Proximate cause is the third element (out of four) to consider when determining if a complainant has grounds to file for negligence. The first element is determining whether the potential defendant has a duty of care or responsibility. The second element requires determining if the potential defendant has failed in some way to uphold the previously determined reasonable standard of duty for which he or she has been deemed responsible. The fourth and final element is the determination of damages, which requires an actual injury and a clear indication that the defendant was ultimately responsible for plaintiff’s injury.
Proximate cause is investigated after verifying that there was a duty or responsibility expected of the potential defendant, and that there has been a breach of that duty or responsibility, and it often hinges on a determination of foreseeability. In other words, would a reasonable individual have been able to predict that his or her actions or inactions would lead to a particular undesirable outcome. If it is determined that the individual could have and should have anticipated a particular consequence related to his or her own action or inaction, then that individual may be found negligent for failing to prevent that undesirable outcome: A defendant can only be found negligent for harms that could be foreseen and prevented, and those harms must be those for which the defendant is directly accountable.
In Wisconsin, proximate clause was first discussed in 1870 when a Chicago & Northwestern Railroad train cast off sparks that started a fire which subsequently spread to the Kellogg homestead and caused fire damage to several of Kellogg’s goods and properties. The railroad protested the original verdict in favor of Kellogg, but an appellate court held that Kellogg’s complaint was valid, because the hazard of fire was “reasonably anticipated” regardless of the half-mile distance between Kellogg’s property and the train tracks, and that the railroad was negligent because it failed to foresee and prevent this type of spark-ignited fire damage (Harrison, 2000). The problem courts regularly struggle with is the precise definition of proximate cause and where to limit the “chain of causation”: striking a balance between punishing irresponsible actions appropriately and setting precedent whereby an individual defendant could be considered responsible for every subsequent problem that a plaintiff suffers after the initial offense or inappropriate lack of care (Harrison, 2000). The first problem is determining what, precisely, a “reasonable person” is and would do. What one person finds reasonable may not be something with which another person would agree; generally speaking, a reasonable person should always be weighing the consequences of all of his (or her) actions and being perpetually aware of the possibly conflicting interests of others and himself (or herself). In short, a “reasonable” person is responsible and “outer-directed,” or exquisitely empathetic and sensitive to the needs and limitations of all other people with whom he or she may interact and who may be affected by his or her actions or inactions.
Proximate cause tends to cause headaches because there is no precise formula that can be applied in all cases at all times. In Palsgraf v. Long Island R.R., 248 N.Y. 339 (N.Y. 1928), Justice Andrews filed a dissent which cautioned that because proximate cause must reflect public policy (which is a fluid concept that adapts as society changes) while also being fair (meting out a decision that is impartial and even-handed) and just (addressing the plaintiff’s injuries in an appropriate and informed manner while determining the extent—if any—of the defendant’s liability). Justice Andrews’ dissent has, unfortunately, been used now and then to excuse or justify rulings that appear to fail the forseeability guideline; the argument is that public policy and justice should occasionally outweigh cold logic in some cases (Diamond et al, n.d.).
“Proximate” also denotes that the cause must not be too remote to cause damages or injury. In Hale v. Ostrow, 166 S.W.3d 713 (Tenn. 2005), Mr. Ostrow, a resident of Memphis, Tennessee, failed to trim his shrubs which in turn blocked the public sidewalk. Ms. Hale had to step off the sidewalk into the roadway because Mr. Ostrow’s bushes made the sidewalk impassable, and while she was looking both ways to avoid traffic, she tripped over a chunk of broken concrete. Whereas Mr. Ostrow was not responsible for the maintenance of the sidewalk or roadway, he was still held responsible for Ms. Hale’s injury because she would not have tripped over the piece of loose concrete if she did not have to step off the public sidewalk due to Mr. Ostrow’s untrimmed shrubs. There were ordinances in place in Memphis which compelled property owners like Mr. Ostrow to clear away or trim overgrowth from plants on the property, and he clearly failed in his duty in that regard (Day, 2012).
In a fictional example based on Hale v. Ostrow, let’s assume that Ms. Hale is clipped by Mr. Doe’s speeding vehicle after she trips over the chunk of concrete and is struggling to get back onto her feet. Mr. Ostrow would not necessarily be linked by proximate cause to any injuries caused by the driver of the speeding car; Ms. Hale would have to pursue a separate suit against Mr. Doe for additional injuries caused by his car. Continuing on, say that Ms. Hale goes to the hospital to receive care for her injuries and receives substandard care from Dr. Poe, and suffers an infection that aggravates her existing injuries. Ms. Hale, in addition to having a terrible day, now has a third party to consider suing for injuries: Dr. Poe. It is possible a jury might tie all of Ms. Hale’s troubles back to Mr. Ostrow, but not necessarily likely. Mr. Ostrow would have no control over the actions of Mr. Doe or Dr. Poe. His failure to trim his shrubs is a proximate cause of Ms. Hale’s initial injury, caused by tripping over a loose chunk of concrete that she would otherwise not have encountered if the sidewalk was clear. Mr. Ostrow should not also be punished for Mr. Doe’s speeding or Ms. Hale’s car-related injuries, nor should he or Mr. Doe be held liable for Dr. Poe’s poor care of Ms. Hale that aggravated her injuries (caused by Ostrow initially, through inaction—failure to trim his shrubberies–and then Doe, through action—operating his vehicle in an unsafe manner and striking Ms Hale–subsequently). It would be less of a headache for poor Ms. Hale if she could hold Mr. Ostrow responsible for all her troubles and injuries, but she would be likely to find it difficult to assign probable cause for anything to Mr. Ostrow but the initial damage caused by having to step off the sidewalk and then tripping over the loose hunk of concrete. Proximate cause has to find a balance between not holding Mr. Ostrow appropriately responsible for his neglect of bush-trimming duties and holding Mr. Ostrow responsible for each and every subsequent misfortune suffered by Ms. Hale; whereas it is arguably true that Ms. Hale would not have had to deal with injuries inflicted by Mr. Doe or Dr. Poe if she had not initially had an accident caused my Mr. Ostrow’s lax shrub maintenance and the blocked sidewalk that resulted, Mr. Ostrow is still not directly responsible for Mr. Doe’s actions (speeding) or Dr. Poe’s inactions (poor medical care). His failure to cut back his shaggy shrubs which were blocking the sidewalk do not count as proximate cause for anything but Ms. Hale’s initial tripping-related injury.
