1. 1 Legal Causation Causality Study Group Erica Beecher-Monas University of Arkansas at Little Rock School of Law March 23, 2000 © Erica Beecher-Monas

2. 2 Definitions and Purposes Legal Problems Are Disputes Legal Problems Are Disputes –Someone is Injured The Legal Questions The Legal Questions –Who’s Responsible? Did the defendant’s act/ omission cause harm? Did the defendant’s act/ omission cause harm? –How Much Responsibility? Causal nexus may determine extent of liability Causal nexus may determine extent of liability –Legal Causation is an element of responsibility But causation is not responsibility But causation is not responsibility

3. 3 Causation in Torts Did A’s breach of a duty owed to B cause B’s harm? Did A’s breach of a duty owed to B cause B’s harm? –Causation determines liability –Causation may also determine the extent of liability Limited by “remoteness” or proximate cause Limited by “remoteness” or proximate cause

4. 4 Causation in Criminal Law Criminal law defines offense as intentional act causing specific harm Criminal law defines offense as intentional act causing specific harm –causal nexus required –proof “beyond reasonable doubt” Purpose: deterrence, retribution Purpose: deterrence, retribution

5. 5 Causation in Contract Law In contract law, causation is the causal nexus between breach of contract and damages In contract law, causation is the causal nexus between breach of contract and damages –Causal question will determine extent of liability –Limited by foreseeability – Purpose: efficient use of resources

6. 6 Cause in Fact Material Cause Material Cause –Is A’s act a necessary condition for B’s harm? –Fact question (for the jury) (for the jury) But-For Test: Would the harm have occurred w/o A’s act? But-For Test: Would the harm have occurred w/o A’s act? –Use of contra-factual reasoning Must refer to “normal” conditions Must refer to “normal” conditions

7. 7 But-For Causation Temporal Sequence: Cause Precedes Effect Temporal Sequence: Cause Precedes Effect –B’s harm follows A’s act in sequence w/o intervening forces Counterfactual Inference: Absent A, Would B happen? Counterfactual Inference: Absent A, Would B happen? –Involves judgment about normal conditions

8. 8 Jury Instruction Cause which in natural and continuous sequence, Cause which in natural and continuous sequence, unbroken by any efficient intervening cause, unbroken by any efficient intervening cause, produced the injury and produced the injury and without which the injury would not have occurred without which the injury would not have occurred

9. 9 Legal Concerns About Causation Causes Causes Mere conditions Mere conditions Factors that break the chain Factors that break the chain

10. 10 Conditions Sufficient Conditions Sufficient Conditions Cause is one of a set of conditions jointly sufficient to produce the consequences Cause is one of a set of conditions jointly sufficient to produce the consequences –Is B’s fire damage caused by A’s dropping still- burning cigarette butt into trash? Fire (that damaged B’s property) would not have occurred in the trash absent each of Fire (that damaged B’s property) would not have occurred in the trash absent each of A’s act (dropping lit butt) A’s act (dropping lit butt) Oxygen Oxygen Flammable trash Flammable trash

11. 11 Cause Necessary Condition Necessary Condition –Cause is that condition necessary to complete the set Fire could not have occurred absent A’s butt Fire could not have occurred absent A’s butt The other factors are “mere conditions” The other factors are “mere conditions”

12. 12 Simultaneous Acts What happens w/ more than one cause? What happens w/ more than one cause? A and C simultaneously shoot B in the brain A and C simultaneously shoot B in the brain –Either shooting is a necessary condition (cause) of B’s death But-for test isn’t satisfied But-for test isn’t satisfied –Court must make value judgment on responsibility

13. 13 Multiple Causation Multiple Causation: If there are 2 causes, treat each as cause? Multiple Causation: If there are 2 causes, treat each as cause? A poisons B and before poison takes effect C shoots B in brain A poisons B and before poison takes effect C shoots B in brain Each cause is sufficient to produce B’s death Each cause is sufficient to produce B’s death Mode of injury determines causal nexus Mode of injury determines causal nexus But what if death was nanoseconds before bullet would have killed B? But what if death was nanoseconds before bullet would have killed B?

