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Causation in Tort Law
Richard W. Wright
TABLE OF CONTENTS
I. THE SCOPE AND SIGNIFICANCE^ OF^ THE^ CAUSAL^ INQUIRY IN TORT LAW ............................................^1741 A. The Scope of^ the^ CausalInquiry:^ Distinguishingthe Causal Inquiry from the Tortious-Conduct and Proximate-Cause Inquiries ............................ 1741
1. M alone ...........................................^1742 2. Hart^ and^ Honori^ .................................^^1745 3. Epstein^ ...........................................^^1750 B. The Significance of the Causal^ Inquiry:^ Linking^ the Causal Inquiry and^ the^ Tortious-Conduct^ Inquiry Through the^ Tortious-Aspect^ Causation^ Requirement^ ....^^1759 1. Green's Duty-Risk^ Theory^ .........................^^1761 2. Keeton's "Harm Within the Risk" Theory ..........^1763 3. The Tortious-Aspect Causation^ Requirement^ ........^^1766 4. The Power of the Tortious-Aspect Causation Requirement ...................................... 1771
II. THE^ NATURE^ AND^ CONTENT^ OF^ THE^ CAUSAL^ INQUIRY^ ...^^1774 A. The^ But-For^ Test^ and^ Its^ Limits:^ Duplicative^ and Preemptive Causation ................................. 1775 B. Efforts to Modify the But-For Test .....................^^1777
1. Detailing the^ Manner^ of^ Occurrence^ ...............^^1777 2. Detailing the Injury ...............................^1778 3. Excluding Hypothetical Facts ......................^1780 4. Aggregating Multiple Potential Causes..............^1780 C. The Substantial-FactorFormula .......................^1781 D. Undefined, Directly Observable Causal Contribution .... 1784 E. The NESS (Necessary^ Element^ of^ a^ Sufficient^ Set)^ Test.^^1788 1. The Philosophic Basis^ of^ the^ NESS^ Test^ ............^^1789 2. The Duplicative-CausationCases^ ...................^^1791 3. The Preemptive-CausationCases^ ...................^^1794 4. Distinguishingthe^ Damages^ Issue:^ The^ Successive- Injury and Overwhelming-Force Cases^ ..............^^1798 5. Theft, Nonuse, or Misuse of Defective or^ Missing Safety Devices ....................................^1801 F. The Factual Nature of the Causal Inquiry ..............^1803
1735
III. CAUSATION, PROBABILITY, AND RISK: PROBLEMS ON THE
- 1736 CALIFORNIA LAW REVIEW [Vol. 73: - 1. The Hypothetical-InquiryArgument - 2. Malone's Arguments
- FRONTIERS OF TORT LIABILITY
- A. The Reduced-Chance and Increased-Risk Cases
- B. The Alternative-CausationCases
- Attribution C. DistinguishingProbabilityStatements from Causal
- CONCLUSION
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order to reach the socially advantageous, expedient, or just result in each case, the policy issues (^) should be openly addressed under the more appro- priate headings of "duty," "interests protected," "damages," and so forth. 3 Although the realists were unable to eliminate the use of proximate- cause language, they were very successful in gaining academic and judi- cial acceptance of their view that causation-in-fact is the only truly causal issue, and that proximate-cause determinations are noncausal (^) policy judgments on the appropriate limits of liability for actually (^) caused harm. 4 However, courts and (^) legal scholars were unable to formulate a com- prehensive, policy-neutral account (^) of actual causation. 5 These failures eventually led to the view that the actual causation issue itself is perme- ated by policy considerations. This view was expressed most (^) forcefully in an influential article published in 1956 by Wex Malone. He asserted that the actual causation requirement is just one more doctrinal concept that is manipulated by judges to further the relevant (^) socially preferred policy in each case. 6 His view has been (^) widely accepted, 7 even in limited form for the most difficult cases by some of the staunchest (^) defenders of actual
3. See L. GREEN, JUDGE AND JURY 29-37, 191, 195-96, 222-25, 230-31, 242-43 (1930); L. GREEN, supra note 2; W. PROSSER, supra note 1, §§ 41, 42, at 236-37, 239, 244-50 (4th ed. 1971); id. §§ 45, 46, at 311-21 (1st ed. 1941); see F. HARPER, A TREATISE ON THE LAW OF TORTS § 110, at 257-58 (1933); Edgerton, Legal Cause (pt. 2), 72 U. PA. L. REV. 343, 373 (1924); Gregory, Proximate Cause in Negligence-A Retreat from "Rationalization," 6 U. CHI. L. REV. 36 (1938); Morris, On the Teaching of Legal Cause, 39 COLUM. L. REV. 1087 (1939). 