Help with causation!!

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )

Posts: 11
Joined: Thu Oct 07, 2010 7:49 pm

Help with causation!!

Postby rsx » Mon Nov 01, 2010 12:40 am

I'm a little lost when it comes to the third prong of Negligence.

Need to have but-for and proximate

In promoximate there are two tests - directness and foreseeablity
Which are used? Need both, either?

And then the restatement says factual cause only.

I'm a a bit confused - how do you create a thought pattern to use for an exam on this discussion?

Like if meets a), then b) etc. I cant see these pieces fitting together and my torts prof is not to most 'framework' friendly...

Thanks for any help/pity


Posts: 24
Joined: Sun Sep 27, 2009 1:56 am

Re: Help with causation!!

Postby xiening » Mon Nov 01, 2010 2:34 am

First of all, your professor is the best resource you have.
Second, by answer your question. At least according to my professor, there is two different elements under the causation. Cause-in-fact and proximate cause (or legal cause).
Cause-in-fact: this is where the but-for test is used. the purpose is to establish the action is the real cause (or factual cause) of the harm. The test should reads the defendant's conduct is not a cause of the event, if the event would have occurred without it. If you wish to apply the test, take out the defendant's conduct, if the incident still more than likely to occur, then the defendant probably is not liable.
However, if under the situation that there is two sufficient-but not necessary cause of the harm, ( I believe your professor cover the two fires comes from different direction hypos), the you may want to apply the substantial factor test.
There are many minor test, such as alternative liability test, concern action (The DES case), enterprise liability, or market share liability test may/may not cover by your professor, please confront to him/her to confirm that.
With that said, the legal cause( proximate cause) could be really confuse. The bottm line is that there is a foreseeable risk of the harm and if the defendant's conduct failed to prevent the foreseeable harm, then he may be liable for his conduct. However, the regular court may look for the whether there is a foreseeable risk---if there is, then apply the eggshell rule or mechanism rule that defendant may be liable for all the damage even though the damage is not foreseeable.
However, some court may first ask whether there is a foreseeable risk---then ask whether the harm is too "freaky", if it was, they may find for the defendant and claim there is no foreseeable harm there. ( however, according to my professor, this is extremely rare)
At last, the well-known Palsgraf (good damn, i hate to type this name), Cardozo created this foreseeable plaintiff rule. what he does is that instead look for the foreseeable risk, he ask whether the plainitff is within the foreseeable range. ( the person, not the harm or risk) and if the plaintiff is outside the foreseeable plaintiff range, then there probably is not duty, and hence no negligence cause of action. In addition, always remember the duty is decided by the judge instead of the jury, as the result, this case did not even go to the trail.

I'm not sure whether this is what you looking for or I confused you further. Like what I say, I believe most of the professor is your best resource and she/he may has the best answer.


Posts: 5924
Joined: Tue Apr 21, 2009 9:10 pm

Re: Help with causation!!

Postby keg411 » Mon Nov 01, 2010 8:31 am

For proximate cause, you need to talk to your professor. Different profs have different views on how it should be treated. Know this: the directness test is old and no longer used; most jurisdictions either use a foreseeability test or a "harm within the risk" test. Then there are also some tort law scholars that don't think proximate cause is a real element and is just used at discretion to decide when there is liability in close cases (i.e. the drafters of the Restatement, CA Civil Code, Andrews' Palsgraf dissent).

Actual cause = the but-for test. The accident couldn't have happened but-for actual causes (there are always multiple but-for causes).


Posts: 379
Joined: Tue Apr 13, 2010 6:47 pm

Re: Help with causation!!

Postby Omerta » Mon Nov 01, 2010 9:06 am

The way I think if it is that cause in fact is a Rube Goldberg machine. The events emanating from that single action can go on for a loooooong way. Proximate cause is the somewhat arbitrary legal boundary (foreseeability, palsgraf) which the court imposes to stop liability. Hope this helps

User avatar

Posts: 2214
Joined: Sun Jun 07, 2009 10:21 pm

Re: Help with causation!!

Postby Cupidity » Mon Nov 01, 2010 9:11 am

I think it is important to note the distinction between "but-for causation" in general negligence, and "but-for causation" as it applies to rescue. The majority of courts have held that if you have a duty to rescue (classic example is a sailor who has fallen off of your ship,) even when the possibility of a successful rescue is insignificant to the order of 1/1000, you still have a duty and you can't allege that there was a 999/1000 chance the individual would have died anyway without your action.

Return to “Forum for Law School Students�

Who is online

Users browsing this forum: No registered users and 18 guests