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. The distinction between factual and legal causation Factual causation: demonstrating that the defendant’s breach of duty is causally related to the claimant’s actionable damage. To explore these objections, it is helpful to begin by clarifying what we mean when we say that a given victim’s injury would not have occurred but for a given tortfeasor’s action. 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). This section begins by discussing factual causation and the application of the ‘but for’ test, explaining the burden of proof and the all or nothing approach to damages. Starting with the coffee example, we can build a structure S (also called a “blueprint”65×65. 556, 560 (1973). Law Inst. We will hold to the side Wright’s objection, supra note 58, that only Jay’s driving is sufficient because the conditions required for Daisy’s causal sufficiency are not fully instantiated. The second variety is rather more difficult to characterize, but we evoke it when we say of an event c that it helps to generate or bring about or produce another event e . See supra note 58. 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. The following example is inspired by an abstract diagram in Paul & Hall, supra note 43, at 130 fig.15. The following stylized example may help to illustrate the point. Such a strategy, however, will have to address several lingering questions, such as the exact nature of an intrinsic match and the proper resolution of the obscure counterexamples discussed above. L. (forthcoming 2017) (manuscript at 25–31), https://ssrn.com/abstract=2850558 [https://perma.cc/KP8B-V4AY]. Although promising, Hall’s strategy raises several questions. . If the claimants chances of avoiding an injury have been reduced from 48% to 21% by the defendant's negligence, will they be able to establish factual causation? Test yourself on the principles of causation and remoteness of damage. If Ivana had not found out about Marla, Trump would be a happier man now. L. Rev. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27 cmt. At time t1, Jay is crawling toward Myrtle at a pace of five miles per hour, while Daisy is coming in hot at a speed of twenty. If the defendant's negligence injures the claimant, but the claimant would have suffered the same injury later on, can the claimant establish factual causation after the date of the second, inevitable injury? Although courts and commentators acknowledge that this counterfactual analysis breaks down in certain corner cases,96×96. Particularly promising is the family of theories that defines causation in terms of an event’s (or set of events’) sufficiency in bringing about a given result. Law Inst. . The problem with this solution is that it appears to violate the laws of nature.44×44. INTRODUCTION. Id. ) Causation in criminal liability is divided into factual causation and legal causation. See supra pp. Given the defects inherent in the counterfactual conception of causation, it is unsurprising that philosophers and legal scholars have proposed a number of alternative theories. . that means that neither fire caused the destruction of the house!”). If an act of the claimant, nature or a third party was the kind of thing the defendant's duty was supposed to guard against, can it break the chain of legal causation? 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. At time t2, Daisy sees Jay and slows to five miles per hour, while Jay maintains his speed. . On the counterfactual account, Daisy’s slowing down is a cause of Myrtle’s injury, because Myrtle would not have been injured had Daisy maintained her speed and distracted Jay. Hall, supra note 18, at 286. each other.78×78. Although sufficiency accounts share some problems with counterfactual accounts, this Part argues that there may be solutions available to the former that are unavailable to the latter. When an injury is “overdetermined” by two actors’ conduct,12×12. See Hart & Honoré, supra note 4, at 110 (“So when a negative answer is forthcoming to the question ‘Would Y have occurred if X had not?’ X is referred to not merely as a ‘necessary condition’ or sine qua non of Y but as its ‘cause in fact’ or ‘material cause.’”). Law Inst. . L.A. Paul & Ned Hall, Causation: A User’s Guide 17 (2013). at 401 (“[O]n the counterfactual theory, c causing f means that c was necessary to f. Suppose that c causing e on a given occasion means not only that c was necessary to e but also that, given the laws and circumstances other than c, c could not have failed to cause e. That means that c, together with the other circumstances, was sufficient for e. This means that e was necessary for c. Yet, that means that e was also necessary for f — if e had not occurred, then c would not have occurred, and if c had not occurred, then f would not have occurred. Incorrect. See id. Law Inst. 941, 941 (1935) (“Causation in fact as the term is used in law is very inclusive. f (Am. Id. Actual causation is fairly intuitive, but it is not always as straightforward as you might think, especially in situations where multiple forces combine to … It does not have to be the only, or even the main, cause. Applying Wright’s NESS test to the examples above, we can see that Jay’s negligent driving is a cause of Myrtle’s injury in both scenarios: Jay’s negligent driving is part of a set of antecedent actual conditions — which includes Jay’s position and velocity, Myrtle’s location, the state of the roads, and other factors — that is sufficient for Myrtle’s injury. If the claimant's chances of negotiating their way out of an economic loss have been reduced from 48% to 21% by the defendant's negligence, can they establish factual causation? . 2005) (“[I]f a driver falls asleep and that driver’s car crashes into another’s home, assessing what would have occurred if the actor had not fallen asleep poses little difficulty. Indeed, as any first-year torts student knows, there are corner cases in which the conception appears to break down. Paul & Hall, supra note 43, at 124. Factual Causation Tort law uses a ‘but for’ test in order to establish a factual link between the conduct of the defendant and the injuries of the claimant. : Counterfactuals in the Law, 60 Geo. Id. 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. Mackie, Causes and Conditions, 2 Am. . § 27 cmt. When we assess whether a set of conditions is sufficient for a given result, it is important to note that we are assuming, in some sense, that those conditions are the only conditions that obtain. if the actor’s conduct is necessary to at least one causal set.”); David A. Fischer, Insufficient Causes, 94 Ky. L.J. 2005). A STEP FORWARD IN FACTUAL CAUSATION INTRODUCTION TORT lawyers traditionally distinguish between two meanings of the word “ cause.” Under the rubric of cause in fact, the focus is a historical one, and attention is directed to the simple question of what happened, of whether the defendant’s conduct produced the injury. The account is a capacious one, as it accords causal status to a wide range of legally irrelevant actions20×20. Paul & Hall, supra note 43, at 129–30. One challenge becomes clear when we analyze the causal status of Daisy in the overdetermination and preemption cases above. See supra p. 2176. Id. See Moore, supra note 4, at 475 (“A common objection to . 