4. See, e.g., G. CHRISTIE, CASES AND MATERIALS ON THE LAW OF TORTS 245-46, 264 (1983); R. EPSTEIN, C. GREGORY & H. KALVEN, CASES AND (^) MATERIALS ON TORTS 272-73, 309 (4th ed. 1984) [hereinafter cited as EPSTEIN, TORTS]; J. FLEMING, THE LAW OF TORTS 170-71, 179- 80 (6th ed. 1983); M. FRANKLIN & R. RABIN, CASES AND MATERIALS ON TORT LAW AND ALTERNATIVES 269, 302 (3d ed. 1983); 2 F. HARPER & F. JAMES, (^) supra note 2, §§ 20.1, 20.2, 20.4; C. MORRIS & C.R. MORRIS, MORRIS ON TORTS 154-201 (2d ed. 1980); W. PROSSER, supra note 1, §§ 41, 42, at 236-37, 239, 244-50. 5. See infra text accompanying notes 166-225. 6. Malone, Ruminations on Cause-in-Fact, 9 STAN, L. REV. 60 (1956). 7. See, eg., Cole, Windfall and Probability: A Study of "Cause" in Negligence Law (pts. I & 2), 52 CALIF. L. REV. 459, 764 (1964); Delgado, Beyond Sindell: Relaxation of (^) Cause-in-FactRules for Indeterminate Plaintiffs, 70 CALIF. L. REV. 881, 891-92 (1982); Pedrick, Causation, the "Who Done It"Issue, andArno Becht, 1978 WASH. U.L.Q. 645; Pound, Causation, 67 YALE L.J. 1 (1957); Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 VA. L. REV. 713, 713- 14 (1982); Rosenberg, The Causal Connection in Mass Exposure Cases: A "PublicLaw" Vision of the Tort System, 97 HARV. L. REV. 849, 855 n.27, 863-64 (1984); Strachan, The Scope andApplication of the "But For" Causal Test, 33 MOD. L. REV. 386, 389-95 (1970); Weinrib, A Step Forwardin Factual Causation, 38 MOD. L. REv. 518, 529-33 (1975); Zweir, "Cause in (^) Fact" in Tort Law--A Philosophicaland HistoricalExamination, 31 DE PAUL L. REV. 769 (1982); see 2 F. HARPER & F. JAMES, supra note 2, § 20.2 & nn.16 & 17 comments at 92-93, 94-95 (Supp. 1968); (^) W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS §§ 41,42, at 264- 65 & n.7, 279-80 (5th ed. 1984) [hereinafter cited as PROSSER & KEETON]; cf. C. MORRIS & C.R. MORRIS, supra note 4, at 188-90 (asserting that liability is sometimes imposed for policy reasons although causation is lacking).
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causation as a factual inquiry.' It^ has^ been^ adopted^ enthusiastically^ by the economic analysts of tort law, who argue that the socially preferred policy in every case^ is^ the^ maximization^ of^ social^ wealth.^9 But there has also been another, very different reaction to^ the^ views of the legal realists, which^ was^ initiated^ by^ H.L.A.^ Hart^ and^ Tony
Honor6's landmark book,^ Causationin^ the^ Law,^ originally^ published^ in
1959.10 As an alternative to^ the^ ad^ hoc^ social^ policy^ analysis^ of^ the^ legal realists, Hart and Honor6 attempted to rehabilitate the broad use of causal analysis to address questions^ of^ ultimate^ liability.^ They^ argued that the ordinary, nonlegal use^ of^ causal language provides^ definite,^ com- monsense causal^ principles^ that^ can^ be,^ should^ be,^ and^ are^ used^ by^ the courts to^ frame factual^ inquiries^ which^ encompass^ not^ only^ the narrow
issue of cause-in-fact but^ also^ most^ of^ the^ proximate-cause^ issues.^1
Indeed, they stated, "causing harm constitutes not only the^ most^ usual but the primary type of ground"^ for^ imposing liability.^12 Subsequent^ tort scholars, most notably Richard^ Epstein,^ have^ attempted^ to^ elaborate^ on this statement.
3
8. See A. BECHT &^ F.^ MILLER,^ THE^ TEST^ OF^ FACTUAL^ CAUSATION^ IN^ NEGLIGENCE^ AND STRICT LIABILITY CASES 24,44^ n.57,^78 n.109,^ 81-82^ &^ n.^ 114,^ 85-87,^ 99, 104-06^ & n.^ 157, 112^ n.173, 118, 120, 124-26, 128-30, 135-37, 221 (1961); J. FLEMING, supra note 4, at 172-73;^ H.L.A.^ HART^ & T. HONORt, CAUSATION IN THE LAW lxi-lxii, 7-8, 62, 101-02 & n.46, 239-41, 410, 412-16^ (2d^ ed. 1985); Green, The Causal Relation^ Issue^ in^ Negligence^ Law,^^60 MICH.^ L.^ REv.^ 543,^ 548-49,^ 553- & n.29, 560-61, 568 (1962); see also W. PROSSER, supra note 1, §^ 41,^ at^243 &^ n.53. 9. See, eg., Calabresi, ConcerningCause and the Law of Torts,^^43 U.^ CHI.^ L.^ REV.^ 69, 69 n.1, 86-87, 105-08 (1975); Grady, A^ New^ Positive^ Economic^ Theory^ of^ Negligence,^^92 YALE^ L.J.^ 799,^ 799- 800, 804 n.21 (1983); Landes & Posner, Causation in Tort^ Law:^ An^ Economic^ Approach,^^12 J. LEGAL STUD. 109, 110-11,^134 (1983);^ Shavell,^ An Analysis^ of^ Causation^ and^ the^ Scope^ of^ Liability^ in the Law of Torts, 9 J. LEGAL STUD. 463, 464, 502-03 & n.79 (1980). For^ my^ critique^ of the economic analysts' views on causation in tort law, see Wright, Actual Causation vs.^ Probabilistic Linkage: The Bane of Economic Analysis, 14 J. LEGAL STUD. 435 (1985).
- H.L.A.^ HART^ &^ A.^ HONORt,^ CAUSATION^ IN^ THE^ LAW^ (1st ed.^ 1959).^ The^ recently published second edition of this book contains a lengthy new preface^ but^ otherwise^ is^ generally^ the same as the first edition.^ H.L.A.^ HART^ &^ T.^ HONORIt,^ supra^ note^ 8.^ Two^ changes^ relevant^ to^ the issues addressed in this Article are discussed infra at notes 12 &^ 31.
