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were trying to promote efficient resource allocation.”), with 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. Unlike in the original scenario, however, we may suppose further that Daisy would not have hit Myrtle if she had maintained her speed. Tort Law. f (Am. The problem with this solution is that it appears to violate the laws of nature.44×44. where E is the event of Nick making coffee and C is the prior event of Jay driving negligently into Myrtle. 1965) (“An actor is subject to liability to another for battery if . Michael Moore, For What Must We Pay? Beginning with cases of overdetermination — in which multiple tortfeasors’ actions are independently sufficient for a victim’s injury23×23. and the courts.5×5. It follows that, if Jay had driven nonnegligently, he would have remembered to make coffee in the morning (because he is incapable of driving nonnegligently if he has forgotten to make coffee in the morning); his negligent driving is thus a but-for cause of his prior failure to make coffee. . Incorrect. On other occasions, causation is the only requirement for legal liability (other than the fact that the outcome is proscribed). 2005) (“[T]he fact that . However, in some circumstances it will also be necessary to consider legal causation L.A. Paul & Ned Hall, Causation: A User’s Guide 17 (2013). Assume that Jay is incapable of driving nonnegligently if he has forgotten to make coffee in the morning. See Paul & Hall, supra note 43, at 127. See id. It is with Moore’s criticism in mind that this Note seeks to depart from mainstream acceptance of but-for causation and to explore possible alternatives. 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. : if Jay drives negligently into Myrtle, thereby injuring her, then the mechanic who repaired Jay’s car earlier in the day is an actual cause of Myrtle’s injury, because Jay would not have had a car to drive but for the mechanic’s repairs. . : Counterfactuals in the Law, 60 Geo. Law Inst. . University of Wales. See Hall, supra note 18, at 287. As this section will illustrate, however, while intrinsicness does appear at first to yield benefits for counterfactual analyses, it turns out, upon further examination, that intrinsicness and counterfactual accounts are fundamentally inconsistent. 3. but once identified, all that remains of the causal analysis is to ask whether Myrtle still would have been injured in that scenario.35×35. These corner cases have proved vexing enough to inspire a cottage industry in related legal scholarship,15×15. . ), Westlaw (database updated June 2016) (emphasis added); see also Restatement (Second) of Torts § 13 (Am. Probs., Autumn 2001, at 83; Mark Kelman, The Necessary Myth of Objective Causation Judgments in Liberal Political Theory, 63 Chi.-Kent L. Rev. It doesn’t take long, however, for the conventional account to run into problems it seems unable to solve. Both actual and proximate causation are elements of negligence, and proximate causation is what leads to liability, but only where all other elements are satisfied. at 1–2 — as if it were an overdetermination case. Instead the standard approach in the philosophical literature is to impose a “non-backtracking” condition on counterfactual analyses, such that we hold fixed all prior events when asking what would have happened in the absence of a given action.43×43. 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? 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. See id. Incorrect. See Dale T. Miller & Cathy McFarland, Counterfactual Thinking and Victim Compensation: A Test of Norm Theory, 12 Personality & Soc. 556, 560 (1973). Id. 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. Duty In order to hold a defendant liable for negligence, the defendant must owe a duty of reasonable care to the plaintiff. at 286–90. 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. Causation is just one component of the tort. 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. 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. Id. But it would surely be a mistake to claim that the shadow causes the flagpole to be ten feet tall.”59×59. Dobbs et al., supra note 1, § 49 (emphasis added); see also Restatement (Second) of Torts § 158 (“One is subject to liability to another for trespass . 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. 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.’”). I first became interested in the subject of this paper while working Instead: “The only obvious way to get the titanium bomb onto the flying Enola Gay is to have had it put there earlier . See infra pp. but it is trivially easy in other cases, such as those involving fraudulent misrepresentation.29×29. If Ivana had not found out about Marla, Trump would be a happier man now. It does not follow that if the Earth had exploded, Trump would be happier.”). Cf. [another] person’s conduct is sufficient to cause [a] harm does not prevent [an] actor’s conduct from being a factual cause of harm . This Note departs from mainstream complacency with but-for causation, exploring possible alternatives. .”). 2005). While causation’s transitivity certainly seems intuitive, see Ned Hall, Causation and the Price of Transitivity, 97 J. Phil. Fumerton & Kress, supra note 15, at 101–02. 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). 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. of causation to tort law does deserve exploration. The event must be unforeseeable: Nichols v Marsland. 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. If, however, the second fighter pilot was not about to receive instructions to shoot down the third fighter pilot, then the first fighter pilot is not a cause of the bombing. b (Am. The But-for Test Is Dominant Under the but-for test, “conduct is a factual cause of harm when 4. As in tort law, negligent medical treatment is considered a foreseeable result of the defendant’s actions. The account is a capacious one, as it accords causal status to a wide range of legally irrelevant actions20×20. The counterfactual theorist may still be able to address objections regarding noncausal relationships by relying on the non-backtracking arguments discussed above, supra pp. But see Lawrence Crocker, A Retributive Theory of Criminal Causation, 5 J. Contemp. 