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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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Tuesday, April 27, 2010

11 – Negligence – Causation (Proximate Cause)

11 – Negligence – Causation (Proximate Cause)

In the last Torts session, we looked at cause in fact, the first half of Causation.  Now we look at the second half of causation – proximate cause.

In my experience, students struggle over this topic more than any other topic in negligence.  So, let’s see if we can de-mystify it.

Proximate cause – sometimes called “legal cause” – is always determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent.  Proximate cause insures that there are no policy reasons to relieve the D from liability.  Proximate cause examines HOW the plaintiff's injury resulted from the defendant's conduct. If the plaintiff's injury is sufficiently unexpected or bizarre, then the defendant is not liable – the proximate cause analysis cuts off liability.  The prevailing view is whether the D should have reasonably foreseen, as a result of her conduct, the general consequences or type of harm suffered by P.  In other words, proximate cause is satisfied when the plaintiff's injury is a foreseeable result of the defendant's breach and there are no superseding, intervening causes of the plaintiff's harm.  Stated another way:  Under proximate cause a defendant will only be liable where the injuries sustained by plaintiff were reasonably foreseeable and there were no intervening forces which might break the chain of causation. 

How do you tell if there is a proximate cause issue?  The modern view focuses on three things or categories:  the extent of harm, the type of harm, and the manner of harm.

The rule regarding the extent of harm is that the defendant takes the victim as he finds her.  That being the case, the defendant is liable for the extent of harm without regard to the extraordinary nature of the injury, even if there is a pre-existing injury.  This principle, an exception to the rule of foreseeability, is often referred to as “The Eggshell Skull Rule.” 

Here is a hypothetical that I use in class:

Darren collides with Pebbles, breaking her leg.  Pebbles, due to years of alcohol abuse, is predisposed to delirium tremens and dies of delirium tremens after a couple of days in the hospital.  Is Defendant civilly liable for the death of Pebbles?[1]

In this case, Darren is the proximate cause of the death if his negligence precipitated the attack of  delirium tremens.  McCahill v. New York Transportation Co., 94 N.E. 616 (N.Y. 1911).[2]

The rule regarding the type of harm is if the harm actually suffered by Plaintiff is within the risk created by Defendant’s negligence, the Plaintiff is liable.  This principle is often referred to as “the Risk Rule”.  Here the focus in on the foreseeability of the harm suffered by the Plaintiff, so you should consider what happened that made the Defendant’s conduct unreasonable.  An example is the type of harm (injury), which involves the Polemis case and the Wagon Mound that can be found by a simple Google search or in most law school books for Torts.

Here is another hypothetical I often use in class:

Dawn owns a vicious dog, Cuddles, that she unreasonably allows to escape from the yard one night.  Cuddles runs into the street, causing a gasoline truck to swerve to avoid a collision.  The truck driver loses control and the gas leaks, causing an explosion that destroys Pookah’s house.  Pookah sue Dawn.[3] 

Here, Dawn’s act is probably not the proximate cause of the burning house.  “Dawn can make a persuasive argument that the risk created by negligently letting Cuddles out of the yard did not include the burning of the house.”[4]

The rule regarding the manner of harm is generally that Defendant will be liable even if there is an intervening force unless that intervening force is superseding.  The issue is often expressed as the “unforeseeable intervening event.”

An intervening force is a new force which joins with the defendant’s conduct to cause the plaintiff’s injury. A cause is intervening, by definition, only if it comes into active operation as a cause subsequent in time to the tortious conduct of the defendant.

A superseding force is an intervening force that is so unexpected or bizarre that its occurrence is highly extraordinary. 

One rather prominent case this is often studied in law school is the Palsgraf case, that can be found by a Google search or in most law school Torts books.  What was unforeseeable in the Palsgraf case was the unforeseeable plaintiff. Mrs. Palsgraf, standing some distance away, was outside the area where one would expect an injury to occur. The majority opined that the railroad therefore owed her a limited duty, and not a duty to foresee and protect against this kind of injury.

{Note:  In this case, Justice Cardozo sees this as a duty issue and not a proximate cause issue. He says “The law of causation, remote or proximate, is thus foreign to the case before us.”  Cardozo advances the "Zone of Danger" principle that is still valid today:  To be a foreseeable P, one must be in the zone of danger.  Andrews believes these facts present no duty problems at all. The railroad owed a duty to its passengers, and therefore to Mrs. Palsgraf. He also believed that both the type and manner of injury here were foreseeable.}

If there still seems to be some confusion, here is a quick review:

The prevailing view is whether the defendant should have reasonably foreseen, as a result of her conduct, the general consequences or type of harm suffered by the plaintiff.[5]  In other words, proximate cause is satisfied when the plaintiff's injury is a foreseeable result of the defendant's breach and there are no superseding, intervening causes of the plaintiff's harm. 

