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law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
and
insurance Insurance is a means of protection from financial loss in which, in exchange for a fee, a party agrees to compensate another party in the event of a certain loss, damage, or injury. It is a form of risk management, primarily used to hedge ...
, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate (or legal) cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened.. (For example, but for running the red light, the
collision In physics, a collision is any event in which two or more bodies exert forces on each other in a relatively short time. Although the most common use of the word ''collision'' refers to incidents in which two or more objects collide with great fo ...
would not have occurred.) The action is a necessary condition, but may not be a sufficient condition, for the resulting injury. A few circumstances exist where the but for test is ineffective (see But-for test). Since but-for causation is very easy to show (but for stopping to tie your shoe, you would not have missed the train and would not have been mugged), a second test is used to determine if an action is close enough to a harm in a "chain of events" to be legally valid. This test is called proximate cause. Proximate cause is a key principle of Insurance and is concerned with how the loss or damage actually occurred. There are several competing theories of proximate cause (see Other factors). For an act to be deemed to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact. The formal Latin term for "but for" (cause-in-fact) causation, is ''
sine qua non ''Sine qua non'' (, ) or ''condicio sine qua non'' (plural: ''condiciones sine quibus non'') is an indispensable and essential action, condition, or ingredient. It was originally a Latin legal term for " conditionwithout which it could not be" ...
'' causation.


But-for test

A few circumstances exist where the "but for" test is complicated, or the test is ineffective. The primary examples are: * Concurrent causes. Where two separate acts of negligence combine to cause an injury to a third party, each actor is liable. For example, a
construction worker A construction worker is a worker employed in the physical construction of the built environment and its infrastructure. Definition By some definitions, workers may be engaged in manual labour as unskilled or semi-skilled workers; they may be sk ...
negligently leaves the cover off a
manhole A manhole (utility hole, maintenance hole, or sewer hole) is an opening to a confined space such as a shaft, utility vault, or large vessel. Manholes are often used as an access point for an underground public utility, allowing inspection, m ...
, and a careless driver negligently clips a
pedestrian A pedestrian is a person traveling on foot, whether walking or running. In modern times, the term usually refers to someone walking on a road or pavement, but this was not the case historically. The meaning of pedestrian is displayed with ...
, forcing the pedestrian to fall into the open manhole. Both the construction worker and the careless driver are equally liable for the injury to the pedestrian. This example obeys the but for test. The injury could have been avoided by the elimination of either act of negligence, thus each is a but for cause of the injury. *Sufficient combined causes. Where an injury results from two separate acts of negligence, either of which would have been sufficient to cause the injury, both actors are liable. For example, two campers in different parts of the woods negligently leave their
campfire A campfire is a fire at a campsite that provides light and warmth, and heat for cooking. It can also serve as a beacon, and an insect and predator deterrent. Established campgrounds often provide a stone or steel fire ring for safety. Campf ...
s unattended. A
forest fire A wildfire, forest fire, bushfire, wildland fire or rural fire is an unplanned, uncontrolled and unpredictable fire in an area of combustible vegetation. Depending on the type of vegetation present, a wildfire may be more specifically identi ...
results, but the same amount of property damage would have resulted from either fire. Both campers are equally liable for all damage. A famous case establishing this principle in the United States is ''Corey v. Havener.'' *In the United States, the rule of ''
Summers v. Tice ''Summers v. Tice''(1948), is a seminal California Supreme Court tort law decision relating to the issue of liability where a plaintiff cannot identify with specificity which among multiple defendants caused his harm. The case established the d ...
'' holds that where two parties have acted negligently, but only one causes an injury to a third party, the burden shifts to the negligent parties to prove that they were ''not'' the cause of the injury. In that case, two hunters negligently fired their
shotgun A shotgun (also known as a scattergun, or historically as a fowling piece) is a long-barreled firearm designed to shoot a straight-walled cartridge known as a shotshell, which usually discharges numerous small pellet-like spherical sub- pr ...
s in the direction of their guide, and a pellet lodged in his eye. Because it was impossible to tell which hunter fired the shot that caused the injury, the court held both hunters liable. *Market share evidence. Injury or illness is occasioned by a
fungible In economics, fungibility is the property of a good or a commodity whose individual units are essentially interchangeable, and each of whose parts is indistinguishable from any other part. Fungible tokens can be exchanged or replaced; for exam ...
product made by all the manufacturers joined in a lawsuit. The injury or illness is due to a design hazard, with each having been found to have sold the same type of product in a manner that made it unreasonably dangerous, there is inability to identify the specific manufacturer of the product or products that brought about the Plaintiff's injury or illness and there are enough manufacturers of the fungible product joined in the lawsuit, to represent a substantial share of the market. Any
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
would then be divided according to the market share ratio. Since but-for causation is very easy to show and does not assign
culpability In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word, culpability, "ordinarily ha ...
(but for the rain, you would not have crashed your carthe rain is not morally or legally culpable but still constitutes a cause), there is a second test used to determine if an action is close enough to a harm in a "chain of events" to be a legally culpable cause of the harm. This test is called proximate cause, from the Latin ''proxima causa''.


