Causation ReviewCausation Review

Dr. SteinerDr. Steiner

Torts ITorts I

Elements of CausationElements of Causation Cause in FactCause in Fact

Sine qua nonSine qua non or “but for” cause; or “but for” cause;substantial factorsubstantial factor

Examines the cause and effect Examines the cause and effect relationship between tortious conduct relationship between tortious conduct and injuryand injury

Proximate CauseProximate Cause Determining whether liability will be cut Determining whether liability will be cut

off even though cause in fact has been off even though cause in fact has been established established

Policy decision based on justice, Policy decision based on justice, fairness, or expediency fairness, or expediency

Post Hoc Ergo Propter HocPost Hoc Ergo Propter Hoc

After this, therefore because of After this, therefore because of this: a logical fallacy that this: a logical fallacy that because one event follows because one event follows another chronologically it was another chronologically it was caused by the first eventcaused by the first event

Just because event B follows Just because event B follows event A doesn’t mean that A event A doesn’t mean that A caused Bcaused B

A difference between A difference between possibility and probabilitypossibility and probability

Concurrent CauseConcurrent Cause When separate acts of negligence When separate acts of negligence

combine to cause a single injury, combine to cause a single injury, each tortfeasor is responsible for the each tortfeasor is responsible for the entire resultentire result

Concurrent cause also includes Concurrent cause also includes conduct that combines to cause conduct that combines to cause injury where either alone would have injury where either alone would have been sufficientbeen sufficient

Courts use “substantial factor” test Courts use “substantial factor” test when two or more causes combine to when two or more causes combine to bring about resultbring about result

Possibility of apportionment (Possibility of apportionment (DillonDillon))

Loss of Chance/Loss of Loss of Chance/Loss of OpportunityOpportunity ““The antithesis of proximate cause The antithesis of proximate cause

is the doctrine of lost opportunity”is the doctrine of lost opportunity” Some jurisdictions allow for Some jurisdictions allow for

recovery for loss of chance or recovery for loss of chance or reduced chance of survival even reduced chance of survival even though plaintiff can’t prove that it is though plaintiff can’t prove that it is more likely than not that more likely than not that defendant’s negligent conduct defendant’s negligent conduct caused injurycaused injury

Some jurisdictions don’t relax Some jurisdictions don’t relax causation or recognize cause of causation or recognize cause of actionaction

Loss of Chance/Loss of Loss of Chance/Loss of OpportunityOpportunity

Where doctrine recognized, jurisdictions Where doctrine recognized, jurisdictions have taken three different approaches:have taken three different approaches: Pure lost chance: full recovery of Pure lost chance: full recovery of

damages even though more likely than damages even though more likely than not plaintiff would have suffered injury not plaintiff would have suffered injury if defendant hadn’t been negligentif defendant hadn’t been negligent

Proportional approach limits recovery Proportional approach limits recovery to percentage of chance lost multiplied to percentage of chance lost multiplied by total damagesby total damages

Substantial possibility approach allows Substantial possibility approach allows full recovery where defendant’s full recovery where defendant’s negligence was less than loss of 50%, negligence was less than loss of 50%, but was a “substantial possibility”but was a “substantial possibility”

Science and Proof of Science and Proof of CausationCausation

Causation - more likely than not to Causation - more likely than not to have caused injury- can be proved by have caused injury- can be proved by scientific evidence (expert testimony)scientific evidence (expert testimony)

Statistical evidence must show more Statistical evidence must show more than a doubling of relative riskthan a doubling of relative risk

DaubertDaubert test: test: 1.1. Whether expert testimony is “good Whether expert testimony is “good

science” (peer review/publication; science” (peer review/publication; independent research) independent research)

2.2. Whether proffered testimony is Whether proffered testimony is relevant relevant (fit between testimony and (fit between testimony and issue in case)issue in case)

Proximate CauseProximate Cause ““A tangle and a jungle, a palace A tangle and a jungle, a palace

of mirrors and a maze”of mirrors and a maze”

– – Prosser on proximate causeProsser on proximate cause Proximate cause, or legal cause, Proximate cause, or legal cause,

addresses whether liability is to addresses whether liability is to be imposedbe imposed

