torts 

 

Causation

VIDEO ON CAUSATION - CLICK HERE

 

Chapter 6
ACTUAL AND PROXIMATE CAUSE

I. CAUSATION IN FACT

A. Generally: P must show that D’s conduct was the "cause in fact" of P’s injury. [129]

B. "But for" test: The vast majority of the time, the way P shows "cause in fact" is to show that D’s conduct was a "but for" cause of P’s injuries – had D not acted negligently, P’s injuries would not have resulted. [129]

 Example: A statute requires all vessels to have life boats. D sends out a boat without life boats. P, a sailor, falls overboard in a storm so heavy that, even had there been a life boat, it could not have been launched. P drowns. Even assuming that D was negligent per se, D’s failure to provide life boats is not a cause in fact of P’s death, because that death would have occurred even without the failure. Therefore, D is not liable.

1. Joint tortfeasors: There can be multiple "but for" causes of an event. D1 cannot defend on the grounds that D2 was a "but for" cause of P’s injuries – as long as D1 was also a "but for" cause, D1 is viewed as the "cause in fact." [130]

C. Concurrent causes: Sometimes D’s conduct can meet the "cause in fact" requirement even though it is not a "but for" cause. This happens where two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other. Each of these concurring events is deemed a cause in fact of the injury, since it would have been sufficient to bring the injury about. [130] (Example: Sparks from D’s locomotive start a forest fire; the fire merges with some other unknown fire, and the combined fires burn P’s property. Either fire alone would have been sufficient to burn P’s property. Therefore, D’s fire is a cause in fact of P’s damage, even though it is not a "but for" cause. [Kingston v. Chicago & N.W. Ry.])

D. Multiple fault: If P can show that each of two (or more) defendants was at fault, but only one could have caused the injury, the burden shifts to each defendant to show that the other caused the harm. [135] (Example: P, D1 and D2 go hunting together. D1 and D2 simultaneously fire negligently, and P is struck by one of the shots. It is not known who fired the fatal shot. The court will put the burden on each of the Ds to show that it was the other shot which hit P – if neither D can make this showing, both will be liable. [Summers v. Tice])

1. The "market share" theory: In product liability cases, courts often apply the "market share" theory. If P cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, the court will require each of the Ds to pay that percentage of P’s injuries which that D’s sales bore to the total market sales of that type of product at the time of injury. The theory is used most often in cases involving prescription drugs. [135 - 138]

Example: 200 manufacturers make the drug DES. P shows that her mother took the drug during pregnancy, and that the drug caused P to develop cancer. P cannot show which DES manufacturer produced the drug taken by her mother. Held, any manufacturer who cannot show that it could not have produced the particular doses taken by P’s mother will be liable for the proportion of any judgment represented by that manufacturer’s share of the overall DES market. [Sindell v. Abbott Laboratories, 136]

a. Exculpation: Courts are split on whether each defendant should be allowed to exculpate itself by showing that it did not make the particular items in question – some more modern cases hold that once a given defendant is shown to have produced drugs for the national market, no exculpation will be allowed. [136]

b. National market share: In determining market share, courts usually use a national, rather than local, market concept. [137]

c. No joint and several liability: Courts adopting the "market share" approach often reject joint-and-several liability – they allow P to collect from any defendant only that defendant’s proportionate share of the harm caused. [137] (Example: P sues a single D, and shows that that D counted for 10% of the market. P’s total damages are $1 million. If "market share" is the theory of liability, most courts will allow P only to recover $100,000 from D – D will not be made jointly and severally liable for P’s entire injuries.)

d. Socially valuable products: The more socially valuable the court perceives the product to be, the less likely it is to apply a market-share doctrine. For instance, a court is likely to reject the doctrine where the product is a vaccine. [137 - 138]

E. Increased risk, not yet followed by actual damage: Where D’s conduct has increased the risk that P will suffer some later damage, but the damage has not yet occurred, most courts deny P any recovery for that later damage unless he can show that it is more likely than not to occur eventually. But some courts now allow recovery for such damage, discounted by the likelihood that the damage will occur. [134 - 135] (Example: D, an M.D., negligently operates on P. The operation leaves P with a 20% risk of contracting a particular disease in the future. At the time of trial, P does not yet have the disease. Most courts would not let P recover anything for the risk of getting the disease in the future. But some might let P recover damages for having the disease, discounted by 80% to reflect the 80% chance that P won’t get the disease after all. [Petriello v. Kalman])

