54. On cross-motions for summary judgment on the claim for the goods, how should the court rule?

The elements of a negligence action include: (i) a duty of care; (ii) a failure to conform to that duty («breach»); (iii) causation in fact; (iv) proximate causation; and (v) actual damage. Cause in fact, or «but-for» cause, requires a showing that the injury would not have occurred «but for» the defendant's act or omission. This applies when several acts combined to cause one injury, even if none of the acts alone would have been sufficient.

By contrast, proximate cause is a way of keeping a defendant from being liable for far-reaching and bizarre consequences of his actions. Generally, the defendant's actions will be considered the proximate cause of an injury where the consequences were reasonably foreseeable. An «intervening cause» is a force that takes effect after the defendant's negligence and contributes to that negligence in producing the plaintiff's injury. If an intervening event is found to be a «superseding cause,» the defendant will not be liable. The test determining whether an intervening cause is considered superseding also relies on whether it was foreseeable that it or something like it might occur. In the event of a third person's criminal conduct, the defendant may still be liable (and thus the third party conduct will not be a superseding cause) if it was reasonably foreseeable. This includes even intentionally tortious acts by third parties in some circumstances.

A motion for summary judgment should be granted if it appears from the record that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

A is correct. Neither motion should be granted because there exists a genuine dispute as to a material fact. Generally, a defendant will only be liable for criminal acts of third parties if those acts did not amount to a superseding cause, meaning it was foreseeable that they might occur as the result of the defendant's negligence. Whether a particular result was foreseeable is generally a question for the trier of fact.

Here, the construction company experienced many thefts during its construction of the trench, which was in a high-crime neighborhood. This evidence could be enough to convince a jury that the company should have reasonably foreseen that negligent maintenance of the construction site could result in criminal acts against others. The construction company denies liability for the loss of the stolen goods, meaning that the criminal activity was not reasonably foreseeable. Based on this dispute, a motion from either party claiming no issue of material fact should be denied, and the issue should be submitted to the jury.

B is incorrect. It is incorrect that no one could have foreseen the criminal activity that occurred as a result of failing to place warning lights around the trench. The construction company had experienced thefts at the site already, and by failing to keep the area sufficiently lit, the construction company arguably should have foreseen that thefts would happen again in a poorly lit area. This issue of foreseeability should be for the jury to decide, and as such, the construction company's motion should be denied.

C is incorrect. Even though a tortfeasor is not generally liable for criminal acts of third parties made possible by his negligence, if the criminal acts were reasonably foreseeable, the defendant may be liable. This is because there are instances in which a defendant should have realized at the time of his negligence that his misconduct would increase the vulnerability of others to criminal wrongdoing. This issue of whether something was a superseding cause (based on its foreseeability) is generally a question for the jury. Here, the construction company's motion should be denied because there is evidence to support a jury finding that the theft was foreseeable.

D is incorrect. This answer choice, although partially correct, is not dispositive. It describes the «but for» cause element, which is necessary for a negligence action. However, there must also be proximate cause. Because there is a genuine dispute as to whether the construction company's negligence was the proximate cause of the delivery company's loss of goods, which turns on foreseeability, the jury should decide the outcome.