Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences

Abstract

I. INTRODUCTION The project to restate the law of torts offers a number of opportunities.1 One is law reform, as the last two Restatements concerning products liability illustrate.2 Another is to reflect on doctrinal history, both the case law and the academy.3 Yet another, and the one I focus on, is the opportunity to clarify concepts, if necessary by reformulation and restructuring, order to assist courts to manage new challenges that have emerged since the last Restatement. Few areas the law of tort are more need of this re-evaluation than the area covered by the term legal as described the earlier Restatements, where its treatment is opaque, confused, and contradictory. Perhaps even more importantly, cause is especially ripe for reconsideration light of its complementary relationship with concepts that define the incidence of the relevant tort obligation, such as the duty concept the tort of negligence. As the reach of such incidence-defining concepts shifts, so too will the reach of the concept of cause.4 This Article has three main themes. First, earlier Restatements took as their paradigm of a negligence claim one where the careless (positive) act of a private defendant results physical injury to the plaintiff, such as when I carelessly run over a stranger with my car breaking her leg. But such claims, which I call traditional cases or simple running down cases, are not the most important the challenges they present to modern tort doctrine. Of much greater significance are non-traditional claims, such as those alleging a negligent failure to control a third party, which test the limits of the contours of the map of torts. The Restatement (Third) of Torts (Restatement (Third)) should squarely address the challenge non-traditional claims pose to earlier dogmas such as the general duty owed to the whole world and the implicit assumption that a defendant will be liable for a consequence of tortious conduct unless, exceptionally, a rule restricting liability operates. Secondly, earlier Restatements are coy about the institutional competition between judge and jury that underlies doctrinal arrangements. Yet often the relationship of duty and cause is something akin to a seesaw. Often there is a choice to package a particular issue as one of duty, and therefore one for the court, or as one of cause, and therefore one for the jury, with a resultant empowering of one of these institutions at the expense of the other. Even where there is, as I suggest there should be, a move towards spelling out the detailed concerns that arise out of the particular facts of the case and bear on jury determinations, such a move might be characterized as empowering courts relative to the status quo. The Restatement (Third) should admit frankly the political dimension to possible doctrinal arrangements. Thirdly, the treatment of causation earlier Restatements is incoherent. In places, there is the claim that causation law is a pure question of fact, yet elsewhere this approach is betrayed by a reliance on the way the word is used in the popular sense, which there always lurks the idea of responsibility.5 The Restatement (Third) should ensure that causation law is a pure question of fact. It can accomplish this by both defining cause-in-fact terms of factors that have played a role the history of the relevant outcome, and asking this historical role question relation to the defendant's alleged tortious conduct rather than his or her mere Remaining issues on which normative judgments need to be made, such as the appropriate approach to the characteristic problem cases of over-determination (multiple sufficient historical factors), should then be handled under a second analytical element governing the appropriate scope of liability for consequences of tortious conduct. The obfuscating terminology of cause, proximate cause, and substantial factor should be replaced by these two elements, which directly reflect the two enquiries, one factual and one normative, that underlie the current area described as cause. …

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