F. "Indeterminate plaintiff": Sometimes it’s clear that D has behaved negligently and injured some people, but not clear exactly which people have been injured. This happens most often in toxic tort and other mass-tort cases. Courts today sometimes allow a class action suit, in which people who show that they were exposed to a toxic substance made or released by D, and that they suffer a particular medical problem, can recover something, even if they can’t show that it’s more probable than not that their particular injuries were caused by the defendant’s toxic substance. [138 - 139]

Example: D makes a silicone breast implant, which hundreds of plastic surgeons implant into thousands of women. Epidemiological evidence shows that a substantial percentage of women getting such implants will suffer a particular auto-immune disease (but there can be other causes of the disease as well.) Many courts today would let a class action proceed on these facts. Any woman who received a breast implant made by D and who has the auto-immune condition could be a member of the plaintiff class, and could recover at least some damages, even if she couldn’t show that her particular disease was more likely than not caused by D’s product.

II. PROXIMATE CAUSE GENERALLY

A. General: Even after P has shown that D was the "cause in fact" of P’s injuries, P must still show that D was the "proximate cause" of those injuries. The proximate cause requirement is a policy determination that a defendant, even one who has behaved negligently, should not automatically be liable for all the consequences, no matter how improbable or far-reaching, of his act. Today, the proximate cause requirement usually means that D will not be liable for the consequences that are very unforeseeable. [139]

Example: D, driving carelessly, collides with a car driven by X. Unbeknownst to D, the car contains dynamite, which explodes. Ten blocks away, a nurse who is carrying P, an infant, is startled by the explosion, and drops P. P will not be able to recover against D, because the episode is so far-fetched – it was so unforeseeable that the injury would occur from D’s negligence – that courts will hold that D’s careless driving was not the "proximate cause" of P’s injuries.

1. Multiple proximate causes: Just as an occurrence can have many "causes in fact," so it may well have more than one proximate cause. [140] (Example: Each of two drivers drives negligently, and P is injured. Each driver is probably a proximate cause of the accident.)

III. PROXIMATE CAUSE – FORESEEABILITY

A. The foreseeability rule generally: Most courts hold that D is liable, as a general rule, only for those consequences of his negligence which were reasonably foreseeable at the time she acted. [140]

Example: D’s ship spills oil into a bay. Some of the oil adheres to P’s wharf. The oil is then set afire by some molten metal dropped by P’s worker, which ignites a cotton rag floating on the water. P’s whole dock then burns. Held, D is not liable, because the burning of P’s dock was not the foreseeable consequence of D’s oil spill, and thus the oil spill was not the proximate cause of the damage. This is true even though the burning may have been the "direct" result of D’s negligence. [Wagon Mound No. 1] [142]

B. Unforeseeable plaintiff: The general rule that D is liable only for foreseeable consequences is also usually applied to the "unforeseeable plaintiff" problem. That is, if D’s conduct is negligent as to X (in the sense that it imposes an unreasonable risk of harm upon X), but not negligent as to P (i.e., does not impose an unreasonable risk of harm upon P), P will not be able to recover if through some fluke he is injured. [143 - 145]

Example: X, trying to board D’s train, is pushed by D’s employee. X drops a package, which (unknown to anybody) contains fireworks, which explode when they fall. The shock of the explosion makes some scales at the other end of the platform fall down, hitting P. Held, P may not recover against D. D’s employee may have been negligent towards X (by pushing him), but the employee’s conduct did not involve any foreseeable risk of harm to P, who was standing far away. Since D’s conduct did not involve an unreasonable risk of harm to P, and the damage to her was not foreseeable, the fact that the conduct was unjustifiably risky to X is irrelevant. D’s conduct was not the "proximate cause" of the harm to P. [Palsgraf v. Long Island R.R. Co., 143]

C. Extensive consequences from physical injuries: A key exception to the general rule that D is liable only for foreseeable consequences is: once P suffers any foreseeable impact or injury, even if relatively minor, D is liable for any additional unforeseen physical consequences. [145]

