Res Ipsa/But for/Proximate cause

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RR320
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Res Ipsa/But for/Proximate cause

Postby RR320 » Sat Nov 19, 2011 6:20 pm

can someone please give a good explanation/examples of res ipsa/but for cause/proximate cause? Thanks.

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theavrock
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Re: Res Ipsa/But for/Proximate cause

Postby theavrock » Sat Nov 19, 2011 6:30 pm

Res Ipsa = the thing that speaks for itself. Generally used when the injured party cannot point to negligence on the part of the defendant but the type of injury that occurred would not have occurred without some sort of N.

But for cause is just what it sounds like. But for the conduct of the D, P's injury would not have happened. This is also called cause in fact.

Proximate cause is legal cause. This is much more subjective but generally is based on foreseeability and substantial factor test.
IE: was the injury to the P a substantial factor in causing the injury? Yes, probably PC.
Was the type of injury and the P foreseeable? Yes, probably PC.

EDIT: just saw you asked for examples too

Res Ipsa: P was walking down the street and out of nowhere a barrel of flour came out of D's second story window and injured P (Bryne v. Boadle)

But for cause: D leaves a box on the ground and P trips and falls over it, because of this he misses his bus. The subsequent bus he takes is hit by a car and P sustains serious injury. But for the D leaving box on the ground P's injury likely would not have occurred, but its not the proximate cause. There was a superseding cause that happened between D's N and P's injury. Proximate cause in this case would be D negligently leaves box on ground and P trips over it and sustains substantial injury. In this case it would be both but for and proximate cause of P's injuries.
Last edited by theavrock on Sat Nov 19, 2011 6:44 pm, edited 1 time in total.

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ph14
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Re: Res Ipsa/But for/Proximate cause

Postby ph14 » Sat Nov 19, 2011 6:40 pm

RR320 wrote:can someone please give a good explanation/examples of res ipsa/but for cause/proximate cause? Thanks.


Res Ipsa is pretty much a procedural thing. It allows the P to get a negligence case to jury in circumstances where it would be difficult to produce the evidence of negligence. The classic case is a guy walking on a street past a barrel factory, and he gets hit in the head with a barrel. It would be difficult to produce evidence of negligence here, since he doesn't have access into the factory, etc. So the doctrine of res ipsa allows a P to meet the "breach" element of a Negligence claim. The P needs to show that (1) the act that occurred (barrel falling) usually does not occur in the absence of negligence; (2) the item was in the exclusive control of the D at the time of the accident (in some circumstances this can be a little relaxed-- In Escola they allowed a res ipsa claim when a Coca-Cola bottle exploded despite the fact it wasn't in the exclusive control but it had pretty much just been off loaded off the deliver truck); (3) no contributory negligence by P.

"But for" (aka "actual") cause is the colloquial "cause." The test is, "but for" the negligent act (or just act; you can have causation without breach) happening, the harm would not have resulted. So if you removed that act, would the harm still occur? If not, then it does not meet the "but for" cause requirement. An example could be negligently disposing of a match which caused a fire, burning down a house. If the person hadn't negligently disposed of the match, then the house wouldn't have burned down. Therefore, the negligently match disposal is a (there can be multiple but for causes) but for cause. But negligently disposing of the match is not a but for cause of someone down the block tripping and fall.

Proximate cause is basically a limitation on causation, because if you think about it, things have LOTS of but for causes, and courts were worried about unbounded liability. So in the previous match disposal example, say that the person had bought the matches from a convenience store. This is a but-for cause; the house burning down wouldn't have happened without the selling of the matches. But it might not be a proximate cause, because of the fears of unbounded liability. They don't want to hold actions too far removed from the harm to be liable. For this reason, many call it "scope of liability" (or something like that) rather than a somewhat misleading term "proximate" cause. They meant the word to mean something like immediate cause or something I think, but it can be kind of confusing. Anyways, the majority test is the "foreseeability" view. An action is a proximate cause when "only for those consequences of his negligence which were reasonably foreseeable at the time he acted." The minority view is the "direct" cause view. Under this view, the Δ is liable for all consequences of his negligent act, provided that the consequences are not due in part to "superseding intervening causes." This provided a lot of problems with too much liability so the vast majority of courts now (I believe) subscribe to the foreseeability view.

The Palsgraf case, which is the leading proximate cause case, is a good illustration. In that case, a man was rushing to catch a train and he was holding a package. The train attendants pushed/pulled him negligently onto the train, and he dropped the package, which had fireworks in it, setting them off and causing an explosion. Mrs. Palsgraf, on the other end of the train platform, was injured when a set of scales tipped onto her due to the force of the fireworks exploding. Cardozo, writing for the majority, stated that there was no liability because of no duty (basically wasn't the proximate cause), because the foreseeable consequences of negligently pushing someone onto the train would be something like, property damage to the contents of the package-- not an explosion. The dissent, Andrew, argued for something similar to the direct causation view.

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ph14
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Re: Res Ipsa/But for/Proximate cause

Postby ph14 » Sat Nov 19, 2011 6:43 pm

theavrock wrote:Res Ipsa = the thing that speaks for itself. Generally used when the injured party cannot point to negligence on the part of the defendant but the type of injury that occurred would not have occurred without some sort of N.

But for cause is just what it sounds like. But for the conduct of the D, P's injury would not have caused. This is also called cause in fact.

