See generally Hall, supra note 18. In the preemption case, we might imagine that Jay and Daisy are driving cars of the exact same make and model, and we might imagine further that, in Jay’s absence, Daisy would have been driving at exactly the same speed, in exactly the same location, at exactly the same time. 2005). The case is made even odder by the fact that Jay appears to become a cause of Myrtle’s injury at t2, since Jay and Daisy at that point are jointly sufficient, but individually insufficient, for Myrtle’s injury (since both drivers at t2 are going only five miles per hour). In order for Jay to slow into the intersection instead of accelerating, something would have had to change in Jay’s brain (so that, among other things, he formed the intention to press the brake instead of the gas). where E is the event of Nick making coffee and C is the prior event of Jay driving negligently into Myrtle. A genuine example of overdetermination appears in Kingston v. Chicago & Northwestern Railway Co., 211 N.W. Assume further that Jay’s roommate, Nick, made coffee later in the day, but that this is something Nick does only when Jay has forgotten to make coffee in the morning. Fumerton & Kress, supra note 15, at 101–02. In a negligence case, the plaintiff might make such a claim by arguing that the defendant’s conduct fell so far below the standard of care that the scenario would have been much different if the defendant had behaved nonnegligently. To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. 277, 277 (2005–2006) (“The NESS . sufficiency theories is that no finite sets of conditions are ever truly sufficient for the happening of some putative effect . A factor without which the result in question could not happen. .”). .”). It does not follow that if the Earth had exploded, Trump would be happier.”). Instead, if Daisy had kept driving, Jay would have become distracted, such that he swerved, thereby missing Myrtle and leaving her unscathed. The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational … Part III concludes. This chapter examines factual causation doctrine in isolation and derives some rules for navigating this most intractable part of tort law. One of these, . and the courts.5×5. See, e.g., Charles E. Carpenter, Concurrent Causation, 83 U. Pa. L. Rev. Outside of industrial disease cases, these principles do not seem to apply and normal ‘but for’ causation must be established on the balance of probabilities: Wilsher v Essex [1988] 1 AC 1074. See Robert N. Strassfeld, If . . Beginning with the criticism that counterfactual analyses accord causal status to noncausal relationships,87×87. Incorrect. This represents the sole exception to the rule that loss of a chance is not recoverable in English law: Allied Maples v Simmons & Simmons. it suffices to say that counterfactual propositions like “Myrtle would not have been injured but for Jay’s negligent driving” describe how things would have been if the world were different, but not that different, from the way that it actually is.31×31. Starting with the coffee example, we can build a structure S (also called a “blueprint”65×65. Michael D. Green* Some of the most intriguing brain teasers in tort law involve the valuation of damages for harm arising from wrongfully inflicted injury to person or property.' Such attempts often seek to redefine the victim’s injury in a “fine-grained”26×26. the but-for conception suggests that none of the actors is an actual cause of the injury (and thus that none of the actors can be held liable in tort).14×14. See, e.g., Wright, Richard, Causation in Tort Law, 73 Cal. See Jonathan Schaffer, The Metaphysics of Causation, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2016), https://plato.stanford.edu/archives/fall2016/entries/causation-metaphysics/ [https://perma.cc/4UCU-HJ4K] (“An adequate account of the causal relation should reveal . at 299. Hall, supra note 18, at 256 (emphasis omitted). It means any and all antecedents, active or passive, creative or receptive, which were factors actually involved in producing a consequence.”). See generally Jan Faye, Backward Causation, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2017), https://plato.stanford.edu/archives/spr2017/entries/causation-backwards/ [https://perma.cc/G9X9-GDKU]. As its name suggests, the intrinsicness thesis appeals to the notion that “the causal structure of a process is . 761 (1951); James Angell McLaughlin, Proximate Cause, 39 Harv. e (Am. If Myrtle would have relied on either inducement alone, then any economic loss she sustains will be exactly the same in the absence of either Jay’s or Daisy’s tortious conduct. 433 (2008); Wright, supra note 13. but the rest of the legal profession, to the extent it thinks about these corner cases at all, seems to view them as exceptions to an otherwise accurate rule.16×16. See Ned Hall, The Intrinsic Character of Causation, in 1 Oxford Studies in Metaphysics 255 (Dean W. Zimmerman ed., 2004). at 3. 513, 513–14 (1986). While an independent justification of causal direction will thus be required by theories of causation generally,42×42. In practice, this capaciousness is not unduly problematic, because we inquire into the causal status of an actor’s conduct only after we have determined that the actor has done something tortious. The but-for test is a test commonly used in both tort law and criminal law to determine actual causation. A second problem with Hall’s solution — at least insofar as it incorporates a sufficiency theory of causation — is that it may fall victim to counterexamples of its own. .”). 