but because S is a contained, abstract causal structure spanning from C to E. Furthermore, once we have decided that Jay’s negligent driving should not be counted as a cause of Nick’s making coffee in this abstract structure S, it will follow that, in any other structure S′ whose intrinsic character matches that of S, Jay’s negligent driving (C′) should not be counted as a cause of Nick’s making coffee (E′). .”). Hart & Tony Honoré, Causation in the Law (2d ed. . 1977) (“One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.”). Causation Causation is an element common to all three branches of torts: strict liability, negligence, and intentional wrongs. 2166–67. Richard W. Wright, Causation in Tort Law, 73 Calif. L. Rev. See Restatement (Second) of Torts § 525 (Am. See id. These corner cases have proved vexing enough to inspire a cottage industry in related legal scholarship,15×15. In most torts, where a defendant breaches their duty towards the claimant, they are only liable if the claimant can establish that the breach in question has resulted in some harm, ie causation. When we assess whether a set of conditions is sufficient for a given result, it is important to note that we are assuming, in some sense, that those conditions are the only conditions that obtain. Seemingly the central interests that justify having an entry oncausation in the law in a philosophy encyclopedia are: to understandjust what is the law’s concept of causation, if it has one; tosee how that concept compares to the concept of causation is use inscience and in everyday life; and to examine what reason(s) there arejustifying or explaining whatever differences there may be between thetwo concepts of causation. Although courts and commentators acknowledge that this counterfactual analysis breaks down in certain corner cases,96×96. At time t2, Daisy sees Jay and slows to five miles per hour, while Jay maintains his speed. Wash. L. Rev. Such responses are unavailing, however, because we can easily modify the scenarios such that they differ only with respect to some clearly extrinsic factor. 2007) (en banc) (discussing whether a plaintiff can prove causation based solely on the defendant’s market share in manufacturing and distributing a product that caused harm, without being able to match a particular harm to a particular defendant); Stubbs v. City of Rochester, 124 N.E. See id. Applying the sufficiency theory to the overdetermination case in which Jay and Daisy simultaneously drive negligently into Myrtle, Daisy’s negligent driving is correctly counted as a cause of Myrtle’s injury, for the same reason that Jay’s is. How do you determine actual causation?First of all, you have to ask what actual causation is: “ . the but-for conception suggests that none of the actors is an actual cause of the injury (and thus that none of the actors can be held liable in tort).14×14. See Paul & Hall, supra note 43, at 127. Paul & Hall, supra note 43, at 130. a healthy degree of skepticism is warranted in their absence.86×86. Instead, if Daisy had kept driving, Jay would have become distracted, such that he swerved, thereby missing Myrtle and leaving her unscathed. All that is left is to ask whether SJ or SD matches the intrinsic structure of any of the relationships in the preemption case: here it looks like SJ matches the intrinsic structure of the relationship between Jay’s driving and Myrtle’s injury (because Jay drives negligently into Myrtle in the preemption case), while SD does not match the intrinsic structure of the relationship between Daisy’s driving and Myrtle’s injury (because Daisy slows down and watches from afar in the preemption case).76×76. . This Part concludes by highlighting lingering problems that the sufficiency theorist must address and by explaining briefly why the concept of “intrinsicness” cannot be invoked by theories of but-for causation. Such attempts often seek to redefine the victim’s injury in a “fine-grained”26×26. 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. . These accounts are thus unable to access the full range of solutions invoked above by the sufficiency theorist.95×95. One possible solution may be to assume as a foundational matter that causation is transitive, in which case Jay’s driving at t1 will be a cause of Myrtle’s injury, because Jay’s driving at t2 is a cause of Myrtle’s injury (as discussed above), and Jay’s driving at t1 is a cause of Jay’s driving at t2. Furthermore, the incorporation of the intrinsicness thesis may enable sufficiency theories to resolve some of their thorniest issues, including those presented by preempted events and noncausal relationships. 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. Law Inst. For claims in the tort of negligence, the claimant must show that the defendant caused them a loss. See People v. Herbert, 228 Cal. .”). If an act of the claimant, nature or a third party was the kind of thing the defendant's duty was supposed to guard against, can it break the chain of legal causation? . : Counterfactuals in the Law, 60 Geo. . When we finally arrive at time t, we can ask: should C be added to S? 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. On other occasions, causation is the only requirement for legal liability (other than the fact that the outcome is proscribed). See generally J.L. No less complicated, however, are analyses of actual causation,10×10. 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. In this case, the conventional account is undeniably intuitive in its explanatory power. 556, 560 (1973). This section begins by discussing factual causation and the application of the ‘but for’ test, explaining the burden of proof and the all or nothing approach to damages. 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. At the same time, we will have to assume that some other conditions obtain — it cannot be the case that Jay and Myrtle interact in a vacuum — and it is incumbent on the sufficiency theorist to explain exactly how these conditions are determined. Probs., Autumn 2001, at 83; Mark Kelman, The Necessary Myth of Objective Causation Judgments in Liberal Political Theory, 63 Chi.-Kent L. Rev. App. If Myrtle would have relied on either inducement alone, then any economic loss she sustains will be exactly the same in the absence of either Jay’s or Daisy’s tortious conduct. 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. Tort Law Causation Essay Q: The ‘but for test’ is a common test for causation but it does... View more. 