14. 14 Substantial Factor Substantial factor: ordinarily the result doesn’t occur without it Substantial factor: ordinarily the result doesn’t occur without it –Whether harm is a consequence of the wrongful act given 3 rd factor? Normal physical events subsequent to wrongful act do not relieve wrongdoer of responsibility Normal physical events subsequent to wrongful act do not relieve wrongdoer of responsibility Abnormal conjunction of wrongful act + 3 rd factor cancels causal nexus Abnormal conjunction of wrongful act + 3 rd factor cancels causal nexus As long as conjunction is not designed As long as conjunction is not designed

15. 15 Intervening Events Abnormal conjunction of wrongful act and 3 rd factor Abnormal conjunction of wrongful act and 3 rd factor –Extraordinary acts of nature If A poisons B & on way to hospital B is struck by lightning If A poisons B & on way to hospital B is struck by lightning –No liability for murder even though “but for” causation –Extraordinary coincidence A RR negligently carries B beyond her destination, puts her up in a hotel, where a lamp explodes in her room A RR negligently carries B beyond her destination, puts her up in a hotel, where a lamp explodes in her room –Ct holds RR negligence was not substantial factor i.e. hotel lamp explosion was an intervening event i.e. hotel lamp explosion was an intervening event Coincidence may not be intended Coincidence may not be intended

16. 16 Subsequent Events If subsequent event would not occur absent A’s act, A is liable If subsequent event would not occur absent A’s act, A is liable A negligently drives engine over RR w/ crossing in 2 places A negligently drives engine over RR w/ crossing in 2 places –Just before colliding A shut off steam (to stop engine) –Collision forced open throttle –Engine went backwards, hitting B’s train 2d time –Liability?

17. 17 Abnormal Circumstances Abnormal circumstances at time of wrongful act do not cancel causation Abnormal circumstances at time of wrongful act do not cancel causation –Eggshell skull A negligently drops book from ladder on B’s head causing B’s death tho normal result would have been harmless A negligently drops book from ladder on B’s head causing B’s death tho normal result would have been harmless –Taking the plaintiff as you find her A runs over (and kills) fatally ill (but not yet dead) B A runs over (and kills) fatally ill (but not yet dead) B A is liable for B’s death A is liable for B’s death

18. 18 Substantial Factor is Controversial Courts disagree over the meaning of both “substantial” and “factor” Courts disagree over the meaning of both “substantial” and “factor” –Boat owner fails to maintain hold or vent it, so gas built up in hold Boat struck by lightning and blew up Boat struck by lightning and blew up –One ct held lighting was intervening cause –Other ct held owner’s negligence was substantial factor

19. 19 Increasing the Risk of Harm Dr. A negligently prescribes drug for B who is already terminally ill Dr. A negligently prescribes drug for B who is already terminally ill –B dies –Unclear if B’s death is from drug or illness 3 Major Approaches 3 Major Approaches –Reverse burden of proof to A to disprove causation –Infer causation –Hold A liable for extent of increased risk

20. 20 Lost Chance Cases Usually medical malpractice cases Usually medical malpractice cases –If there was a substantial chance that B would survive and A destroyed that chance, A is liable A’s liability stems from increasing the risk of the particular harm that B suffered A’s liability stems from increasing the risk of the particular harm that B suffered –Dr. A’s negligently performed surgery on B, a diabetic w/ complications, caused B to go blind at the same time as B suffered a stroke which would have caused her blindness Court by-passed the but-for test, finding both were independent and equally plausible causes Court by-passed the but-for test, finding both were independent and equally plausible causes Court inferred causation from A’s act increasing B’s risk Court inferred causation from A’s act increasing B’s risk

21. 21 R2d of Torts Substantial Factor Test How many factors other than defendant A’s act contribute to plaintiff B’s harm? How many factors other than defendant A’s act contribute to plaintiff B’s harm? –Did A’s conduct create a force in continuous and active operation up to the time of the harm? Did A’s conduct create a situation harmless unless acted on by other forces? Did A’s conduct create a situation harmless unless acted on by other forces? How much time lapsed between A’s act and B’s harm? How much time lapsed between A’s act and B’s harm?

