Proximate cause
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| Tort law II |
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| Part of the common law series |
| Negligent torts |
| Negligence · Negligent hiring |
| Negligent entrustment |
| Negligent infliction of emotional distress |
| Doctrines affecting liability |
| Duty of care · Standard of care |
| Proximate cause · Res ipsa loquitur |
| Calculus of negligence · Eggshell skull |
| Vicarious liability · Attractive nuisance doctrine>Attractive nuisance |
| Rescue doctrine · Duty to rescue |
| Comparative responsibility |
| Duties owed to visitors to property |
| Trespassers · Licensees · Invitees |
| Defenses to negligence |
| Contributory negligence |
| Comparative negligence |
| Assumption of risk · Intervening cause |
| Strict liability |
| Ultrahazardous activity |
| Products liability |
| Nuisance |
| Other areas of the common law |
| Contract law · Property law |
| Wills and trusts |
| Criminal law · Evidence |
- For English law, see Causation in English law
A few circumstances exist where the but for test is ineffective. The primary examples are:
- Concurrent causes. Where two separate acts of negligence combine to cause an injury to a third party, each actor is liable, even though the injury would not have happened but for the negligence of the other actor. For example, a construction worker negligently leaves the cover off a manhole, and a careless driver negligently clips a pedestrian, forcing the pedestrian to fall into the open manhole. Both the construction worker and the careless driver are equally liable for the injury to the pedestrian.
- Sufficient combined causes. Where an injury results from two separate acts of negligence, either of which would have been sufficient to cause the injury, both actors are liable. For example, two campers in different parts of the woods negligently leave their campfires unattended. A forest fire results, but the same amount of property damage would have resulted from either fire. Both campers are equally liable for all damage.
- In the United States, the rule of Summers v. Tice [link] holds that where two parties are equally negligent, but only one causes an injury to a third party, the burden shifts to the negligent parties to prove that they were not the cause of the injury. In that case, two hunters negligently fired their shotguns in the direction of their guide, and a pellet lodged in his eye. Because it was impossible to tell which hunter fired the shot that caused the injury, the court held both hunters liable.
- Market share evidence. See Sindell v. Abbott Labs.
There are several competing theories of proximate cause.
Foreseeability
The most common test of proximate cause is foreseeability. It determines if the harm resulting from an action was reasonably able to be predicted. The test is used in most cases only in respect to the type of harm. It is foreseeable that throwing a baseball at someone could cause them a blunt-force injury. But proximate cause is still met if a thrown baseball misses the target and knocks a heavy object off of a shelf behind them, which causes a blunt-force injury.
There are several problems with the idea of foreseeability as proximate cause, namely that depending on how one defines the type of harm, one can find any action either foreseeable or not. For example, if the type of harm foreseen is "death", any death will count. But if the type of harm is defined as "being shot in the upper torso by a .38 caliber bullet from a distance of 10 feet", foreseeability is much more difficult to prove. In addition, foreseeability really addresses culpability instead of causation.
This is also known as the "extraordinary in hindsight” rule. See Restatement (Second) of Torts.
Direct Causation
Direct causation is a minority test, which addresses only the metaphysical concept of causation. The main thrust of direct causation is that there are no intervening causes between an act and the resulting harm. An intervening cause has several requirements: it must 1) be independent of the original act, 2) be a voluntary human act or an abnormal natural event, and 3) occur in time between the original act and the harm.
Direct causation is the only theory that addresses only causation, and does not take into account the culpability of the original actor.
Risk enhancement/causal link
The plaintiff must demonstrate that the defendant's action increased the risk that the particular harm suffered by the plaintiff would occur. If the action were repeated, the likelihood of the harm would correspondingly increase.
Harm Within the Risk (HWR)
The Harm Within the Risk test determines if the harm was within the class of risks, and if the victim was within the class of persons forseeably harmed. It is the strictest test of causation, made famous by Benjamin Cardozo in the Palsgraf case (see below). The first element of the test, if the harm was an instance of the type of harm that made the actor negligent, is met if the person could be expected to be hurt by the act. A good illustration of this is that a pedestrian is within the class of people risked by driving on the sidewalk, whereas another driver who sees someone driving on the sidewalk and crashes into a telephone pole is not.
The second prong of the test is if the type of harm was in the class of expected harms. Giving a loaded gun to a small child gives rise to the expectation that someone will be shot. If the child drops the gun and it breaks someone's foot, the HWR test will fail, as a broken foot was not the type of harm anticipated.
The HWR test is not used much anymore, and when it is used, just looks at the class of people hurt, not at the type of harm. The main issue with this test is that it addresses culpability, not actual causation.
Controversy
The doctrine of proximate cause is notoriously confusing. The doctrine is phrased in the language of causation, but in most of the cases in which causation is contested, there is not much real dispute that the defendant but-for caused the plaintiff's injury. The doctrine is actually used by judges to limit the scope of the defendant's liability to a subset of the total class of potential plaintiffs who suffered some harm from the defendant's actions. For an understanding of the broader view of causation which proximate cause circumscribes, see Butterfly effect.
For example, in the two famous Kinsman Transit cases from the 2nd Circuit (exercising admiralty jurisdiction over a New York incident), it was clear that mooring a boat improperly could lead to the risk of a boat drifting away and crashing into another boat, and that both boats could crash into a bridge, which collapsed and blocked the river, and in turn, the wreckage could flood the land adjacent to the river, as well as prevent any traffic from traversing the river until it had been cleared. But under proximate cause, the property owners adjacent to the river could sue (Kinsman I), but not the owners of the boats or the cargoes which could not move until the river was reopened (Kinsman II).
Therefore, in 2001, the American Law Institute proposed in a draft of the Restatement (Third), Torts: Liability for Physical Harm (Basic Principles) that proximate cause should be replaced with scope of liability.
See also
- Causation
- Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928)
- For the notion of proximate cause in philosophy, see proximate causation.
- Michael S. Moore, The Metaphysics of Causal Intervention, California Law Review, May, 2000. 88 Calif. L. Rev. 827.
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