From Wikipedia, the free encyclopedia Proximate cause
Proximate cause
Product liability · Quasi-tort
Ultrahazardous activity
Nuisance
Public nuisance
Rylands v. Fletcher
Dignitary torts
Defamation · Invasion of privacy
False light · Breach of confidence
Abuse of process
Tort law Malicious prosecution
Part of the common law series Alienation of affections · Seduction
Intentional torts Economic torts
Assault · Battery Fraud · Tortious interference
False imprisonment Conspiracy · Restraint of trade
Intentional infliction of Liability, remedies
emotional distress (IIED)
Last clear chance · Eggshell skull
Transferred intent
Vicarious liability · Volenti non fit injuria
Property torts Ex turpi causa non oritur actio
Trespass (land · chattels) Neutral reportage · Damages
Conversion · Detinue Injunction · Torts and conflict of laws
Replevin · Trover Joint and several liability
Comparative responsibility
Defenses Market share liability
Assumption of risk Duty to visitors
Comparative negligence
Contributory negligence Trespassers · Licensees · Invitees
Consent · Necessity Attractive nuisance
Statute of limitations Other common law areas
Self-defense
Contracts · Criminal law · Evidence
Defense of others
Property · Wills, trusts and estates
Defense of property
Shopkeeper’s privilege Portals
Negligence Law
Duty of care · Standard of care In the law, a proximate cause is an event sufficiently re-
Proximate cause · Res ipsa loquitur lated to a legally recognizable injury to be held the cause
Calculus of negligence of that injury. There are two types of causation in the
Rescue doctrine · Duty to rescue law, cause-in-fact and proximate (or legal) cause. Cause-
Specific types in-fact is determined by the "but-for" test: but for the
Negligent infliction of action, the result would not have happened. For exam-
emotional distress (NIED) ple, but for running the red light, the collision would not
Employment-related · Entrustment have occurred. For an act to cause a harm, both tests
Malpractice (legal · medical) must be met; proximate cause is a legal limitation on
cause-in-fact.
Liability torts
1
From Wikipedia, the free encyclopedia Proximate cause
But for test pable but still constitutes a cause), there is a second test
used to determine if an action is close enough to a harm
A few circumstances exist where the but for test is com- in a "chain of events" to be a legally culpable cause of the
plicated, or the test is ineffective. The primary examples harm. This test is called proximate cause.
are: There are several competing theories of proximate
• . Where two separate acts of negligence combine to cause.
cause an injury to a third party, each actor is liable.
For example, a construction worker negligently Foreseeability
leaves the cover off a manhole, and a careless driver The most common test of proximate cause under the
negligently clips a pedestrian, forcing the pedestrian American legal system is foreseeability. It determines if
to fall into the open manhole. Both the construction the harm resulting from an action was reasonably able to
worker and the careless driver are equally liable for be predicted. The test is used in most cases only in re-
the injury to the pedestrian. This example obeys the spect to the type of harm. It is foreseeable that throwing
test.
but for test The injury could have been avoided by a baseball at someone could cause them a blunt-force in-
the elimination of either act of negligence, thus each jury. But proximate cause is still met if a thrown baseball
is a but for cause of the injury. misses the target and knocks a heavy object off a shelf be-
• . Where an injury results from two separate acts of hind them, which causes a blunt-force injury.
negligence, either of which would have been This is also known as the "extraordinary in hind-
sufficient to cause the injury, both actors are liable. sight" rule.[4]
For example, two campers in different parts of the
woods negligently leave their campfires unattended. Direct Causation
A forest fire results, but the same amount of
Direct causation is a minority test, which addresses only
property damage would have resulted from either
the metaphysical concept of causation. The main thrust
fire. Both campers are equally liable for all damage.
of direct causation is that there are no intervening causes
A famous case establishing this principle in the
between an act and the resulting harm. An intervening
United States is Corey v. Havener.[1]
cause has several requirements: it must 1) be indepen-
• In the United States, the holds that where two
dent of the original act, 2) be a voluntary human act or
parties have acted unreasonably, but only one causes
an abnormal natural event, and 3) occur in time between
an injury to a third party, the burden shifts to the
the original act and the harm.
negligent parties to prove that they were not the
Direct causation is the only theory that addresses on-
cause of the injury. In that case, two hunters
ly causation, and does not take into account the culpabil-
negligently fired their shotguns in the direction of
ity of the original actor.