- H.L.A. HART & A. HONORt supra note 10, at 3-5,^ 23-25,^ 61-63,^ 65,^ 83-105,^ 123-25,^ 261- 62, 273-76; H.L.A. HART &^ T.^ HONORt,^ supra^ note^ 8,^ at^ xxxiv-xxxvi,^ lii-liii,^ 3-5,^ 24-27,^ 65-67,^ 69- 70, 88-111, 130-32, 291-92, 304-07. This objective is^ stated^ so^ emphatically^ and^ repeatedly throughout the book that it is difficult to comprehend Izhak^ Englard's^ failure^ to^ see^ it^ and^ his criticism of John Borgo, who did see it, for "misunderstanding" Hart^ and^ Honor6.^ Englard,^ The System Builders: A CriticalAppraisal of Modern American Tort Theory,^9 J.^ LEGAL STUD.^ 27,^57 n.135 (1980) (criticizing Borgo, Causal Paradigmsin Tort Law, 8 J. LEGAL STUD. 419, 421-25 & n.17 (1979)). Apparently, Englard^ does^ not^ distinguish^ between^ the^ prevailing academic^ policy- oriented interpretation of proximate cause, which Hart,^ Honor6, and^ Borgo were^ attacking,^ and^ the commonsense judgments independent of^ particular^ legal^ policies^ which^ Hart,^ Honor6,^ and^ Borgo argue are^ controlling^ in^ actual adjudication.
- H.L.A. HART^ &^ T.^ HONORP,^ supra^ note^ 8,^ at^ 65;^ see^ id.^ at^ lxxvii-lxxxi,^ 66-67,^ 302. However, in other passages (especially in^ the^ second^ edition^ of^ their^ book),^ Hart^ and^ Honor6^ state that causing harm usually must be coupled with^ wrongful^ conduct to^ create^ liability.^ Id.^ at^ xxxv, xiiii-xlvii, lxxv-lxxvii, 131-32, 254-55, 466.
- A. HARARI, THE PLACE OF NEGLIGENCE^ IN^ THE^ LAW^ OF^ TORTS^ 49-56^ (1962);^ Epstein,^ A
CAUSATION IN TORT LAW
then used to^ resolve^ the^ problematic^ causation^ cases^ that^ have resisted solution under^ all^ the^ alternative tests.^ In^ the^ final^ section^ of^ Part^ II,^ the steps involved in applying the NESS test are analyzed to^ demonstrate that, contrary^ to^ the^ currently^ popular^ view^ among^ legal^ writers,^ the causal inquiry is a factual inquiry not dependent on^ policy considerations. In Part III I address the difficult^ issues^ raised by^ the^ "increased risk," "reduced chance," and "alternative liability"^ cases-cases^ in which it can be proven that the defendant tortiously exposed^ the^ plaintiff to an increased risk of injury but not that the^ defendant^ actually contrib- uted to the subsequent injury. It^ is^ commonly^ argued^ that^ the^ causation requirement is properly ignored or relaxed in these cases, or^ that^ the requirement should be satisfied^ by^ a^ probabilistic^ "increased^ risk"^ con- cept of "causation." I contend^ that^ these^ cases^ are^ more^ plausibly^ and fruitfully viewed^ as cases^ that^ recognize^ a^ new^ type^ of^ injury-risk^ expo- sure-in certain narrowly circumscribed situations.^ Causation^ of^ this risk-exposure injury is easily established using^ the^ basic^ concept^ of^ causa- tion embodied in^ the^ NESS^ test.^ Finally,^ I^ argue^ that^ the^ probabilistic increased-risk concept of causation^ must^ be^ rejected, because^ it^ lacks^ the attributive element that distinguishes causal explanations^ from^ mere probability statements. This attributive element, which has^ always^ been essential for tort liability,^ explains^ the^ courts'^ refusal^ to^ admit^ pure^ or "naked" (^) statistical evidence as proof of causation (^) or identification.
I
THE SCOPE AND^ SIGNIFICANCE^ OF^ THE^ CAUSAL^ INQUIRY IN TORT LAW
A. The Scope of the CausalInquiry: Distinguishing the^ Causal Inquiry from the Tortious-Conduct and^ Proximate-Cause Inquiries
A number of legal scholars have equated causation of^ injury with legal responsibility^ for^ the^ injury."^ Relying^ on^ this^ assumed^ equiva- lence, some of these writers argue that because the determination of responsibility is policy-dependent, the causal inquiry also must^ be policy- dependent. Conversely,^ others^ argue^ that^ because^ the^ causal^ inquiry^ is policy-free, the responsibility^ determination^ also^ must^ be^ policy-free. In this Section it will be demonstrated that^ both^ of^ these competing arguments are built^ on^ a^ false^ premise.^ Causation^ is^ not^ equivalent^ to responsibility. Rather, before^ a^ decision^ is^ made on^ legal^ responsibility,
16. See supra notes^12 &^^13 and^ accompanying text;^ see^ also^ Green,^ supra^ note^ 8,^ at^ 545,^ 562; Malone, supra note 6,^ at^ 62-67;^ cf^ RESTATEMENT^ (SECOND)^ OF^ TORTS^ §^431 comment^ a^ (1965) (substantial factor test of causation includes notion of responsibility).
