A tutorial on tort liability from Judge Calabresi

Judge Guido Calabresi is a pioneer legal theorist on American tort law. He also sits on the Second Circuit Court of Appeals. In this case, he puts his theoretical background to work in providing a tutorial on some basis torts concepts arising from a skiing accident that left a man badly injured in Vermont.

The case is Gemmink v. Jay Peak, Inc., decided on November 30. Plaintiff suffered injuries while skiing, and this lawsuit alleges that "Jay Peak negligently permitted dangerous jumps on its ski trails" and that as a consequence, he "suffered a collision with another skier." The problem is that plaintiff could not recall the incident at all, so he could not actually testify that another skier had hit him. His injuries were consistent with that theory of liability, though.

The Second Circuit (Calabresi, Straub and Pooler) notes that "a showing of cause-in-fact almost always involves circumstantial evidence." If the defendant does something risky or irresponsible, we can assume that the plaintiff's injuries resulted from that bad behavior. To avoid liability, the defendant has to show that something extraordinary happened to break the chain of causation.

For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Other factors also affect liability. "Where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so." Put another way, if the defendant is in a better position to explain what went wrong, then the plaintiff has a reduced burden in proving liability. Yet another factor in these cases is that "If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished." In other words, we apply a balancing test: is it worth it to place a higher burden on the defendant in any particular case?

  This case boils down to that third factor. The Court writes:

Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?

The answer is bad for plaintiff in this case. "Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently 'obvious and necessary' as to be assumed generally forms a jury question under Vermont law." So it's a wash on this question. Which means "we are left to infer causation ... from only the placement of the ski jumps and the nature of Gemmink's injuries." Looking at things that way, plaintiff loses:

We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link  between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.