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 . What breaks causation depends on whether the subsequent act is an act of nature, a third-party or the claimant. Factual Causation Tort law uses a ‘but for’ test in order to establish a factual link between the conduct of the defendant and the injuries of the claimant. The act of a third-party will break the chain of causation if it is unforeseeable: Home Office v Dorset Yacht [1970] AC 1004. See, e.g., Moore, supra note 4, at 410–25; Richard Fumerton & Ken Kress, Causation and the Law: Preemption, Lawful Sufficiency, and Causal Sufficiency, Law & Contemp. 913 (Wis. 1927), in which a fire started by the defendant merged with a fire “of unknown origin” to destroy the property of the plaintiff, and in which either fire, “in the absence of the other, would have accomplished such result.” Id. enters land in the possession of the other, or causes a thing or a third person to do so . Here Hall proposes a novel strategy: Instead of defining causes as necessary members of any sufficient set, the sufficiency theorist can define causes as necessary members of a uniquely sufficient set.69×69. It means any and all antecedents, active or passive, creative or receptive, which were factors actually involved in producing a consequence.”). It is irrelevant that Jay later renders this set of conditions insufficient through preemption; what matters is that the set of conditions to which Daisy is necessary is itself sufficient when viewed in isolation at the time in question.58×58. Mackie’s emphasis on sufficiency appeals to our intuition that causation is not simply about counterfactual “dependence,” but is also (at least in part) about the “production” of a given result.50×50. As Hall readily concedes, a match cannot mean a perfect match, because there always will be at least minor physical differences between different structures situated in different contexts.79×79. § 26 reporters’ note cmt. L.A. Paul & Ned Hall, Causation: A User’s Guide 17 (2013). In tort, the “but for” test remains the starting point, and in the case of single causes it is likely to be determinative of the factual aspect of causation; if there is more than one cause, provided that the cause under consideration is a material contributor, it will satisfy the factual test even though the “but for” question becomes more complicated. 1001, 1019 (1988) (stating the same formulation). As its name suggests, the intrinsicness thesis appeals to the notion that “the causal structure of a process is . but it is trivially easy in other cases, such as those involving fraudulent misrepresentation.29×29. and the courts.5×5. “Falling silent” here means simply that the revised definition’s sufficient conditions have not been met (because these conditions include necessary membership in a uniquely sufficient set, and overdetermination and preemption cases involve multiple sufficient sets). It is also worth noting that such cases do in fact arise. . .”). Law Inst. 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. Hall sketches a framework for solving this problem,82×82. 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. Co., 162 N.E. Id. It does not follow that if the Earth had exploded, Trump would be happier.”). Incorrect. L. Rev. At first glance, this abstract formulation may seem obvious. See Hall, supra note 18, at 288–90. Hall, supra note 50, at 241. “[I]ntrinsic,” in turn, is taken “to mean something like ‘internal’ or ‘metaphysically independent’; intuitively, the way something is intrinsically is the way it is independent of how anything else is.”63×63. See Jonathan Schaffer, Contrastive Causation in the Law, 16 Legal Theory 259, 260 (2010) (arguing that courtroom judgments of causation, although explicitly framed in absolute terms (for example, “Would the actual damage to the plaintiff still have occurred had the defendant’s actual breach of duty not occurred?”), are implicitly made, and normatively should be made, in contrastive terms (for example, “Would a better outcome for the plaintiff have occurred than the actual outcome had the defendant acted lawfully instead of breaching duty?”)). 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. . Unlike in the original scenario, however, we may suppose further that Daisy would not have hit Myrtle if she had maintained her speed. The act must be very unreasonable: Sayers v Harlow Urban District Council. Part III concludes. The claimant needs to show that the defendant materially contributed to the harm by increasing the risk: McGhee v National Coal Board. Incorrect. Causation in criminal liability is divided into factual causation and legal causation. Only strict liability torts are exempt from this rule (eg trespass to the person). 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. First, a tort must be the cause in fact of a particular injury, which means that a specific act must actually have resulted in injury to another. See Moore, supra note 4, at 475 (“A common objection to . 625, 627 (Miss. 2177–78. We will thus get the intuitive result that both Jay and Daisy are causes of Myrtle’s injury when they simultaneously collide, but that only Jay is a cause of Myrtle’s injury when Daisy watches from afar. In particular, the strategy requires us to explain exactly what is needed for intrinsic structures to “match”77×77. It is perhaps unsurprising then that causation in tort law has been subject to rigorous analysis over the years by legal commentators4×4. ‘Unforeseeable’ means improbable or beyond the types of risk which the defendant’s duty was supposed to guard against: Lamb v Camden LBC [1981] 2 All ER 408. Legal causation is established if there are no subsequent acts which break the chain of causation. 198, 198 (2000) (“That causation is, necessarily, a transitive relation on events seems to many a bedrock datum, one of the few indisputable a priori insights we have into the workings of the concept.”), it is not self-evident. 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. For example, in Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533, the defendant caused a fire on a boat, which the local fire brigade negligently failed to put out. Hall gives a similar example in which one fighter pilot shoots down a second fighter pilot, and in which a third fighter pilot bombs an enemy target. These counterexamples are more obscure than traditional overdetermination and preemption cases, but they are important to consider nonetheless. In most cases, factual causation alone will be enough to establish causation. A second problem with Hall’s solution — at least insofar as it incorporates a sufficiency theory of causation — is that it may fall victim to counterexamples of its own. FACTUAL CAUSATION Jane Stapleton* The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational formulations of factual causation have been made. 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