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the causal inquiry must be combined with the tortious-conduct inquiry- "Was the defendant's conduct tortious?"-and the proximate-cause inquiry-"Is there an applicable policy or principle which absolves the defendant from liability, even though his tortious conduct was a cause of the injury?" As we shall see, the writers who equate causation with responsibility erroneously attribute to the causal (^) inquiry issues that are properly associ- ated with the tortious-conduct and proximate-cause inquiries. Three dif- ferent examples will be discussed. The first is drawn from Wex Malone's influential article on causation in tort law. In this article, Malone con- tends that the causation (^) requirement is just one more policy-dependent doctrine that is manipulated by the judge or jury to reach a desired result. The second and third examples are Hart and Honore's (^) and Richard Epstein's respective theories (^) of tort liability, which attempt to avoid ad hoe, policy-dependent liability determinations by basing liability on expanded notions of causation.
1. Malone
Malone's (^) article contains a series of arguments that are meant to establish the policy-dependent nature of the causal (^) inquiry. Only one of them is pertinent here. This argument focuses on the policy considerations that underlie any decision to identify one of several contributing factors as "the cause" of an injury. Malone notes that, depending on their respective back- grounds and motivations, different persons may identify different con- tributing factors as the cause of an injury. In one of his examples, an irresponsible youth drives too fast down a road recently covered with loose gravel, and a stone is thrown by a wheel of the car into the face of a pedestrian. Malone observes that the neighbors may say that the parents' letting their irresponsible son drive was the cause of the harm, while a road engineer may say that the cause was improper road construction, and a physics (^) teacher may say that the impact of the wheel's momentum on the rock was the cause. Thus, Malone states, causal determinations are evaluative and purposive. 8
In Malone's other example, an elderly worker with a long-standing heart (^) ailment dies of heart failure while engaged in some trivial task for his employer. (^) A medical expert, says Malone, is likely to testify that the trivial task was not a cause of the death, since he (^) will view it as an instance of a commonplace recurrent event with which medical science is helpless to deal. But a judge, considering the compensatory purposes of
- Malone's other arguments (^) will be discussed later. See infra text accompanying notes 240- 42 & 304-30.
- Malone, supra note 6, at 62.
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his heart. Malone's causal-selection argument does not demonstrate that policy considerations do or should play any role in this causal part of the analysis. All Malone's argument shows is that policy considerations determine which causes and consequences will give rise to liability. The elderly worker example is a workers' compensation case, rather than a tort case. But the liability analysis in tort law proceeds in the same manner. (^) First, those potential causes that may give rise to tort liability are identified. We are not interested in all the possible causes, but only those that were tortious. This is the tortious-conduct (^) inquiry. Policy considerations determine whether certain conduct will be treated as tortious.2 3 The second step, after the identification of tortious conduct which may have contributed to the injury, is the application of the actual-causa- tion requirement, which requires that the tortious conduct actually have contributed to the injury.^24 This is the causal inquiry. At this stage it is irrelevant that there may (^) also be other contributing factors (causes).
In fact, it is never necessary for the court to identify or investigate all the contributing factors. It usually will (^) consider only a few contribut- ing factors other than (^) the defendant's tortious conduct: those which might reduce or eliminate, for reasons of policy or principle, the defend- ant's legal responsibility (^) for harm that was caused by his tortious con- duct.2 5^ This is the proximate-cause (^) inquiry. All three steps-the tortious-conduct inquiry, the causal inquiry, and the proximate-cause (^) inquiry-are involved in determining whether the defendant's conduct was "the (^) cause" of the injury. The causal inquiry determines whether the defendant's conduct was a cause of the injury. The tortious-conduct and proximate-cause inquiries determine whether the defendant should be held legally responsible as "the" cause of the injury. That is, the phrase "the cause" is simply an elliptical way of saying "the responsible cause." Malone asserts (^) that the determinations involved in establishing that a certain factor not only was a cause but also should be held responsible as "the" cause often are inseparable in the conversations and minds of ordinary people.^26 The distinction may not be explicit in conversations, but it is certainly implicit. It is essential to distinguish each step in the adjudication of legal disputes to ensure that the causal (^) inquiry will focus only on the legally relevant potential causes and not be confused with the noncausal issues, as occurred in Malone's
23. The traditional types of tortious conduct recognized by the courts are intentional, negligent, and ultrahazardous behavior.
- More precisely, (^) the tortious aspect of the conduct must have contributed to the injury. See infra text accompanying notes 100-64. 25. J. FLEMING, supra note 4, at 171; Green, supra note 8, (^) at 548, 557-59, 564; Williams, supra note 21, at 63-65. 26. Malone, supra note 6, at 66-67.
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discussion of the elderly-worker example.^27
2. Hart and Honori
Like Malone, Hart and Honor6 apply the causal label to a combined tortious-conduct, cause-in-fact, and proximate-cause inquiry.^ Unlike Malone, they argue that the combined inquiry^ is^ a^ factual^ inquiry^ based on commonsense causal^ principles,^ rather^ than^ a^ policy-dependent inquiry based on ad hoe judgments of legal purpose or^ social^ expedi- ency.^28 However,^ their^ commonsense principles^ are^ essentially^ the^ negli- gence and intentional tort^ prongs^ of^ the^ tortious-conduct inquiry^ and have nothing to do with causation. The^ causal^ label^ is^ not^ only^ mislead- ing, but also makes it difficult for them to account for strict tort liability and certain types of^ proximate-cause^ cases. Hart and Honor6 divide their^ causal^ analysis^ into^ two^ steps.^ The first step is the cause-in-fact inquiry,^ which^ determines^ whether^ the defendant's conduct actually contributed^ to^ the^ injury.^ If^ it^ did,^ it^ was^ a condition for the occurrence of the injury. 29 The^ second step^ is^ a^ confla- tion of the tortious-conduct^ and^ proximate-cause^ inquiries,^ in which Hart and Honor6's^ commonsense "causal"^ principles^ are^ used^ to deter- mine whether the defendant's conduct can be distinguished from the other contributing factors ("mere conditions") as^ "the^ cause"^ of^ the injury.
