Chapter 6

ACTUAL AND PROXIMATE CAUSE

Once the plaintiff has shown that the defendant behaved negligently, he must then show that this behavior “caused” the injury complained of. Actually, P must make two quite distinct showings of causation:

• Cause in fact:  P must first show that D’s conduct was the “cause in fact” of the injury. This usually means that P must show that “but for” D’s negligent act, the injury would not have occurred.
• Proximate cause:  P must also show that the injury is sufficiently closely related to D’s conduct that liability should attach. This requirement is commonly called the requirement of “proximate cause” or “legal cause.”
  • Foreseeability:  The requirement of “proximate cause” usually means that the injury must have been at least a reasonably foreseeable (and not bizarre or extraordinary) result of the defendant’s negligence.

I. CAUSATION IN FACT

A. General significance:  When the plaintiff alleges that the defendant “caused” his injuries, it is pretty clear what he means – that the injuries were the actual, factual, result of the defendant’s actions. In most cases, the question of “causation in fact” is a purely factual one, with few legal or policy issues attached to it.

1. “But for” test:  In the vast majority of situations, the defendant’s conduct is the (or a) cause of the plaintiff’s injuries if it can be said that “Had the defendant not so conducted herself, the plaintiff’s injuries would not have resulted.” This formulation is sometimes known as the “sine qua non” or “but for” test.

a. Third Restatement’s formulation:  The Third Restatement implements the idea of a “but for” cause. After saying that liability will exist only where the defendant’s tortious conduct was a “factual cause” of the plaintiff’s injury, the Restatement goes on to express the idea that a “but for” cause is always a factual cause: “Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.” Rest. 3d (Liab. for Phys. & Emot. Harm) §26.