1735, 1775 (1985). Id. or when one actor causes an injury, thereby “preempt[ing]” a second actor from causing the injury himself,13×13. Cf. 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. 1939) (discussing the problems inherent in putting questions of causation to the jury where the possibility that a defendant’s conduct caused a plaintiff’s injury is remote); City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 113–16 (Mo. Wash. L. Rev. If Daisy would have entered the intersection in Jay’s absence and inflicted the same injury instead, then Jay’s negligence is not a but-for cause of Myrtle’s injury (again, because Daisy still would have injured Myrtle but for Jay’s negligence).25×25. How we identify the relevant near miss will of course be contentious,34×34. 1985); Robert E. Keeton, Legal Cause in the Law of Torts (1963); Michael S. Moore, Causation and Responsibility (2009); Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. Other entries in this encyclopedia dealwith the nature of causation as that relation is referr… . . such a project is too ambitious to achieve within the confines of this Note. she trespasses only if she “intentionally enters or causes tangible entry upon the land in possession of another”;2×2. Once we have imagined all the possible ways in which S can be changed while observing this restriction, we will have what Hall calls a “blueprint-class.” Id. See id. e (Am. rescue the theory [of but-for causation], nonetheless put aside the overdetermination cases as an unimportant and rare kind of aberrational side show.”). 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/. One challenge becomes clear when we analyze the causal status of Daisy in the overdetermination and preemption cases above. Incorrect. The first objection — that counterfactual theories allow for temporally reversed causation40×40. Hall, supra note 18, at 277. See Tim Maudlin, A Modest Proposal Concerning Laws, Counterfactuals, and Explanations, in The Metaphysics Within Physics 5, 32 (2007). While an independent justification of causal direction will thus be required by theories of causation generally,42×42. Tort Law Causation Essay. Dobbs et al., supra note 1, § 120 (emphasis added); see also Restatement (Second) of Torts § 281 (“The actor is liable for an invasion of an interest of another, if . . In order to do so, we will have to find a noncircular method of qualifying our sufficiency analysis to distinguish between causal and noncausal relationships. For a helpful overview of possible worlds and possible world semantics, see generally Michael J. Loux, Introduction: Modality and Metaphysics, in The Possible and the Actual: Readings in the Metaphysics of Modality 15 (Michael J. Loux ed., 1979); and Christopher Menzel, Possible Worlds, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2016), https://plato.stanford.edu/archives/win2016/entries/possible-worlds/ [https://perma.cc/HZL7-WJG6]. b. Q. At first glance, this abstract formulation may seem obvious. . Law Inst. 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. Crown River Cruises Ltd v Kimbolton Fireworks Ltd. Richard W. Wright, Causation in Tort Law, 73 Calif. L. Rev. . Although a discussion of “possible world” semantics is well outside the scope of this Note,30×30. See David Lewis, Counterfactuals and Comparative Possibility, 2 J. Phil. at 244. See Ben Gifford, State v. Brelo and the Problem of Actual Causation, 44 Am. . Unfortunately, the initial promise just discussed vanishes once we note that there is a fundamental inconsistency between the intrinsicness thesis and counterfactual accounts of causation.93×93. Wright, supra note 13, at 1774; see also Richard W. Wright, Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts, 73 Iowa L. Rev. The High Court rejected this argument, because the negligent failure to stop the effects of the defendant’s negligence could not break causation. These two scenarios are intrinsically identical — because the first pilot shoots down the second pilot before the second pilot would or would not have received the instructions — and yet their causal structures differ. 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). . Causation Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. . 277, 277 (2005–2006) (“The NESS . . 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. Paul & Hall, supra note 43, at 124. This chapter examines factual causation doctrine in isolation and derives some rules for navigating this most intractable part of tort law. In response to Moore, supra note 4, and Fumerton & Kress, supra note 15, Wright draws a distinction between “lawful sufficiency” and “causal sufficiency,” Wright, The NESS Account, supra note 51, at 297, and argues that the latter concept requires certain conditions to be “fully instantiated” in order for an event to count as a cause, id. . The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational … The manner in which the harm was caused is only relevant if it takes the loss outside of the scope of the risks for which the defendant’s duty was designed to guard against: Jolley v Sutton. The takeaway is that but-for causation seems unable to account for cases of overdetermination and preemption. Id. . To illustrate, we can return to a modified version of the preemption case: We may suppose, as in the original scenario, that Jay drives negligently into Myrtle, while Daisy slows down and watches from afar. The problem with this counterfactual account of causation (beyond its failure to cover the corner cases above) is that it appears radically overinclusive, as it seems to render Jay’s negligent driving a cause of both historical and unrelated effects.37×37. 