XVI. Proximate Cause | Scott Soloway | March 09, 2018

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XVI. Proximate Cause

Original Creator: Jonathan Zittrain Current Version: Scott Soloway Show/Hide

Proximate cause tends to be the least understood element of the case for negligence. 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 for today, 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 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 recklessly, 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 negligent act caused the harm in question; the harm is not anticipated from the undue risk that makes my behavior negligent. 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 today 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: Scott Soloway
    Should defendants be directly liable for their negligence, even if the type of damage was not reasonably foreseeable?
  2. 2 Show/Hide More Wagon Mound (No. 1) -- "The Oil in the Wharf Case"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    Should courts hold defendants responsible when their negligence causes both expected and unexpected damage?
  3. 3 Show/Hide More Palsgraf v. Long Island Railroad Co. -- "The Fireworks on the Train Platform"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway

    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— http://i.imgur.com/6KnoA.jpg

  4. 4 Show/Hide More Benn v. Thomas--"The Time-Delayed Heart Attack"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    Should a negligent actor be liable for the unforeseeably severe injuries of unusually sensitive victims?
  5. 5 Show/Hide More Steinhauser v. Hertz Corp. -- "The Sudden Schizophrenia Case"
    Original Creator: wademalone Current Version: Scott Soloway
    Should a defendant be liable if their wrongful act that triggers a harmful state in a latent condition?
  6. 6 Show/Hide More Wagner v. International Railway Co.--"The Injured, Would-Be-Rescuer"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    Should defendants be liable for a rescuer who is hurt when attempting to aid victims of defendant's wrongful conduct?
  7. 7 Show/Hide More Gibson v. Garcia -- "The Rotten Telephone Pole and the Car"
    Original Creator: Jonathan Zittrain Current Version: Scott Soloway
    Should courts allow intervening, wrongful acts to “supersede” a defendant's negligence, and thereby cut off his liability?
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March 09, 2018

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Scott Soloway

business lawyer practicing law

Boston

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