1. Egg-shell skull: Thus if P, unbeknownst to D, has a very thin skull (a skull of "egg-shell thinness"), and D negligently inflicts a minor impact on this skull, D will be liable if, because of the hidden skull defect, P dies. The defendant "takes his plaintiff as he finds him." [145]

D. General class of harm but not same manner: Another exception to the "foreseeable consequences only" rule is that as long as the harm suffered by P is of the same general sort that made D’s conduct negligent, it is irrelevant that the harm occurred in an unusual manner. [146]

Example: D gives a loaded pistol to X, an eight-year-old, to carry to P. In handing the pistol to P, X drops it, injuring the bare foot of Y, his playmate. The fall sets off the gun, wounding P. D is liable to P, since the same general kind of risk that made D’s conduct negligent (the risk of accidental discharge) has materialized to injure P; the fact that the discharge occurred in an unforeseeable manner – by the dropping of the gun – is irrelevant. (But D is not liable to Y, since Y’s foot injury was not foreseeable, and the risk of it was not one of the risks that made D’s conduct initially negligent.)

E. Plaintiff part of foreseeable class: Another exception to the foreseeability rule: the fact that injury to the particular plaintiff was not especially foreseeable is irrelevant, as long as P is a member of a class as to which there was a general foreseeability of harm. [147]

Example: D negligently moors its ship, and the ship breaks away. It smashes into a draw bridge, causing it to create a dam, which results in a flood. The Ps, various riparian owners whose property is flooded, sue. Held, these owners can recover against D, even though it would have been hard to foresee which particular owners might be flooded. All of the Ps were members of the general class of riverbank property owners, as to which class there was a risk of harm from flooding. [Petition of Kinsman Transit Co.]

F. The "extraordinary in hindsight" rule: Many courts, and the Second Restatement, articulate the foreseeability rule as an "extraordinary in hindsight" rule. D’s conduct will not be the proximate cause of P’s harm if, "after the event and the looking back from the harm to [D’s] negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm." [147 - 148]

IV. PROXIMATE CAUSE – INTERVENING CAUSES

A. Definition of "intervening cause": Most proximate cause issues arise where P’s injury is precipitated by an "intervening cause." An intervening cause is a force which takes effect after D’s negligence, and which contributes to that negligence in producing P’s injury. [148]

1. Superseding cause: Some, but not all, intervening causes are sufficient to prevent D’s negligence from being held to be the proximate cause of the injury. Intervening causes that are sufficient to prevent D from being negligent are called "superseding" causes, since they supersede or cancel D’s liability. [148]

B. Foreseeability rule: Generally courts use a foreseeability rule to determine whether a particular intervening cause is superseding. [148 - 149]

1. Test: If D should have foreseen the possibility that the intervening cause (or one like it) might occur, or if the kind of harm suffered by P was foreseeable (even if the intervening cause was not itself foreseeable), D’s conduct will nonetheless be the proximate cause. But if neither the intervening cause nor the kind of harm was foreseeable, the intervening cause will be a superseding one, relieving D of liability. [148 - 149]

C. Foreseeable intervening causes: Often the risk of a particular kind of intervening cause is the very risk (or one of the risks) which made D’s conduct negligent in the first place. Where this is the case, the intervening cause will almost never relieve D of liability. [148 - 151]

Example: D leaves his car keys in the ignition, and the car unlocked, while going into a store to do an errand. X comes along, steals the car, and while driving fast to get out of the neighborhood, runs over P. If the court believes that the risk of theft is one of the things that makes leaving one’s keys in the ignition negligent, the court will almost certainly conclude that X’s intervening act was not superseding.

1. Foreseeable negligence: The negligence of third persons may similarly be an intervening force that is sufficiently foreseeable that it will not relieve D of liability. [149 - 151] (Example: D is a tavern owner, who serves too much liquor to X, knowing that X arrived alone by car. D also does not object when X gets out his car keys and leaves. If X drunkenly runs over P, a court will probably hold that X’s conduct in negligently (drunkenly) driving, although intervening, was sufficiently foreseeable that it should not absolve D of liability.)

