Causation — Torts

A landlord in Franklin ignores a broken light on a stairwell. A tenant trips on the dark stairs and falls. Careless landlord, injured tenant, obvious case. Now change exactly one fact. She did not trip. She fainted from a sudden medical event, and she would have gone down in full daylight. Same broken light. Same fall. Same careless landlord.

In the first version he pays. In the second he owes nothing at all. Nothing about his conduct changed. Only causation did. Causation is the bridge between a careless act and an injury, and it is really two separate questions. By the end of this episode you will run both, in order, on any fact pattern the exam gives you.

Here is the route. First the framing, because causation is two boxes and the plaintiff has to fill both. Then part one, actual cause. But-for, the twin-fires problem, and what happens when the plaintiff cannot say which defendant did it. Then part two, proximate cause. Foreseeability, the eggshell plaintiff, and the intervening causes the exam loves most.

Negligence has four elements. Duty, breach, causation, damages. Causation is the bridge, and without it a defendant who behaved terribly still owes nothing. Here is the move to internalize. Causation is two separate questions, and the plaintiff has to answer yes to both. Keep them in separate boxes.

Box one, actual cause, also called cause in fact. As a matter of raw fact, did the conduct bring about the injury? Factual, almost mechanical. Box two, proximate cause, which the Restatement now calls scope of liability. Even if it did, is it fair to hold this defendant responsible for this particular harm? That one is policy.

A defendant can easily be an actual cause and still walk free on proximate cause, and exam questions love living in exactly that gap. This reaches past negligence too. Intentional torts, strict liability and products liability use the same two tests.

Start almost every analysis with but-for. But for the defendant's negligent conduct, would this harm have occurred? If the injury would not have happened without the act, the act is an actual cause. If it would have happened anyway, it is not. Think of it as subtract and see. Delete the careless act, rerun events, and watch the harm.

Which is our landlord. But for the missing light she would have seen the step and kept her footing, so the darkness is an actual cause. In the fainting version, delete the darkness and she still falls. Restatement § 26 puts it plainly. Conduct is a factual cause when the harm would not have occurred without it. And the conduct need not be the sole cause.

That matters immediately, because forces usually combine. When several negligent acts together cause a harm none would have caused alone, each is a but-for cause, because removing any one prevents the injury. Ordinary but-for handles it, no special rule.

Two contractors install a hot-water system. One omits the pressure-relief valve, the other sets the thermostat far too high. Neither error alone bursts the tank. Together they do, flooding the basement with $40,000 in damage. Delete either mistake and there is no rupture, so each is an actual cause.

Now the hard case, and a favorite of exam writers. Two separate forces arrive at once, and each on its own is big enough to cause the entire harm. Two land-clearing contractors each let a brush fire escape. Each fire alone is enough to burn the plaintiff's warehouse to the ground, with $200,000 in lumber inside.

The first says, but for my fire the warehouse burns anyway, thanks to his. The second says exactly the same thing. Quick challenge. Taken literally, does but-for let both of them off? It does. Which cannot be the law.

Courts fix this two ways that reach the same result. The traditional substantial factor test asks whether the conduct was a substantial factor in bringing about the harm, though it was not a strict but-for cause. The modern rule, Restatement § 27, treats each independently sufficient force as a factual cause. Cleaner words, same outcome.

Two cautions. Sufficiency controls, not sequence and not size, so it does not matter which fire arrived first or burned hotter. And it works even when the rival force is innocent. A railroad whose sparks would have destroyed the silo alone cannot hide behind a lightning fire that would have done the same.

Now a terminology warning, because it is a trap. The Restatement has deliberately retired substantial factor as a general test of actual cause. It found the phrase confusing and often misused, and returned to but-for as the default under § 26, keeping a special rule only for genuine multiple-sufficient-cause cases. But many states and pattern jury instructions still use the language, and the NCBE outline lists it.

So the safe move. Use but-for as your default, and reach for substantial factor only when you actually see two independently sufficient causes. Sprinkling it onto an ordinary single-cause case is a classic tell that an answer was written to trap you.

Next problem. Sometimes the plaintiff can prove that one of several negligent defendants caused the harm but cannot show which. Two doctrines rescue her. First, alternative liability, a burden-shifting rule. Two shooters on a range both fire negligently downrange, one round strikes a worker, and ballistics cannot say whose it was.

