Article by David W. Robertson
In a variety of contexts the victim (“P”) of a crime or intentional tort will often seek to recover in tort from someone (“D”) other than the person (“X”) who committed the crime or intentional tort. The reason for the frequency of such litigation is clear enough:
Victims of violence usually find that their assailants—the murderers, rapists, muggers, drunk drivers, etc., who were the most obvious and immediate sources of the harm—are “judgment proof,” i.e., uninsured and impecunious. Thus, there is a high incidence of litigation seeking to hold others—persons and institutions whose negligence arguably set the stage for the injuries in some way—responsible for the harm caused by such persons.
Several potential approaches to holding D liable for X's intentional and criminal acts, including intentional tort theories and vicarious liability, are beyond the scope of this Article. This Article treats actions seeking to hold D liable for the results of X's crime or intentional tort on the basis of D's own negligence.
First-year law students typically begin their study of this area doubting that one should ever be held liable for negligence when the immediate agency of the harm is someone else's criminal or intentionally tortious behavior. Their reaction is close to what one might expect the “man in the street” to say: Hold the mugger (rapist, drunk driver, etc.) responsible, not the more remote and “merely” negligent defendant.
Legal doctrine reflects such doubts. Two powerful defensive arguments permeate these cases: (1) the general argument that one has no duty to take affirmative steps to protect another person from harm; and (2) the argument that the act of a criminal or intentional tortfeasor constitutes an intervening or superseding cause that prevents D's conduct from being regarded as a legal cause of the harm. The potential dominance of these arguments—and the way they typically work in combination—makes the “crimes of others” area a discrete area within the law of negligence.
About the Author
David W. Robertson. A.W. Walker Centennial Chair in Law, University of Texas. B.A., 1960, LL.B., 1961, Louisiana State University; LL.M., 1965, J.S.D., 1968, Yale University.
Citation
67 Tul. L. Rev. 135 (1992)