Proximate Cause: Foreseeability

Chapter 11. Proximate Cause: Foreseeability

1. Introduction to Proximate Cause

  • Both factual cause and proximate cause are required elements for a prima facie torts case.
  • Factual causation, initially a scientific inquiry, transforms into a policy inquiry due to exceptions when the defendant’s negligence is not a but-for cause.
  • Proximate cause is primarily about limiting liability for policy reasons, not about causation itself.
  • If insisting on using "causation," the term "legal causation" may be more appropriate, referring to the scope of liability.
  • Proximate cause narrows the claims eligible for liability based on policy considerations.
  • It involves sketching the causal chain and determining where to cut off liability, acting similarly to a defense.
  • Proximate cause is typically not relevant, but can be spotted when an improbable series of events leads to harm.
  • Courts have struggled to define and apply proximate cause consistently due to its reliance on policy, which varies case by case.
  • There is no comprehensive theory of proximate causation.
  • Proximate cause is an area where clever legal arguments can be effective.
  • The chapter introduces the problem proximate cause addresses, its policy goals, and a framework for approaching these issues.
  • This framework relies on precedent by matching similar fact patterns to determine case outcomes.

Examples

  • Consider whether the defendant should be liable in the following cases, assuming all other elements are met and the only reason for no liability is based on policy grounds:
    • Petition of Kinsman: A ship breaks free due to improper securing and ice, causing it and another ship to crash into a bridge, creating a dam and flooding a building a block away from the river. The building owner sues the ship owner for flood damage.
    • Thompson v. White: A gas station hires clowns who distract a third-party driver, causing them to rear-end the plaintiff. The plaintiff sues the gas station, alleging the clowns were a negligent distraction.
    • DiPonzio v. Riordan: A gas station does not enforce its policy of asking patrons to turn off running vehicles. An unattended car slips out of park and injures the plaintiff, who sues the gas station, arguing enforcement of the policy would have prevented the injury.
    • Colonial Inn Motor Lodge v. Gay: A driver bumps into a heater, severing a gas line, leading to gas accumulation and a hotel explosion. The hotel sues the driver for the entire loss of the building.
    • Wagner v. International Ry. Co: A train negligently leaves a door open, and a passenger falls out. The plaintiff, while searching for their cousin, is injured. The plaintiff sues the train for injuries incurred during the search for their cousin.
    • Pridham v. Cash and Carry Building Center: A panel falls on the plaintiff due to the defendant’s negligence. En route to the hospital, the ambulance crashes, killing the plaintiff. The plaintiff’s family sues the showroom owner for the death.

2. Foreseeability

  • The legal test for proximate cause is whether the type of injury was reasonably foreseeable.
  • Another way to state this rule is that liability is limited to harms resulting from the risks that made the acts negligent.
  • When an accident occurs, foreseeability can be categorized into four main areas:
    • Class of Persons Injured: Whether the injured party was an unforeseeable plaintiff.
    • Type of Harm: Whether the type of harm that occurred was unforeseeable, did not contribute to why the untaken precaution amounted to breach under BPL (\text{Burden} < \text{Probability} \times \text{Loss}).
    • Particular Hazard: Whether the specific manner in which harm occurred was unforeseeable.
    • Extent of Harm: Whether the extent of harm was disproportionate to what was reasonably foreseeable.
  • These categories structure thinking about proximate cause issues.
  • Unforeseeable class of persons injured and unforeseeable type of harm usually result in no proximate cause.
  • Unforeseeable extent of harm usually results in proximate cause.
  • Generalizations are difficult with unforeseeable particular hazards because similar cases can have different outcomes.
  • The legal rule for proximate cause only refers to the foreseeability of the type of injury, but cases often turn on other factors.
  • The foreseeability in the rule is not very useful in predicting how cases will come out. Use framework set out by the casebook author to analyze proximate cause cases.

3. Policy Rationales

  • Tort law is about creating incentives to prevent accidents, not just assigning liability (allocation of risk).
  • Tort rules shape behavior (deterrence) to make the world a better place (economic efficiency).
  • Proximate cause turns mostly on deterrence and economic efficiency policy rationales.
  • The foreseeability rule imposes liability only for the type of injury that contributes to the untaken precaution amounting to breach under BPL.
  • Defendants cannot shape behavior for risks they cannot foresee, so they should not be liable for unforeseeable harms.
  • Liability for unforeseeable harms could lead to strict liability, resulting in too many precautions that are not cost-justified.
  • The tort system could create weird incentives that make the world a worse place.
  • Over-deterrence may cause people to avoid socially beneficial behavior or take excessive precautions.
  • Corporations may pass on unexpected liability to consumers through higher prices (incidence), leading to sub-optimal consumption if prices don't reflect the true expected harm of the product or services.
  • Clear rules are good for administrability as causal chains are super long.
  • Clear lines for liability incentivize companies to act as insurance against harms by spreading the expected risks across consumers by raising prices.
  • Predictable liability allows the tort system to incentivize companies to act as insurance against harms.
  • Clear lines also decrease the amount of resources that society devotes to lawsuits.
  • Allocation of risk is often in the background of many proximate cause cases such as scenarios where the bad actor may not be able to afford liability.
  • Proximate cause is often about assigning liability to someone who was not the most blameworthy potential defendant.

4. Grady’s Framework

  • Framework that relies on precedent and appeal to it.
  • The framework consists of 8 different categories that are based on existing precedent and not legal rules.
  • Cases are assigned liability based on whether they are in the red or yellow bucket.
  • If you have a case that is an orange ball, then you must figure out if orange is closer to red or yellow.
  • Apply Grady’s framework in a similar way.
  • By situating cases into one of the categories, the framework can be used to make arguments that illustrate these categories.
  • Lawyers appeal to similar precedents as the case in question using the categories to help find similar precedents and illustrate why a case should come out one way or another.
  • Court decides outcome based on striking the right balance between different policy tradeoffs, so the policy rationales are baked into the outcomes.

