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Section 28, entitled "Burden of Proof", states, in relevant part: "(b) When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them caused the plaintiff's harm but the plaintiff cannot reasonably be expected to prove which actor or actors caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants." March 26, 2002) (affirming instruction to jury that "[w]here two or more independent, negligent acts combine to produce a single harmful result, and where each of these is a substantial factor in producing that result, the actors are jointly responsible unless the negligence of one or more actors breaks the causal connection of the other actors"); Oklahoma: McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 470 (Okla. 1987) ("The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct."); In that case, the court affirmed the trial court's jury instruction that: "If you find that bog fire was set by defendant's engine, and that some greater fire swept over it before it reached plaintiff's land, then it will be for you to determine whether the bog fire * * * was a material or substantial factor in causing plaintiff's damage. In these jurisdictions, the plaintiff need not establish that the defendant's tortious conduct was a but-for cause, but merely that it was a substantial factor in causing the plaintiff's harm. [Extracted from the article]

Tort law has failed to respond to the intolerably high incidence of rape and sexual assault in the United States. By any measure, there is glaring disparity between the paltry number of tort claims brought by rape victims and the vast number of sexual assaults committed each year. Among the multiple reasons.for the underutilization of tort law is the inadequacy of traditional doctrinal frameworks for litigating such cases, particularly the assumption that a rape victim must bring an intentional tort claim to recover against an offender. The labyrinthine doctrine of consent that looms large in intentional tort cases has deterred plaintiffs from suing and has made it diffcult for plaintijjk to prevail. even when a defendant's sexual conduct is unwelcome and harmful. Our solution is to allow tort plaintiffs the option of bringing a negligence claim against the omnder, centering the litigation on the unreasonableness of the defendant's conduct rather than the consent of the plaintiff Allowing a negligence claim for rape responds to the countless date- and acquaintance-rape cases in which the defendant's unreasonable conduct has undermined the plaintiff's ability to consent freely-creating a risk of coercion--and to those cases in which a defendant has placed his interests above the plaintiffs by taking a risk that the plaintiff has not in fact consented. The option of negligence will allow juries to evaluate contested cases in a straightforward fashion and will provide a more secure route to adequate compensation, particularly if courts determine that such negligence claims are not subject to the "intentional acts" exclusion in insurance contracts. Courts will jace a variety of doctrinal questions in litigating such negligence-based rape claims, including the proper categorization of the injury as physical versus emotional harm and the availability Of the contributory/comparative negligence defense. Because affording such a negligence option would not preclude plaintillk.from also asserting intentional tort claims, it is important that courts not view such claims as mutually exclusive and that plaintiffs be given the opportunity to argue in the alternative. [ABSTRACT FROM AUTHOR]

The elements of the debate between Judges Cardozo and Andrews in Palsgraf are canonical: (1) What is the nature of duty - is it relational or act- centered? (2) Is plaintiff-foreseeability a duty inquiry or an aspect of proximate cause? (3) Is a court or a jury the proper arbiter of foreseeability? An exhaustive examination of the case law on these questions reveals a deep disconnect between what most of us learned in law school and what is playing out in modern courts. Close scrutiny of Palsgraf's present-day incarnations also lends an invaluable bird's-eye view of duty law, an area so rife with inconsistency and contradiction that it often bears more resemblance to constitutional law than to the quintessential common-law doctrine that we expect from tort cases. This Article melds the doctrinal with the theoretical. It is the first comprehensive survey of Palsgraf since Prosser's Palsgraf Revisited in 1953, and it is also a bottom-up inquiry into the "meaning" of duty in today's courts. The most significant findings of the Article are as follows: (1) Most courts have not bought into Cardozo's relational view of duty - instead, courts are nearly unified in the view that duty is, at its core, a multi-factor policy analysis, although courts do not agree on the relevant factors, (2) Cardozo has overwhelmingly won the day on plaintiff-foreseeability's place in duty versus proximate cause - a fact which contradicts Palsgraf's common treatment in law school classrooms as well as the Restatement (Third) of Torts - although Cardozo's directive that foreseeability is to be decided categorically has not been broadly adopted, and (3) In a bizarre twist, a majority of courts leave duty-foreseeability's determination to the jury. This final discovery provides important insight into a hidden tension that has smoldered in courts' negligence jurisprudence at least since Palsgraf was decided eighty-three years ago. [ABSTRACT FROM AUTHOR]

This Article is the second of a two-part endeavor assessing the use of foreseeability in negligence law, and arguing against its ever-expanding role in the element of duty. The first article, Purging Foreseeability, urged courts to adopt the general duty provisions of the proposed Restatement (Third) of Torts--provisions that would purge duty of foreseeability-based considerations. Courts and scholars have resisted the Restatement's attempts to rid duty of foreseeability out of a jurisprudential view that foreseeability simply "belongs" there. This Article urges that the conceptual work done by foreseeability also might fit wholly and seamlessly within the elements of breach and proximate cause. In proving that foreseeability's conceptual fit is thus indeterminate, the Article aims to refocus the debate on whether the court or the jury is the better arbiter of foreseeability--a matter that courts are reluctant to discuss and scholars have largely ignored. [ABSTRACT FROM AUTHOR]