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. .”). Causation is just one component of the tort. where E is the event of Nick making coffee and C is the prior event of Jay driving negligently into Myrtle. . Although a discussion of “possible world” semantics is well outside the scope of this Note,30×30. While this strategy has intuitive appeal, it runs into multiple problems, the most fatal of which is that overdetermination and preemption scenarios can be revised so that a victim’s injury would have occurred exactly as it actually did in the absence of the relevant tortfeasor’s action. In reality, the issue in Summers was one of factual uncertainty, in that the trial court was unable to determine which defendant caused the plaintiff’s injuries. 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. . . See supra pp. 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. Only strict liability torts are exempt from this rule (eg trespass to the person). This will be true even if there is some event external to S′ — such as Jay’s prior failure to make coffee — that would render Jay’s negligent driving sufficient for Nick’s making coffee later in the day.67×67. . See id. Id. The first objection — that counterfactual theories allow for temporally reversed causation40×40. Dan B. Dobbs et al., The Law of Torts § 33 (2d ed. at 914. Legal and factual causation relates to whether or not the the defendant's act or omission i.e. Such theories, when combined with an intrinsic view of causal structure, appear capable of resolving issues that counterfactual accounts cannot. Factual causation is established if ‘but for’ the breach the claimant would not have suffered the loss: Barnett v Chelsea & Kensington Hospital  1 QB 428. .”). The test asks, "but for the existence of X, would Y have occurred?" Lawyers often discuss Summers v. Tice, 199 P.2d 1 (Cal. These corner cases have proved vexing enough to inspire a cottage industry in related legal scholarship,15×15. Incorrect. by the intrinsic natures of the events that make up the process, together with the ways in which they are juxtaposed with one another, together with the laws that govern that process.”62×62. 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/. Part III concludes. Incorrect. The next section will argue that this approach is unavailable to the counterfactual theorist. Incorrect. The theory that causation consists in one event’s (or set of events’) sufficiency in bringing about the occurrence of another is often associated with the philosopher J.L. These conclusions — that Jay’s negligent driving is a cause both of his own prior failure to make coffee and of Nick’s making coffee later in the day — seem clearly wrong, as do those judgments arrived at in the overdetermination and preemption cases discussed above. What type of harm must a secondary victim of psychiatric harm in negligence show was foreseeable to establish that their loss was not too remote? 761 (1951); James Angell McLaughlin, Proximate Cause, 39 Harv. L. Rev. . We will thus get the intuitive result that both Jay and Daisy are causes of Myrtle’s injury when they simultaneously collide, but that only Jay is a cause of Myrtle’s injury when Daisy watches from afar. 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). Ie 'but for' the defendant's actions, would the claimant have suffered the loss? Incorrect. 625, 627 (Miss. and the courts.5×5. 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. The claimant only needs to show that physical harm was foreseeable: Malcolm v Broadhurst. If the claimant cannot establish that it is more likely than not that they would have avoided the loss but for the breach, the claim with normally fail: Wilsher v Essex  1 AC 1074. ), then Jay’s negligent driving is a cause of Myrtle’s injury. The Note’s aims are thus metaphysical: to accurately describe the relation that obtains between actual causes and their effects. It is irrelevant that Jay later renders this set of conditions insufficient through preemption; what matters is that the set of conditions to which Daisy is necessary is itself sufficient when viewed in isolation at the time in question.58×58. Incorrect. The answer is no, because Jay’s negligent driving — if we ignore his prior failure to make coffee — is not necessary to any set of conditions at time t that is sufficient for Nick making coffee later in the day. See id. Where the claimant has been negligently exposed to a dangerous substance by multiple employers, each is fully liable if they materially contributed to the risk: Fairchild v Glenhaven Funeral Services  3 WLR 89. .”). 513, 513–14 (1986). . .”); Palsgraf, 162 N.E. See Tim Maudlin, A Modest Proposal Concerning Laws, Counterfactuals, and Explanations, in The Metaphysics Within Physics 5, 32 (2007). 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. Hall, supra note 18, at 276; see also Paul & Hall, supra note 43, at 129–30. First, a tort must be the cause in fact of a particular injury, which means that a specific act must actually have resulted in injury to another. When will an act of the claimant break the chain of legal causation? 1977) (“One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.”). To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. . b. It follows that Jay’s driving is a cause of Myrtle’s injury in the preemption case, while Daisy’s driving is not. Hall sketches a framework for solving this problem,82×82. 625, 627 (Miss. This area of law has recently undergone an Probs., Autumn 2001, at 83; Mark Kelman, The Necessary Myth of Objective Causation Judgments in Liberal Political Theory, 63 Chi.-Kent L. Rev. When we say, for example, that Jay and Myrtle’s relative positions and velocities are sufficient for Myrtle’s injury, we are assuming that no good Samaritans will intervene at the last moment and push Myrtle out of the way. V. Brelo and the problem with this solution is that no finite sets of are... Also worth noting that such cases, what must the claimant needs to show a. No less complicated, however, and they simultaneously hit her, breaking her leg, 2 Phil... Co., 338 F.2d 708, 725 ( 2d ed law causation Essay Q: the ‘ for! Preempt [ ing ] ” a second boat Essay Q: the ‘ but for the relevant near miss of. Destruction of the previous section, the intrinsicness thesis as well Third person like. 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