Causation

Dr. Steiner

Cause in fact

“But for” cause Sine qua non

Proving cause in fact Multiple causes and “substantial

factor” Mathematical probability

loss of opportunity scientific evidence and causation

Cause in Fact For the want of a nail, a shoe was lost. For the want of a shoe, a horse was lost. For the want of a horse, a rider was lost. For the want of a rider, a battle was lost. For the want of a battle, a kingdom was

lost.

Cause in Fact

King sues Blacksmith. Can King show cause in fact for

loss of kingdom?

Proximate Cause

For the want of a nail, a shoe was lost. For the want of a shoe, a horse was lost. For the want of a horse, a rider was lost. For the want of a rider, a battle was lost. For the want of a battle, a kingdom was

lost.

Proximate Cause

King sues Blacksmith. Can King show proximate

cause for loss of kingdom?

Jury Instruction: Direct Cause

The “proximate cause” is that which produces an injury directly, or in the natural and normal sequence of events without the intervention of any independent, intervening cause. It is the direct and immediate cause, the predominant cause which, acting directly or in the natural sequence of events, produces the accident and resulting injury, and without which the injury would not have occurred.

Jury Instruction:Foreseeability of Injury

The “proximate cause” is a cause which in its natural and continuous sequence produces an event, and without which the event would not have occurred. In order to warrant a finding that the defendant’s negligence is the proximate cause of an injury, it must appear from the preponderance of the evidence that facts and circumstances existed were such that a person of ordinary prudence would have reasonably foreseen that the injury would be the natural and probable consequence of the negligence.

Mrs. O’Leary’s Cow and Direct Cause

Mrs. O’Leary’s Cow and Direct Cause

Palsgraf: Railroad scale

Palsgraf: Railroad station

Palsgraf: Majority opinion in Appellate Division

It must be remembered that the plaintiff was a passenger of the defendant and entitled to have the defendant exercise the highest degree of care.

Dissenting opinion in Appellate Division Between the negligence of

defendant and the injuries, there intervened the negligence of the passenger carrying the package containing the explosive. This was an independent, and not a concurring act of negligence. The explosion was not reasonably probable as a result of defendant’s act of negligence.

How was Palsgraf injured? [Counsel] Now, as you were standing

there . . . you say an explosion occurred. Did you hear any noise?

[Palsgraf] Firecrackers shooting. [Counsel] Well, what happened, if anything,

to the glass or mirrors of the scale? [Palsgraf] Flying glass—a ball of fire came,

and we were choked in smoke, and I says, “Elizabeth, turn your back,” and with that the scale blew and hit me on the side.

What was the injury to Palsgraf?

[Counsel] Now, has your speech been stuttering and stammering ever since that day, as it is now?

[Palsgraf] Ever since the day of the accident. . . .

[Counsel] Just what is the cause of this stuttering and stammering?

[Doctor] It is traumatic shock.

What was the injury to Palsgraf?

[Counsel] Doctor, in your opinion, might this condition have been corrected before this time by medical treatment?

[Neurologist] Not while litigation is pending. It has been my experience that it never is benefited or relieved or cured until the source of worry disappears by the conclusion of the trial.

Railroad’s motion to dismissat end of Palsgraf’s case

[Counsel] There is no evidence at all of negligence on our part. It surely can not be anticipated, when people are carrying fireworks in a package, and we can’t have everybody open their bundles when they come on the station platform.

Railroad’s request for jury instruction on proximate cause

[Counsel] I ask your Honor to charge the jury that if they find the defendant’s servants were assisting the passenger upon the train and in so doing knocked the bundle from his hand, that that act of the servants is not the proximate cause of plaintiff’s injuries.

[Judge] I decline.

Restatement sec. 281, illus.3

A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D.

Rescue Doctrine Rescue doctrine permits injured

rescuer to sue the party who caused the danger that required rescue

It’s considered foreseeable that a rescuer will come to aid of person affected by tortfeasor’s actions

Disallows claim that rescuer assumed risk

Rescuer Status Defendant was negligent to person

rescued and that negligence caused the peril/appearance of peril to person rescued

Peril was imminent A reasonably prudent person would

have concluded that such peril existed The rescuer acted with reasonable care

Superseding Cause Defined

Restatement 2d, sec. 440A superseding cause is an act by a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bring about.

Considerations Important in Determining Whether an Intervening

Force is a Superseding Cause Restatement 2d, sec. 442

its intervention brings about harm different in kind from that which otherwise would have resulted from actor’s negligence

its operation or consequences appear to be extraordinary rather than normal in light of circumstances

intervening force is operating independently of any situation created by actor’s negligence or isn’t the normal result of that situation

Considerations Important in Determining Whether an Intervening

Force is a Superseding Cause (con’t) Restatement 2d, sec. 442

operation of intervening force is due to third person’s act or failure to act

intervening force is due to an act of third person that is wrongful to other

degree of culpability of wrongful act of third person that sets intervening force in motion

Intervening Force Risked by Actor’s Conduct

Restatement 2d, sec. 442AWhere the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause.

Intervening Causing Same Harm as That Risked by Actor’s Conduct

Restatement 2d, sec. 442BWhere the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing the harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of risk created by the actor’s conduct.

Intervening Causing Same Harm as That Risked by Actor’s Conduct

Restatement 2d, sec. 442B, cmt bIf the actor’s negligent conduct has created or increased the risk that a particular harm to the plaintiff will occur, and has been a substantial factor in causing that harm, it is immaterial to the actor’s liability that the harm is brought about in a manner which no one in his position could possibly have been expected to foresee or anticipate. . . . This is to say that any harm which is in itself foreseeable, as to which the actor has created or increased the recognizable risk, is always “proximate,” no matter how it is brought about, except where there is such intentionally tortious or criminal intervention, and it is not within the scope of the risk created by the original negligent conduct.

Normal Intervening Force

Restatement 2d, sec. 443The intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about.

Negligence of Intervening Acts

Restatement 2d, sec. 447The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or(b) a reasonable man knowing the situation when the act of the third person was done would not regard it as highly extraordinary that the third person has so acted, or(c) the intervening act is a normal consequence of a situation created by the actor’s conduct and the in which it is done is not extraordinary negligent.

Tortious or criminal acts the probability of which make the actor’s conduct negligent

Restatement 2d, sec. 449If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.

Herman v. Markham Air Rifle

McLaughlin v. Mine Safety App.:Jury’s question

Your Honor, if we, the jury, find that the M. S. A. Company was negligent in not making any warning of danger on the heat block itself, but has given proper instructions in its use up to the point of an intervening circumstance (the nurse who was not properly instructed), is the M. S. A. Company liable?

McLaughlin v. Mine Safety App.:Judge’s response

[I]f you find from the evidence that the defendant, as a reasonably prudent person under all of the circumstances, should have expected use of the block by some person other than those to whom instruction as to its use had been given, either by the wording on the container or otherwise, and that under those circumstances a reasonably prudent person would have placed warning words on the heat block itself, and if you find in addition to that that the nurse was not warned at the scene and that a reasonably prudent person in the position of the nurse, absent any warning on the block itself, would have proceeded to use it without inquiry as to the proper method of use, then the defendant would be liable.

Liability for criminal act of third party: examples

Defendant, by contract or otherwise, is under duty to protect plaintiff against criminal misconduct

Defendant’s affirmative act destroys or defeats a protection that plaintiff has placed around plaintiff’s person or property to guard against crime

Defendant causes contact to plaintiff with a person defendant knew or should have known was likely to commit crime

Defendant has custody of person with dangerous criminal tendencies and fails to restrain him From Prosser, Wade, and Schwartz’s Torts