Foreseeability is often involved in the determination of both duty and proximate cause. Courts must approach the problem as one of determining the nature of the duty and the scope of the risk of the negligent conduct. More specifically, when an injury is the product of the intervening act of a third person, the test is whether the particular manner in which the third person acted is one of the hazards that makes an actor negligent.
Appellant minor and his minor friend trespassed onto a private storage facility where telephone poles were stacked. The friend accidentally dropped a lighted cigarette between the logs, starting a fire. Appellant minor had provided the cigarette. Respondent insurance company paid damages and filed a cause of action against appellant minor and appellant father for contribution as subrogee of the insured friend's rights. The trial court awarded damages to respondent against appellants. The court reversed the award on appeal.
Does appellee have a cause of action against appellant minor?
There was no negligence per se on which respondent could predicate its negligence claim; the statute addressed health concerns associated with minor tobacco usage, not fire suppression. The court held that there was no ordinary negligence, as the connection between appellant minor's act of giving the cigarette and the fire was too attenuated to show the fire was reasonably within the scope of the risk created by the initial act. The court found no conspiracy or joint venture to start the fire, and concluded that the fire was not a probable consequence of the trespass.