ryan decision for cutting
off liability is that even if none of these doctrinal formulations hold, the plaintiff could have
insured his property against fire. The defendant, by contrast, could not take out a policy on the
plaintiff’s property because in 1866 liability insurance was unavailable on the theory that it was
against public policy. For a long time, liability insurance had been thought to create dangerous
incentives for careless conduct. Some say it still does! Yet not long after Ryan was decided, the
law in most states began to permit liability insurance. Today, it is pervasive.
Today, the law permits people and firms to purchase liability insurance protecting the
policy-holder’s interest in insuring against tort damages judgments. Sometimes, as in automobile
insurance regulations, the law now requires liability insurance. If you have owned a car, you have
almost certainly bought a liability insurance policy yourself. Some of you will have bought
liability insurance as part of an apartment renter’s insurance policy, or perhaps a homeowners’
policy.
way?
If liability insurance had been widespread in 1866, would Ryan have come out the other
Note that today, Ryan is almost certainly not a good statement of the law: Courts today
virtually always draw the line between proximate injuries and remote ones more broadly than
Judge Hunt did. Although never explicitly overruled, Ryan was soon distinguished into oblivion.
In 1872, the New York Court of Appeals held that there was proximate cause where a railroad
negligently started a fire that spread from its own property to the property of others. Webb v.
Rome, W. & O. R. Co., 49 N.Y. 420, 428 (1872) (“We are not to be controlled by the authority
[Ryan] more than we are by that of the long line of cases which preceded it . . .”). Later
interpretations of these two contrary cases in subsequent railroad fire cases have landed firmly on
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