PROXIMATE CAUSE
What is Moving the Tort Ball: Defining Proximate Cause
Causation, the fourth dimension of tort law, is the court’s tool for determining who is the truly responsible party for an injury. The court must show that “but for” the defendant’s breach, the injury would not have occurred or that the breach was a “substantial factor” and “proximate cause” to the injury. It is no surprise that the idea of causation, like tort law on the whole, has evolved from ancient customs and the practices of communities over time. Almost every practice of law has recognized a need to compensate an injured party when an injurer has caused that injury.
Psychologically, it is natural for us to want to find the cause to an effect because the human psyche has a scientific need to make sense of the world around it. After an injury, humans need to see the cause – the link between the injurer and the injured – in order to assign responsibility and then blame to the injurer. As individuals, we do this by looking at the locus, stability, knowledge, control, and intentions of those around the harm. If a party is closer to the accident, we think that party is more likely to have contributed to the accident (locus). If the accident is the result of a repeated situation, we think the party that is consistently involved must have something to do with it (stability). If we feel a party has greater knowledge that harm is likely to happen, we hold that party more responsible (knowledge). And most importantly, if the party has control over the circumstance in such a way that they could have avoided the harm (control) or they reveal that they intended to create the harm (intent), we assume they cannot be blameless. The process of using these characteristics to formulate judgments is called Causal Attribution, and individuals use it on a daily basis.
This is where the “proximate cause” standard comes in. The legal system, as a reflection of the humans who create and maintain it, seems to mirror individual needs and processes. It is therefore no surprise that the elements that define proximate cause are essentially the same characteristics we use to make causal attributions in our own daily lives. For example, Joseph Glannon in The Law of Torts points to two standards that underlie “proximate cause.” The first is the “direct cause.” The direct cause (as opposed to the “remote cause”) is the cause that led directly to the harm. This mimics the locus standard for Causal Attribution, which assigns blame to the party closest to the injury.
Indeed, the “direct cause” standard is applied the same way. In Winterbottom v. Wright and MacPherson v. Buick, different courts refused to hold manufacturers of vehicle parts liable for the accidents caused by their alleged negligence because the courts said the manufacturers were not in “privity” with the vehicle owners. Simply put, they did not believe the manufacturers’ negligence was the closest cause of the accidents. In Indiana Harbor v. Cyanamid, Judge Posner expressed his hesitance to hold more distant parties liable as the proximate cause of a chemical spill. He feared that holding a remote party liable would result in creating a “sweeping liability” that would unnecessarily expand the bounds of tort law. Glannon expresses this same fear in The Law of Torts. However, failure to acknowledge the “remote cause” means a failure to look at the true breadth of the situation that created the injury. The most rudimentary foundations of tort law maintain that if a person A harms a person B, A should be held liable regardless of his or her distance from the accident. Proximate cause should likewise attempt to illuminate the real cause and the real injurer, who may or may not be very close to the harm. In fact, if that injurer were someone who was accustomed to harming others, he or she may purposefully distance himself or herself from the harm in order to look less guilty.
“Foreseeability” is another standard used to determine proximate cause. Like the knowledge and control elements of Causal Attribution, this standard condemns the party who “knew or should have known” that harm would result from their actions. Foreseeability is a hard characteristic to measure, however. It seems to be based on a “reasonable person” standard, which means the judge or jury must decide what he or she deems reasonably foreseeable in the circumstances. However, this standard may prove problematic as well. What one person deems reasonable outside of the situation may be a far cry from what the situation surrounding the accident actually allowed. Further, the foreseeability element speaks more to the care taken while doing an activity (known as the “care level investment”) rather than also addressing the frequency with which he party engages in the dangerous activity (known as “activity level investment”).
“Superseding cause” is a subtopic of foreseeability. A superseding cause is an intervening cause that may accelerate the likelihood that harm will happen. If someone else does something after the first party’s actions, and this second party became a catalyst to the harm, the court may alleviate the first party from liability. Superseding cause is similar to the mutability dimension of tort law (but not exactly parallel). Basically, a superceding action means that a party who may once be deemed liable would otherwise not be held liable for their negligence. The court usually applies this in the case of criminal activity. If a man negligently left his inn door unlocked and a criminal came in and robbed the guests, the court may choose to alleviate the innkeeper from liability. However, Glannon says, “When the risk of criminal conduct is foreseeable, it will not ‘cut off’ the liability of a defendant who negligently exposes the plaintiff to that risk.” This characteristic of the proximate cause standard might actually be the most problematic for the Situationist because it may allow negligent parties to escape liability because of a situation. Situationists also look to the negligent party most able to compensate the victim to make sure the victim is compensated for their injuries. Often, criminals have no financial resources and are thus unlikely to financially compensate the victim. At the same time, criminals are subject to criminal law, so many people would like to avoid holding them civilly liable. However, if the actions of a criminal can render the first negligent party not liable as well, the victim may go without legal compensation.
Additionally, there are risks to the parallel between the individual’s method of assigning blame and the similar methods employed by the legal system. Individuals are not always correct in assessing the party responsible for the harm, and in fact, social psychologists have recognized numerous and problematic biases that make the Causal Attribution process inaccurate. Situationists and Critical Realists continue to point out these biases. For example, people have a tendency to see their choices and decisions as just, the result of their own good dispositions and in line with what is right. However, they often do not believe that the same is true for others (Fundamental Attribution Error). We are lenient towards ourselves while quick to judge others for the same mistakes (self-affirmation). We justify the actions of those whom we see as more like ourselves and refuse to excuse the actions of those with whom we have little in common (in-group preference). We feel the need to uphold the system in which we live whether or not we benefit from that system (system-affirmation).