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
Risk enhancement/causal link
liable.[2] The plaintiff must demonstrate that the defendant’s ac-
• .[3] Injury or illness is occasioned by a fungible tion increased the risk that the particular harm suffered
product made by all the manufacturers joined by the plaintiff would occur. If the action were repeated,
together in a lawsuit. The injury or illness is due to a the likelihood of the harm would correspondingly in-
design hazard, with each having been found to have risk.
crease. This is also called foreseeable risk
sold the same type of product in a manner that made
it unreasonably dangerous, there is inability to Harm Within the Risk
identify the specific manufacturer of the product or The Harm Within the Risk (HWR) test determines
products that brought about the Plaintiff’s injury or whether the victim was among the class of persons who
illness and there are enough of manufacturers of the could foreseeably be harmed, and whether the harm was
fungible product joined in the lawsuit, to represent a foreseeable within the class of risks. It is the strictest test
substantial share of the market. Any damages would of causation, made famous by Benjamin Cardozo in Pals-
then be divided according to the market share ratio. graf v. Long Island Railroad Co. case under New York state
law.[5]
Problems with "but for" causa- The first element of the test is met if the injured per-
son was a member of a class of people who could be ex-
tion pected to be put at risk of injury by the action. For ex-
ample, a pedestrian, as an expected user of sidewalks, is
Since but-for causation is very easy to show and does not
among the class of people put at risk by driving on a side-
assign culpability (but for the rain, you would not have
walk, whereas a driver who is distracted by another dri-
crashed your car – the rain is not morally or legally cul-
2
From Wikipedia, the free encyclopedia Proximate cause
ver driving on the sidewalk, and consequently crashes in- ties might be able to predict outcomes and results during
to a utility pole, is not. litigation. Notwithstanding the already-complex nature
The second prong of the test is whether the type of of this and other questions relating to proximate or legal
harm was in the class of expected harms. Giving a loaded cause, this fluid standard could be misused by plaintiff-
gun to a young child gives rise to the expectation that friendly or defense-favoring judges in attempts to vindi-
someone could be shot by the child’s firing the gun. If cate their own personal philosophies regarding the ap-
the child drops the gun and it breaks someone’s foot, the propriate reach of tort law.
HWR test fails, as a broken foot was not the type of harm
anticipated.
The HWR test is no longer much used, outside of New
Controversy
York law. When it is used, it is used to consider the class The doctrine of proximate cause is notoriously confus-
of people injured, not the type of harm. The main criti- ing. The doctrine is phrased in the language of causation,
cism of this test is that it is preeminently concerned with but in most of the cases in which causation is contested,
culpability, rather than actual causation. there is not much real dispute that the defendant but-for
caused the plaintiff’s injury. The doctrine is actually used
The "Risk Rule" by judges to limit the scope of the defendant’s liability to
Referred to by the Reporters of the Second and Third a subset of the total class of potential plaintiffs who suf-
Restatements of the Law of Torts as the "scope-of-the- fered some harm from the defendant’s actions. For an un-
risk" test,[6] the term "Risk Rule" was coined by Harvard derstanding of the broader view of causation which prox-
Law Professor Robert Keeton.[7] The rule is that “[a]n ac- imate cause circumscribes, see Butterfly effect.
