Proximate Cause: Foresight and Hindsight - Feb. 1

Question 1

What is the foreseeability test for proximate causation? (Feldman)

Answer 1

Imagine a film of the accident. The foreseeability test requires you to freeze the film at the point where the negligence takes place and ask yourself why it was negligent – what is the risk (the PL in the Hand formula)? Now run the film forward and see if
the accident is what was foreseen. (Cardozo)

Question 2

What is the hindsight/directness test? (Feldman)

Answer 2

For the hindsight/directness test, we run the film to the end and examine the causal chain between the negligent conduct and the harm. The tortfeasor is liable for all consequences that are “proximate” whether or not they are “unusual, unexpected,
unforeseen, and unforeseeable.” (Andrews)

Question 3

What is the time and distance test of proximate causation? (Feldman)

Answer 3

The greater the distance either in time or space, the more likely other causes will intervene to affect the result.

Question 4

What is the substantial factor test of proximate causation? (Feldman)

Answer 4

Is negligence a substantial factor in producing the harm?

Question 5

What is the direct connection test of proximate causation? (Feldman)

Answer 5

Was there a direct connection without too many
intervening causes?

Question 6

What is the attenuation test of proximate causation? (Feldman)

Answer 6

Is the effect of cause on result weak or even coincidental?

Question 7

What is the likelihood test of proximate causation? (Feldman)

Answer 7

Is the negligent conduct likely, in the judgment of a reasonable
person, to cause the harm?

Question 8

What is the stream analogy test of proximate causation? (Feldman)

Answer 8

A stream is joined by various tributaries with different
tinges to their water, and at some point you can’t tell the tinges apart because they all get mixed together. At this point, causal connection is no longer close
(proximate) enough for liability