46. In an action against the operator of the ocean liner brought by the passenger's representative, will the passenger's representative prevail?

To prove negligence, a plaintiff must establish duty, breach, causation, and damages. To establish causation, the plaintiff must address both types: actual causation and proximate causation. Actual causation, also called factual causation, traditionally asks whether the defendant's action was the «but-for» cause of the harm. In other words, «but-for» the defendant's actions or omissions, would the plaintiff still have suffered the harm? Proximate causation focuses on foreseeability and is a legal limit on actual causation to address unforeseeable harms.

C is correct. Here, actual causation is not satisfied. But-for the defendant's failure to have the statutorily required lifeboats, the passenger would still have suffered the harm — even if the ocean liner had the boats, the facts state the storm was too rough to launch them. Therefore, the harm would have happened with or without the ocean liner's actions, and actual causation is not met. This question could potentially be analyzed under proximate causation as well, but that analysis focuses on foreseeability: unforeseeable acts or events can cut off a defendant's liability. Here, the facts state the storm was predicted, and that the voyage was expected to be rough. Thus, proximate causation is not necessarily lacking because the storms were foreseeable.

You might view this question as a negligence per se issue. Negligence per se requires: (i) there was a criminal or other regulatory statute/ordinance/law that imposed a penalty for its breach; (ii) the defendant violated that law; (iii) the harm caused by the violation was the type of harm that the law was intended to protect against; (iv) the plaintiff was in the class of individuals the law was intended to protect; and (v) the violation of the law caused (both proximate and actual causation) the harm to the plaintiff. As described above, the failure to have the lifeboats did not cause the passenger's death because, even if the ocean liner had them, the storm was too severe for them to be launched. Thus, the application of negligence per se would not fix the problem the passenger's representative faces under a general negligence theory: the problem of causation.

A is incorrect. As explained above, the ocean liner's failure to have the boats was not the actual cause of the passenger's death, so a court cannot find liability on the part of the ocean liner for this reason. The passenger would have still been swept overboard because the storm was too severe for even the statutorily required lifeboats.

B is incorrect. Common carriers and innkeepers are held to a higher standard of care. A majority of jurisdictions hold them liable for even the slightest negligent action. However, they are not subject to strict liability simply because they are common carriers or innkeepers. Thus, although the ocean liner is a common carrier, this answer choice misstates the law applicable.

D is incorrect. The passenger did assume some risks when boarding an ocean liner knowing it was expected to be a stormy, rough voyage. But the assumption of the risk is generally not a bar to recovery in a negligence action. Instead, the plaintiff's foolish actions in accepting the risk normally goes to comparative negligence and potentially reduces damages (but do not bar recovery completely).