tor’s liability is limited to those physical harms that re- For example, in the two famous Kinsman Transit cases
sult from the risks that made the actor’s conduct tor- from the 2nd Circuit (exercising admiralty jurisdiction
tious.”[8] Thus, the operative question is "what were the over a New York incident), it was clear that mooring a
particular risks that made an actor’s conduct negligent?" boat improperly could lead to the risk of a boat drifting
If the injury suffered is not among those risks, there can away and crashing into another boat, and that both boats
be no recovery. Two examples will illustrate this princi- could crash into a bridge, which collapsed and blocked
ple: the river, and in turn, the wreckage could flood the land
• The classic example is that of a father who gives his adjacent to the river, as well as prevent any traffic from
child a loaded gun, which she carelessly drops upon traversing the river until it had been cleared. But under
the plaintiff’s foot, causing injury. The plaintiff proximate cause, the property owners adjacent to the
argues that it is negligent to give a child a loaded gun river could sue (Kinsman I), but not the owners of the
and that such negligence caused the injury, but this boats or the cargoes which could not move until the river
argument fails, for the injury did not result from the was reopened (Kinsman II).[12]
risk that made the conduct negligent. The risk that Therefore, in 2001, the American Law Institute pro-
made the conduct negligent was the risk of the child posed in a draft of the Restatement (Third), Torts: Liability
accidentally firing the shotgun; the harm suffered for Physical Harm (Basic Principles) that proximate cause
could just as easily have resulted from handing the should be replaced with scope of liability.[citation needed]
child an unloaded gun.[9]
• Another example familiar to law students is that of Historiographical usage
the restaurant owner who stores rat poisoning above
The term "proximate cause" is also used by historians,
the grill in his luncheonette. The story is that during
in the sense of a specific event or incident setting off
the lunch rush, the can explodes, severely injuring
an event, such as a war or revolution, which had deeper
the chef who is preparing food in the kitchen. The
roots and causes. An often cited example is the assassina-
chef sues the owner for negligence. The chef may
tion of Archduke Franz Ferdinand of Austria at Sarajevo,
not recover. Storing rat poisoning above the grill
the event which directly set off World War I. It is general-
was negligent because it involved the risk that the
ly assumed by historians that the war was actually caused
chef might inadvertently mistake it for a spice and
by the sharpening rivalries between the European pow-
use it as an ingredient in a recipe. The explosion of
ers and the setting up of rival military alliances and so
the container and subsequent injury to the chef was
even had the assassination not occurred, some other inci-
not what made the chosen storage space risky.[10]
dent would have still have set off the war. The distinction
The most obvious objection to this approach is that it
between an immediate proximate cause and the more
requires courts to consider an arguably endless possibil-
fundamental causes has become a staple of historical re-
ity of hypothetical situations.[11] Not only can such an
search. This example does not pass the "but for" test as
undertaking be an exercise in futility, but this approach
other similar triggers could have tipped the scale.[citation
lacks even a minimal amount of precision such that par-
needed]
3
From Wikipedia, the free encyclopedia Proximate cause
See also [10] The exact etymology of this hypothetical is
difficult to trace. Adaptations are set forth and
• Causation discussed in Joseph W. Glannon, The Law of Torts:
• Damages Examples and Explanations (3d ed. 2005) and John
C. P. Goldberg, Anthony J. Sebok, and Benjamin C.
References Zipursky, Tort Law: Responsibilities and Redress
(2004) among others.
[1] Corey v. Havener, 182 Mass. 250. [11] "When defendants move for a determination that
[2] Summers v. Tice, 199 P.2d 1 (Cal. 1948). plaintiff’s harm is beyond the scope of liability as a
[3] See Sindell v. Abbott Labs. matter of law, courts must initially consider all of
[4] See Restatement (Second) of Torts. the range of harms risked by the defendant’s
[5] Palsgraf v. Long Island Rail Road Co., 162 N.E. 99 (N.Y. conduct that the jury could find as the basis for
1928). determining that conduct tortious. Then the court
[6] See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR can compare the plaintiff’s harm with the range of
PHYSICAL HARM § 29 cmt. d (Proposed Final Draft harms risked by the defendant to determine
No. 1, 2005); RESTATEMENT (SECOND) OF TORTS § whether a reasonable jury might find the former
281 cmt. g (1965). among the latter." RESTATEMENT (THIRD) OF
[7] ROBERT E. KEETON, LEGAL CAUSE IN THE LAW OF TORTS: LIAB. FOR PHYSICAL HARM § 29 cmt. d
TORTS 9–10 (1963). (Proposed Final Draft No. 1, 2005).
[8] RESTATEMENT (THIRD) OF TORTS: LIAB. FOR [12] See In re Kinsman Transit Co., 338 F.2d 708 (2nd Cir.
PHYSICAL HARM § 29 (Proposed Final Draft No. 1, 1964) and Kinsman Transit Co. v. City of Buffalo, 388
2005). F.2d 821 (2nd Cir. 1968).
[9] Benjamin C. Zipursky, Foreseeability in Breach,
Duty and Proximate Cause, 44 Wake F. L. Rev. 1247,
1253 (2009). The full text of this article is available Further reading
online at http://lawreview.law.wfu.edu/ • Michael S. Moore, The Metaphysics of Causal
documents/issue.44.1247.pdf. Accord Lubitz v. Wells, Intervention, 88 CALIF L. REV. 827 (2000).
113 A. 2d 147 (Conn. 1955). • Leon A. Green, The Rationale of Proximate Cause (1927).
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Categories:
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