Discussion Question

Can you think of a situation where an individual is a contributor to an outcome, but the outcome would have occurred regardless of the individuals involvement? Should a person be held liable if a particular damage would have occurred regardless of her involvement in a tortious activity? Why or why not?

Practice Question

Jessica and 5 friends are jumping up and down on a trampoline. Terry falls while bouncing, but the other friends continue to bounce. Terry is thrown from the trampoline by the force generated by the other bouncers. Is Jessica's conduct the cause in fact of Terry's injury?

• To prove negligence, the plaintiff must show that the defendant caused the injury. Causation in tort uses a cause-in-fact test and a proximate cause text in order to establish a factual link between the conduct of the defendant and the injuries of the claimant. In a cause-in-fact test, the question asked is but for the defendant's actions, would the harm have occurred? If the answer to this question is no, then causation cannot be shown, and vice versa. In the example from the practice question, Jessica's action in the circumstances amounts to the cause in fact of Terry's injuries. This is because it is the action of Jessica and the others who continued jumping on the trampoline that caused Terry to be thrown off and be injured. The but for question in this situation is, but for Jessica's and the rest jumping, would Terry have been thrown off the trampoline and hence injured?. The answer is no. meaning that it was Jessica and the rest jumping that caused Terry to be injured.

Academic Research

• Beever, Allan, Cause-in-Fact: Two Steps Out of the Mire (July 1, 2001). University of Toronto Law Journal (2001). Available at SSRN: https://ssrn.com/abstract=2288227. Perhaps the most problematic area of tort law concerns the cause-in-fact enquiry. In a way, this is not surprising. Demonstrating that one event caused another can be extremely difficult. Hence, it is not remarkable that the courts struggle with this issue. What is surprising is the track taken by academic debate. The controversy in the law journals centres on the correct understanding of the concept of causation. Some argue that they have the right theory, some that there is no theory. Whomever one reads, the conclusion seems inescapable: cause-in-fact is terribly complex. I aim to buck this trend. My view is that, though cause-in-fact is not uncomplicated, it is far less convoluted than one would imagine from reading much of the literature. 
• Johnson, Eric Alan, Cause-in-Fact After Burrage v. United States (February 3, 2016). Florida Law Review, Vol. 68, 2016, Forthcoming; University of Illinois College of Law Legal Studies Research Paper No. 16-13. Available at SSRN: https://ssrn.com/abstract=2727475. What significance, if any, should state courts assign to the Supreme Courts unanimous 2014 decision in Burrage v. United States? In Burrage, the Supreme Court relied on ordinary meaning and traditional understanding in concluding that causation elements in federal criminal statutes nearly always require so-called but-for causation. State courts, by contrast, traditionally have applied two important modifications to the but-for test: (1) an acceleration rule, which assigns liability to defendants who hasten even by a moment the coming-to-fruition of the proscribed harm; and (2) a contribution rule, which assigns liability to defendants who contribute incrementally to the underlying causal mechanism. This paper defends the state courts approach. It argues that the acceleration rule and the contribution rule both are necessary to address cases where the but-for test fails to capture ordinary usage. Specifically, these supplementary rules are necessary to address cases of spurious, or preempted, causal sufficiency and cases of causal overdetermination. 
• Dari-Mattiacci, Giuseppe, Soft Negligence and Cause in Fact: A Comment on Ganuza and Gomez (September 2004). George Mason Law & Economics Research Paper No. 04-37. Available at SSRN: https://ssrn.com/abstract=589324 or http://dx.doi.org/10.2139/ssrn.589324. Lowering the standard of negligence below the first-best socially optimal level has been shown by Ganuza and Gomez (2004) to increase the level of care taken by judgment proof injurers. In this paper, I consider a more complex model of negligence in which cause in fact is taken into account, and I show that this conclusion holds when the injurer's care reduces the magnitude of the accidental harm but not when the injurer's care reduces the probability of the accident. Thus, such soft negligence strategies aimed at tackling the adverse effects of judgment proofness need to be conditioned to the accident prevention technology available to injurers. 