Other factors

There are several competing theories of proximate cause.


Foreseeability

The most common test of proximate cause under the American legal system is foreseeability. It determines if the harm resulting from an action could reasonably have been predicted. The test is used in most cases only in respect to the type of harm. It is foreseeable, for example, that throwing a baseball at someone could cause them a blunt-force injury. But proximate cause is still met if a thrown baseball misses the target and knocks a heavy object off a shelf behind them, which causes a blunt-force injury. This is also known as the "extraordinary in hindsight" rule.


Direct causation

Direct causation is a minority test, which addresses only the metaphysical concept of causation. It does not matter how foreseeable the result as long as what the negligent party's physical activity can be tied to what actually happened. The main thrust of direct causation is that there are no intervening causes between an act and the resulting harm. An intervening cause has several requirements: it must 1) be independent of the original act, 2) be a voluntary human act or an abnormal natural event, and 3) occur in time between the original act and the harm. Direct causation is the only theory that addresses only causation and does not take into account the culpability of the original actor.


Risk enhancement/causal link

The plaintiff must demonstrate that the defendant's action increased the risk that the particular harm suffered by the plaintiff would occur. If the action were repeated, the likelihood of the harm would correspondingly increase. This is also called foreseeable risk.


Harm within the risk

The harm within the risk (HWR) test determines whether the victim was among the class of persons who could foreseeably be harmed, and whether the harm was foreseeable within the class of risks. It is the strictest test of causation, made famous by
Benjamin Cardozo Benjamin ( he, ''Bīnyāmīn''; "Son of (the) right") blue letter bible: https://www.blueletterbible.org/lexicon/h3225/kjv/wlc/0-1/ H3225 - yāmîn - Strong's Hebrew Lexicon (kjv) was the last of the two sons of Jacob and Rachel (Jacob's th ...
in ''
Palsgraf v. Long Island Railroad Co. ''Palsgraf v. Long Island Railroad Co.'', 248 N.Y. 339, 162 N.E. 99 (1928), is a leading case in American tort law on the question of liability to an unforeseeable plaintiff. The case was heard by the New York Court of Appeals, the highest ...
'' case under New York
state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...
law. The first element of the test is met if the injured person was a member of a class of people who could be expected to be put at risk of injury by the action. For example, a pedestrian, as an expected user of sidewalks, is among the class of people put at risk by driving on a sidewalk, whereas a driver who is distracted by another driver driving on the sidewalk, and consequently crashes into a utility pole, is not. The HWR test is no longer much used, outside of
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
law. When it is used, it is used to consider the class of people injured, not the type of harm. The main criticism of this test is that it is preeminently concerned with culpability, rather than actual causation.


The "Risk Rule"

Referred to by the Reporters of the Second and Third Restatements of the Law of Torts as the "scope-of-the-risk" test, the term "Risk Rule" was coined by the University of Texas School of Law's Dean Robert Keeton. The rule is that “ actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Thus, the operative question is "what were the particular risks that made an actor's conduct negligent?" If the injury suffered is not the result of one of those risks, there can be no recovery. Two examples will illustrate this principle: * The classic example is that of a father who gives his child a loaded gun, which she carelessly drops upon the plaintiff's foot, causing injury. The plaintiff argues that it is negligent to give a child a loaded gun and that such negligence caused the injury, but this argument fails, for the injury did not result from the risk that made the conduct negligent. The risk that made the conduct negligent was the risk of the child accidentally firing the gun; the harm suffered could just as easily have resulted from handing the child an unloaded gun. * Another example familiar to law students is that of the restaurant owner who stores
rat poison Rodenticides are chemicals made and sold for the purpose of killing rodents. While commonly referred to as "rat poison", rodenticides are also used to kill mice, squirrels, groundhog, woodchucks, chipmunks, porcupines, nutria, beavers, and voles ...
above the grill in his luncheonette. The story is that during the lunch rush, the can explodes, severely injuring the chef who is preparing food in the kitchen. The chef sues the owner for negligence. The chef may not recover. Storing rat poison above the grill was negligent because it involved the risk that the chef might inadvertently mistake it for a spice and use it as an ingredient in a recipe. The explosion of the container and subsequent injury to the chef was not what made the chosen storage space risky. The notion is that it must be the risk associated with the negligence of the conduct that results in an injury, not some other risk invited by aspects of the conduct that in of themselves would not be negligent.