We also fail to recognize the situation that underlies many choices and decisions (dispositionism). Deep Capture is a concept that refers to our naïve failure to acknowledge the situation within ourselves. It refers to the human tendency to view ourselves as driven by our own disposition – our own will, good nature, and intentions – rather than the situation that surrounds us. For example, a person at a movie theater may feel that they want to go get a bucket of popcorn because they are hungry. They may believe that their disposition at the time (hunger) and their preference (for kernels and butter) is what drives their desire for the snack. However, this would ignore the fact that they have grown up in a culture that has cultivated their belief that popcorn and movies go hand in hand. It would also ignore the fact that their neighbor in the theatre has been munching on popcorn, and they just saw a commercial for popcorn before the movie started. Although this may seem like a trivial example, at other times, failure to see the situation within ourselves makes us vulnerable to the influence of larger outside forces without acknowledging that influence. In our culture, the media, literature, education, friends, and family all play a role in what we think we believe and how we form our opinions and judgments, even judgments about which actions and which actors cause what harms.
If the individual is incorrect in assigning blame, their mistake may not create too great an impact. However, the legal system lays the structure for the nation, has an effect on the status of various groups of people, and can change the lives of individuals in dramatic ways. Biases in such a system are therefore beyond problematic. For example, stereotypes and schemas perpetuated by the culture may affect individual judges, which would affect the outcome of the cases they decide, and in turn affect the legal system as a whole and the shape of the country. Some would argue that the judicial system itself is “captured” much like individuals are, a concept called Shallow Capture. The judicial system is an institution founded on a belief in impartiality and even-handed justice. However, the interests of individual judges may be affected by the communities from which they have emerged. Further, judges have the highest need to affirm the system because the legal system is where they work and the structure of the legal system both nurtured them and advanced them.
If legal professors and esteemed judges find that the proximate cause standard is so elusive and difficult to understand, how do courts actually apply the standard? A Situationist perspective requires one to take a critical look at how proximate cause is used in court decisions. Social psychologists would remain suspicious of the standard because human tendency is to manipulate a so-called “norm” or guideline as justification for preconceived opinions. In fact, the proximate cause standard is no exception.
What is Moving the Tort Ball: Moves for Evading or Imposing Liability Using Proximate Cause
Since human individuals are motivated by their own unacknowledged biases and the legal system as a whole must operate out of a system-affirming motive, over time various strategies for justifying judicial decision-making have emerged. These moves include: outlining a biased interpretation of the facts, justifying one’s own opinion by citing precedence, and practicing judicial restraint based on policy implications. Naturally, the proximate cause standard of tort law has added its own layer to the tradition of judicial justification.
The first tried and true move for justifying decision-making based on proximate cause is to show that the facts clearly indicate that the defendant was or was not the proximate cause of the accident. Judges reveal their biases by outlining the facts either in a manner supporting the plaintiff’s causation claims or the defendant’s. For example, Judge Hunt in Ryan v. New York Central Railroad had to reach a decision about the liability of a railroad employee who negligently handled an engine and in so doing caused a fire in a wooden shed and a neighboring house (pg. 13). He summarizes facts: “a house in a populous city takes fire, through the negligence of the owner or his servant; the flames extend to and destroy an adjacent building.” It is no accident that the judge outlines the events this way. He mentions the “populous city” for a reason – to justify his decision by means of the circumstances. By laying out the fact pattern as he does the judge implies that had the scene of this accident not been a populous city, the events would not have happened. The judge also avoids using the defendant as subject to his sentences, which implies that the destruction was not the proximate result of the defendant’s acts. He says: “A house takes fire” and “the flames… destroy an adjacent building” (emphases added). Instead, he could have said: “An employee’s negligence resulted in or created a fire.” By describing the facts in a certain way, he shows that the populous city itself was partially to blame for the fire and the negligence of the agent could not have been the sole proximate cause. This is interesting from a Situationist perspective because the judge did not ignore the situation. Instead, he has manipulated the facts to show that the situation renders proximate cause impossible and thus excuses the defendant.
In Vesely v. Sager, Judge White had to decide whether to hold a vendor of alcohol liable for selling alcohol to a man who was clearly intoxicated and later wrecked and injured others. Judge White said that the alcohol vender watched as the man become dangerously intoxicated. He said the vendor knew the man was too intoxicated to drive, was planning on driving, and had to drive down a steep incline to leave (pg. 16). Thus the cause of the accident was the defendant himself. The judge uses the facts to illuminate a situation that makes the defendant more responsible by showing, though his description, that the vendor “knew or should have known” that harm was likely to result from continuing to sell the man alcohol, and so the vendor was indeed the true proximate cause of the future accident.
Another move for justifying decision-making is to declare the chain of events unnatural thus rendering them unforeseeable. If the chain of events is unforeseeable, then the defendant’s actions cannot be the proximate cause. In Ryan, Judge Hunt says: “That a building upon which sparks and cinders fall should be destroyed or seriously injured must be expected, but that the fire should spread and other buildings be consumed, is not a necessary or usual result” (pg. 14). Here the judge wants to show that the defendant could not have foreseen that a fire caused by his negligence would harm other houses and thus his actions could not have been the proximate cause of the destruction. However, this is a contradictory interpretation of the facts because the judge had already used “the populous city” as an implied scapegoat and another way to show that the defendant could not have been the proximate cause. A Situationist look at this opinion would thus highlight the inconsistency and reveal the judge’s need to justify his own goals.