Draws lines where liability stopsDraws lines where liability stops

Approaches to ProximateApproaches to Proximate CauseCause Direct causation (Direct causation (PolemisPolemis):):

negligent conduct was proximate cause of the negligent conduct was proximate cause of the injury even though defendant couldn’t have injury even though defendant couldn’t have foreseen itforeseen it

if act was negligent and some damage could if act was negligent and some damage could be anticipated, doesn’t matter that actual be anticipated, doesn’t matter that actual damage caused was unexpecteddamage caused was unexpected

unforeseeability of damage immaterial as long unforeseeability of damage immaterial as long as damage is “directly traceable” to the as damage is “directly traceable” to the negligent act and not because of independent negligent act and not because of independent causescauses

Foreseeable risks (Foreseeable risks (Wagon MoundWagon Mound): ): proximate cause is to be tested by the proximate cause is to be tested by the reasonable foreseeability of that reasonable foreseeability of that typetype of of risk risk

PalsgrafPalsgraf: Cardozo: Cardozo Proximate cause extends liability Proximate cause extends liability

to those whose conduct injures to those whose conduct injures persons within the zone of the persons within the zone of the reasonably foreseeable plaintiffreasonably foreseeable plaintiff

““The risk reasonably to be The risk reasonably to be perceived defines the duty to be perceived defines the duty to be obeyed and risks imports obeyed and risks imports relation; it is risk to another or relation; it is risk to another or to others within the range of to others within the range of apprehension.” apprehension.”

PalsgrafPalsgraf: Andrews: Andrews If act unreasonably threatens the If act unreasonably threatens the

safety of others, defendant is liable safety of others, defendant is liable for injuries that result, including for injuries that result, including those thought to be outside the those thought to be outside the “radius of danger” “radius of danger”

Proximate cause is “practical politics”Proximate cause is “practical politics” Factfinder should consider such Factfinder should consider such

“hints” as whether there is a natural “hints” as whether there is a natural and continuous sequence between and continuous sequence between cause and effect, whether the cause is cause and effect, whether the cause is likely to produce the result, etc. likely to produce the result, etc.

Cardozo v. AndrewsCardozo v. Andrews Causation wasn’t Causation wasn’t

presentedpresented Case resolved by Case resolved by

issue of duty; no issue of duty; no duty was owed to duty was owed to plaintiffplaintiff

Duty is relative Duty is relative concept, which is concept, which is owed to owed to foreseeable foreseeable plaintiffs plaintiffs

Causation was Causation was the issuethe issue

Case resolved by Case resolved by proximate cause; proximate cause; negligence was a negligence was a substantial factor substantial factor in producing in producing resultresult

Duty is owed to Duty is owed to the world at large the world at large

Proximate Cause in Proximate Cause in TexasTexasRead v. Scott Fetzer CoRead v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998)., 990 S.W.2d 732 (Tex. 1998)Proximate cause consists of two elements: Proximate cause consists of two elements: cause-in-fact and foreseeability. The cause-in-cause-in-fact and foreseeability. The cause-in-fact element of proximate cause is met when fact element of proximate cause is met when there is some evidence that the defendant's act there is some evidence that the defendant's act or omission was a substantial factor in bringing or omission was a substantial factor in bringing about injury without which the harm would not about injury without which the harm would not have occurred. The other element of proximate have occurred. The other element of proximate cause is foreseeability. In the context of cause is foreseeability. In the context of proximate cause, foreseeability requires that a proximate cause, foreseeability requires that a person of ordinary intelligence should have person of ordinary intelligence should have anticipated the danger created by a negligent anticipated the danger created by a negligent act or omission Foreseeability in the context of act or omission Foreseeability in the context of causation asks whether an injury might causation asks whether an injury might reasonably have been contemplated because of reasonably have been contemplated because of the defendant's conductthe defendant's conduct. .