Proximate cause is legal cause. This is much more subjective but generally is based on foreseeability and substantial factor test.
IE: was the injury to the P a substantial factor in causing the injury? Yes, probably PC.
Was the type of injury and the P foreseeable? Yes, probably PC.

EDIT: just saw you asked for examples too

Res Ipsa: P was walking down the street and out of nowhere a barrel of flour came out of D's second story window and injured P (Bryne v. Boadle)

But for cause: D leaves a box on the ground and P trips and falls over it, because of this he misses his bus. The subsequent bus he takes is hit by a car and P sustains serious injury. But for the D leaving box on the ground P's injury likely would not have occurred, but its not the proximate cause. There was a superseding cause that happened between D's N and P's injury. Proximate cause in this case would be D negligently leaves box on ground and P trips over it and sustains substantial injury. In this case it would be both but for and proximate cause of P's injuries.


Isn't the "substantial factor" test an alternate test for but for cause? In those rare circumstances where 2 causes, independently, would have caused the harm, so neither one is technically a "but for" cause. IE: When there are 2 fires each converging on a house, 1 gets there first and burns it down, and the 2nd reaches there after. The 1st isn't technically a "but for" cause since even if it wasn't there, the 2nd fire would have burned the house down. Same for the 2nd fire. So the courts adopted the substantial factor test to get themselves out of the paradox, and basically ask whether it was a substantial factor in causing the harm. Under this theory, the 1st fire meets the "but for" cause requirement, despite not technically being a but for cause.

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theavrock
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Re: Res Ipsa/But for/Proximate cause

Postby theavrock » Sat Nov 19, 2011 6:48 pm

ph14 wrote:
theavrock wrote:Res Ipsa = the thing that speaks for itself. Generally used when the injured party cannot point to negligence on the part of the defendant but the type of injury that occurred would not have occurred without some sort of N.

But for cause is just what it sounds like. But for the conduct of the D, P's injury would not have caused. This is also called cause in fact.

Proximate cause is legal cause. This is much more subjective but generally is based on foreseeability and substantial factor test.
IE: was the injury to the P a substantial factor in causing the injury? Yes, probably PC.
Was the type of injury and the P foreseeable? Yes, probably PC.

EDIT: just saw you asked for examples too

Res Ipsa: P was walking down the street and out of nowhere a barrel of flour came out of D's second story window and injured P (Bryne v. Boadle)

But for cause: D leaves a box on the ground and P trips and falls over it, because of this he misses his bus. The subsequent bus he takes is hit by a car and P sustains serious injury. But for the D leaving box on the ground P's injury likely would not have occurred, but its not the proximate cause. There was a superseding cause that happened between D's N and P's injury. Proximate cause in this case would be D negligently leaves box on ground and P trips over it and sustains substantial injury. In this case it would be both but for and proximate cause of P's injuries.


Isn't the "substantial factor" test an alternate test for but for cause? In those rare circumstances where 2 causes, independently, would have caused the harm, so neither one is technically a "but for" cause. IE: When there are 2 fires each converging on a house, 1 gets there first and burns it down, and the 2nd reaches there after. The 1st isn't technically a "but for" cause since even if it wasn't there, the 2nd fire would have burned the house down. Same for the 2nd fire. So the courts adopted the substantial factor test to get themselves out of the paradox, and basically ask whether it was a substantial factor in causing the harm. Under this theory, the 1st fire meets the "but for" cause requirement, despite not technically being a but for cause.


Yep, but as far as I am aware it is also for determining PC.

IE: we are trying to determine what the PC of P's injury was. Well what is the substantial factor? Its likely the PC. In the example I used above. Obviously leaving the box on the ground was not a substantial factor in causing the P's injuries (it was the drunk driver who crashed in to the bus, but he's judgement proof that's why P is suing the business that left the box on the ground).

I could be wrong but that's how I have it down in my notes. The thing about PC is its so subjective I think its really about how you argue you it on the exam and the important thing is to note that just because something is the but for cause (CIF) it might not be the proximate cause (legal cause).

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Bless
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Re: Res Ipsa/But for/Proximate cause

Postby Bless » Sun Nov 20, 2011 6:53 pm

theavrock wrote:Yep, but as far as I am aware it is also for determining PC.

IE: we are trying to determine what the PC of P's injury was. Well what is the substantial factor? Its likely the PC. In the example I used above. Obviously leaving the box on the ground was not a substantial factor in causing the P's injuries (it was the drunk driver who crashed in to the bus, but he's judgement proof that's why P is suing the business that left the box on the ground).

I could be wrong but that's how I have it down in my notes. The thing about PC is its so subjective I think its really about how you argue you it on the exam and the important thing is to note that just because something is the but for cause (CIF) it might not be the proximate cause (legal cause).

I think this is incorrect, respectfully. The substantial factor test does not apply to proximate cause; it is only an actual causation test.

According to my professor, some of the courts have confused where the substantial factor applies (i.e. improperly applying it to resolve PC issues), which is what can easily lead to confusion amongst us students reading these cases.

Proximate cause focuses either on the direct and continuous sequence of events, ala Polemis, or on forseeability of the type of harm or manner in which an event led to harm (modern courts frame this as a harm within the scope of the risk analysis).

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theavrock
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Re: Res Ipsa/But for/Proximate cause

Postby theavrock » Sun Nov 20, 2011 6:59 pm

You know what I went back and read my notes and you all are right. I read them wrong. Substantial factor is used when the simple but for test fails (as ph said when you have two fires converging on a house)

My bad folks




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