22. 22 Zone of Risk Subsequent intervening acts Subsequent intervening acts –A will be liable if act is w/in zone of risk created by A’s act A leaves B’s house unlocked A leaves B’s house unlocked C steals B’s stuff C steals B’s stuff –A is liable for B’s loss because theft is a common result of leaving the house unlocked “natural consequences” “natural consequences”

23. 23 Comparative Fault A is not wholly responsible for B’s harm A is not wholly responsible for B’s harm –Even if A’s risk-creating act is not sole cause of the harm, A may be liable for a % of the harm Joint tortfeasors Joint tortfeasors –A and C both collide with B Contributory negligence Contributory negligence –A and B are both driving negligently when they collide If B can show what % of her harm was caused by A’s act If B can show what % of her harm was caused by A’s act Or if A can show what % of the harm would have been prevented had B taken precautions Or if A can show what % of the harm would have been prevented had B taken precautions

24. 24 Market Share Liability B gets cancer from DES administered to her mother while in utero B gets cancer from DES administered to her mother while in utero –B can show that DES caused her cancer –B cannot show who produced the DES that her mother received Ct permitted B to sue any manufacturer who had substantial market share in DES at the time B’s mother ingested it Ct permitted B to sue any manufacturer who had substantial market share in DES at the time B’s mother ingested it Defendant will be liable for % of its market share Defendant will be liable for % of its market share

25. 25 Toxic Torts General causation General causation –whether substance is capable of causing particular injury or condition in general population Expert testimony by researcher Expert testimony by researcher specific causation specific causation –whether substance caused particular individual's injury –Expert testimony by medical clinician

26. 26 Limiting Factors Proximate Cause Proximate Cause –Policy determination re: how far to extend liability Foreseeability Foreseeability –Based on the idea of “normal” conditions

27. 27 Proximate Cause Policy Question: Is there any legal reason to preclude treating A’s act as the cause of B’s injury? Policy Question: Is there any legal reason to preclude treating A’s act as the cause of B’s injury? –Palsgraf Idea of remote causes difficult to foresee Idea of remote causes difficult to foresee –Natural and Probable Consequences Test Was B’s injury the natural and probable consequence of A’s act? Was B’s injury the natural and probable consequence of A’s act?

28. 28 Functions of Judge and Jury in Determining Causation Jury decides questions of fact (like causation) Jury decides questions of fact (like causation) –But if reasonable minds could not differ on the issue, the judge decides Judge decides questions of law Judge decides questions of law –whether there is sufficient evidence –scope of rules –types of damage for which law provides a remedy –allocation of risks

29. 29 Framing the But-For Question Judge Must Judge Must –Identify the injury –Identify the wrongful conduct –Create counter- factual what would have happened if A’s conduct had complied w/ law? what would have happened if A’s conduct had complied w/ law? Jury Question: Jury Question: –Would B’s injuries still have occurred if A had behaved w/in the bounds of law?

30. 30 Evidence of Causation Simple cases can be established by lay witnesses Simple cases can be established by lay witnesses –A negligently broke B’s teapot A, B, eyewitness testimony A, B, eyewitness testimony Most require expert testimony Most require expert testimony –Standards for expertise –Standards for scientific validity

31. 31 Burdens of Proof Plaintiff has the burden of providing sufficient evidence to establish Plaintiff has the burden of providing sufficient evidence to establish –Existence of causal connection Defendant has b/p on defenses Defendant has b/p on defenses –Contributory & comparative negligence –Alternative cause

32. 32 Contemporary Causation Issues in the Courts Multiple Causation Multiple Causation Ambiguous Causation Ambiguous Causation Evidence of Causation Evidence of Causation –Use of scientific experts to prove causation –Proof by a preponderance that the evidence is scientifically valid

33. 33 Common Sense or Policy? Hart & Honore say it’s all just common sense (in 497 pages) Hart & Honore say it’s all just common sense (in 497 pages) Legal realists say it’s all policy Legal realists say it’s all policy –Courts are always influenced by law’s objectives Judith Jarvis Thompson says “common sense” is political Judith Jarvis Thompson says “common sense” is political