Cause in Fact

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					Causation

            Dr. Steiner
Cause in fact
   “But for” cause
       Sine qua non
   Proving cause in fact
   Multiple causes and “substantial factor”
   Mathematical probability
       loss of opportunity
       scientific evidence and causation
    Cause in Fact
   For the   want   of   a   nail, a shoe was lost.
   For the   want   of   a   shoe, a horse was lost.
   For the   want   of   a   horse, a rider was lost.
   For the   want   of   a   rider, a battle was lost.
   For the   want   of   a   battle, a kingdom was
    lost.
Cause in Fact
   King sues Blacksmith.
   Can King show cause in fact for loss of
    kingdom?
    Proximate Cause
   For the   want   of   a   nail, a shoe was lost.
   For the   want   of   a   shoe, a horse was lost.
   For the   want   of   a   horse, a rider was lost.
   For the   want   of   a   rider, a battle was lost.
   For the   want   of   a   battle, a kingdom was
    lost.
Proximate Cause
   King sues Blacksmith.
   Can King show proximate cause for
    loss of kingdom?
  Jury Instruction: Direct Cause
The “proximate cause” is that which
produces an injury directly, or in the natural
and normal sequence of events without the
intervention of any independent,
intervening cause. It is the direct and
immediate cause, the predominant cause
which, acting directly or in the natural
sequence of events, produces the accident
and resulting injury, and without which the
injury would not have occurred.
  Jury Instruction:
  Foreseeability of Injury
The “proximate cause” is a cause which in its
natural and continuous sequence produces an
event, and without which the event would not
have occurred. In order to warrant a finding that
the defendant’s negligence is the proximate cause
of an injury, it must appear from the
preponderance of the evidence that facts and
circumstances existed were such that a person of
ordinary prudence would have reasonably
foreseen that the injury would be the natural and
probable consequence of the negligence.
Mrs. O’Leary’s Cow
and Direct Cause
Mrs. O’Leary’s Cow
and Direct Cause
Palsgraf: Railroad scale
Palsgraf: Railroad station
Palsgraf: Majority opinion
in Appellate Division
   It must be remembered that the
    plaintiff was a passenger of the
    defendant and entitled to have the
    defendant exercise the highest degree
    of care.
Dissenting opinion
in Appellate Division
   Between the negligence of defendant
    and the injuries, there intervened the
    negligence of the passenger carrying
    the package containing the explosive.
    This was an independent, and not a
    concurring act of negligence. The
    explosion was not reasonably probable
    as a result of defendant’s act of
    negligence.
      How was Palsgraf injured?
   [Counsel] Now, as you were standing there . . .
    you say an explosion occurred. Did you hear any
    noise?
   [Palsgraf] Firecrackers shooting.
   [Counsel] Well, what happened, if anything, to the
    glass or mirrors of the scale?
   [Palsgraf] Flying glass—a ball of fire came, and we
    were choked in smoke, and I says, “Elizabeth, turn
    your back,” and with that the scale blew and hit
    me on the side.
      What was the injury to Palsgraf?

   [Counsel] Now, has your speech been
    stuttering and stammering ever since that
    day, as it is now?
   [Palsgraf] Ever since the day of the
    accident. . . .
   [Counsel] Just what is the cause of this
    stuttering and stammering?
   [Doctor] It is traumatic shock.
      What was the injury to Palsgraf?

   [Counsel] Doctor, in your opinion, might
    this condition have been corrected before
    this time by medical treatment?
   [Neurologist] Not while litigation is pending.
    It has been my experience that it never is
    benefited or relieved or cured until the
    source of worry disappears by the
    conclusion of the trial.
Railroad’s motion to dismiss
at end of Palsgraf’s case
   [Counsel] There is no evidence at all of
    negligence on our part. It surely can
    not be anticipated, when people are
    carrying fireworks in a package, and we
    can’t have everybody open their
    bundles when they come on the station
    platform.
Railroad’s request for jury
instruction on proximate cause
   [Counsel] I ask your Honor to charge
    the jury that if they find the defendant’s
    servants were assisting the passenger
    upon the train and in so doing knocked
    the bundle from his hand, that that act
    of the servants is not the proximate
    cause of plaintiff’s injuries.
   [Judge] I decline.
Restatement sec. 281, illus.3
   A gives a loaded pistol to B, a boy of
    eight, to carry to C. In handing the
    pistol to C the boy drops it, injuring the
    bare foot of D, his comrade. The fall
    discharges the pistol, wounding C. A is
    subject to liability to C, but not to D.
Rescue Doctrine
   Rescue doctrine permits injured rescuer
    to sue the party who caused the danger
    that required rescue
   It’s considered foreseeable that a
    rescuer will come to aid of person
    affected by tortfeasor’s actions
   Disallows claim that rescuer assumed
    risk
    Rescuer Status
   Defendant was negligent to person
    rescued and that negligence caused the
    peril/appearance of peril to person
    rescued
   Peril was imminent
   A reasonably prudent person would have
    concluded that such peril existed
   The rescuer acted with reasonable care
Superseding Cause Defined
   Restatement 2d, sec. 440
    A superseding cause is an act by a third
    person or other force which by its
    intervention prevents the actor from
    being liable for harm to another which
    his antecedent negligence is a
    substantial factor in bring about.
      Considerations Important in Determining
      Whether an Intervening Force is a
      Superseding Cause
   Restatement 2d, sec. 442
      its intervention brings about harm different in

