§ 14.03 Proximate Cause (or "Legal Cause")
[A] Putting "Proximate Cause" in Context
"Mankind might still be in Eden, but for Adam's biting an apple."33 The present point of this remark is to remind us that the purpose of the but-for test of causation is to identify the candidates for responsibility for an event. From this pool, which may include other human actors and non-human forces stemming over an extended period of time,34 the "proximate" or "legal" cause of the social harm must be selected.35 Thus, we might ask: Is Adam's long-ago decision to eat the apple the proximate cause of a murder that occurs today, or should we hold someone or something else responsible? The answer is obvious: Adam may have been an actual cause of today's murder according to the but-for standard, but he is not the proximate cause. For that determination, we must look elsewhere—focusing on a less remote actual cause.36
The concept of "proximate causation" is obscure. In the process of determining proximate causation, courts and lawyers frequently bandy about conclusory terms like "natural and probable consequences," "superseding intervening cause," "direct cause," and "remote cause."37 An observer might assume from this language that a scientific formula exists to produce uniform and reliable results in proximate causation analysis. In fact, however, courts and juries don't discover the proximate cause of harm—they select it. The decision to attach legal causal responsibility for a result to one, rather than to another, factor is made in a commonsense manner, or by application of moral intuitions, public policy considerations, and/or a sense of justice.38
[B] Direct Cause
In many cases, no serious litigable issue of proximate causation arises. For example, suppose that D shoots V, and V dies instantly. Or suppose that D shoots V, and V is taken to the hospital where he dies after proper medical care. In both cases, courts are apt to say that D was the "direct" cause of the result. That is, no event of causal significance intervened between D's conduct and the social harm for which D is being prosecuted. In the first case, the death occurred instantly; in the second hypothetical, nothing done by the medical personnel aggravated V's injuries or accelerated V's death.
The closest thing to a bright-line rule in the realm of proximate cause is this: An act that is a direct cause of social harm is also a proximate cause of it. This makes sense. A "direct cause" is a force already determined to be an "actual cause" of the undesired result and after which no additional causal event occurred. In these circumstances, there is no more proximate party to whom to shift legal responsibility for the outcome. It is as if there was a causation lineup with only one person in the lineup!
[C] Intervening Causes
[1] Overview
An "intervening cause" is an independent force—another "but for" cause—that operates in producing a result, but that only comes into play after the defendant's voluntary act has been committed or his omission has occurred.39 Although not exhaustive of the circumstances in which intervening causes arise, many criminal cases fit the following pattern: (1) D harms V in some manner; (2) a second causal force intervenes; and (3) the latter intervening cause aggravates V's injuries or accelerates the inevitable (e.g., V's death). The intervention usually comes in the form of: wrongdoing by a third party; the victim's own contributory negligence40 or suicidal act; or a natural force ("an act of God").41
The legal issue for consideration in such cases is the following: When is the intervening conduct—of a third party, the victim, or a natural force—sufficiently out-of-the-ordinary that "it no longer seems fair to say that the [result] was 'caused' by the defendant's conduct?"42 Framing the issue more precisely: Under what circumstances should D, with the requisite mens rea, whose conduct or omission is a cause-in-fact of the result, be relieved of criminal responsibility because of an intervening cause? When an intervening cause does relieve the defendant of criminal responsibility, the law generally describes that intervening event as the "superseding cause" of the social harm.
One early twentieth-century scholar observed that all efforts to set down universal tests that explain the law of causation are "demonstrably erroneous."43 There are no hard-and-fast rules for rendering the commonsense "community justice" determination of when an intervening cause supersedes the defendant's conduct. However, there are various factors that typically assist the factfinder in the evaluative process, discussed immediately below.
[2] Factor 1: De Minimis Contribution to the Social Harm
Sometimes, a defendant's causal responsibility for ensuing harm is trivial in comparison to that of an intervening cause. For example, suppose that D strikes V. Although the injury is minor, it requires non-emergency medical attention, so V drives himself to the doctor. On the way, his car is struck by lightning. V dies instantly.
From a causal perspective, D was an actual cause of the ensuing death-by-lightning: But for D's wrongful actions, V would not have been in the car driving to the doctor, and thus would not have been at the spot where the lightning struck. Nonetheless, the law will very likely treat D's causal connection as de minimis and relieve him of criminal liability for V's death.44
This outcome conforms with our common-sense analysis of causal events. If a small pebble is followed immediately by a giant meteor striking Jupiter, our attention focuses on the meteor. Although the pebble may have contributed ever-so-slightly to the ensuing damage, we treat the giant force as the "real" cause of the harm. The same principle applies in the criminal law: Some wrongdoers have too minor a causal role to justify criminal punishment.45 The law will treat the substantial, intervening cause as the proximate cause of the social harm.
[3] Factor 2: Foreseeability of the Intervening Cause
[a] In General
According to many courts, the "linchpin"46 of proximate causation is whether the intervening party's acts were reasonably foreseeable. This is a bit of an overstatement, but it is certainly true that foreseeability is a matter of very considerable significance in proximate-causation analysis.
Cases can be found in which it is said, simply, that a defendant cannot escape liability if the intervening act was reasonably foreseeable,47 whereas an unforeseeable intervening cause is "superseding" in nature. Proper analysis, however, is more sophisticated than this. The criminal law tends to distinguish between "responsive" (or "dependent") and "coincidental" (or "independent") intervening causes,48 as these concepts are clarified below.
[b] Responsive (Dependent) Intervening Causes
A responsive intervening cause is an act that occurs in reaction or response to the defendant's prior wrongful conduct. For example, suppose that D1 operates his boat at an unsafe speed, causing it to capsize. V1, his drunken passenger, drowns foolishly attempting to swim to shore.49 V1's actions constitute a responsive intervening cause in his own death, i.e., his life-saving efforts were a response to D1's initial improper conduct. Or suppose that D2 seriously wounds V2. V2 is taken to a hospital where he receives poor medical treatment by physician X and dies. In D2's prosecution for the death, X's negligent conduct constitutes a responsive intervening cause: X's medical actions were in response to D2's act of wounding V2.
Generally speaking, a responsive intervening cause does not relieve the initial wrongdoer of criminal responsibility unless the response was abnormal and, if abnormal, also unforeseeable.50 This outcome is justifiable. The defendant's initial wrongdoing caused the response. Since he is responsible for the presence of the intervening force, the defendant should not escape liability unless the intervening force was bizarre and unforeseeable.
Applying this analysis, case law generally provides that the accused bears criminal responsibility for the death of, or injury to, a person who seeks to extricate himself from the dangerous situation created by the defendant, even if the victim was contributorily negligent in his efforts.51 Similarly, many cases provide that one who wrongfully injures another is responsible for the ensuing death, notwithstanding subsequent negligent medical treatment that contributes to the victim's death or accelerates it.52 On the other hand, grossly negligent or reckless medical...
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