2. Criminally or intentionally tortious conduct: A third person’s criminal conduct, or intentionally tortious acts, may also be so foreseeable that they will not be superseding. But in general, the court is more likely to find the act superseding if it is criminal or intentionally tortious than where it is merely negligent. [151]

D. Responses to defendant’s actions: Where the third party’s intervention is a "normal" response to the defendant’s act, that response will generally not be considered superseding. This is true even if the response was not all that foreseeable. [151 - 154]

1. Escape: For instance, if in response to the danger created by D, P or someone else attempts to escape that danger, the attempted escape will not be a superseding cause so long as it was not completely irrational or bizarre. [152] (Example: D, driving negligently, sideswipes P’s car on the highway. P panics, thrusts the wheel to the right, and slams into a railing. Even though most drivers in P’s position might not have reacted in such an extreme or unhelpful manner, P’s response is not sufficiently bizarre to constitute a superseding cause.)

2. Rescue: Similarly, if D’s negligence creates a danger which causes some third person to attempt a rescue, this rescue will normally not be an intervening cause, unless it is performed in a grossly careless manner. D may be liable to the person being rescued (even if part or all of his injuries are due to the rescuer’s ordinary negligence), or to the rescuer. [152 - 153]

3. Aggravation of injury by medical treatment: If D negligently injures P, who then undergoes medical treatment, D will be liable for anything that happens to P as the result of negligence in the medical treatment, infection, etc. (Examples: P is further injured when the ambulance carrying her gets into a collision, or when, due to the surgeon’s negligence, P’s condition is worsened rather than improved.) [153]

a. Gross mistreatment: But some results of attempted medical treatment are so gross and unusual that they are regarded as superseding. [153] (Example: While P is hospitalized due to injuries negligently inflicted by D, a nurse kills P by giving him an injection of morphine which she knows may be fatal, because she wants to spare him from suffering. D is not liable for P’s death because the nurse’s conduct is so bizarre as to be superseding.)

E. Unforeseeable intervention, foreseeable result: If an intervention is neither foreseeable nor normal, but leads to the same type of harm as that which was threatened by D’s negligence, the intervention is usually not superseding. [154 - 155]

Example: D negligently maintains a telephone pole, letting it get infested by termites. X drives into the pole. The pole breaks and falls on P. A properly-maintained telephone pole would not have broken under the blow. Even though the chain of events (termite infestation followed by car crash) was bizarre, X’s intervention will not be superseding, because the result that occurred was the same general type of harm as that which was threatened by D’s negligence – that the pole would somehow fall down. [Gibson v. Garcia]

F. Unforeseeable intervention, unforeseeable results: If the intervention was not foreseeable or normal, and it produced results which are not of the same general nature as those that made D’s conduct negligent, the intervention will probably be superseding. [155 - 156]

1. Extraordinary act of nature: Thus an extraordinary act of nature is likely to be superseding. (Example: Assume that it is negligent to one’s neighbors to build a large wood pile in one’s back yard, because this may attract termites which will then spread. D builds a large wood pile. An unprecedentedly-strong hurricane sweeps through, takes one of the logs, and blows it into P’s bedroom, killing him. The hurricane will probably be held to be a superseding intervening cause, because it was so strong as to be virtually unforeseeable, and the type of harm it produced was not of the type that made D’s conduct negligent in the first place.) [155]

G. Dependent vs. independent intervention: Courts sometimes distinguish between "dependent" intervening causes and "independent" ones. A dependent intervening cause is one which occurs only in response to D’s negligence. An independent intervention is one which would have occurred even had D not been negligent (but which combined with D’s negligence to produce the harm). Dependent intervening events are probably somewhat more foreseeable on average, and thus somewhat less likely to be superseding, than independent ones. But a dependent cause can be superseding (e.g., a grossly negligent rescue attempt), and an independent intervention can be non-superseding. [156 - 157]

H. Third person’s failure to discover: A third person’s failure to discover and prevent a danger will almost never be superseding. For instance, if a manufacturer negligently produces a dangerous product, it will never be absolved merely because some person further down the distribution chain (e.g., a retailer) negligently fails to discover the danger, and thus fails to warn P about it. [158]

1. Third person does discover: But if the third person does discover the defect, and then willfully and negligently fails to warn P, D may escape liability if D took all reasonable steps to remedy the danger. [158] (Example: D manufactures a machine, and sells it to X. D then learns that the machine may crush the hands of users. D offers to X to fix the machine for free. X declines. P, a worker for X, gets his hand crushed. X’s failure to warn P or allow the machine to be fixed by D probably supersedes, and relieves D of liability because D tried to do everything it could.)