Cause in fact vs. Proximate Cause

[USC313]

Just as a side note to this discussion, "cause-in-fact" does not always use the "but-for" test. There's also Alternative Liability, Concert of Action, and Market Share Liability (among others) that courts have used to establish cause in fact. So, while "but-for" is the easiest way that cause in fact can be established, it typically only works when there is a single defendant whose negligent act has resulted in harm. Multiple defendants is a whole different story. That being said, when you are working through the proximate cause cases in your Torts book, don't focus TOO much on the concept of cause-in-fact. The case examples operate under the assumption that cause in fact has been established, and now we are seeing if proximate cause is met.

[Jhuen_the_bird]

Just as a side note to this discussion, "cause-in-fact" does not always use the "but-for" test. There's also Alternative Liability, Concert of Action, and Market Share Liability (among others) that courts have used to establish cause in fact. So, while "but-for" is the easiest way that cause in fact can be established, it typically only works when there is a single defendant whose negligent act has resulted in harm. Multiple defendants is a whole different story. That being said, when you are working through the proximate cause cases in your Torts book, don't focus TOO much on the concept of cause-in-fact. The case examples operate under the assumption that cause in fact has been established, and now we are seeing if proximate cause is met.

True.  Also, I wanted to add that I did some clarifying w/ my torts professor, and she said that courts prefer to have juries decide proximate cause, so it CAN be a "question of fact" OR a "question of law."  ... it's just something that can't be factual in the sense of "this caused that and so the defendant is liable" when the result is too remote or unforeseeable.  Usually it's common sense (for juries).  There is a "direct test" vs. the "foreseeability test" ... but I believe that foreseeability is more common.  In other words, was the harm within the risk foreseeable?  (Note - the TYPE of harm does not necessarily need to be foreseen ... like, if you were negligent for dropping something that you would THINK would just break something, but it causes a spark that starts a fire, then you are liable for the fire).

[vaplaugh]

Just as a side note to this discussion, "cause-in-fact" does not always use the "but-for" test. There's also Alternative Liability, Concert of Action, and Market Share Liability (among others) that courts have used to establish cause in fact. So, while "but-for" is the easiest way that cause in fact can be established, it typically only works when there is a single defendant whose negligent act has resulted in harm. Multiple defendants is a whole different story. That being said, when you are working through the proximate cause cases in your Torts book, don't focus TOO much on the concept of cause-in-fact. The case examples operate under the assumption that cause in fact has been established, and now we are seeing if proximate cause is met.

True.  Also, I wanted to add that I did some clarifying w/ my torts professor, and she said that courts prefer to have juries decide proximate cause, so it CAN be a "question of fact" OR a "question of law."  ... it's just something that can't be factual in the sense of "this caused that and so the defendant is liable" when the result is too remote or unforeseeable.  Usually it's common sense (for juries).  There is a "direct test" vs. the "foreseeability test" ... but I believe that foreseeability is more common.  In other words, was the harm within the risk foreseeable?  (Note - the TYPE of harm does not necessarily need to be foreseen ... like, if you were negligent for dropping something that you would THINK would just break something, but it causes a spark that starts a fire, then you are liable for the fire).

Sure about this?  My understanding is that the harm caused must be the same as the harm that the duty aims to prevent.

[Jhuen_the_bird]

Just as a side note to this discussion, "cause-in-fact" does not always use the "but-for" test. There's also Alternative Liability, Concert of Action, and Market Share Liability (among others) that courts have used to establish cause in fact. So, while "but-for" is the easiest way that cause in fact can be established, it typically only works when there is a single defendant whose negligent act has resulted in harm. Multiple defendants is a whole different story. That being said, when you are working through the proximate cause cases in your Torts book, don't focus TOO much on the concept of cause-in-fact. The case examples operate under the assumption that cause in fact has been established, and now we are seeing if proximate cause is met.

True.  Also, I wanted to add that I did some clarifying w/ my torts professor, and she said that courts prefer to have juries decide proximate cause, so it CAN be a "question of fact" OR a "question of law."  ... it's just something that can't be factual in the sense of "this caused that and so the defendant is liable" when the result is too remote or unforeseeable.  Usually it's common sense (for juries).  There is a "direct test" vs. the "foreseeability test" ... but I believe that foreseeability is more common.  In other words, was the harm within the risk foreseeable?  (Note - the TYPE of harm does not necessarily need to be foreseen ... like, if you were negligent for dropping something that you would THINK would just break something, but it causes a spark that starts a fire, then you are liable for the fire).

Sure about this?  My understanding is that the harm caused must be the same as the harm that the duty aims to prevent.

I thought that was only to establish negligence per se from a statute.  Otherwise, if there is no common law duty owed to a person or persons, then you lose the case by failing to establish the burden of production (and the court will dismiss it).

[vaplaugh]

Just as a side note to this discussion, "cause-in-fact" does not always use the "but-for" test. There's also Alternative Liability, Concert of Action, and Market Share Liability (among others) that courts have used to establish cause in fact. So, while "but-for" is the easiest way that cause in fact can be established, it typically only works when there is a single defendant whose negligent act has resulted in harm. Multiple defendants is a whole different story. That being said, when you are working through the proximate cause cases in your Torts book, don't focus TOO much on the concept of cause-in-fact. The case examples operate under the assumption that cause in fact has been established, and now we are seeing if proximate cause is met.

