CHPT. 3 ACTUAL CAUSATION
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Zhu WANG
LLD., Asso. Prof. of Law School of Sichuan University
Deputy Director of Institute for Chinese Tort Law of RCCCJ
of Renmin University of China
Email: wangzhu@scu.edu.cn
Website: www.qinquanfa.com
CC: cc.scu.edu.cn/comparativetortlaw.html
TA: chuandaminfa@163.com
1
A. INTRODUCTION
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1. “But for” Test for actual causation
 Did
the defendant cause the plaintiff's harm?
 "But
for the defendant having acted at all, would
the plaintiff nevertheless have suffered the same
harm?"
 Negative
answer: "No, the plaintiff would not have
suffered the same harm if the defendant had never
acted at all"
2
A. INTRODUCTION

2. Policy objectives of causation requirement
 a.
Requirement of tort liability
Plaintiffs
who succeed in proving it, together
with the other prerequisites to recovery, they
will recover for the full amount of their actual
harm
3
A. INTRODUCTION

b. Deterrence to intentional tort
 Causation
requirement may reflect the judgment
in some cases that the strength of the signal to be
sent to the defendant, from a deterrence
perspective, should be proportional to the harm
caused.
 In battery cases, "deterrence for its own sake," or
even "quasi-criminal punishment" may seem
appropriate in light of the intentionally wrongful
nature of defendants' conduct.
4
A. INTRODUCTION

c. Practical limit of actor's liability
 Without
the actual causation requirement a
negligent factory operator might be held liable for
all the harm, accidental or otherwise, suffered by
anyone in his town, or in his state, for the period
during which he acted negligently.
 Note:
This may eliminate properly managed
factories.
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B. THE DEFENDANT CAUSE THE HARM?

1. General causation & Specific causation
 a.
General (/generic) causation
 "Fumes
hurt the cattle" case: will fumes from the
automobile's exhaust caused cattle to get sick?
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B. THE DEFENDANT CAUSE THE HARM?

Test:
 whether
the activity allegedly engaged in by the
defendant is inherently capable of causing the sort
of harm suffered by the plaintiff.
 If it is not, the defendant wins on causation as a
matter of law.
 Note:
In most tort cases, this general causation
issue is not even presented.
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B. THE DEFENDANT CAUSE THE HARM?

b. Specific causation
 "Fumes
hurt the cattle" case: whether the
defendant was driving the vehicle that harmed the
plaintiff’s cattle.
 Specific
causation is the issue presented in most
tort cases involving actual causation.
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B. THE DEFENDANT CAUSE THE HARM?
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2. General causation
 Case
1 Hoyt v. Jeffers, 30 Mich. 181 (1874)
9
B. THE DEFENDANT CAUSE THE HARM?

Cf. Whiteman v. Worley, 688 So. 2d 207 (La. Ct. App.
1997), cert. denied, 694 So. 2d 246 (La. 1997).
 The defendant's 11-month-old baby jabbed the
plaintiff in the eye with a ball point pen. Ten days
after the incident and three days after her corneal
abrasion healed, the plaintiff developed a far more
serious eye infection, later diagnosed as the
sexually transmitted disease chlamydia. Although
it was extremely unlikely that the pen was the
transmitting mechanism, it was nevertheless
possible that the abrasion elevated her risk of
infection.
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B. THE DEFENDANT CAUSE THE HARM?

3. Use of statistics in specific causation
 Case
2 Smith v. Rapid Transit Inc., 317 Mass. 469,
58 N.E.2d 754 (1945)
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B. THE DEFENDANT CAUSE THE HARM?

Cf. People v. Collins, 438 P.2d 33 (Cal. 1968).
 The
defendants were convicted on the evidence
that the robbery of the victim was committed by
two people, a young white woman with blond hair
and a ponytail, and a black man with a mustache
and beard, who fled the scene in a yellow car. Four
days later, the police arrested the defendants, who
fit the general description and who owned a yellow
car.
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B. THE DEFENDANT CAUSE THE HARM?