Take two or more defendants, all negligent, where only one could have caused the injury. If the plaintiff through no fault of her own cannot identify which, the burden of proof on causation flips to the defendants. Each must prove he did not cause the harm, and any who cannot is liable. Note what that is not. It is not an automatic half-share each.

One precondition does real work. Every possible wrongdoer must be joined. Three firms serviced an elevator, the plaintiff sues only one, and the burden does not shift, because the truly responsible party may not be in the room.

Second, market-share liability, and treat it as a minority rule. For fungible products where the specific maker cannot be traced, a medication taken years earlier being the classic example, some courts apportion liability by market share.

One last actual-cause wrinkle, and it lives in medical malpractice. A negligent failure to diagnose drops a patient's survival odds from 45% to 15%, and the patient dies. Under strict but-for the estate loses. The patient more likely than not would have died even with proper care, so the negligence was not a but-for cause of the death.

Many courts now recognize loss of chance. The patient is compensated not for the death but for the lost chance of a better outcome, here 30 percentage points, with damages scaled to the percentage lost. Courts are split, so treat it as recognized but not universal. A below-50% chance destroyed by negligence is the tell.

Box two. Even when a defendant is a factual cause, the law refuses to hold him responsible for every remote or bizarre consequence. Proximate cause is the line drawn for fairness. And do not be fooled by the word proximate. It has nothing to do with physical nearness or elapsed time.

The default test is foreseeability, phrased by modern courts and Restatement § 29 as harm within the risk, or scope of the risk. Two steps. First ask what risks made the act negligent. Then ask whether the harm that actually occurred is one of those risks. If yes, it is within the scope of liability. If it is a completely different kind of harm, it falls outside.

An attendant carelessly overfills a tank and spills gasoline across a lot. What makes that careless is the risk of fire and of people slipping. A spark ignites the fumes and a customer is burned. Squarely within the risk. But a passerby a block away who smells the fumes, panics, sprints off and breaks an arm may fall outside it.

Two refinements to lock in. First, only the general type of harm must be foreseeable. The precise manner in which it unfolds does not. Second quick challenge. A restaurant keeps oily rags in an open bin against a hot vent, careless because oily rags near heat can ignite. Fumes in the bin flash unexpectedly, the fire flares fast, and a diner is burned. Does the surprising mechanism defeat proximate cause?

No. Fire injury is exactly the risk that made the storage careless, and the law does not require you to foresee how the fire starts. Demanding that the whole chain be predictable would defeat liability in nearly every fire case.

Second refinement. The plaintiff must generally be a foreseeable victim, someone within the zone of danger the risk created. A dockworker drops a barrel. The jolt whips a coil of rope down the pier and strikes a visitor far beyond where a dropped barrel could be expected to reach. That visitor is an unforeseeable plaintiff.

Now the rule that cuts the other way. Once the type of harm is foreseeable and the plaintiff is a foreseeable victim, the defendant is liable for the full extent of the injury. A normal person might have been hurt far less. It does not matter. This is the eggshell-skull rule. You take your victim as you find him, and Restatement § 31 says the same about preexisting conditions.

A driver lightly rear-ends the car ahead, the kind of tap that usually leaves a sore neck. The other driver has a rare spinal condition and ends up paralyzed. The rear driver pays for the full paralysis. And note the limit. The eggshell rule excuses severity, never type.

Last, and this is the most heavily tested proximate-cause issue, so slow down. An intervening cause is an event that happens after the defendant's negligent act and contributes to the harm. The whole question is whether it is serious enough to cut the defendant loose. The rule tracks foreseeability.

A foreseeable intervening cause, a normal reaction to the situation the defendant created, does not break the chain. He stays on the hook. An unforeseeable, extraordinary and independent one is a superseding cause. It breaks the chain, and the original defendant is relieved of what follows. Restatement § 34 frames this as scope. The defendant stays liable while the harm is within the risk his conduct created, and the intervening event relieves him only when it falls outside.

So every superseding cause is an intervening cause, but only the unforeseeable extraordinary ones actually supersede. And here is the exam discipline. The label is your conclusion, not your reasoning. Run the foreseeability analysis first, then decide what to call it.

Learn the foreseeable list, because the defendant stays liable for all of it. The ordinary negligence of others reacting to the danger. Rescue efforts, because danger invites rescue, so the rescuer's injury and his own negligence both count. Negligent medical treatment of the very injury the defendant caused, and infection picked up during it. The plaintiff's reasonable escape attempts. And ordinary forces of nature.

