Foreseeability and Proximate Cause for Tort Liability

On Jan 30, 7:49 am, "Alan" <alanb_lano2s...@yahoo.com> wrote:

<OP hired someone to remove graffiti from OP's building>

> What if, during the painting process, the folks that had
> crafted the graffiti, happened by and weren't at all pleased that their
> handiwork was being destroyed? Supposed they shot at the handyman, or worse
> yet, killed him?

It is kind and wise of you to think ahead about such possible consequences, but chances are very slim you could be held accountable in any way if that happens.

However, read on.  The legal concept at issue here is that of "proximate cause" which involves both "foreseeability," and some measure of social policy, insofar as the law will impose a cutoff of legal responsibility at the point where a person's causal connection to an occurrence is so tenuous that it would not be reasonable to hold him at fault.  Of course, as we all know, "everything is connected," so a sufficiently clever and thorough investigation can almost ALWAYS disclose SOME way in which, in however Rube Goldbergian a fashion, what you did or failed to do "caused" something else to happen

The concept of "intervening cause" also comes into play, but that is really just a subset of the basic concept.   Although it is "foreseeable" in a sense that your neighborhood gang could take revenge in that way -- you _have_ in fact just foreseen it -- the responsible connection of such criminal acts to anything YOU, the building owner, do or omit (as you have a legal right to do) is so tenuous that you are probably quite safe. 

Would you think you were at fault if you called AAA after some vandal slashed your tires and the punks who did it drove by and shot the tow truck man while he was changing your tire?  Same idea.    Not only is your own act a perfectly reasonable and legal one with no direct bad consequences, the criminal act of the gangsters would be seen as a "superseding intervening cause" relieving you of any possible responsiblity that _did_ initially accrue from your act.

OTOH -- as in almost everything at law -- "it depends" on all the facts.   Something is not a "superseding" intervening cause if it is exactly the sort of thing you reasonably should be careful about under the circumstances -- it is negligent to fill your lawnmower's gas can while holding it in the air instead of placing it securely on the ground, increasing the risk that you would spill gasoline, and the fact that someone _else_ was smoking on the next pump island over and it was _their_ flame that ignited the conflagration that burned down the station does _not_ get you off the hook for your initial negligence in spilling the gas  -- the risk of ignition is exactly why you should do everything reasonable to avoid creating loose hydrocarbon vapors around a filling station.   Of course, the idiot smoker is ALSO at fault -- he had a duty to foresee that some idiot like _you_ may spill gas, which his cigarette could ignite.

 "Foreseeability" and "Reasonableness" are inherenty fuzzy concepts and thus in most cases have to be submitted to a jury for decision, not ruled upon by the judge as a matter of law.   Additional facts could change the picture and make your conduct appear negligent, at least sufficiently so to allow the question to be brought to a jury.   For instance, let's say the gang was targeting your building for a specific reason, and you knew that, making it much more likely that they would be monitoring the premises.   And let's say the gang had even issued you a specific warning that they would drive by and shoot anyone who tried to remove their graffiti.   And let's make it even worse by noting a couple of prior incidents where the gang actually _did_ something of the kind, so everyone knew they were not making idle threats.   On top of that, you neglected to contact the police regarding these threats, so that they could take steps to protect you and your workers (maybe because the gang "had something" on you you didn't want the cops to know about either, which may even make you a CO-CONSIPIRATOR with the gang when they shoot the handyman, or torch your building); and as the final straw, you didn't tell ANY of this to the handyman you hired (hey, who could you get to do the work, under those conditions?   Best to keep him in the dark, huh?).  Under such circumstances, a jury might conclude that you had a DUTY in tort to warn the handyman of the potential mess he was getting into, so he could either decline the job or take steps to protect HIMSELF (which he didn't bother to do because nobody warned him of the danger).   One could pile on additional facts but you get the picture -- it is not, hardly ever, a completely cut-and-dried matter, and like everyone else, you have to make your own decisions about what is reasonable under the circumstances and hope that your perceptions and actions are reasonable enough that they will not be second-guessed by a jury.

> Or what if they came back at night and set the building on
> fire, and not knowing someone was working late, caused a death?

Same answer.   As you may or may not know, arson that causes a death is prosecutable as murder either directly by statute in some states, or by the "felony murder rule" (which makes a death of anyone occurring during commission of a felony prosecutable as murder against any of the participating felons).   Even if it was their own gang member who got caught in the flames and died, it would be prosecutable as murder -- but almost no chance that you would be held in any way legally responsible, absent some additional facs as noted above.

> Would I be at fault in either situation?

Looking at it BEFORE the crap happens, i.e. while YOU are still trying to decide what to do, you have a duty to act reasonably.   Take into consideration all the facts you know, be candid and helpful (or at least not harmful) to those whose fates your actions may affect, and tell the people you hire everything they reasonably need to know personal-safety-wise before they take on the job -- a good rule of thumb is, if it is something YOU would want to know before you went out there and did it yourself, you have a duty to tell it to the people you hire to do if FOR you so they can decide if that's a risk they are willing to take.

Note, you do NOT have a tort duty.to ELIMINATE all risk -- that's impossible.   But you also can't trick someone into taking on a risk they don't know about and don't want to encounter -- that's negligent.

Looking at it AFTER the sky falls in, you can be assured that some lawyer somewhere representing one of the people who got hurt is going to be picking through the facts with a fine tooth comb looking for something he can use to pin the fault on a party who may be able to pay for his client's damages.   You, the building owner, will (almost always) be one likely target.   Of course, if there really IS nothing there for them to pin liability on, you have nothing to worry about (you DO have insurance covering your defense against a negligence claim, don't you?) .but don't go thinking you are ever immunized from acting reasonably at all times with due regard to the rights of others.

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