• Delgado, Richard, Beyond Sindell: Relaxation of Cause-in-Fact Rules for Indeterminate Plaintiffs (1982). California Law Review, Vol. 70, 1982. Available at SSRN: https://ssrn.com/abstract=2103743. Discusses a doctrine (the Sindell rule) enabling plaintiffs to shift the burden of proof onto several defendants when all of them have exposed him or her to a risk which has eventuated, but the plaintiff is uncertain which one is to blame for the injury. Proposes extending this rule in the miror-image case when an "indeterminate plaintiff" is one of several living in a locality who have suffered similar injuries, some of which may be due to natural causes but others of which are known to be attributable to the defendant, such as a polluter who has caused an increase in the number of asthma or cancer cases. Evaluates policy grounds for the extension and points out particular scenarios where extension of the Sindell rule to the case of indeterminate plaintiffs (rather than defendants) makes sense. Anticipates objections to the proposal and responds to them. 
• Knutsen, Erik S., Ambiguous Cause-in-Fact and Structured Causation: A Multi-Jurisdictional Approach (July 20, 2003). Texas International Law Journal, Vol. 38, No. 249, 2003. Available at SSRN: https://ssrn.com/abstract=1164202. Understanding the application of judicially created cause-in-fact doctrine to a case where proof of cause is at best ambiguous, necessitates understanding what has driven the court to tinker with existing tort doctrine in the first place. It is the aim of this article to explore .how these three modifications to traditional cause-in-fact principles operate, examine why they arose, and then use a normative lens to evaluate why they need to be consolidated into a predictable and portable outgrowth of causation doctrine. This article is divided into four substantive sections. Part II defines the landscape of cause-in-fact doctrine and explains how American, Canadian, and British courts have modified this landscape to oblige ambiguous causation cases. Part III evaluates the judicial modifications of cause-in-fact doctrine and explores the often inarticulated motivations that drive a court's use of these innovations. First, reversal of the burden of proof of causation from the plaintiff to the defendant is considered. Next, the approach that proves cause based on the defendant's material increase of risk of injury to the plaintiff is evaluated. And finally, the practice of proving causation based on reasonable inferences on the facts of the case is examined. Part IV is the pivotal division of the article, where the three alternative approaches to cause-in-fact are synthesized to produce a new, normative3 method for deciding ambiguous cause-in-fact cases. This method, called structured causation, deifies existing torts principles in a fashion that is also compatible with a positivist interpretation of what courts have been doing. Part V explains how structured causation accomplishes the normative goals, which are compatible with the competing tort theories of efficiency and corrective justice. 
• Twerski, Aaron D. and Sebok, Anthony J., Liability Without Cause? Further Ruminations on Cause-in-Fact as Applied to Handgun Liability. Connecticut Law Review, Vol. 32, No. 4, June 2000. Available at SSRN: https://ssrn.com/abstract=231771. This article grapples with the question of cause in fact in lawsuits against handgun manufacturers based on theories of negligent marketing. We note that the conventional test for cause in fact -- whether the defendant's breach of duty was more likely than not the cause of the plaintiffs injury -- is something which is very hard for plaintiffs in these cases to prove given the fact that at least half of handguns used in crime are not negligently marketed. Thus, even if a jury finds that the defendant breached a duty, they still must deal with the problem of the indeterminate plaintiff. We consider whether a looser test for cause in fact, such as the one articulated by Wex Malone in 1956, could help make sense of the handgun cases. Malone argued that in certain classes of cases-such as those involving shipowners who failed to provide lifesaving equipment--a court would be justified in sending a case to the jury even if the court believed that it was not likely that the plaintiff's injury would have been prevented by the missing equipment. We examine Malone's various policy arguments for allowing plaintiffs to sue for the loss of a "gamblers chance" and conclude that it would be a violation of basic tort law and fairness to extend Malone's approach to the handgun cases without modification. 
• Delgado, Richard, Beyond Sindell: Relaxation of Cause-in-Fact Rules for Indeterminate Plaintiffs (1982). California Law Review, Vol. 70, 1982. Available at SSRN: https://ssrn.com/abstract=2103743. Discusses a doctrine (the Sindell rule) enabling plaintiffs to shift the burden of proof onto several defendants when all of them have exposed him or her to a risk which has eventuated, but the plaintiff is uncertain which one is to blame for the injury. Proposes extending this rule in the miror-image case when an "indeterminate plaintiff" is one of several living in a locality who have suffered similar injuries, some of which may be due to natural causes but others of which are known to be attributable to the defendant, such as a polluter who has caused an increase in the number of asthma or cancer cases. Evaluates policy grounds for the extension and points out particular scenarios where extension of the Sindell rule to the case of indeterminate plaintiffs (rather than defendants) makes sense. Anticipates objections to the proposal and responds to them.