       kind from that which otherwise would have
       resulted from actor’s negligence
      its operation or consequences appear to be

       extraordinary rather than normal in light of
       circumstances
      intervening force is operating independently

       of any situation created by actor’s negligence
       or isn’t the normal result of that situation
    Considerations Important in Determining
    Whether an Intervening Force is a
    Superseding Cause (con’t)
   Restatement 2d, sec. 442
      operation of intervening force is due to third

       person’s act or failure to act
      intervening force is due to an act of third

       person that is wrongful to other
      degree of culpability of wrongful act of third

       person that sets intervening force in motion
Intervening Force Risked by
Actor’s Conduct
   Restatement 2d, sec. 442A
    Where the negligent conduct of the
    actor creates or increases the
    foreseeable risk of harm through the
    intervention of another force, and is a
    substantial factor in causing the harm,
    such intervention is not a superseding
    cause.
Intervening Causing Same Harm as
That Risked by Actor’s Conduct
   Restatement 2d, sec. 442B
    Where the negligent conduct of the actor
    creates or increases the risk of a particular
    harm and is a substantial factor in causing
    the harm, the fact that the harm is brought
    about through the intervention of another
    force does not relieve the actor of liability,
    except where the harm is intentionally caused
    by a third person and is not within the scope
    of risk created by the actor’s conduct.
    Intervening Causing Same Harm as
    That Risked by Actor’s Conduct
   Restatement 2d, sec. 442B, cmt b
    If the actor’s negligent conduct has created or
    increased the risk that a particular harm to the plaintiff
    will occur, and has been a substantial factor in causing
    that harm, it is immaterial to the actor’s liability that
    the harm is brought about in a manner which no one
    in his position could possibly have been expected to
    foresee or anticipate. . . . This is to say that any harm
    which is in itself foreseeable, as to which the actor has
    created or increased the recognizable risk, is always
    “proximate,” no matter how it is brought about, except
    where there is such intentionally tortious or criminal
    intervention, and it is not within the scope of the risk
    created by the original negligent conduct.
Normal Intervening Force

   Restatement 2d, sec. 443
    The intervention of a force which is a
    normal consequence of a situation
    created by the actor’s negligent conduct
    is not a superseding cause of harm
    which such conduct has been a
    substantial factor in bringing about.
       Negligence of Intervening Acts
   Restatement 2d, sec. 447
    The fact that an intervening act of a third person is
    negligent in itself or is done in a negligent manner does
    not make it a superseding cause of harm to another which
    the actor’s negligent conduct is a substantial factor in
    bringing about, if
    (a) the actor at the time of his negligent conduct should
    have realized that a third person might so act, or
    (b) a reasonable man knowing the situation when the act
    of the third person was done would not regard it as highly
    extraordinary that the third person has so acted, or
    (c) the intervening act is a normal consequence of a
    situation created by the actor’s conduct and the in which it
    is done is not extraordinary negligent.
Tortious or criminal acts the
probability of which make the actor’s
conduct negligent
   Restatement 2d, sec. 449
    If the realizable likelihood that a third person
    may act in a particular manner is the hazard
    or one of the hazards which makes the actor
    negligent, such an act whether innocent,
    negligent, intentionally tortious or criminal
    does not prevent the actor from being liable
    for harm caused thereby.
Herman v. Markham Air Rifle
McLaughlin v. Mine Safety App.:
Jury’s question
Your Honor, if we, the jury, find that the
M. S. A. Company was negligent in not
making any warning of danger on the
heat block itself, but has given proper
instructions in its use up to the point of
an intervening circumstance (the nurse
who was not properly instructed), is the
M. S. A. Company liable?
      McLaughlin v. Mine Safety App.:
      Judge’s response
[I]f you find from the evidence that the defendant, as a
reasonably prudent person under all of the
circumstances, should have expected use of the block by
some person other than those to whom instruction as to
its use had been given, either by the wording on the
container or otherwise, and that under those
circumstances a reasonably prudent person would have
placed warning words on the heat block itself, and if you
find in addition to that that the nurse was not warned at
the scene and that a reasonably prudent person in the
position of the nurse, absent any warning on the block
itself, would have proceeded to use it without inquiry as
to the proper method of use, then the defendant would
be liable.
        Liability for criminal act of
        third party: examples
   Defendant, by contract or otherwise, is under duty
    to protect plaintiff against criminal misconduct
   Defendant’s affirmative act destroys or defeats a
    protection that plaintiff has placed around
    plaintiff’s person or property to guard against
    crime
   Defendant causes contact to plaintiff with a
    person defendant knew or should have known
    was likely to commit crime
   Defendant has custody of person with dangerous
    criminal tendencies and fails to restrain him
       From Prosser, Wade, and Schwartz’s Torts

				
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