30
According to Hart and Honor6, the central notion in the common- sense concept of causation is that the cause is the factor which "makes a difference" by interfering with, intervening in,^ or^ otherwise changing^ the normal or reasonably expected course of events. Thus, a contributing factor is treated as the cause rather than as a^ mere^ condition^ if it^ was^ (1) a voluntary human intervention that was intended^ to produce^ the^ conse- quence (for example, deliberately^ breaking^ a^ vase)^ or^ (2)^ an^ abnormal action, event, or condition in the particular context (for example, a freak
- A. BECHT & F. MILLER, supra^ note^ 8, at^ 5-7, 12-13;^ Williams,^ supra^ note^ 21,^ at^ 63-65,^ 69. In another "Rumination" published fourteen years later, but much^ less^ well^ known^ (outside Louisiana), Malone reversed his position and^ insisted^ that the^ causal^ inquiry^ is^ purely factual^ and should be sharply distinguished from the independent policy considerations that enter into determination of the responsible cause.^ Malone,^ Ruminations^ on^ Dixie^ Drive^ It^ Yourself^ Versus American Beverage Company, 30 LA. L. REv. 363, 370-71 (1970). For a valiant effort to reconcile the two Ruminations, see Note, When Cause-in-Fact Is More Than a Fact: The Malone-Green Debate on the Role of Policy in^ Determining^ Factual^ Causation^ in^ Tort^ Law,^^44 LA.^ L.^ REV.^ 1519, 1540-41 & n.89 (1984).
- See supra note 1I.
- H.L.A. HART & T. HONORt, supra note 8, at 109-11; see id. at 72. Hart and HonorE use the "necessary element of a sufficient set" test in this cause-in-fact inquiry. See infra text accompanying notes 226-83.
- H.L.A. HART^ &^ T.^ HONORP,^ supra^ note^ 8, at^ 1-2,^ 24-25,^ 33,^ 72-73,^ 110-11.
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policy judgments on matters of degree and reasonableness. Many of the circumstances which are treated as rendering even deliberate conduct nonvoluntary correspond to the recognized moral and legal grounds for justifying or excusing harmful behavior. Examples include reasonable actions taken to defend persons or property against (^) reasonably perceived perils, to safeguard legal rights or interests, to rescue others, and so forth.^3 4 Overall, Hart and Honor6's voluntary-intervention criterion simply describes one of the principal recognized types of tortious con- duct: the intentional, unjustified, and unexcused infliction of injury.^35 Similarly, the abnormal-condition criterion also calls for nonfactual and noncausal judgments. When it is applied to human action, it is essentially identical to the negligence category of tortious conduct, par- ticularly when attribution of responsibility is at issue. Hart and Honor note that the distinction between the abnormal condition and the other normal conditions is not based on differences in actual contributions to the consequence, but rather depends, as Malone pointed out, on the con- text and purpose of the inquiry.3 6^ They state that abnormal human con- duct is conduct that deviates from the usual, expected, or established standards of behavior. They treat omissions 4s abnormal conditions only when the failure to act constitutes a breach of duty-that is, when the omission is negligent.3 7^ More generally, they observe that, "[i]n relation to human conduct,... the notion of what is 'natural' is strongly influ- enced by moral and legal standards of proper conduct, though weight is also given to the fact that certain conduct is usual or ordinary for a human being." In sum, as Hart and Honor6 acknowledge,^39 their two "causal" cri- teria (voluntary or abnormal conduct) do not have anything to do with the inquiry into actual contribution to the injury, which is the causal aspect of responsibility denoted by the word "cause" in the phrase "the cause." Instead, the two criteria are relevant only in determining whether the defendant's conduct was "the" (responsible) cause. The two criteria accomplish this task by focusing on the tortious (intentional or negligent) character of the conduct that contributed to the injury. Thus, it is the combination of causation (the causal inquiry), tor-
34. H.L.A. HART & T. HONORt, supra note 8, at Iv, 138, 141-60. 35. However, the criterion is too narrow to serve as a complete description of tortious intentional conduct. See infra text accompanying notes 45-47.
- H.L.A. HART & T. HONORt, supra note 8, at lxxvi, 11-12, 35-38, 62, 72, 110-11. 37. Id. at 37-38, 50-51, 59-60, 64, 135 n.15, 138-41, 183-85.
- Id. at 183. The correspondence between the abnormal conduct criterion and negligence inspired Abraham Harari's effort to demonstrate that negligence (as a supposed aspect of causation) is the basis of all tort liability. A. HARARI, supra note 13, at 49-55. One of the weaknesses in Harari's argument is the assumption that the abnormal conduct criterion is a causal criterion. 39. H.L.A. HART & T. HONOR9, supra note 8, at xlviii-xlix, 72-74, 110-11.