In Palsgraf v. Long Island R.R. Co. 162 N.E. 99 (1928), two men were rushing to catch a moving train. The first man alights successfully but the second man appears unsteady. A guard on the train and a conductor on the platform both set him securely onto the train, but in the process, the second passenger accidentally drops a small package which has fireworks inside. The fireworks explode upon contact with the ground and the force of the explosion tips over some scales several feet away. The collapsing scales injured an uninvolved innocent bystander, Ms. Helen Palsgraf, who sues the railway. Unfortunately for Ms. Palsgraf, it was determined that proximate cause did not exist in this case: the defendant did not breach his duty of care because the guard and conductor could not have foreseen her injury from their attempt to help the man carrying a sealed package with fireworks inside, so she was denied recovery. If it had been determined that the railroad employees should have been able to foresee that [a] jostling the second passenger would cause him to drop his parcel, that [b] the sealed parcel contained dangerous items, and that [c] the items would cause an explosion when dropped unexpectedly, and that [d] an explosion of that type could also jar some scales that were several feet away, and [e] it would be possible for someone standing near the scales to be injured if the scales were jarred for whatever reason, then Ms. Palsgraf could indeed have argued that this was a breach of responsibility that directly caused her injury (Bevans, 2009).
In another example, Polemis and Furness, Withy & Co., Ltd. 3 K.B. 560 (1921), it was determined that a wooden plank (that was dislodged and fell while cargo was being unloaded) was the direct cause of a spark that ignited a fire that destroyed the ship. It was argued that the charterers could not possibly foresee that a wooden plank might ignite a spark, but they were found negligent regardless on the grounds that properly unloaded cargo would not result in a plank falling, thus there would not have been a spark, and thus there would not have been a ship fire. That it was not likely to be predictable that a wooden plank might cause a spark was outweighed by the fact that the charterers were still responsible for due diligence and safety when handling cargo (Casebriefs LLC, 2012). This case is complex, because proximate clause was likely quite difficult to establish (wood planks are not normally known for kicking up sparks no matter how carelessly they are handled); it is possible that an appellate court might have overturned the decision to hold the charterers responsible (Bevans, 2009).
In short, when determining proximate cause, it has to be proven that a plaintiff’s injury was caused by the defendant’s action or inaction, that the injury took place promptly (the shorter the time between the initial action or inaction of the defendant and the plaintiff complaining about an injury, the better; otherwise too much time passing between the initial injury and the complaint means that it can be argued that the defendant is not the sole cause for the injury, or responsible for the extent of the injury: an “unbroken chain of events” (Modra, 2010)), that there were no intervening possible causes for injury that may have caused or contributed to plaintiff’s injury, and that the defendants actions or inactions were directly tied to the resulting injury. In other words, the defendant’s actions or inactions were irresponsible or a breach of duty of care in some way (cause in fact), and that this (foreseeable) breach caused the plaintiff’s damages or injury (Bevans, 2009).
Revisiting Hale v. Ostrow, it is possible that Ms. Hale could also attempt to get relief from the city of Memphis, once she determined who was responsible for the upkeep and maintenance of the sidewalks and roadway. Whereas Mr. Ostrow’s bushes blocked the sidewalk, he was not responsible for the loose chunk of concrete that Ms. Hale tripped over. Ms. Hale could argue that the loose concrete was evidence of shoddy upkeep on the part of the city of Memphis; had the roadway been clear of debris, she would not have had a piece of concrete to trip over. In this hypothetical example, Ms. Hale could argue that the Engineering Division (responsible for roadway and sidewalk maintenance in Memphis) had failed in its duty to keep the roadway clear of debris, and that it was predictable that loose pieces of concrete might constitute a foreseeable hazard not only to pedestrians like herself, but vehicles traveling on the roadway.
In one of our class case studies, Bill the golfer was using his brand new golf clubs when the head of a club flew off and hit another golfer in the head, causing injuries. We already established that Bill would not be considered negligent, as he was using new clubs in an appropriately responsible manner. However, the manufacturer of the golf clubs would likely be responsible for the injury, as manufacturers are expected to rigorously test and carefully inspect all the clubs before shipping them to a retailer where they are to be sold. A lawyer might argue that the manufacturer failed to properly test and inspect Bill’s golf club, and thus failed their duty of care and responsibility. A lawyer might then argue that this breach caused injury when Bill’s golf club head flew off and struck the other golfer. That should be enough to establish proximate cause, and the injured golfer should be able to get relief for his injury from the manufacturer (Abramson et al, 2012).
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