2007) (en banc) (discussing whether a plaintiff can prove causation based solely on the defendant’s market share in manufacturing and distributing a product that caused harm, without being able to match a particular harm to a particular defendant); Stubbs v. City of Rochester, 124 N.E. . . For a slightly less stylized example, Professors Richard Fumerton and Ken Kress offer the following: “[W]hen the sun is at a forty-five degree angle, and the shadow [of a flagpole] is five feet tall, law-like connections entail that the flagpole is ten feet tall. at 1–2 — as if it were an overdetermination case. we can try to build a blueprint S where E is the event of Nick making coffee later in the day and C is the event of Jay driving negligently at time t. As in the sufficiency case, we will not have to add C to S, because it is not true at t that Nick’s making coffee is counterfactually dependent on Jay’s driving negligently (because by the time we reach t, the conditions will already be in place for Nick to make the coffee, and these conditions will be unaffected by the presence or absence of Jay’s negligence). Furthermore, the incorporation of the intrinsicness thesis may enable sufficiency theories to resolve some of their thorniest issues, including those presented by preempted events and noncausal relationships. Law Inst. 2d 514 (1964). A subsequent act or event will not break causation if it is the kind of thing the defendant’s duty was designed to protect against. More serious for counterfactual theories is the objection that these accounts allow for causation between unrelated events, such as Jay’s negligent driving and Nick’s making coffee later in the day. Mackie’s emphasis on sufficiency appeals to our intuition that causation is not simply about counterfactual “dependence,” but is also (at least in part) about the “production” of a given result.50×50. Applying the sufficiency theory to the overdetermination case in which Jay and Daisy simultaneously drive negligently into Myrtle, Daisy’s negligent driving is correctly counted as a cause of Myrtle’s injury, for the same reason that Jay’s is. . The problem with this view is that it ignores the full import of the corner cases just described. Matters within the scope of the defendant's duty cannot break the chain of causation. judges . It doesn’t take long, however, for the conventional account to run into problems it seems unable to solve. In light of the previous section, the reader might be wondering: can counterfactual theories invoke the intrinsicness thesis as well? Incorrect. This Part concludes by highlighting lingering problems that the sufficiency theorist must address and by explaining briefly why the concept of “intrinsicness” cannot be invoked by theories of but-for causation. See Moore, supra note 4, at 491; Fumerton & Kress, supra note 15, at 100–02. Tort Law Causation Essay. These counterexamples are more obscure than traditional overdetermination and preemption cases, but they are important to consider nonetheless. such a project is too ambitious to achieve within the confines of this Note. b (Am. Probs., Autumn 2001, at 83; Mark Kelman, The Necessary Myth of Objective Causation Judgments in Liberal Political Theory, 63 Chi.-Kent L. Rev. but it is trivially easy in other cases, such as those involving fraudulent misrepresentation.29×29. Moreover, each person in the group is necessary to the sufficiency of two of these sets. at 286–90. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27 cmt. The but-for test is often used to determine actual causation. C. A Brief Return to Counterfactual Accounts, Robert E. Keeton, Legal Cause in the Law of Torts, Michael S. Moore, Causation and Responsibility, Restatement (Third) of Torts: Liability for Physical and Emotional Harm, Frank W. Miller, The Test of Factual Causation in Negligence and Strict Liability Cases, The Possible and the Actual: Readings in the Metaphysics of Modality, Restitution at Home: Unjust Compensation for Unmarried Cohabitants’ Domestic Labor, https://plato.stanford.edu/archives/win2016/entries/possible-worlds/, https://plato.stanford.edu/archives/spr2017/entries/causation-backwards/, https://plato.stanford.edu/archives/fall2016/entries/causation-metaphysics/. she is liable for negligence only if she “causes personal injury or property damage” to another.3×3. It then goes on to discuss specific rules of factual causation, which will involve a discussion of both multiple concurrent causes and multiple successive causes. Philosopher Tim Maudlin discusses this problem by assessing the following hypothetical: “If the bomb dropped on Hiroshima had contained titanium instead of uranium it would not have exploded.” Id. Compare WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 1 (1987) (“[T]he common law of torts is best explained as if . Causation rules apply differently in industrial disease cases where the claimant cannot show whether their injury was caused by negligent exposure or non-tortious exposure to a harmful substance. The first, which is sometimes referred to as “factual causation”, “cause in fact”, or “but for cause”, is essentially concerned with whether the defendant’s fault was a necessary condition for he loss occurring. . Law