““Danger invites Danger invites rescue”rescue” Rescue doctrine permits injured Rescue doctrine permits injured

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

Considered foreseeable that a Considered foreseeable that a rescuer will come to aid of rescuer will come to aid of person affected by tortfeasor’s person affected by tortfeasor’s actionsactions

Disallows claim that rescuer Disallows claim that rescuer assumed riskassumed risk

““Eggshell Skull” PlaintiffsEggshell Skull” Plaintiffs

Applies to personal injury Applies to personal injury casescases

““Defendant takes plaintiff Defendant takes plaintiff as he finds him”as he finds him”

Defendant is liable for Defendant is liable for aggravating preexisting aggravating preexisting illnesses and conditions illnesses and conditions despite lack of despite lack of foreseeabilty (liability is foreseeabilty (liability is limited to aggravation limited to aggravation only)only)

““Eggshell Skull” Plaintiffs Eggshell Skull” Plaintiffs (con’t)(con’t)

Most courts have Most courts have included psychological included psychological injuries if there has been injuries if there has been some physical impactsome physical impact

Factfinder can adjust for Factfinder can adjust for possibility that possibility that preexisting condition preexisting condition would have resulted in would have resulted in harm to the plaintiff harm to the plaintiff even without torteven without tort

Intervening CauseIntervening Cause

When an intervening cause cuts off When an intervening cause cuts off liability, it’s a superseding causeliability, it’s a superseding cause

An intervening act of third person will An intervening act of third person will interrupt causal link if it’s interrupt causal link if it’s extraordinary, or independent, or far extraordinary, or independent, or far removed from the defendant’s conductremoved from the defendant’s conduct

An intervening act will not interrupt An intervening act will not interrupt the causal chain if the intervening act the causal chain if the intervening act is the normal or foreseeable is the normal or foreseeable consequence of defendant’s negligenceconsequence of defendant’s negligence

Intervening Intentional Intervening Intentional ActsActs

An intervening An intervening cause that is cause that is negligent is not a negligent is not a superseding cause superseding cause if foreseeableif foreseeable

When an When an intervening act is intervening act is intentionally intentionally tortious or tortious or criminal, it is criminal, it is more likely to be more likely to be considered considered supersedingsuperseding

Intervening Criminal Intervening Criminal ActsActs

Criminal conduct no longer Criminal conduct no longer automatically interrupts causal automatically interrupts causal linklink

Intervening criminal act not Intervening criminal act not superseding:superseding: Defendant is under duty to protect Defendant is under duty to protect

plaintiff from criminal conductplaintiff from criminal conduct Defendant’s act destroys or defeats Defendant’s act destroys or defeats

plaintiff’s protection from crimeplaintiff’s protection from crime Defendant places someone likely to Defendant places someone likely to

commit crime in plaintiff’s path (e.g., commit crime in plaintiff’s path (e.g., security guard with criminal record) security guard with criminal record)

Public PolicyPublic Policy Courts will draw lines based on Courts will draw lines based on

fairness and public policyfairness and public policy Some lines will narrow liability Some lines will narrow liability

(New York’s fire rule) to prevent (New York’s fire rule) to prevent ruinous liability and make ruinous liability and make liability manageableliability manageable

Other lines will broaden liability Other lines will broaden liability to ensure that plaintiff is to ensure that plaintiff is compensated for losscompensated for loss

Judge and JuryJudge and Jury Duty is a law issue, and can be Duty is a law issue, and can be

determined as a matter of lawdetermined as a matter of law Proximate cause ordinarily is a Proximate cause ordinarily is a

fact question and goes to a juryfact question and goes to a jury Proximate cause may be Proximate cause may be

determined as a matter of law determined as a matter of law when defendant’s actions are when defendant’s actions are too remote or liability cut off too remote or liability cut off for policy reasonsfor policy reasons

Summing UpSumming Up Some aspects of causation are Some aspects of causation are

fairly clear and predictable (e.g., fairly clear and predictable (e.g., eggshell skull; rescue doctrine)eggshell skull; rescue doctrine)

Proximate cause has two general Proximate cause has two general approaches: direct cause and approaches: direct cause and the risk rulethe risk rule

Be able to analyze fact patterns Be able to analyze fact patterns and present different and present different approaches on causationapproaches on causation