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tious conduct by the defendant (the tortious-conduct inquiry), and the absence of any intervening (^) abnormal physical occurrences or tortious behavior by third parties (the proximate-cause (^) inquiry) that creates the strong and usually sufficient case (^) for legal responsibility. Hart and Honor6's statements treating causation (^) as the primary ground of legal responsibility are plausible only when it (^) is understood that they are using the term (^) "causation" to refer to this combination (^) of the three different elements of tort liability (^) analysis.' They nevertheless insist that (^) their approach is based almost exclusively on (^) causal principles. This insis- tence (^) seems to be motivated by a desire to distinguish (^) their common- sense, (^) principled account of proximate-cause analysis (^) from the social- policy (^) accounts of the legal realists and others.^4 The (^) causal label creates an appearance of policy-neutrality, which contrasts with the explicit and broader notion of policy (^) in the alternative accounts. However, (^) the causal label is misleading and unnecessary, (^) and it cre- ates major (^) difficulties for Hart and Honor6. For example, since Hart and Honor6 insist that the defendant's con- duct (^) was a cause of an injury only if it was deliberate (^) or abnormal (negli- gent), they are forced to classify strict (^) liability as a noncausal form of liability.
42
Similarly, because they treat the (^) last deliberate intervention or independent (^) abnormal occurrence as the cause of an injury, (^) to the exclu- sion of all prior interventions or (^) occurrences, 43 they find it difficult to account for cases in which liability (^) is imposed on the defendant despite some subsequent (^) deliberate intervention or independent abnormal occur- rence. They describe these as (^) cases of "inducing" or "occasioning" harm rather than "causing" harm. They claim (^) that there is a "causal connec- tion" only in a metaphorical (^) sense, even though the defendant's tortious conduct clearly contributed (^) to the injury. They assert that responsibility in these cases is based on noncausal policy (^) considerations, and they therefore use tortious conduct language (^) rather than their usual causal language (^) to state the grounds for (and limits on) liability. (^) The defendant is held liable only if he intentionally (^) induced the subsequent deliberate action of another or negligently (^) provided the opportunity for a subse- quent deliberate intervention (^) or abnormal occurrence. 44
40. See supra note (^12) and accompanying text; see also H.L.A. HART & T. HoNORt, (^) supra note 8, at 117-18, 131-85, (^135) n.9, 205-53 (tort liability discussed in terms of causal (^) connection between tortious conduct and harm, and liability negated despite (^) such causal connection if there was an intervening abnormal physical occurrence or intervening (^) tortious behavior).
- H.L.A. HART & T. HONORt, supra note 8, at xxxv-xxxvii, (^) xlvii-lv, 3-7, 24-25, 65-67, 88- 111, 130-32, 254, 304-07.
- See (^) id. at 85-86.
- See supra note 32.
- (^) H.L.A. HART & T. HONORE, supra note 8, at 51-52, 57, 59-61, (^) 71, 81-83, 133, 186. Hart
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and Honor6's theory illustrates the conceptual confusion and practical
difficulties that inevitably result when these three elements of tort liabil-
ity analysis are not carefully distinguished from one another.
3. Epstein
Hart and Honor6's book has inspired several other attempts to develop causal theories of tort liability."a^ The^ best^ known^ example in^ the United States is^ Richard^ Epstein's theory^ of "strict"^ liability.4 9 Epstein, even more than Hart and Honor6, opposes the ad hoc,
social-policy accounts of tort liability, including the currently fashionable
wealth-maximization accounts. 50 He argues that tort liability should be based on principles of individual autonomy and responsibility, with the
dividing line between autonomy and responsibility being marked by cau-
sation of harm to others. 1 Epstein's emphasis on individual autonomy is
coupled with a strong preference for precise rules of responsibility. He
seeks to eliminate or greatly restrict those aspects of traditional tort lia- bility analysis-such as tests of reasonableness, negligence, or proximate cause-which, because of their imprecision, can be used by judges or juries to validate substantial incursions on individual autonomy. 2
Although Epstein refers to his theory as a theory of strict liability, it
is in fact a system of defeasible absolute liability. Tort theories are classi- fied as "absolute," "strict," or "fault-based" depending on the elements required to state a minimally sufficient prima facie case.5 3^ Traditionally,
absolute liability has meant prima facie liability based merely on causa-
- See supra note 13. Abraham Harari's causal theory is discussed briefly supra in note 38. John Borgo's analogical reasoning approach suffers from precisely the same flaw that Borgo correctly identifies in Epstein's approach. It abstracts responsibility paradigms from situations while overlooking critical aspects of those situations and then tries to apply the abstracted paradigms to situations where the critical aspects are different. See Borgo, supra note 11, at 429-31, 436-40.
- Epstein, supra note 13; Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J. LEGAL STUD. 165 (1974) [hereinafter cited as Epstein, Defenses]; Epstein, Intentional Harms, 4 J. LEGAL STUD. 391 (1975) [hereinafter cited as Epstein, Intentional Harms]; Epstein, Nuisance Law: Corrective Justice and its Utilitarian Constraints, 8 J. LEGAL STUD. 49 (1979) [hereinafter cited as Epstein, Nuisance Law]; Epstein, Causation and Corrective Justice: A Reply to Two Critics, 8 J. LEGAL STUD. 477 (1979) [hereinafter cited as Epstein, Reply]. Hart and Honor6's influence on Epstein is indicated in, for example, Epstein, supra note 13, at 161-64 & n.39; Epstein, Intentional Harms, supra, at 431-32 & n.100; Epstein, Reply, supra, at 479, 486 n.33. Compare Epstein, supra note 13, at 166-69, 175 (building on simple transitive propositions), with H.L.A. HART & A. HONORf, supra note 10, at 26-28, 68-69 (same). However, in their second edition Hart and HonorE reject Epstein's "causal maximalism." H.L.A. HART & T. HONORI, supra note 8, at lxxiii-lxxvii; see id. at 30-31, 96-97 (notion of force is inadequate basis for causal theory).
