Proximate cause as a limitation on but-for cause (torts)

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rinkrat19
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Proximate cause as a limitation on but-for cause (torts)

Postby rinkrat19 » Sun Dec 09, 2012 1:38 pm

No matter how many times I read this, it doesn't make any sense to me:

(from the Proximate cause section)
Even if a defendant's act is the "but-for" cause of a plaintiff's injury, the defendant is not liable if the defendant's conduct did not increase the risk of the harm suffered by the plaintiff.

What?
But-for cause means that if D hadn't done whatever he did, P wouldn't have suffered harm.
So how can a D's act possibly be a but-for cause without increasing the risk of harm, when but-for cause literally means D's act, in fact, increased the risk of P's harm from "wouldn't have happened" (0%) to "harm actually happened" (100%)?

Does anyone have an example of a D's act being a but-for cause of P's harm but not "increasing the risk of harm"?

beardown67
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Re: Proximate cause as a limitation on but-for cause (torts)

Postby beardown67 » Sun Dec 09, 2012 2:04 pm

Could be totally off base here, but I understand this as just another way of hammering home the limited utility of the concept of 'but-for' causation. My torts prof always used to point out that there are an almost unlimited number of but-for causes for any event (i.e. 'but-for' the plaintiff's mother having given birth to him, he would not have been injured - this doesn't mean we can hold the plaintiff's mother liable).

If a defendant is a but-for cause of an injury, but didn't increase the risk of harm (or did not stand in close enough proximity to the harm - I understand these two things as basically synonymous), then that defendant is not liable for the plaintiff's injury.

Hope this makes sense, and again, I could be totally off here.

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rinkrat19
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Re: Proximate cause as a limitation on but-for cause (torts)

Postby rinkrat19 » Sun Dec 09, 2012 2:28 pm

beardown67 wrote:Could be totally off base here, but I understand this as just another way of hammering home the limited utility of the concept of 'but-for' causation. My torts prof always used to point out that there are an almost unlimited number of but-for causes for any event (i.e. 'but-for' the plaintiff's mother having given birth to him, he would not have been injured - this doesn't mean we can hold the plaintiff's mother liable).

If a defendant is a but-for cause of an injury, but didn't increase the risk of harm (or did not stand in close enough proximity to the harm - I understand these two things as basically synonymous), then that defendant is not liable for the plaintiff's injury.

Hope this makes sense, and again, I could be totally off here.

I recall this discussion in class, about how you can go back in the P's life and find an infinite list of technically but-for causes that would be ridiculous. I guess I can use it that way.

It still seems like a terrible way to phrase it, since "but-for" is the very ultimate example of "increasing the risk." :P

fosterp
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Re: Proximate cause as a limitation on but-for cause (torts)

Postby fosterp » Sun Dec 09, 2012 5:46 pm

I think a way to illustrate this:

You are driving with a passenger down the highway during a thunderstorm. You are driving 20 mph over the speed limit. As you are driving, lightning strikes a tree on the side of the road right as you are driving past. The tree falls on the car and injures passenger. Passenger sues, claiming if you hadn't been speeding, the lightning strike would have occurred before you drove past the tree, therefore your negligence was the "but-for" cause of the injury.

However, negligently speeding on the highway did not increase the risk of a tree falling on the car. The lightning strike could have occurred any time regardless of how fast you were going, it just happened to strike at the exact moment you were driving past it.

Another case that illustrates this is Perkins v. Texas and New Orleans Ry. Co.

ClubberLang
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Re: Proximate cause as a limitation on but-for cause (torts)

Postby ClubberLang » Sun Dec 09, 2012 5:55 pm

Think about it as "is the harm that actually occurred within the scope of the risks the negligence created (that a reasonable person would anticipate)".

Factual causation is necessary but not sufficient for liability. The various approaches to proximate causation more or less limit proximate causation to the foreseeable.

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seahawk32
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Re: Proximate cause as a limitation on but-for cause (torts)

Postby seahawk32 » Sun Dec 09, 2012 6:48 pm

hold on
Last edited by seahawk32 on Fri Dec 21, 2012 12:44 pm, edited 1 time in total.

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rinkrat19
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Re: Proximate cause as a limitation on but-for cause (torts)

Postby rinkrat19 » Sun Dec 09, 2012 6:50 pm

seahawk32 wrote:but statistically did your birth really increase the risk you would be in an accident? It made it possible, but it didn't increase the risk.


You had me up until here. I get what everyone's saying, but this right here is where I get stuck. Making something possible IS increasing the risk. Before it was possible, the risk was zero. Now that it's possible (in this case, after you are born), there is now a non-zero risk. The risk increased.

I think this is my engineering mind getting stuck. I'm gonna apply it how everyone is saying, but I still argue that phrasing it that way is just wrong.

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jkpolk
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Re: Proximate cause as a limitation on but-for cause (torts)

Postby jkpolk » Sun Dec 09, 2012 6:56 pm

rinkrat19 wrote:
seahawk32 wrote:but statistically did your birth really increase the risk you would be in an accident? It made it possible, but it didn't increase the risk.


You had me up until here. I get what everyone's saying, but this right here is where I get stuck. Making something possible IS increasing the risk. Before it was possible, the risk was zero. Now that it's possible (in this case, after you are born), there is now a non-zero risk. The risk increased.

I think this is my engineering mind getting stuck. I'm gonna apply it how everyone is saying, but I still argue that phrasing it that way is just wrong.


What you are looking for is coincidence. One act was going to happen. The other act was happening independently. Through sheer luck the two coincided. The tort system doesn't place blame for such a coincidence because parties arent deemed "at fault" for the two acts running into each other. Additionally, 3rd parties are not able to adjust their behavior to internalize the risks of these "random" coincidences- so that whole wing of tort's reason for being is neutralized.

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chem
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Re: Proximate cause as a limitation on but-for cause (torts)

Postby chem » Sun Dec 09, 2012 7:15 pm

But-for cause is necessary not sufficient. Proximate cause determines which but for should pay

Three different things to figure out which but for should pay
foreseeable that the negligent act would affect that plaintiff or class of plaintiffs (foreseeable plaintiff)
The damages were the harm within the risk of the negligent act (barry) (sort of goes to increasing risk. Speeding does not increase the risk of a tree falling on you, even though, but for his speeding, he would not have had the tree fall on thim)
Then Kinsman, which basically limits damages to those of the same nature that arise from the same force that flowed from the original negligence

Taking these all together, you can apply the andrews test in palsgraf. You look at how attenuated the accident is in time and space from the negligence, whether the sequence is natural and continuous, whether that cause would always or likely cause that affect, and how many interferences there are

Helps? Miss the mark?

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seahawk32
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Re: Proximate cause as a limitation on but-for cause (torts)

Postby seahawk32 » Sun Dec 09, 2012 8:22 pm

chem wrote:Then Kinsman, which basically limits damages to those of the same nature that arise from the same force that flowed from the original negligence


Random ass question but do you think Kinsman is a broader inquiry than Wagon Mound? If so how would you phrase the Kinsman test vs. the Wagon Mound test.




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