Then the superseding list. Unforeseeable intentional torts or crimes by a third party. Grossly negligent or reckless conduct far outside the ordinary run of events. Extraordinary, unforeseeable acts of nature, a freak once-in-a-century storm. And any intervening event producing a wholly unforeseeable type of harm.

But that first item carries the biggest trap in the topic. A third party's crime does not supersede when the defendant's negligence was precisely a failure to guard against that crime. A garage operator who lets the lights and cameras fail after a year of reported muggings cannot call the next mugging independent. Guarding against it was the whole duty.

Finally, the same negligence with opposite results. A delivery company leaves its truck running, keys in the ignition, on a busy street. What makes that careless is the risk that someone takes it and drives dangerously. Version one, a thief steals it and, speeding away, strikes a pedestrian. Foreseeable, not superseding, so the company can be liable.

Version two. The thief quietly parks it, waits a week, then deliberately uses it to run down a personal enemy. That cold, far-removed intentional act is likely superseding, because it is not the risk that made leaving the keys careless. Same defendant, same negligence. The outcome turns entirely on foreseeability.

A word on authorities, because this episode named no case, and that was deliberate. Causation is famous for its case names, and you will meet them in a casebook. NextGen will not ask for them. It hands you a fact pattern and asks what result the rule produces. What this topic does cite is the Restatement (Third) of Torts, which is where the modern language comes from.

If you keep only three lines, keep these. But for the act, would the harm have occurred? Liability reaches only the harms within the risk that made the conduct negligent. And foreseeable intervening causes do not supersede, while unforeseeable extraordinary ones do. Those three sentences carry almost every causation question.

Now the traps, and there are four. One. Collapsing the two questions. Proving the defendant factually caused the harm proves nothing about proximate cause, and the reverse is equally true. Check both boxes every time. Two. Misusing substantial factor. It is only for multiple sufficient causes, so do not apply it to an ordinary single-cause case where but-for works fine.

Three. Treating any criminal act by a third party as automatically superseding. It is not. If the defendant's duty was to protect against that very crime, the crime is foreseeable and does not cut off liability. Four. Demanding that the extent or the manner of the harm be foreseeable. Only the general type must be, and the eggshell rule makes the defendant swallow an unforeseeably severe injury whole.

And one point of exam craft. This topic is starred, so you get no provided statute. You reason from the rules cold, which is why those three lines matter more here than almost anywhere.

Time for the quick check, and this one comes straight from the BARGO question bank. A repair shop finishes work on a customer's car but negligently leaves it unlocked overnight, windows down, on a public street.

During the night a thief opens the trunk, takes a tire iron, walks three blocks, and uses it to attack a stranger in an unrelated personal quarrel. The stranger sues the repair shop. Is it a proximate cause of his injuries?

Option one. Yes, because but for leaving the car unlocked the tire iron would not have been taken at all. Option two. Yes, because the shop should guard against the theft of tools from an unlocked vehicle. Option three. No, because the thief's unrelated violent assault is an unforeseeable, superseding cause. Pause here if you want a moment.

The answer is option three. An unforeseeable, independent intentional crime is the paradigm superseding cause. It is extraordinary and outside the risks that made the conduct careless, so it cuts off the earlier tortfeasor's liability. A stranger beaten three blocks away in someone else's quarrel is a wholly different harm.

Now the wrong answers, because each is a trap you have met. Option one proves but-for and stops there, exactly the collapse we warned about. Option two frames the risk as tool theft, but that risk is losing property, not a stranger being beaten. Right risk, wrong harm. There are nearly thirty more questions on this topic, each explained like that.

Five things to take away. One. Causation is two boxes, actual and proximate, and the plaintiff must fill both. Two. But-for is your default. Subtract the act and see whether the harm disappears, and remember that several acts can each be a but-for cause of one injury.

Three. Reach for substantial factor, or § 27, only when two forces are each independently sufficient. Four. Proximate cause asks whether the harm sits within the risk that made the conduct negligent, and only the type has to be foreseeable, never the extent. That is the eggshell rule.

Five. Foreseeable intervening causes do not supersede. Rescue, negligent medical care, ordinary negligence, a reasonable escape. Unforeseeable extraordinary ones do. Which takes us back to our landlord, still careless about that light, who pays when the darkness made her fall and owes nothing when it did not. Next time, Comparative Fault and Others' Acts.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.