Causation

• Author: John Fabian Witt
• Pages: 294-339

CHAPTER 6. CAUSATION

“The word ‘cause’ is, in short, an altar to an unknown God; an empty

pedestal still marking the place of a hoped-for statue.”

-- William James, The Principles of Psychology (1891)

The cases and materials in this book have so far assumed an important

background constraint on the allocation of losses in tort law. We have limited the

allocations to those parties who might be characterized in some conventional way as

having been causes of the injury in question.

The causation requirement is famously puzzling. Why do we even have a

causation requirement? If our exclusive goal were compensation, for example, a

causation requirement might be perverse. Why not call on Mark Zuckerberg to provide

the compensation, regardless of his involvement in the events? Moreover, causal

reasoning is notoriously complex. When we label something a cause of something else,

when we reason in terms of cause and effect, we are doing more than describing an

objective state of affairs. We are telling deeply value laden stories about the world. To

talk in terms of causation is very often to smuggle normative premises into an inquiry

ostensibly designed to help guide us toward normative conclusions.

A. Causation: An Introduction

What do we mean when we say that someone caused injury to another? Even this

simple formulation turns out not to be so simple after closer examination. A century ago,

Justices McKenna and Holmes found themselves working through some of the intricacies

of this seemingly simple idea:

LeRoy Fibre Co. v. Chicago, M. & S. P. Railway, 232 U.S. 340 (1914)

[Plaintiff LeRoy Fibre Co. was in the business of producing tow from flax straw, a raw

material in textile manufacturing, that it stored in rows of stacks in a lot adjacent to a

railroad right-of-way. The lot’s fence ran parallel to the railroad tracks 50 feet from the

center of the tracks. The first row of flax lay 25 feet from the fence; a second row lay 35

feet from the fence. On a day in April, 1907, high winds blew sparks from the engine of

a passing train into the stacks of flax, causing a fire and destroying the flax. When

LeRoy Fibre sued, a jury returned a verdict for the defendant railroad on the ground that

plaintiff had been contributorily negligent. Plaintiff appealed on the grounds that it was

not contributory negligent as a matter of law. The Court certified three questions for its

consideration, the first of which was whether it was “a question for the jury whether the

owner was also negligent, without other evidence than that the railroad company

preceded the owner in the establishment of its business, that the property was

inflammable in character, and that it was stored near the railroad right of way and track.”]

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JUSTICE MCKENNA delivered the opinion of the Court:

The questions certified present two facts -- (1) The negligence of the railroad was

the immediate cause of the destruction of the property. (2) The property was placed by its

owner near the right of way of the railroad, but on the owner's own land.

It will be observed, the use of the land was of itself a proper use -- it did not

interfere with nor embarrass the rightful operation of the railroad. . . . [T]he questions

certified . . . are but phases of the broader one, whether one is limited in the use of one's

property by its proximity to a railroad; or, to limit the proposition to the case under

review, whether one is subject in its use to the careless as well as to the careful operation

of the road . . . That one's uses of his property may be subject to the servitude of the

wrongful use by another of his property seems an anomaly. It upsets the presumptions of

law and takes from him the assumption, and the freedom which comes from the

assumption, that the other will obey the law, not violate it. It casts upon him the duty of

not only using his own property so as not to injure another, but so to use his own property

that it may not be injured by the wrongs of another. How far can this subjection be

carried? Or, confining the question to railroads, what limits shall be put upon their

immunity from the result of their wrongful operation? In the case at bar, the property

destroyed is described as inflammable, but there are degrees of that quality; and how

wrongful must be the operation? In this case, large quantities of sparks and "live cinders"

were emitted from the passing engine. Houses may be said to be inflammable, and may

be, as they have been, set on fire by sparks and cinders from defective or carelessly

handled locomotives. Are they to be subject as well as stacks of flax straw, to such

lawless operation? And is the use of farms also, the cultivation of which the building of

the railroad has preceded? Or is that a use which the railroad must have anticipated and to

which it hence owes a duty, which it does not owe to other uses? And why? The question

is especially pertinent and immediately shows that the rights of one man in the use of his

property cannot be limited by the wrongs of another. The doctrine of contributory

negligence is entirely out of place. Depart from the simple requirement of the law, that

every one must use his property so as not to injure others, and you pass to refinements

and confusing considerations. . . .

The legal conception of property is of rights. When you attempt to limit them by

wrongs, you venture a solecism. If you declare a right is subject to a wrong, you

confound the meaning of both. It is difficult to deal with the opposing contention. There

are some principles that have axiomatic character. The tangibility of property is in its

uses, and that the uses by one owner of his property may be limited by the wrongful use

of another owner of his is a contradiction.

JUSTICE HOLMES, partially concurring:

As a general proposition people are entitled to assume that their neighbors will

conform to the law; that a negligent tort is unlawful in as full a sense as a malicious one,

and therefore that they are entitled to assume that their neighbors will not be negligent.

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Nevertheless . . . if a man stacked his flax so near to a railroad that it obviously was likely

to be set fire to by a well-managed train, I should say that he could not throw the loss

upon the road by the oscillating result of an inquiry by the jury whether the road had used

due care. I should say that although of course he had a right to put his flax where he liked

upon his own land, the liability of the railroad for a fire was absolutely conditioned upon

the stacks being at a reasonably safe distance from the train. I take it that probably many,

certainly some, rules of law based on less than universal considerations are made absolute

and universal in order to limit those over refined speculations that we all deprecate,

especially where such rules are based upon or affect the continuous physical relations of

material things. The right that is given to inflict various inconveniences upon neighboring

lands by building or digging, is given, I presume, because of the public interest in making

improvement free, yet it generally is made absolute by the common law. It is not thought

worth while to let the right to build or maintain a barn depend upon the speculations of a

jury as to motives. . . .

Here certainly, except in a clear case, we should call in the jury. I do not suppose

that any one would call it prudent to stack flax within five feet of the engines or

imprudent to do it at a distance of half a mile, and it would not be absurd if the law

ultimately should formulate an exact measure . . . but at present I take it that . . . we

should let the jury decide whether seventy feet was too near . . . . Therefore, while the

majority answer the first question, No, on the ground that the railroad is liable upon the

facts stated as matter of law, I should answer it Yes, with the proviso that it was to be

answered No, in case the jury found that the flax, although near, was not near enough to

the trains to endanger it if the engines were prudently managed, or else I should decline

to answer the question because it fails to state the distance of the stacks.

I do not think we need trouble ourselves with the thought that my view depends

upon differences of degree. The whole law does so as soon as it is civilized. Negligence

is all degree,-- that of the defendant here degree of the nicest sort; and between the

variations according to distance that I suppose to exist, and the simple universality of the

rules in the Twelve Tables, or the Leges Barbarorum, there lies the culture of two

thousand years

Notes

1. Holmes and McKenna. Justice Holmes remains one of the most well-respected jurists

and scholars to have served on the Court. He is known, in particular, for his criticisms of

legal reasoning based on formal concepts such as “rights.” Holmes’s opinions, including

his dissent in LeRoy Fibre, anticipated much of the so-called “realist” jurisprudence of

the twentieth century. Justice McKenna, on the other hand, had neither the respect of his

peers, nor an overarching jurisprudential approach to the law. When William Howard

Taft became chief justice seven years after the decision in LeRoy Fibre, he found

McKenna to be (in his words) “the worst and most embarrassing member of the Court,”

often unable to draft opinions without substantial guidance from others.