Causation
Dr. Steiner
Cause in fact
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“But for” cause
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Sine qua non
Proving cause in fact
Multiple causes and “substantial factor”
Mathematical probability
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loss of opportunity
scientific evidence and causation
Cause in Fact
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For the
For the
For the
For the
For the
lost.
want
want
want
want
want
of
of
of
of
of
a
a
a
a
a
nail, a shoe was lost.
shoe, a horse was lost.
horse, a rider was lost.
rider, a battle was lost.
battle, a kingdom was
Cause in Fact
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King sues Blacksmith.
Can King show cause in fact for loss of
kingdom?
Proximate Cause
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For the
For the
For the
For the
For the
lost.
want
want
want
want
want
of
of
of
of
of
a
a
a
a
a
nail, a shoe was lost.
shoe, a horse was lost.
horse, a rider was lost.
rider, a battle was lost.
battle, a kingdom was
Proximate Cause
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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
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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
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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?
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[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?
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[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?
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[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
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[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
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[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
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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
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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
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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From Prosser, Wade, and Schwartz’s Torts