Torts Notes - Proximate Cause

A defendant may be negligent, but if their negligence is too unusual, too far removed from the type of harm to be anticipated from the defendant's negligence, then liability will not be imposed.

If the only issue is cause-in-fact, negligent defendants would always pay since their conduct is a necessary antecedent of the plaintiff's harm in each.

Proximate cause problem is called "legal cause" to emphasize that the issue is whether liability should be imposed, not whether the defendant's act was a cause-in-fact of the plaintiff's harm. 

An actual cause question asks "what happened?"  A legal cause question asks, "What shall be done about it?"

In Re Polemis held that the defedant is liable if his conduct is the direct cause of the plaintiff's injury as opposed to a remote cause.

Proximate cause considers whether the defendant, at the time he acted, could foresee the risk that injured the plaintiff.  Under this foreseeability / scope of the risk approach, the court considers what the risks were that made the defendant's conduct negligent in the first place.

An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious. 

It relates the scope of liability to the faulty aspect of the defendant's conduct.

The duty to avoid injuring others extends only to those risks the actor should anticipate from her negligent act.

If plaintiff is "unforeseeable plaintiff", where no reasonable risk was anticipated, plaintiff can be denied recovery.

If the plaintiff's injury is truly beyond the type of harm to be expected from the defendant's conduct, the plaintiff will virtually always go uncompensated.

The defendant still "takes the plaintiff as he finds her", so even if DAMAGES are unanticipated, if the injury is one that can reasonably be anticipated, then damages are based on actual injury.

The cases distinguish unforeseeable consequences of a negligent act from consequences that are foreseeable but take place in an unusual manner.

In many cases, the line between unforeseeable consequences and unforeseeable manner is a fine one.

An injury does not have to be likely or probable in order to be foreseeable in proximate cause analysis.

"Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct.

Economic Analysis:  These liability rules tell decision makers that, under cdrtain conditions, they will be forced to bear the costs of their activities to others.  The effect of such rules is to give rational decision makers an incentive to incorporate the costs to others inot their decisions about whether to engage in the activity and hence, to create a situation in which the activitieds chosen by the rationl decision maker are efficient from an aggregate point of view.

However, the rational actor can only consider the liability consequences of risks that he can foresee.  Imposing liability for unforeseeable risks will not affect his choices.

Palsgraf stands for the proposition that the tort law does not require an individual to consider, in selecting her activity, costs to persons to whom harm is not reasonably foreseeable.  Unforeseeable harm cannot be internalized because, by definition, the decision maker could not have foreseen it.  Imposing liability where there is no foreseeability will "confer no economic beneift; it will merely require a costly transfer payment."

In common economic terms, a rule that an actor must pay for unforeseeable harms will not affect the actor's choices about activities that impose risk.  If we make him pay for unforeseeable injuries caused by his conduct, it will not make the world any safer or more efficient.

Although courts will find a way to avoid imposing liability for unforeseeable injuries, it does not follow that the converse is always true, that is, that a defendant must pay whenever he causes foreseeable harm. 

Courts that deny recovery for such secondary economic losses cannot credibly do so based on lack of proximate cause.  Generally, courts reason that the burden of liability for such secondary economic losses is too great.

Superseding cause:  in a good many proximate cause cases, the defendant argues that, even if she was negligent, a later act supersedes her negligence and breaks the causal chain.

When the risk of criminal conduct is foreseeable, it will not cut off the liability of a defendant who negligently exposes the plaintiff to that risk.

It is frequently said that whether the defendant's negligence was a proximate cause of the plaintiff's injury is a question of fact for the jury.

Defense lawyers must win the proximate cause battle in front of the judge, by convincing her that as a matter of law, the defendant's act was not the proximate cuase of the plaintiff's injury.  In many such cases, the judge will grant summary judgement for the defendant concluding as a matter of law that the plaintiff's injury was unforeseeable.