True.  Also, I wanted to add that I did some clarifying w/ my torts professor, and she said that courts prefer to have juries decide proximate cause, so it CAN be a "question of fact" OR a "question of law."  ... it's just something that can't be factual in the sense of "this caused that and so the defendant is liable" when the result is too remote or unforeseeable.  Usually it's common sense (for juries).  There is a "direct test" vs. the "foreseeability test" ... but I believe that foreseeability is more common.  In other words, was the harm within the risk foreseeable?  (Note - the TYPE of harm does not necessarily need to be foreseen ... like, if you were negligent for dropping something that you would THINK would just break something, but it causes a spark that starts a fire, then you are liable for the fire).

Sure about this?  My understanding is that the harm caused must be the same as the harm that the duty aims to prevent.

I thought that was only to establish negligence per se from a statute.  Otherwise, if there is no common law duty owed to a person or persons, then you lose the case by failing to establish the burden of production (and the court will dismiss it).

I think it applies to proximate cause as well.  Have you read Derdiarian (Construction employee sues employer for failing to erect a barrier between worksite and passing cars and subsequently a driver negligently drives on to the worksite, striking a kettle and causing boiling hot liquid to douse the employee).

"An interevening act may not serve as a superceding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent."

And...

"That defendant could not anticipate the precise manner of the accident or the exact extent of injuries does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable."

A negligently-driven vehicle entering the worksite is the very same risk that a barrier aims to prevent (the duty aims to prevent the cause).  However, there is no duty to a person whose house is destroyed from a fire when defendant drops an item on the ground that would normally not start a fire because a destroyed house is not the very same risk nor the character of injuries foreseeable from such an act.  Of course, the question really depends on what the hypothetical item is.  Say, for example, you negligently drop a magnifying glass while you are standing at the edge of a cliff.  You might owe a duty to someone who is injured by shattering glass when it breaks, but not to someone who is injured when the magnifying glass lands in such a way that later starts a fire.  There is a duty to secure your belongings to prevent falling objects from injuring others.  The risk that the magnifying glass would start a fire is not the same risk.

[Jhuen_the_bird]

I definitely agree with what you're saying, and we have read that case, but what about Polemis? (If you've read that case) ... the whole "risk a dent, pay for a fire" thing ... it seems as though some states have a more "direct test" rather than a "foreseeability test," as well.  I know that case wasn't really, um, in our country, but we still read it and our professor made it seem relevant

I think I just hadn't heard the phrasing "the type of harm meant to protect against" used for anything but negligence per se, but I think you're right.

[Burning Sands]

Maybe it's me being dense - maybe it's because it's late - but I still don't get it.

Maybe a different example will help if anyone has one.

Thanks.

Simply put...

"Cause in Fact" = the actual cause


"Proximate Cause" = the foreseeable cause





To elaborate "cause in fact" is literally the event or action that one can point to as being responsible for bringing about some result.  For example - hitting somebody, firing a gun, driving your car into a pedestrian, etc.  This is often referred to as the "but for" cause because "but for" this event taking place, there would be no tort.

Proximate cause, on the other hand, is a way to classify the "but for" cause in terms of its reasonable predictability.  Often referred to as the "foreseeble" cause or the "legal" cause because if the aforementioned "but for" cause is found to be reasonably foreseeable by the court, then causation is satisfied and the actor is liable for the tort.  If the "but for" cause is not reasonably foreseeable (like in Palsgraff) then the causal connection between the actor and the victim is too distant, and as a matter of policy, the actor will not be liable for the tort.

[Jhuen_the_bird]

However, don't forget that juries usually make the decision for proximate cause.

And Palsgraff was very much about a lack of duty, as well (according to Cardozo)

[Burning Sands]

However, don't forget that juries usually make the decision for proximate cause.

My bad if that's not clear.  When I said:
"...if the aforementioned "but for" cause is found to be reasonably foreseeable by the court"

"by the court" here should be understood as either judge or jury.  Either one of these court entities can find proximate cause.

And Palsgraff was very much about a lack of duty, as well (according to Cardozo)

Even though there was a discussion by both the majority and minority opinions of the duty owed (or lack thereof) between the guard and Ms. Palsgraf, the Palsgraf case is better known by every law student and lawyer from coast to coast to stand for the proposition of proximate cause.  That is its claim to fame, so to speak.  If there were some huge "Eyes Wide Shut"-type party thrown for all the lawyers in the nation at some hideaway mansion, the secret password at the door would invariably be Palsgraf.  (with International Shoe being a close second)

But you are right that there is a discussion on duty but the case is moreso known for the proximate cause issue that was announced by Cardozo. 

[Jhuen_the_bird]

However, don't forget that juries usually make the decision for proximate cause.

My bad if that's not clear.  When I said:
"...if the aforementioned "but for" cause is found to be reasonably foreseeable by the court"

"by the court" here should be understood as either judge or jury.  Either one of these court entities can find proximate cause.

And Palsgraff was very much about a lack of duty, as well (according to Cardozo)

Even though there was a discussion by both the majority and minority opinions of the duty owed (or lack thereof) between the guard and Ms. Palsgraf, the Palsgraf case is better known by every law student and lawyer from coast to coast to stand for the proposition of proximate cause.  That is its claim to fame, so to speak.  If there were some huge "Eyes Wide Shut"-type party thrown for all the lawyers in the nation at some hideaway mansion, the secret password at the door would invariably be Palsgraf.  (with International Shoe being a close second)

But you are right that there is a discussion on duty but the case is moreso known for the proximate cause issue that was announced by Cardozo. 

HAHA!  Totally agree w/ you on the Palsgraff claim to fame ... just wanted to note, as my torts prof did, that Cardozo actually dismissed the case based on the notion of an "unforseeable plaintiff" (he implied that he found there was no duty owed to her, and so the burden of production was not met).