Controversy

The doctrine of proximate cause is notoriously confusing. The doctrine is phrased in the language of causation, but in most of the cases in which proximate cause is actively litigated, there is not much real dispute that the defendant but-for caused the plaintiff's injury. The doctrine is actually used by judges in a somewhat arbitrary fashion to limit the scope of the defendant's liability to a subset of the total class of potential plaintiffs who may have suffered some harm from the defendant's actions. For example, in the two famous ''Kinsman Transit'' cases from the 2nd Circuit (exercising
admiralty Admiralty most often refers to: *Admiralty, Hong Kong *Admiralty (United Kingdom), military department in command of the Royal Navy from 1707 to 1964 *The rank of admiral *Admiralty law Admiralty can also refer to: Buildings * Admiralty, Traf ...
jurisdiction over a
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
incident), it was clear that mooring a boat improperly could lead to the risk of that boat drifting away and crashing into another boat, and that both boats could crash into a bridge, which collapsed and blocked the river, and in turn, the wreckage could flood the land adjacent to the river, as well as prevent any traffic from traversing the river until it had been cleared. But under proximate cause, the property owners adjacent to the river could sue (''Kinsman I''), but not the owners of the boats or cargoes which could not move until the river was reopened (''Kinsman II''). Therefore, in the final version of the ''Restatement (Third), Torts: Liability for Physical and Emotional Harm'', published in 2010, the
American Law Institute The American Law Institute (ALI) is a research and advocacy group of judges, lawyers, and legal scholars established in 1923 to promote the clarification and simplification of United States common law and its adaptation to changing social needs ...
argued that proximate cause should be replaced with scope of liability. Chapter 6 of the Restatement is titled "Scope of Liability (Proximate Cause)." It begins with a special note explaining the institute's decision to reframe the concept in terms of "scope of liability" because it does not involve true causation, and to also include "proximate cause" in the chapter title in parentheses to help judges and lawyers understand the connection between the old and new terminology. The Institute added that it "fervently hopes" the parenthetical will be unnecessary in a future fourth Restatement of Torts.


Efficient proximate cause

A related doctrine is the insurance law doctrine of efficient proximate cause. Under this rule, in order to determine whether a loss resulted from a cause covered under an
insurance policy In insurance, the insurance policy is a contract (generally a standard form contract) between the insurer and the policyholder, which determines the claims which the insurer is legally required to pay. In exchange for an initial payment, known a ...
, a court looks for the predominant cause which sets into motion the chain of events producing the loss, which may not necessarily be the ''last'' event that immediately preceded the loss. Many insurers have attempted to contract around efficient proximate cause through the use of "anti-concurrent causation" (ACC) clauses, under which if a covered cause and a noncovered cause join to cause a loss, the loss is not covered. ACC clauses frequently come into play in jurisdictions where
property insurance Property insurance provides protection against most risks to property, such as fire, theft and some weather damage. This includes specialized forms of insurance such as fire insurance, flood insurance, earthquake insurance, home insurance, or ...
does not normally include
flood insurance Flood insurance is the specific insurance coverage issued against property loss from flooding. To determine risk factors for specific properties, insurers will often refer to topographical maps that denote lowlands, floodplains and other areas tha ...
and expressly excludes coverage for floods. The classic example of how ACC clauses work is where a
hurricane A tropical cyclone is a rapidly rotating storm system characterized by a low-pressure center, a closed low-level atmospheric circulation, strong winds, and a spiral arrangement of thunderstorms that produce heavy rain and squalls. Dep ...
hits a building with wind and flood hazards ''at the same time.'' If the evidence later shows that the wind blew off a building's roof and then water damage resulted only because there was no roof to prevent rain from entering, there would be coverage, but if the building was simultaneously flooded (i.e., because the rain caused a nearby body of water to rise or simply overwhelmed local sewers), an ACC clause would completely block coverage for the ''entire'' loss (even if the building owner could otherwise attribute damage to wind v. flood). A minority of jurisdictions have ruled ACC clauses to be unenforceable as against public policy, but they are generally enforceable in the majority of jurisdictions.''Leonard v. Nationwide Mut. Ins. Co.'', 499 F.3d 419 (5th Cir. 2007) (surveying cases).


See also

*
Sine qua non ''Sine qua non'' (, ) or ''condicio sine qua non'' (plural: ''condiciones sine quibus non'') is an indispensable and essential action, condition, or ingredient. It was originally a Latin legal term for " conditionwithout which it could not be" ...
( but-for causation) *
Four causes The four causes or four explanations are, in Aristotelian thought, four fundamental types of answer to the question "why?", in analysis of change or movement in nature: the material, the formal, the efficient, and the final. Aristotle wrote th ...
* Causation * Pretext


References


Further reading

*Michael S. Moore, ''The Metaphysics of Causal Intervention'', 88 827 (2000). * Leon A. Green, ''The Rationale of Proximate Cause'' (1927). {{Authority control Tort law Legal doctrines and principles