- Epstein, supra note 13, at 151-57, 198-99.
- Id. at 198-201, 203-04; Epstein, Intentional Harms, supra note 49, at 441-42; Epstein, Reply, supra note 49, at 479-80.
- Epstein, supra note 13, at 198-99; see id. at 162-66, 185-87; Epstein, Defenses, supra note 49, at 178-81, 184; Epstein, Reply, supra note 49, at 478-80 & n.5.
- See Epstein, Pleadings and Presumptions, 40 U. CHI. L. REv. 556, 558-59, 570-71, 577 (1973) (minimally sufficient elements for responsibility constitute prima facie case and establish basic
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tion of harm to another. 4 Strict liability requires, in addition to causa- tion, that the harm result from conduct which created^ a^ foreseeable, unaccepted risk of harm to another that could have been^ avoided.5 5 Fault liability requires,^ in^ addition^ to^ causation,^ that^ the^ harm^ result from conduct which^ should^ have^ been^ avoided^ given^ the^ foreseeable risks.5 6^ Epstein purports^ to^ base^ prima^ facie^ liability^ simply^ on^ causation of harm to^ another.^57 This^ prima^ facie^ absolute^ liability, however,^ may be eliminated^ or^ reduced^ if^ certain^ defenses^ are^ established.^58 Epstein's normative arguments on behalf of his absolute liability theory assume that there are only two possible types of prima facie tort liability-fault and absolute. 9 His negative arguments point out the flaws in the fault theories and the failure of those theories to account for various cases in which liability was imposed (or arguably should have been imposed) although there was no faulty behavior by the defendant. 6 " The cases he discusses, however, are strict liability cases-cases in which the defendant knew or should have known that he was imposing an unac- cepted risk on others.6 1^ Similarly, his affirmative^ arguments are^ almost
theory of^ recovery,^ even^ when responsibility^ defeasible^ through^ defenses^ or^ other^ subsequent pleadings).
54. E.g., O.W. HOLMES, supra note 1, at 67-68, 72; Ehrenzweig, Negligence Without Fault, 54 CALIF. L.^ REv.^ 1422,^1426 nn.13^ &^18 (1966),^ and^ the^ sources cited^ therein. 55. Eg., PROSSER & KEETON, supra note 7, § 75, at 536-38; id. § 78, at 555-56; Ehrenzweig, supra note 54, at 1450-51 & n.l; see O.W. HOLMES, supra note 1, at 77, 93-95, 115-18.
- E.g., O.W.HOLMES, supra note 1, at 85-88; Ehrenzweig, supra note 54, at 1444-45.
- Epstein, supra note 13, at 152, 168-69.
- These defenses include reciprocal^ causation^ of^ harm to the^ defendant^ by^ the^ plaintiff, assumption of^ the^ risk^ by^ the^ plaintiff,^ and^ trespass^ on^ the^ defendant's property^ by^ the^ plaintiff. Epstein, Defenses, supra note 49, at 167-68, 174, 185, 201. 59. Epstein, supra note 13, at 152, 171; Epstein, IntentionalHarms, supra note 49, at 398. This erroneous assumption^ also^ appears^ in^ most^ economic^ analyses^ of^ tort^ liability.^ See,^ eg.,^ Brown, Toward An Economic Theory of Liability, 2 J. LEGAL STUD. 323 (1973); Shavell, Strict Liability Versus Negligence, 9 J.LEGAL STUD. 1 (1980).
- Epstein, supra note 13, at 153-60, 169-71.
- Morris v. Platt, 32 Conn. 75 (1864); Vincent v. Lake Erie Transp. Co., 109 Minn. 456,^124 N.W. 221 (1910). Both cases are discussed in Epstein, supra note 13, at 157-60. See also Bolton v. Stone, 1951 A.C. 850, rev'g [1950] 1 K.B. 201 (C.A. 1949), rev'g [1949] 1 All. E.R. 237 (Manchester Assizes 1948). Bolton is discussed in Epstein, supra note^ 13,^ at^ 169-71.^ In^ Bolton,^ the^ defendant cricket club maintained and used a playing field not only with the knowledge that cricket balls might be hit out of the grounds and endanger passersby such^ as^ the^ plaintiff,^ but^ also^ with^ the^ knowledge that one of the objects of the game is to hit the ball away from the opposing team, the further^ away the better. Although balls are rarely hit out due to the size of the playing^ fields,^ those^ that^ are^ hit^ out earn extra points. See 1 THE ENCYCLOPEDIA OF SPORT 447 (1898). Thus, although^ the^ risks^ to passersby such as the^ plaintiff^ were^ slight,^ the^ possibility^ was^ knowingly^ and^ eagerly^ pursued^ as^ an integral part of the defendant's activity. This latter aspect of the^ case,^ together with^ the^ likely severity of the harm should a ball actually escape the grounds and hit someone, may^ well^ explain^ (a) the House of Lords' unease in refusing to hold the defendant liable, (b) the public interest in^ the^ case, and (c) the decision of the Cricket Clubs of England to compensate the^ plaintiff despite^ the^ lack^ of^ a holding of legal liability. See Epstein, supra note^ 13,^ at^ 170.^ It^ seems^ unlikely^ that^ the^ case^ would have aroused such controversy if the possibility that cricket balls would escape the grounds had been completely unintended, unknown, and unforeseeable.
