Causation Flashcards
Causal Linkage
Most often, when the plaintiff proves that the defendant’s tortious conduct was a but-for causeof his injury, he also implicitly proves that the defendant’s conduct increased the probability that the plaintiff would be harmed.
EX: If a passenger in a car is injured because the wind happens to blow down a tree and the car is positioned under the tree at the moment it falls only because the driver has been traveling at an unreasonably unsafe speed, then is the negligent driver the cause of the accident?
It can technically be stated that the passenger would not have been injured but for the driver’s negligent speeding. However, most courts would find that the driver should not be found to be a cause of the accident under the doctrine of causal linkage, i.e., the driver’s conduct did not increase the probability that the plaintiff would be harmed.
Proximate Cause (Scope of Liability)
In addition to proving actual causation, the plaintiff must prove ___________.
that the defendant’s tortious conduct was a proximate cause of her harm.
Some courts and the Third Restatement replace the proximate causation terminology with the issue of whether the plaintiff’s harm was within the “scope of liability” of the defendant’s conduct.
A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious. Rest. 3d: Liability for Physical and Emotional Harm §29.
EXAM NOTE: Remember that there must be factual cause for proximate cause to exist, and if factual cause exists, then ____________.
if factual cause exists, then proximate cause exists unless there are intervening acts.
The two sub-issues in proximate causation are
1) Which plaintiffs can recover?
a) Majority rule
b) Minority/Restatement rule
2) Types of risk: The second proximate cause (scope of liability) issue is whether the plaintiff can recover for the specific type of risk that harmed her.
a) Direct Cause
b) Unforeseeable type of risk
Limitations on Liability
Which plaintiffs can recover:
Majority Rule
a) Majority rule
Recall that a majority of jurisdictions hold that the defendant does not owe a duty of care to the plaintiff unless the plaintiff is among the class of victims who might foreseeably be injured as a result of the defendant’s tortious conduct.
- This is the Cardozo approach in Palsgraf v. Long Island R. R. Co., 162 N.E. 99 (N.Y. 1928). See § IV.B.3. Foreseeability of Harm to the Plaintiff, supra.
Limitations on Liability
Which plaintiffs can recover:
Minority Rule
Minority/Restatement rule
In the minority of jurisdictions—and in the Third Restatement—which plaintiffs can recover is determined by whether harms to them were proximately caused by the defendant’s tortious conduct or were within the scope of liability of the defendant’s conduct.
- This is the Andrews approach in Palsgraf.
Under the Andrews approach, whether the plaintiff’s harms are proximately caused by the defendant’s conduct requires consideration of the following factors:
Under the Andrews approach, whether the plaintiff’s harms are proximately caused by the defendant’s conduct requires consideration of the following factors:
i) Is there a natural and continuous sequence between cause and effect?
ii) Was the one a substantial factor in producing the other?
iii) Was there a direct connection without the intervention of too many intervening causes?
iv) Was the cause likely to produce the effect?
v) Could the defendant have foreseen the harm to the plaintiff?
vi) Is the cause too remote in time and space from the effect?
Types of Risk
Direct Cause
a) Direct cause
A majority of U.S. courts hold that the plaintiff can recover when the defendant’s tortious acts are the direct cause of the plaintiff’s harm—a cause without the intervention of independent contributing acts. In deciding whether the plaintiff can recover for a particular type of harm, these courts look at many of the same factors that Judge Andrews considered in Palsgraf. These jurisdictions hold that the foreseeability of the type of harm does not necessarily preclude liability.
Types of Risk
Unforeseeable type of risk
Unforeseeable type of risk
A strong minority of U.S. jurisdictions hold that whether a plaintiff can recover for a particular type of risk is determined by whether or not that particular risk is foreseeable as a result of the defendant’s tortious conduct. If it is not, then there is no proximate cause and the plaintiff cannot recover.
Even though a strong minority of jurisdictions hold that the type of risk that produces the plaintiff’s harm must be foreseeable, under the “thin skull” or “eggshell skull” rule,
the extent of the damages need never be foreseeable. Thus, the defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s pre-existing medical condition or vulnerability, even if the extent is unusual or unforeseeable.
Intervening cause
Intervening cause
An intervening cause is a factual cause of the plaintiff’s harm that contributes to her harm after the defendant’s tortious act has been completed.
Superseding cause
Superseding cause
A superseding cause is any intervening cause that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm, thereby preventing the original defendant from being liable to the plaintiff.
