XV. Proximate Cause | Samantha Bates | April 25, 2017


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XV. Proximate Cause

Original Creator: Jonathan Zittrain Current Version: Samantha Bates Show/Hide

Proximate cause tends to be the least understood element of the elements of a negligence claim. It may be best to think of it as a catch-all: even with every other element satisfied, there might be philosophical or policy reasons to ask a plaintiff to show more. The “duty” element of negligence, as we have seen, has also served this role – a way of circumscribing liability through fiat, as a matter of law, and therefore early in a case. Proximate cause is harder to pin down; whether it’s been met can become a jury issue when a judge thinks it’s not an easy call. (Indeed, in the celebrated Palsgraf case among this section’s readings, the dueling opinions differ on whether the hiccup found within the fact pattern is best categorized as one of duty (Cardozo) or proximate cause (Andrews).)

Perhaps the best way to capture the essence of proximate cause is in a single word: fortuity. Sometimes only the barest fortuity ends up linking the other elements of negligence, and in those cases we stop to consider whether there should be liability. Our opening case of the year, Vosburg, saw the prospect of unanticipated major harm from a simple kick to the leg in a classroom. Fair to have the defendant pay all? The law’s answer tends to be yes.

Suppose I’m speeding imprudently, and a falling boulder strikes the car spontaneously from above, injuring my passenger. My negligence – represented by the speeding – was a but-for cause of the harm, since if I’d been going slower (or faster, for that matter), the boulder would have missed us. But it’s a mere fortuity that my unreasonable act caused the harm in question; the harm is not anticipated from the undue risk that makes my behavior a breach of the standard of care. Fair for me to pay for my passenger’s harm, if I wouldn’t be responsible if the boulder hit us when we were driving normally? The law’s answer tends to be no.

Proximate cause comes up when fortuity is at work, and the cases we review in this section seek patterns in the spectrum from Vosburg’s “eggshell plaintiff” rule to the no-liability outcome of the boulder hypothetical.


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  1. 1 Show/Hide More In re Polemis--"The Plank that Exploded a Ship"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should defendants be directly liable for their negligence, even if the type of damage was not reasonably foreseeable?
    Stevedores (dockworkers) employed by the defendant accidentally knocked over a wooden plank while moving cargo on plaintiff's ship. The fallen plank somehow created a spark, which ignites the ship's flammable cargo. Plaintiff's entire ship is destroyed as a result.
  2. 2 Show/Hide More Wagner v. International Railway Co.--"The Injured, Would-Be-Rescuer"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should defendants be liable for a rescuer who is hurt when attempting to aid victims of defendant's wrongful conduct?
    Plaintiff's cousin was thrown from defendant's rail car after the car rounded a sharp corner. The conductor employed by the defendant had failed to close the doors of the car. At the time the cousin was thrown, the car was on tracks raised twenty-five feet high and near a bridge. The plaintiff was injured when he slipped and fell from the rail tracks while looking for his cousin's body.
  3. 3 Show/Hide More Palsgraf v. Long Island Railroad Co.--"The Fireworks on the Train Platform"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should courts only impose liability when a duty to the victim exists prior to the injury; or should courts extend liability to all victims whose injuries are closely linked to the defendant's wrongful act, even if harms suffered were not foreseeable? A Comic of Palsgraf— https://perma.cc/BH3Y-D3BA
    A man—carrying a package and running to catch a train—jumped aboard the moving car. When the man appeared as if he might fall back off, defendant's guard pushed the man from behind to help him keep his balance. During this act, the man's package fell to the rails and exploded. The explosion threw down some scales on the other end of the platform, many feet away, injuring the plaintiff. Nothing in the appearance of the package suggested that it contained explosives.
  4. 4 Show/Hide More Benn v. Thomas--"The Time-Delayed Heart Attack"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should a negligent actor be liable for the unforeseeably severe injuries of unusually sensitive victims?
    Defendant rear-ended a vehicle in which the plaintiff was a passenger. As a direct result of the collision, plaintiff suffered a bruised chest and fractured ankle. Six days later, he died of a heart attack. One medical expert testified that the car accident had set off the fatal heart attack; other experts disagreed.
  5. 5 Show/Hide More Steinhauser v. Hertz Corp.--"The Sudden Schizophrenia Case"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should a defendant be liable if their wrongful act that triggers a harmful state in a latent condition?
    Defendant got into a car accident with plaintiff's family. Before the collision, the plaintiff had a predisposition to schizophrenia. After the collision, plaintiff's mental condition swiftly deteriorated. Plaintiff was diagnosed with schizophrenia and hospitalized after a suicide attempt. Expert medical testimony suggests that the car crash was a “precipitating factor” in the plaintiff's outbreak of schizophrenia, but not the sole cause.
  6. 6 Show/Hide More Gibson v. Garcia--"The Rotten Telephone Pole and the Car"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should courts allow intervening, wrongful acts to “supersede” a defendant's negligence, and thereby cut off his liability?
    Plaintiff was injured by the falling of the defendant transit line company's rotten—and thus, negligently maintained—wooden pole. However, the pole had fallen after defendant Garcia had negligently crashed into the pole with his car.
  7. 7 Show/Hide More Darby v. National Trust--"The Rat Urine as Proximate Cause Case"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should defendants be liable for a failure to warn, if the plaintiff's harm was not the type to be warned against? What if the warning would have, nevertheless, diverted the plaintiff away from the harm?
    Defendant owned a pond which was actively used and known as a place of recreation for the local community. Due to the presence of rat urine in the water, swimmers faced a risk of contracting Weils disease. However, the defendant did not post any signs warning the community of the risk. While the plaintiff's husband played hide-e-boo with his children, he accidentally slipped underwater due to the depth and drowned. Plaintiff sued the defendant on the theory that the existence of warning signs for Weils disease would have caused the plaintiff's husband to refrain from entering the water; thereby avoiding the fatal accident.
  8. 8 Show/Hide More Wagon Mound (No. 1)--"The Oil in the Wharf Case"
    Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    Should courts hold defendants responsible when their negligence causes both expected and unexpected damage?
    Defendant discharged oil onto the water near plaintiff's wharf, but did not properly disperse the oil. For a while, the oil did interfere with the condition of the wharf by making its surfaces slippery and congealed. Eventually, the oil did catch on fire and burned the plaintiff's wharf. The trial judge found for the defendant, based on testimony and evidence which tended to show that oil should not burn on water. The lower court found for the plaintiff, however, after applying the &#8220;direct cause&#8221; rule of <em>Polemis</em>.

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July 24, 2017

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Samantha Bates

Research Associate

Harvard Law School, Berkman Center

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