CAUSATION IN TORT LAW
paradigm implicitly states that A, by application of force, caused harm to B or B's property-for example, that^ the^ force^ initiated^ (caused)^ by^ A caused B's cut, which is itself the^ harm^ for^ which^ compensation^ is sought or^ which^ led^ to^ (caused)^ the^ ultimate^ harm^ for^ which compensa- tion is sought. The paradigm does not explain or help to identify any of these instances of causation.^ It^ rather^ assumes^ that^ we^ somehow^ per- ceive them, and it^ restricts^ liability^ to^ those^ that^ involve^ force^ as^ the causal mechanism. Epstein also requires that the force have^ been^ initiated^ by^ a^ voli- tional act of A, rather than by someone's^ throwing^ A^ or^ by some^ auto- matic or reflex action ofA. 68 Thus the paradigm includes,^ in^ addition^ to (unelaborated) actual causation, the noncausal criteria of a^ volitional^ act and a particular method^ of^ causation^ (the^ application^ of^ force). Similarly, the second paradigm, "A frightened B," requires, in addi- tion to actual causation, that A have caused the harm to B by a volitional act and through the causal mechanism of fright or shock. As originally stated, the paradigm would cover cases^ in^ which extrasensitive^ or^ even normal people are frightened by the completely innocent and inoffensive acts of others. Epstein suggests that, in these cases, the frightened person should be treated as having caused her own fright, but he does not indi- cate which of his causal paradigms would apply.6 9^ None would, espe- cially since the person's fright is not considered to be volitional. Eventually Epstein modifies the paradigm by requiring that A's volitional act be an "offer^ of^ force"^ against^ B,^ or,^ to^ the^ same^ effect,^ that^ a^ de minimus rule be applied to A's conduct.^7 " These modifications, of course, introduce additional noncausal criteria into the paradigm. The third paradigm holds A liable to C if "A [by a volitional act] compelled B^ to^ hit^ C."7 1^ The^ compulsion^ must^ be^ accomplished^ through force or the threat of force.^7 " Under this third paradigm,^ B^ as^ well^ as^ A is liable to C, since B satisfies the initial paradigm, "B hit C." Moreover, B has an action against A^ for^ the^ damages^ that^ he^ is^ required^ to^ pay^ C, since A satisfies the paradigm, "A hit (or offered to hit) B."7 3 The fourth paradigm most clearly demonstrates the circularity and ambiguity of^ Epstein's^ causal^ paradigms.^ It^ holds^ A^ liable^ to^ B^ if^ "A^ [by a volitional act] created [caused]^ the^ dangerous^ condition^ that^ resulted^ in
- Epstein, supra note 13,^ at^ 166-67.^ See^ generally^ Moore,^ supra^ note^ 44,^ at^ 1132- (distinguishing action from mere causal sequence).
- Epstein, supra^ note^ 13,^ at^ 172.
- Epstein, Reply, supra note 49, at 483-84.
- Epstein, supra note 13, at 174. See generally Moore, supra note 44, at 1129- (distinguishing compulsion from^ mere causation). 72. See Epstein, Defenses,^ supra^ note^ 49,^ at^ 175;^ Epstein,^ Intentional Harms,^ supra note^ 49,^ at
- Epstein, supra^ note^ 13,^ at^ 175;^ Epstein,^ Defenses,^ supra^ note^ 49,^ at^ 174-75.
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[caused] harm to B." 74 Note that two instances of causation are implied by the expression "resulted in." First, some act or event must "trigger" the dangerous condition, and, second, the triggered condition must then cause the harm. Epstein attempts to avoid the charge that (^) this paradigm, by use of the expression "resulted in" (he overlooks the verb "created"), defines causation in terms of itself. He says that the expression "resulted in" must be replaced in each particular case with a description of the act or event which is the immediate (^) cause of the harm, using one of the three previously elaborated paradigms-force, fright or compulsion.^75 How- ever, even if both the expression "resulted in" and the verb "created" were interpreted and used in this restricted fashion, it would (^) only push the circularity one level deeper, since-as we have seen-the three previ- ous paradigms themselves contain implicit, unelaborated causal state- ments. Moreover, Epstein does not actually restrict either term in this fashion. Thus, in Epstein's examples dangerous conditions are "created" by "storing" (^) or "handling" (^) explosives, by (^) "placing" or "leaving" (^) an object in a precarious or obstructive position, or by "manufacturing" a defective product. And dangerous conditions are "triggered" by a "small change in conditions, like temperature and humidity," or by mere use of a defec- tive product (which might simply be turning it (^) on or eating it).7 6^ Clearly, given these examples, the creation or triggering of dangerous conditions is not limited to the use or threat of force, unless "force" is construed so broadly as to encompass any action. Similarly, in Epstein's examples dangerous conditions, when trig- gered, can cause harm not just by "releas[ing] (^) or otherwise set[ting] in motion large forces" that are associated with the dangerous condition itself, but also by absorbing or "redirecting" forces that are not associ- ated with the dangerous condition. For example, an obstruction in a highway is treated as a dangerous condition that "results in" injury to B when B drives into it or swerves to avoid it." Here "results in" cannot be replaced by one of the three previous paradigms: the obstruction did not hit B, or offer to hit B, or compel anyone to hit B. Rather, the con- verse is true: the obstruction was hit by B or, in the swerve case, "offered" (^) to be (^) hit by (^) B!^78
- Epstein, supra note 13, at 177. 75. Id. 76. Id. at 177-78.
- Id. at 178, 185.
- Epstein might argue that A's obstruction compelled B to hit A's obstruction. This argument, however, would have to rely on a definition of compulsion that includes more than the actual or threatened use of force by A. At most, A only threatened to absorb B's force. Moreover, the argument would only establish B's right to be indemnified by A for damages that B caused to (^) A's
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