Inst. The next section will argue that this approach is unavailable to the counterfactual theorist. It is not normally possible to argue that the claimant should be able to recover for the loss of a chance if they cannot establish ‘but for’ causation: Gregg v Scott [2005] 2 WLR 268. .” Id. Cf. However, it might be possible to recover for the loss of a chance where the breach causes the claimant to lose the chance to negotiate their way out of economic loss: Allied Maples v Simmons & Simmons [1995] 4 All ER 907. Wash. L. Rev. See People v. Herbert, 228 Cal. was a cause of an injury if and only if, but for the act, the injury would not have occurred. The act must be very unreasonable: Sayers v Harlow Urban District Council. Counterfactual dependence, after all, is notoriously nontransitive. . The more different the scenario in which the defendant behaves nonnegligently, the plaintiff will argue, the more likely it is that the victim’s injury does not occur in that scenario. . In the preemption case, for example, the relationship between Jay’s driving and Myrtle’s injury will not match the intrinsic structure of SJ exactly, since the causal processes in the former case (but not the latter) will be slightly influenced by Daisy’s distant presence (because, for example, Daisy exerts a minor gravitational force on the process).80×80. Other entries in this encyclopedia dealwith the nature of causation as that relation is referr… Legal and factual causation relates to whether or not the the defendant's act or omission i.e. See Moore, supra note 4, at 410 (“For example, if each of two fires is sufficient for the destruction of a house, then it follows that neither fire is independently necessary for the house’s destruction. L.A. Paul & Ned Hall, Causation: A User’s Guide 17 (2013). For further discussion of backtracking, see Daniel M. Hausman, Causal Asymmetries 123–26 (1998); Moore, supra note 4, at 403–09; and Christopher Hitchcock, Lewis on Causation, in A Companion to David Lewis 295, 297–98 (Barry Loewer & Jonathan Schaffer eds., 2015). To illustrate, we can look to the state of the world moments before Daisy slows down: at that time, Daisy’s driving appears to be a necessary part of a larger set of conditions — again including Myrtle’s position and velocity, the state of the roads, and other factors — that is sufficient for Myrtle’s injury.57×57. Incorrect. Furthermore, Jay’s negligent driving is necessary to the sufficiency of this set, so long as the other members of the set are insufficient by themselves for Myrtle’s injury. L. Rev. There is not normally any need to show that the extent or manner in which the harm was caused was foreseeable: Hughes v Lord Advocate. 2166–67. We might suppose, for example, that Jay and Daisy — instead of being negligent drivers — are scam artists who independently induce Myrtle to invest her life savings in a fraudulent enterprise. The claimant only needs to show that physical harm was foreseeable: Malcolm v Broadhurst. What type of harm must a primary or consequential victim of psychiatric harm in negligence show was foreseeable to establish that their loss was not too remote? With that prior event held fixed, it follows that Nick would have made coffee later in the day regardless of Jay’s negligence (because Jay would have forgotten to make coffee either way), and the latter is therefore not a cause of the former. How do you determine actual causation?First of all, you have to ask what actual causation is: “ Hall sketches a framework for solving this problem,82×82. 556, 560 (1973). enters land in the possession of the other, or causes a thing or a third person to do so . Id. If actual causation just depends on what would have happened if Jay had not driven negligently, then Jay’s negligent driving is an actual cause of all these changed events, even though they occurred in the past.38×38. . See id. It is also worth noting that such cases do in fact arise. Furthermore, each of these past changed events would have precipitated future changes that were completely unrelated to Jay’s driving; and yet, on the but-for account of causation, Jay’s negligent driving is a cause of these future changes as well.39×39. a (Am. . Factual Causation 1. Even more vexing are cases of preemption, in which one tortfeasor’s infliction of an injury prevents another actor from inflicting the same injury.24×24. The members of this class, in turn, will all share those intrinsic characteristics that are required in order to establish a match with S, but may differ with respect to those intrinsic characteristics that are not. For an illustration that has become unfortunately topical, see Maudlin, supra note 44, at 27 (“If the Earth had exploded in 1987, Ivana would not have found out about Marla. Q. Furthermore, SJ will match the intrinsic structure of the relationship between Jay’s driving and Myrtle’s injury in both the overdetermination and the preemption cases, while SD will match the intrinsic structure of the relationship between Daisy’s driving and Myrtle’s injury only in the overdetermination case. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26 cmt. See supra p. 2176. at 287; see also Paul & Hall, supra note 43, at 131. See Moore, supra note 4, at 412; Ned Hall & L.A. Paul, Causation and Pre-emption, in Philosophy of Science Today 100, 107–14 (Peter Clark & Katherine Hawley eds., 2003). Id. Loss of a chance is not a recognised, recoverable loss in English law for injuries: Gregg v Scott. Causation Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. A third-party’s failure to stop the defendant’s breach from causing harm will not normally break causation. Indeed, if we return to the objections discussed in Part I, it looks as though intrinsicness applies equally to conventional accounts of but-for causation. As above, however, we can easily revise the scenarios such that the injuries in each are indistinguishable. When we discuss what would have happened but for Jay’s negligent driving, for example, we are not talking about all the possible scenarios in which Jay did not drive negligently into Myrtle: we are not talking about the scenarios in which Jay never bought a car or in which he was never born.32×32. If the second fighter pilot was about to receive instructions to shoot down the third fighter pilot, then the first fighter pilot is a cause of the bombing on a counterfactual account. at 914. The claimant must show that a person of reasonable fortitude would suffer psychiatric harm: McLoughlin v O’Brian. .”). See id. Id. In other cases, especially those in which the tortious conduct consisted of marginally more risky conduct than is acceptable or in which the actor failed to take a precaution that would have reduced the risk to another, such as by warning of a danger, the counterfactual inquiry may pose difficult problems of proof.”). In order to address these issues, this Part draws on the work of philosopher Ned Hall, whose “intrinsicness thesis,” taken together with a revised definition of sufficiency, offers a promising framework for analyzing actual causation.18×18. way, such that it becomes true that the injury would not have occurred but for the relevant tortfeasor’s action.27×27. See Reeves v Commissioner of Police of the Metropolis. test of causation, popularized by Professor Richard Wright, is emerging as the new supplement to the but-for test for the twenty-first century.” (footnote omitted)). See David Lewis, Counterfactuals and Comparative Possibility, 2 J. Phil. Wright rejects the argument that sufficiency theories (or at least the NESS test) improperly accord causal status to preempted events. . — is undoubtedly important, but it turns out to apply equally to other accounts of causation (including the sufficiency accounts discussed below).41×41. The revised definition can, however, be applied fruitfully to two garden-variety scenarios: one in which Daisy is absent and Jay drives negligently into Myrtle, and another in which Jay is absent and Daisy drives negligently into Myrtle.74×74. Applying Hall’s strategy to the preemption case above, we can see that the revised definition falls silent about whether we should add Jay’s driving or Daisy’s driving to S (since, at t, there is no uniquely sufficient set of conditions for Myrtle’s injury).73×73. The upshot of the foregoing discussion is that sufficiency accounts carry significant promise, particularly in their ability to handle overdetermination cases (and to accurately account for the causal status of preempting causes). It follows that each person’s negligence would count as a cause of the car’s destruction on the NESS account.52×52. When we turn to the preemption case, however, in which Daisy slows down upon seeing Jay enter the intersection — but in which Daisy would have hit Myrtle in Jay’s absence — it seems as though Daisy is incorrectly counted as an actual cause of Myrtle’s injury.56×56. The first objection — that counterfactual theories allow for temporally reversed causation40×40. One challenge becomes clear when we analyze the causal status of Daisy in the overdetermination and preemption cases above. In most cases, factual causation alone will be enough to establish causation. Cf. . . Its explanatory power becomes clear, however, once we apply it to the concrete cases we have been discussing. The list goes on. The application of the intrinsicness thesis gets a bit trickier when we move to preemption, since we have already seen that sufficiency accounts like Wright’s NESS test appear correctly to count Jay as an actual cause of Myrtle’s injury while incorrectly counting Daisy as one too.68×68. Incorrect. ‘Unforeseeable’ means improbable or beyond the types of risk which the defendant’s duty was supposed to guard against: Lamb v Camden LBC [1981] 2 All ER 408. Hart & Tony Honoré, Causation in the Law (2d ed. 149 (1925). See, e.g., Moore, supra note 4, at 410–25; Richard Fumerton & Ken Kress, Causation and the Law: Preemption, Lawful Sufficiency, and Causal Sufficiency, Law & Contemp. at 127. at 245. If the defendant had a duty to control a dangerous third party or object, then that third party’s or object’s actions will not break causation: Home Office v Dorset Yacht Co Ltd [1970] AC 1004. Assume also that Jay forgot to make coffee the morning he drove negligently into Myrtle. The problem is that we can construct a scenario with an identical intrinsic structure to the one just described (Jay drives negligently into Myrtle while Daisy slows down and watches from afar), in which Daisy’s slowing down is not a cause of Myrtle’s injury: We may suppose, for example, that if Daisy had kept driving, Jay would not have become distracted; instead, Jay would not even have noticed Daisy, and he would have hit Myrtle all the same. 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