At the trial, a mathematics instructor from a state
college testified as to the product rule, which is that
the probability of the joint occurrence of a number of
mutually independent events is equal to the product
of the individual probabilities that each of the events
will occur.
Yellow automobile
1/10
Man with mustache
1/4
Woman with ponytail
1/10
Woman with blond hair
1/3
Black man with beard
1/10
Interracial couple in car
1/1000
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B. THE DEFENDANT CAUSE THE HARM?
 There
was but one chance in 12 million that any
given couple would possess all these distinctive
characteristics.
 Therefore, there was only one chance in 12 million
that the defendants were innocent.
 What
do you think?
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B. THE DEFENDANT CAUSE THE HARM?
Problem
6
15
C. ALTERNATIVE LIABILITY
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C. When One of Several Defendants Did It,
But We Can't Tell Which One: Alternative
Liability
 Case
3 Summers v. Tice, 33 Cal. 2d 80, 199
P.2d 1 (1948).
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C. ALTERNATIVE LIABILITY
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Case 4 Ybarra v. Spangard, 25 Cal. 2d 486,
154 P.2d 687 (1944).
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C. ALTERNATIVE LIABILITY
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Cf. Sindell v. Abbott Labs., 607 P.2d 924 (Cal.
1980), cert. denied, 449 U.S. 912 (1980).
 a.
DES (diethylstilbestrol, a prescription
drug) Litigation
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C. ALTERNATIVE LIABILITY
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The plaintiffs in these cases are women whose
mothers took DES many years earlier, while pregnant,
to reduce morning sickness. Reliable expert testimony
shows that the drug affected the plaintiffs while in
their mothers' wombs, resulting in reproductive tract
cancers in the plaintiffs many years later. Hundreds
of thousands of women have been involved. Many of
the plaintiffs cannot prove which drug company
distributed the DES their mothers took. (As many as
300 companies may have produced the generic drug
during the relevant period.)
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C. ALTERNATIVE LIABILITY
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b. Market-share theory
 When
a plaintiff joins the manufacturers of a
substantial share of the relevant DES market, the
burden shifts to each defendant to prove it did not
produce the drug that her mother ingested. Those
companies that do not carry this burden are held
liable to the plaintiff for the percentage of damages
approximating their individual share of the
relevant DES market.
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C. ALTERNATIVE LIABILITY
Problem
7
21
C. ALTERNATIVE LIABILITY
Problem
8
22
D. MULTIPLE CAUSES
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D. When Two or More Causal Agents Would,
Independent of Each Other, Have Caused
Plaintiff's Harm?
 1. Concurrent Causation
 Case
5 Dillon v. Twin State Gas & Electric
Co., 85 N.H. 449, 163 A. 111 (1932).
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D. MULTIPLE CAUSES
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2. Successive Causation
 Case
6 Kingston v. Chicago & N.W. Ry., 191
Wis. 610, 211 N.W. 913 (1927).
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D. MULTIPLE CAUSES

Cf. In Baker v. Willoughby, [1970] 2 W.L.R. 50,
[1969] 3 All E.R. 1528 (H.L.)
 The
defendant negligently struck the plaintiff with
his automobile, causing severe injury to the
plaintiff's left leg and ankle. Some time later, but
before trial, the plaintiff was shot in the alreadydisabled left leg during a robbery at his place of
employment. As a result of the gunshot wound, the
already disabled left leg had to be amputated. At
trial, the defendant argued that he should be liable
for the plaintiff's damages due to his disability
only up to the time of the shooting.
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D. MULTIPLE CAUSES
Problem 9
26
E. VICARIOUS LIABILITY

E. Relationship Between Actual Causation and
Vicarious Liability
 Vicarious
liability applies:
 1. the servant's conduct must be tortious;
 2. the master must control, or have the right to
control, the servant's harmful behavior.
 The master need not be shown to have been at
fault. Merely empowering the servant with the
means and opportunity to cause harm suffices.
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E. VICARIOUS LIABILITY

1. Masters & Servants Rule (Respondeat
Superior)
 Restat
3d of Agency
 Chapter 2. Principles Of Attribution
 Topic 3. Respondeat Superior
 § 2.04 Respondeat Superior
 An employer is subject to liability for torts
committed by employees while acting within the
scope of their employment.
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E. VICARIOUS LIABILITY

