Actual Causation
| Author | Eric E. Johnson |
| Pages | 250-300 |
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7. Actual Causation
“If we could fly out of that window hand in hand,
hover over this great city, gently remove the roofs,
and peep in at the queer things which are going on,
the strange coincidences, the plannings, the cross-
purposes, the wonderful chains of events, working
through generations, and leading to the most outré
results, it would make all fiction with its
conventionalities and foreseen conclusions most stale
and unprofitable.”
– Sherlock Holmes, “A Case of Identity,” by Arthur
Conan Doyle, 1892
Introduction
The chapter does double duty. Actual causation is not just an element
of negligence, it is an issue in torts generally, including with strict
liability, battery, trespass to land, etc. So you will learn the concepts
here, in the context of negligence, but keep in mind that they are
generally applicable throughout the landscape of tort law. (Your
introductory course in criminal law may cover actual causation as
well. The essential concept there is the same, although the
ramifications can be quite distinct.)
You may find that actual causation is the simplest element to
understand. And, in many cases, it is also the easiest to prove at trial.
In other cases, however, showing actual causation can be the most
perplexing challenge the plaintiff will face.
The requirement of actual causation is simply that there must be a
cause-and-effect relationship between the defendant’s conduct and
the plaintiff’s injury. The concept of breaching a duty of care is an
almost endless jurisprudential puzzle. It requires real wrangling.
Actual causation, by contrast, is almost self-explanatory. As we will
see in this chapter, however, there are a few complications – some of
them quite surprising – that bear some scrutiny. Nonetheless, the
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relative simplicity of the concept means that there is considerably less
to say about it.
When actual causation presents a live issue in a case, it is usually a
factual matter rather than a legal one. That is, the issue is usually
something to be resolved with evidence, witnesses, and logical
thinking. The first case in this chapter, Beswick v. CareStat, presents a
fascinating vehicle for thinking about issues of proving actual
causation by a preponderance of the evidence.
Next are some complications, considered under the label of
“multiplicity issues,” that come about when there are multiple parties
that could be said to be responsible, yet who could slip out of liability
because of some seemingly paradoxical results that come from strict
application of the actual-causation requirement.
The But-For Test
Here is 95% of the law of actual causation: If the injury would not
have occurred but for the defendant’s breach of the duty of care,
then actual causation is satisfied; if not, then not. That is called the
“but for” test. You simply ask, “But for the defendant’s breach of the
duty of care, would the injury have occurred?”
Now, you can ask same the question without using the words “but
for.” (E.g., “Absent the defendant’s accused conduct, would the
injury have occurred anyway?”) But the words used by all the courts
and all the learned treatises are “but for.” Law, in general, is filled
with long phrases, big words, counterintuitive terms, and numerical
code provisions – not to mention a heavy helping of Latin. So it may
come as something of a surprise that the lynchpin of actual causation
comes down to a test named with two words of three letters each
that mean exactly what they sound like they mean: “but for.”
Moreover, the term is universal. Everyone calls it the “but for” test,
even a law-school-dean-turned-justice writing for a unanimous U.S.
(2011) (Justice Kagan, discussing the “but-for test” in the context of
civil rights claims under 42 U.S.C. § 1988).
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Actual Causation vs. Proximate Causation
There are two distinct concepts within the umbrella of “causation” in
torts. One is actual causation, the subject of this chapter. The other is
proximate causation, the subject of the next. Since actual causation
and proximate causation are conceptually distinct, this book treats
them as separate elements. But many writers will lump them together
as “causation.” Thus, distinguishing the concepts from one another is
the first step in understanding either one.
Actual causation is a matter of strict, logical, cause-and-effect
relationships. Proximate causation – where proximate means “close”
– is a judgment call about how direct or attenuated the cause-and-
effect relationship is, and whether it is close enough for liability.
This example will help you see the difference. Suppose you drive a
car carelessly and run over your neighbor’s mailbox. Your neighbor,
sitting on her front porch, has seen the whole thing. Bursting out of
the car, you put your hands on your hips and say, with indignity, “My
mother and father caused this to happen.” Your neighbor screws up
her eyebrows. “What on earth are you talking about?” she says. You
answer, “My mother and father got together and they, you know,
caused me to exist. So they caused this to happen to your mailbox.
I’m so sorry.”
In such a case it would be absolutely undeniably true that, as a strict
matter of the logic of cause-and-effect, you mother and father caused
the accident. But, of course, offering this as some kind of explanation
for what happened to the mailbox is silly. The tension here is the
difference between actual causation and proximate causation. It is
true that your mother and father caused the accident in the sense of
actual causation. But your mother and father did not cause the accident
in the sense of proximate causation.
In everyday, non-legal English, when we use the word “caused,” we
are talking about some combination of actual causation and
proximate causation. Most of the time, there is no need to separate
out the concepts. But when it comes to legal analysis in torts, we
need to specify exactly what we are talking about because, as you will
see, the two concepts implicate entirely different sets of concerns.
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