Stated another way:  Under proximate cause a defendant will only be liable where the injuries sustained by plaintiff were reasonably foreseeable and there were no intervening forces which might break the chain of causation.

Stated another way:  The Foreseeability Test is the leading test.  It “focuses on whether the defendant should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the plaintiff.  While the result or type of harm must be reasonably foreseeable, the extent and the precise manner in which the harm occurs need not be foreseeable.  Even if the result is foreseeable, the defendant is relieved from liability if there is a superseding intervening force.  An intervening force is a new force which joins with the defendant’s conduct to cause the plaintiff’s injury.”[6]  Such force “is considered intervening, because it has occurred sequentially in time after the defendant’s conduct.  An intervening force does not necessarily bar the plaintiff from establishing proximate cause under the foreseeable type of harm test.  If the intervening force is characterized as superseding, proximate cause is not established, even though the type of harm is foreseeable.  An intervening force is generally characterized as superseding only when its occurrence appears extraordinary under the circumstances.  In essence then, the foreseeable harm test requires (1) a reasonably foreseeable  result or type of harm, and (2) no superseding intervening force.”[7]]



Here is an exam tip:  When there is a foreseeable plaintiff issue, generally this should be discussed in duty.  So, when you get to proximate cause, you can merely refer back to your discussion in your duty section. 

Here's the essay approach to proximate cause:

1. Define proximate cause: The prevailing view is whether the D should have reasonably foreseen, as a result of her conduct, the general consequences or type of harm suffered by P. Under proximate cause a defendant will only be liable where the injuries sustained by plaintiff were reasonably foreseeable and there were no intervening forces which might break the chain of causation.

2. Look for the 3  categories of proximate, but also consider referring back to your discussion on duty if you see a foreseeable plaintiff issue and consider whether or not there is a risk of harm or passage of time issue that will terminate the risk:

(1)  Foreseeable Plaintiff:
The Cardozo view (no proximate cause, but rather duty): To be a foreseeable P, one must be in the zone of danger. Judge Cardozo saw the problem as one of duty, not causation. There is no duty unless harm to the plaintiff was foreseeable.

The Andrew view (duty is owed to everyone): Judge Andrews said that the duty to exercise care is owed to all.

(2)  Extent of Harm:

The defendant takes the victim as he finds her and is therefore liable for the extent of harm no matter how extraordinary, even if there is a pre-existing injury.  This principle is often referred to as “The Eggshell Skull Rule.”  It is an exception to the rule of foreseeability.

(3)  Type of Harm:

If the harm actually suffered by Plaintiff is within the risk created by Defendant’s negligence, the Plaintiff is liable.  This principle is often referred to as “the Risk Rule”.  Here the focus in on the foreseeability of the harm suffered by the Plaintiff, so you should consider what happened that made the Defendant’s conduct unreasonable. 

(4)  Manner of Harm:

Generally, Defendant will be liable even if there is an intervening force unless that intervening force is superseding.  The issue can be expressed as “unforeseeable intervening event.”

An intervening force is a new force which joins with the defendant’s conduct to cause the plaintiff’s injury. A cause is intervening, by definition, only if it comes into active operation as a cause subsequent in time to the tortious conduct of the defendant.

A superseding force is an intervening force that is so unexpected or bizarre that its occurrence is highly extraordinary.

(5)  Scope of Risk and Lapse of Time:

NOTE: Also consider the scope of risk and the elapse of time.

a.      What are the risks of Defendant’s conduct and are the types of injuries within the scope of these risks?  If the type of injury is beyond or outside the scope of the risk, the risk is terminated.  If the conduct exhibits a high risk behavior, the risk will not be terminated.
b.     The passage of time:  Is the injury too remote in time.  If so, the risk could be terminated.

Professor Doug Holden
©  2013.  Douglas S. Holden.  All Rights Reserved.


[1] Levine, Lawrence C., TORTS, 4th Ed., West, 2000, p. 103
[2] Levine,  p. 103
[3] Levine, p. 104.
[4] Levine, p. 104.
[5] Diamond, John L., Levine Lawrence C., Bernstein, Anita, Understanding Torts, 4th Ed., Matthew Bender (2010), p. 189.
[6] Diamond, p. 189.
[7] Diamond, pp. 189-190.

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