Causation in Fact | Pam Karlan | August 19, 2013


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Causation in Fact

by Pam Karlan Show/Hide

One of my favorite cases from when I taught Civil Procedure was Holmgren v. State Farm Mut. Ins. Co., 976 F.2d 573 (9th Cir. 1992). The underlying facts were pretty simple: Sharon Cannon, who was intoxicated at the time, ran a stop sign, plowed into a car in which Julie Holmgren riding, fled the scene, and collided with three other cars. She later pleaded guilty to several charges, including driving while under the influence of alcohol. Holmgren brought suit against Cannon for her injuries.

State Farm was Cannon's insurer. Knowing how financially vulnerable Holmgren was — she couldn't work and her husband was disabled — State Farm engaged in a bunch of delaying tactics and made a lowball settlement offer. Holmgren turned it down and ultimately, on the second day of trial, State Farm offered a much higher amount, which Holmgren accepted. (Holmgren also sued State Farm for the tort of wrongful refusal to settle an insurance claim.)

During the discovery process, Holmgren's attorneys served a “Request for Admission” on State Farm. This is a procedural device under the Federal Rules of Civil Procedure for getting the other party to admit facts that can be used in a motion for summary judgment or at trial. Request No. 1 asked State Farm to “[p]lease admit that the collision was caused by Sharon Cannon driving through a stop sign.” State Farm simply denied this request, without any explanation.

Ultimately, the district judge sanctioned State Farm for its categorical denial.

On appeal from the award of sanctions, State Farm's counsel offered the following justification for its refusal to admit: “[I]t was uncertain as to what may have been the proximate cause or causes of the accident. The accident may have been the result of Cannon's having been drinking and driving, or her inattentiveness, or her speed. Neither State Farm nor anyone else really knows what ‘caused’ the accident….”

The Ninth Circuit was not persuaded: “State Farm's epistemological doubts speak highly of its philosophical sophistication, but poorly of its respect for [the Rules of Federal Civil Procedure,]” which are intended to forestall this kind of game-playing. Holmgren, 976 F.2d at 580.

But what about the epistemology? Tort law insists on some connection between the defendant's action and the harm the plaintiff suffered. In a case like Holmgren, for example, if Cannon had missed Holmgren's car, Holmgren would have had no claim because Cannon would not have “caused” an injury to Holmgren. Nor could a different passenger — say, one who was injured at the same stop sign by a different driver who turned out to be unidentifiable or judgment-proof — recover from Cannon: Cannon did not “cause” that driver's injuries.

The materials in this section focus on one aspect of the cause inquiry: cause in fact. Section 26 of the Restatement (Third) of Torts: Physical and Emotional Harm provides that

Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.

Section 27 in turn provides:

If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.

After causation in fact, we turn to the question in the next section of “proximate cause”: when are there just too many links in the chain between the defendant's action and the plaintiff's injury to justify holding the defendant responsible?


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  1. 1 Show/Hide More Howard v. Wal-mart Stores, Inc.
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    Should courts hold that a defendant cannot be proved to “cause” the harm, if the evidence merely supports that it was “more likely than not” that the defendant caused the harm?
  2. 2 Show/Hide More Brown v. Wal-Mart
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    Should a defendant’s liability be excused if the action of an unknown intervening party seems to be a more substantial cause of the plaintiff’s injury?
  3. 4 Show/Hide More Summers v. Tice
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    Did you see the episode of Mad Men where Ken Cosgrove got shot by the GM executives while they were bird hunting? Suppose he had brought suit…..
  4. 5 Show/Hide More Ravo v. Rogatnick
    Original Creator: Jonathan Zittrain Current Version: Pam Karlan
    If each member of a group of defendants negligently contributes to an indivisible injury, should courts impose liability upon the entire group?

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November 11, 2013

causation in fact

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Pam Karlan

Professor of Law

Stanford Law School

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