5. Limited Risks Make Behavior Negligent (“lava-lid cases”)

  • Defendant’s negligence creates narrow risks that can foreseeably occur only in a limited number of ways.
  • The manner of harm was an integral part of the risk, and the details of the manner in which harm came to pass were not the foreseeable one.
  • Rule: no proximate cause if the manner in which the harm was inflicted is not within the limited risk that made the conduct negligent.
  • Arguments for facts fitting in this category of cases should be advanced only by defendants.
  • Doughty v. Turner example: a worker bumps a tank lid into molten lava, resulting in a chemical reaction and explosion that injures the plaintiff.
  • Plaintiff argues for a broad type of harm and particular hazard: lava is very hot and we worry about the lava burning someone.
  • Defendant argues for a narrow type of harm and particular hazard: chemical reaction, splashing lava from lid going in, and explosion are all different forces and not the same type of harm that is foreseeable.
  • This is an example of limited set of risks that make some behavior negligent, there is no proximate cause if something other than one of those risks came to pass to cause the harm.

6. Diverse Risks, Unexpected Manner (“rat-gas cases”)

  • Defendant’s negligence creates risks of harm that are quite definite in their results but tend to come about in unpredictable ways.
  • These cases usually involve scenarios where the defendant’s negligence creates large potential dangerous forces, such as involving explosive material and large objects getting loose.
  • Negligence creates risks that an injury could be caused in diverse ways and the exact manner in which the harm came to pass is not foreseeable.
  • Determine whether some facts are in this category by imagining all you know is the negligence and the final result.
  • Rule: there is proximate cause if the type of plaintiff’s harm is foreseeable but the particular hazard is not.
  • Arguments for facts fitting in this category of cases should be advanced only by plaintiffs.
  • United Novelty Co. v. Daniels example: an employee was directed to clean a machine in a room with an open fire using gasoline, and had a rat got soaked and ran into the heater, which combusted the room.
  • Plaintiff argues that it was negligient to have an open gas fire next to an open gas container.
  • Defendant argues that this is a similar case to "lava-lid", where the rat was similar to the lid exploding.
  • Plaintiff has the better argument because the outcome was clear.

7. Wrong Place at Wrong Time (“banana-slip” cases)

  • Defendant’s negligence did not increase the probability that the plaintiff would suffer the type of harm that they actually suffered.
  • In these cases, the defendant’s negligence causes the plaintiff to be in the wrong place at the wrong time, but the harm that occurred was actually caused only by bad luck.
  • The negligence is a but for cause, but if the negligence were to be repeated to many other plaintiffs the odds of the harm occurring to others does not actually increase.
  • Rule: no proximate cause if the defendant’s negligence does not increase the probability of the type of harm the plaintiff suffered.
  • Arguments for facts fitting in this category of cases should be advanced only by defendants.
  • Mahone v. Birmingham Electric Co. example: a bus passenger slips on a banana peel in the street after the bus driver negligently stopped far from the curb.
  • Stopping far from curb was not what caused plantiff to slip on banana.
  • Banana peels are just as likely to be on the side walk as on the road, so the negligence was unrelated to the chance that the plaintiff slipped on a banana peel.

8. Extent of Harm Cases (“thin-skull” cases)

  • Defendant’s negligence results in a foreseeable harm but that the harm that occurs is out of proportion to what was reasonably foreseeable.
  • “Defendant takes the plaintiff as they find them.”
  • Two main variants: the plaintiff is unusually vulnerable, and where the plaintiff’s preexisting conditions are aggravated.
  • Rule: there is proximate cause with respect to an unforeseeable extent of an harm if the type of harm is foreseeable.
  • Arguments for facts fitting in this category of cases should be advanced only by plaintiffs.
  • Hammerstein v. Jean Development West example: a diabetic plaintiff develops gangrene from a blister caused by evacuating a hotel during a false fire alarm.
  • Because the blister was foreseeable, the defendant is the proximate cause for all of the harm even though the extent of harm was not foreseeable.

9. An Example

  • Questions asking to apply Grady’s framework without intervening cause should set out the type of case or cases that both the plaintiff and defendant would argue.
  • Facts of Polemis: A ship carrying flammable fuel experiences rough seas, leading to gas spillage. A plank falls into the hold, causing a spark that ignites the gas, resulting in an explosion.
    • Plaintiff’s argument: Rat-gas case or thin-skull case.
      • The plank is heavy and fell 20-50ft into the hold.
      • Because there are a lot of moving parts on the ship that could cause a spark, it would be foreseeable that the leaked gas could ignite and cause an explosion.
      • Even an extent of harm case where it is a harm out of proportion.
    • Defendant’s argument: Lava-lid case.
      • The only reason bumping a plank into the hold is negligent is that it could fall and hit someone.
      • A wooden plank causing a spark is totally unforeseeable.

10. Applications

  • Apply the above proximate cause framework to the following cases with simplified facts.

    • Petition of Kinsman: A large ship was not properly secured to a dock on a river. Ice chunks from river were lodged between ship and the dock, causing the ship to break free…The owner of the building sued the owner of the ship that originally got loose for flood damage.
    • Colonial Inn Motor Lodge v. Gay: The defendant was backing up their car in a hotel parking lot…The hotel sues the defendant for the entire loss of the building.
    • Johnson v. Kosmos Portland Cement Co: Tom owned a ship and was delivering a cargo of gas…Anna’s estate sues Tom.