Restat 2d of Agency
§
219 When Master Is Liable for Torts of Servant
 (1) A master is subject to liability for the torts of
his servants committed while acting in the scope of
their employment.
 (2) A master is not subject to liability for the torts
of his servants acting outside the scope of their
employment, unless:
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E. VICARIOUS LIABILITY
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(a)
the master intended the conduct or the
consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the
master, or
(d) the servant purported to act or to speak on behalf
of the principal and there was reliance upon apparent
authority, or he was aided in accomplishing the tort
by the existence of the agency relation.
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E. VICARIOUS LIABILITY
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2. Distinguishing Servants from Independent
Contractors
 Restat
2d of Agency
 § 2 Master; Servant; Independent Contractor
 (1) A master is a principal who employs an agent
to perform service in his affairs and who controls
or has the right to control the physical conduct of
the other in the performance of the service.
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E. VICARIOUS LIABILITY
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(2) A servant is an agent employed by a master to
perform service in his affairs whose physical conduct
in the performance of the service is controlled or is
subject to the right to control by the master.
(3) An independent contractor is a person who
contracts with another to do something for him but
who is not controlled by the other nor subject to the
other's right to control with respect to his physical
conduct in the performance of the undertaking. He
may or may not be an agent.
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E. VICARIOUS LIABILITY

§ 220 Definition of Servant
 (1)
A servant is a person employed to perform
services in the affairs of another and who with
respect to the physical conduct in the performance
of the services is subject to the other's control or
right to control.
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E. VICARIOUS LIABILITY
(2) In determining whether one acting for
another is a servant or an independent
contractor, the following matters of fact,
among others, are considered:
 (a)
the extent of control which, by the
agreement, the master may exercise over the
details of the work;
 (b)
whether or not the one employed is
engaged in a distinct occupation or business;

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E. VICARIOUS LIABILITY
(c) the kind of occupation, with reference to
whether, in the locality, the work is usually
done under the direction of the employer or by
a specialist without supervision;
 (d)
the skill required in the particular
occupation;
 (e)
whether the employer or the workman
supplies the instrumentalities, tools, and the
place of work for the person doing the work;
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E. VICARIOUS LIABILITY
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(f) the length of time for which the person is
employed;
(g) the method of payment, whether by the time or
by the job;
(h) whether or not the work is a part of the regular
business of the employer;
(i) whether or not the parties believe they are
creating the relation of master and servant; and
(j) whether the principal is or is not in business.
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E. VICARIOUS LIABILITY
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3. Relationship Between the Servant's Conduct
and the Scope of Employment
 Restat
2d of Agency
§
229 Kind of Conduct Within Scope of
Employment
 (1) To be within the scope of the employment,
conduct must be of the same general nature as that
authorized, or incidental to the conduct authorized.
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E. VICARIOUS LIABILITY
(2) In determining whether or not the conduct,
although not authorized, is nevertheless so
similar to or incidental to the conduct
authorized as to be within the scope of
employment, the following matters of fact are
to be considered:
 (a) whether or not the act is one commonly
done by such servants;
 (b) the time, place and purpose of the act;
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E. VICARIOUS LIABILITY
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(c) the previous relations between the master and the
servant;
(d) the extent to which the business of the master is
apportioned between different servants;
(e) whether or not the act is outside the enterprise of
the master or, if within the enterprise, has not been
entrusted to any servant;
(f) whether or not the master has reason to expect
that such an act will be done;
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E. VICARIOUS LIABILITY
(g) the similarity in quality of the act done to
the act authorized;
 (h)
whether or not the instrumentality by
which the harm is done has been furnished by
the master to the servant;
 (i) the extent of departure from the normal
method of accomplishing an authorized result;
and
 (j) whether or not the act is seriously criminal.
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E. VICARIOUS LIABILITY
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4. General Rule of Nonliability of Independent
Contractors and Eceptions
 Restat
2d of Torts
 §409 General Principle
 Except as stated in §§410-429, the employer of an
independent contractor is not liable for physical
harm caused to another by an act or omission of
the contractor or his servants.
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E. VICARIOUS LIABILITY

Exceptions to the General Rule of Nonliability:
 (1)
the employer is negligent in selecting,
instructing, or supervising the independent
contractor;
 (2) the duty of the employer, arising out of some
relation to the public or to the particular plaintiff,
is nondelegable;
 (3) the work is specifically, peculiarly, or inherently
dangerous.
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E. VICARIOUS LIABILITY

Cf. Restat 3d of Torts, Liability for Physical
and Emotional Harm, Chapter 10. Liability Of
Those Who Hire Independent Contractors
 Topic
1. Direct Liability In Negligence
 Topic
2. Vicarious Liability
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