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

Witt & Tani, TCPI 7. Proximate Cause
of intervening actors, but in slightly different ways. The Second Restatement uses the language of
“superseding causes” that cut off liability, but specifically excludes criminal or negligent acts
from being a superseding cause if those acts were a foreseeable consequence of the defendant’s
negligence or if the likelihood of those acts was the reason why the defendant’s conduct was
negligent. RESTATEMENT (SECOND) OF TORTS, §§ 448, 449. The Third Restatement abandons the
“superseding” language from the Second Restatement, but it arrives at much the same
conclusions. The Third Restatement holds that defendants will be liable, despite intervening
actors, for all damages that “result from the risks that made the [defendant’s] conduct tortious.”
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS. AND EMOT. HARM, § 34 (2010). The Third
Restatement explicitly states that this extends to harm that befalls rescuers. Id., § 32.
The Restatement (Second) of Torts offers this principle to try to make sense of the cases:
The happening of the very event the likelihood of which makes the actor’s
conduct negligent and so subjects the actor to liability cannot relieve him from
liability. The duty to refrain from the act committed or to do the act omitted is
imposed to protect the other from this very danger. To deny recovery because
the other’s exposure to the very risk from which it was the purpose of the duty
to protect him resulted in harm to him, would be to deprive the other of all
protection and to make the duty a nullity.
RESTATEMENT (SECOND) OF TORTS § 449 cmt. b. The Restatement approach evokes the harmwithin-the-risk
principle. Is it susceptible to the same difficulties?
3. Proximate Cause in Iraq. In recent litigation arising in the Fifth Circuit, drivers working
as independent contractors for Halliburton/KBR in Iraq sought to recover damages for injuries
they received in the so-called “Good Friday Massacre,” a 2004 attack on a convoy in which
several drivers were killed and others injured. Halliburton/KBR responded by citing the
intervening actions of the Army, which chose the convoy’s route, and of the Iraqi insurgents, who
fired on the convoy. The Fifth Circuit rejected the Halliburton argument and allowed the suit to
proceed:
KBR [the defendant] argues that no determination as to causation can be made
without examining whether the Army fulfilled its contractual duty to provide force
protection for the KBR convoys. Assuming that Plaintiffs could establish all other
elements of their claims, they must still demonstrate that the acts or omissions of
KBR—as opposed to those of the Army or Iraqi insurgents—proximately caused
their injuries. KBR has made clear that, were a trial to be held, its defense would
involve the alleged inadequacy of the Army’s intelligence gathering, route selection
and defensive response to the attacks that actually occurred. In other words, KBR
would make the case that Plaintiffs’ injuries were not caused by KBR’s actions or
inactions, but by the insurgents’ attack and the Army’s failure to provide adequate
protection of the convoy.
The Plaintiffs counter KBR’s argument by pointing to a familiar theory of tort law
that permits recovery even though another actor or cause intervenes to be the direct
cause of injury. . . . According to the Restatement, “[i]f the likelihood that a third
person may act in a particular manner is the hazard or one of the hazards which
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