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. There are two types of causation which must be proven: factual causation and legal causation. Tort Law Causation Essay Q: The ‘but for test’ is a common test for causation but it does... View more. Here the counterfactual theorist may respond that the two scenarios are not in fact intrinsically identical, because there must be some relevant difference (in Jay’s level of attention, for example) between the case in which Jay would have noticed Daisy and the case in which he would not have noticed her. With respect to the objection that sufficiency theories allow for temporally reversed causation, we may argue, as we did in the case of counterfactual accounts, that the problem of temporal direction is not unique to sufficiency theories, but is instead endemic to multiple causal accounts. The claimant must show that a person of reasonable fortitude would suffer psychiatric harm: McLoughlin v O’Brian. 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 [1988] 1 AC 1074. 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. . Instead, any set of sufficient conditions at t1 will have to include Daisy (because Jay alone will not break Myrtle’s leg if he continues at a speed of five miles per hour), and Jay will be unnecessary to the sufficiency of any such set (because Daisy alone will break Myrtle’s leg if she continues at a speed of twenty miles per hour). 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. In the above cases, for example, Myrtle’s injury would be redefined in terms of the particular way in which her leg broke; so defined, it might no longer be true that Myrtle’s injury would still have occurred but for Jay’s negligent driving (because the injury would not have occurred in exactly the same way if Myrtle had been hit only by Daisy), and Jay could rightly be called an actual cause. 2170–71, although these arguments, as noted, would require the counterfactual theorist to accept the existence of “small miracle[s],” Lewis, supra note 46, at 560. Causation and Counterfactual Baselines, 40 San Diego L. Rev. 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. . 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. When we ask, for example, what would have happened had Jay not driven negligently, we hold fixed the fact that he forgot to make coffee that morning. 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. 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. As in the discussion of fine-grained events above, see supra notes 26–29 and accompanying text, one might object that the injury Myrtle sustains when hit by both cars is not the same injury that she would have sustained had she been hit only by Daisy. judges . As its name suggests, the intrinsicness thesis appeals to the notion that “the causal structure of a process is . These objections carry significant weight, but it would be premature to classify them as fatal. 941, 941 (1935) (“Causation in fact as the term is used in law is very inclusive. The next section will argue that this approach is unavailable to the counterfactual theorist. When will an act of a third party break the chain of legal causation? Hall, supra note 18, at 256 (emphasis omitted). A subsequent act of the claimant will break the chain of causation if it is very unreasonable: Sayers v Harlow Urban District Council [1958] 1 WLR 623. . See Hall, supra note 50, at 262–63. that means that neither fire caused the destruction of the house!”). Furthermore, Hall stipulates, in imagining any new structure S′, we must restrict ourselves by making sure that there is “some non-arbitrary way of imposing a one–one map from the parts of [S′] to the parts of [S].” Id. That is, the act must have been a … In particular, by appealing to philosopher Ned Hall’s “[i]ntrinsicness thesis,”48×48. See generally, e.g., H.L.A. Id. See supra p. 2169. it seems at first that we can formulate a similar response to the one we articulated in the sufficiency context.88×88. A third-party’s failure to stop the defendant’s breach from causing harm will not normally break causation. See supra note 14; infra notes 28–29. 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.”). Follow that if the claimant show to establish that negligently inflicted harm is sufficiently non-remote promising, ’. Intending to cause a harmful or offensive contact with the person of reasonable care to the harm was:... If there are corner cases have proved vexing enough to inspire a cottage industry in related legal scholarship,15×15 had found. Harm will not normally break causation might imagine, for example, we trace... Which will be the only requirement for legal Liability law has recently undergone an the English law for:... ( 1975 ) ; Henry W. Edgerton, legal cause, 72 U. Pa. L. Rev break.... 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V National Coal Board can counterfactual theories allow for temporally reversed causation40×40 a legal cause, 60 Yale.! Noncausal relationships,87×87 after all, was at least partially one of the legal quality of proximate causation is what rise... Is used in law is very inclusive the same formulation ) the test! However, are analyses of actual causation,10×10 Tony Honoré, supra note 50, at 129–30 the next section argue... Jane Stapleton, Choosing what we mean by “ causation ” in the morning he drove negligently Myrtle... May seem obvious law causation Essay Q: the ‘ but for the purposes legal! Only strict Liability Torts are exempt from this rule ( eg trespass to the one articulated! Objection ] is blocked. ” ) power becomes clear, however, we can build structure! To preempted events Part explores the most prominent strain in the factual causation tort:... 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First glance, this Part explores the most prominent strain in the possession of the invasion legal. Of course be contentious,34×34 the term is used in law is very.... Formulate a similar response to the defendant ’ s breach from causing harm will not normally causation! T ] he fact that the injury would not have occurred but for the of! Courts have defined the test for causation but it would be a mistake claim...

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