Proximate ('Legal') Cause

• Author: John Fabian Witt
• Pages: 340-387

CHAPTER 7. PROXIMATE (“LEGAL”) CAUSE

A. Introduction

In order to recover damages in a negligence suit, the plaintiff must show not only

factual causation but also something more: what lawyers call “proximate cause” or “legal

cause.” The doctrine of proximate cause stands for the idea that the plaintiff should not be

able to recover if the plaintiff has not shown an appropriate relationship between the

negligent act and the harm complained of, even if the defendant’s negligence has – in fact

– caused the plaintiff’s injury. Some injuries, courts say, are too remote from the

negligence in question to be properly charged to the defendant’s conduct. Other injuries

are not unduly remote, and so are properly attached to the defendant’s conduct. As you

read the following cases, ask yourself how courts distinguish remote from proximate

harms. Is the doctrine of proximate cause different from the foreseeability dimension that

we studied in the negligence analysis in chapter 4? Given that these are all cases in which

the defendant’s conduct was necessary in producing the plaintiff’s injury, is it appropriate

to call this doctrine a type of “causation” at all? Many jurists have answered no to both

questions. There is no denying that the doctrine of proximate causation has played a

prominent role in torts cases since nearly the beginning of modern tort law. But a lurking

question remains: Why do we have it?

Ryan v. New York Central R.R., 35 N.Y. 210, 215 (1866)

HUNT, J. On the 15th day of July, 1854, in the city of Syracuse, the defendant, by

the careless management, or through the insufficient condition, of one of its engines, set

fire to its woodshed, and a large quantity of wood therein. The plaintiff's house, situated

at a distance of one hundred and thirty feet from the shed, soon took fire from the heat

and sparks, and was entirely consumed, notwithstanding diligent efforts were made to

save it.

A number of other houses were also burned by the spreading of the fire. The

plaintiff brings this action to recover from the railroad company the value of his building

thus destroyed. The judge at the Circuit nonsuited the plaintiff, and the General Term of

the fifth district affirmed the judgment.

The question may be thus stated: A house in a populous city takes fire, through

the negligence of the owner or his servant; the flames extend to and destroy an adjacent

building: Is the owner of the first building liable to the second owner for the damage

sustained by such burning?

It is a general principle that every person is liable for the consequences of his own

acts. He is thus liable in damages for the proximate results of his own acts, but not for

remote damages. It is not easy at all times to determine what are proximate and what are

remote damages. . . . So if an engineer upon a steamboat or locomotive, in passing the

house of A., so carelessly manages its machinery that the coals and sparks from its fires

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fall upon and consume the house of A., the railroad company or the steamboat proprietors

are liable to pay the value of the property thus destroyed. Thus far the law is settled and

the principle is apparent. If, however, the fire communicates from the house of A. to that

of B., and that is destroyed, is the negligent party liable for his loss? And if it spreads

thence to the house of C., and thence to the house of D., and thence consecutively

through the other houses, until it reaches and consumes the house of Z., is the party liable

to pay the damages sustained by these twenty-four sufferers? The counsel for the plaintiff

does not distinctly claim this, and I think it would not be seriously insisted that the

sufferers could recover in such case. Where, then, is the principle upon which A. recovers

and Z. fails?

. . . . I . . . place my opinion upon the ground that, in the one case, to wit, the

destruction of the building upon which the sparks were thrown by the negligent act of the

party sought to be charged, the result was to have been anticipated the moment the fire

was communicated to the building; that its destruction was the ordinary and natural result

of its being fired. In the second, third or twenty-fourth case, as supposed, the destruction

of the building was not a natural and expected result of the first firing. That a building

upon which sparks and cinders fall should be destroyed or seriously injured must be

expected, but that the fire should spread and other buildings be consumed, is not a

necessary or an usual result. That it is possible, and that it is not unfrequent, cannot be

denied. The result, however, depends, not upon any necessity of a further communication

of the fire, but upon a concurrence of accidental circumstances, such as the degree of the

heat, the state of the atmosphere, the condition and materials of the adjoining structures

and the direction of the wind. These are accidental and varying circumstances. The party

has no control over them, and is not responsible for their effects.

My opinion, therefore, is, that this action cannot be sustained, for the reason that

the damages incurred are not the immediate but the remote result of the negligence of the

defendants. The immediate result was the destruction of their own wood and sheds;

beyond that, it was remote. . . .

To sustain such a claim as the present, and to follow the same to its legitimate

consequences, would subject to a liability against which no prudence could guard, and to

meet which no private fortune would be adequate. Nearly all fires are caused by

negligence, in its extended sense. In a country where wood, coal, gas and oils are

universally used, where men are crowded into cities and villages, where servants are

employed, and where children find their home in all houses, it is impossible that the most

vigilant prudence should guard against the occurrence of accidental or negligent fires. A

man may insure his own house or his own furniture, but he cannot insure his neighbor's

building or furniture, for the reason that he has no interest in them. To hold that the

owner must not only meet his own loss by fire, but that he must guarantee the security of

his neighbors on both sides, and to an unlimited extent, would be to create a liability

which would be the destruction of all civilized society. No community could long exist,

under the operation of such a principle. In a commercial country, each man, to some

extent, runs the hazard of his neighbor's conduct, and each, by insurance against such

hazards, is enabled to obtain a reasonable security against loss. To neglect such

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precaution, and to call upon his neighbor, on whose premises a fire originated, to

indemnify him instead, would be to award a punishment quite beyond the offense

committed. It is to be considered, also, that if the negligent party is liable to the owner of

a remote building thus consumed, he would also be liable to the insurance companies

who should pay losses to such remote owners. The principle of subrogation would entitle

the companies to the benefit of every claim held by the party to whom a loss should be

paid. . . .

The remoteness of the damage, in my judgment, forms the true rule on which the

question should be decided, and which prohibits a recovery by the plaintiff in this case.

Judgment should be affirmed.

Notes

1. Rationales for Ryan. Virtually all observers agree that there ought to be a distinction

between the first house and the twenty-fourth house. But does the Ryan court draw the

line between proximate and remote damages in the right place? Judge Hunt offers up a

whole laundry list of possible ways to articulate the key distinction. He talks about

ordinariness, nature, expectations, accident, and immediacy. Which of these rationales, if

any, explains the location of the line as the Ryan court sees it?

2. An insurance explanation? One explanation articulated in the Ryan decision for

cutting off liability is that even if none of these doctrinal formulations hold, the plaintiff

could have insured his property against fire. The defendant, by contrast, could not take

out a policy on the plaintiff’s property because in 1866 liability insurance was

unavailable on the theory that it was against public policy. For a long time, liability

insurance had been thought to create dangerous incentives for careless conduct. Some

say it still does! Yet not long after Ryan was decided, the law in most states began to

permit liability insurance. Today, it is pervasive.

Today, the law permits people and firms to purchase liability insurance protecting

the policy-holder’s interest in insuring against tort damages judgments. Sometimes, as in

automobile insurance regulations, the law now requires liability insurance. If you have

owned a car, you have almost certainly bought a liability insurance policy yourself.

Some of you will have bought liability insurance as part of an apartment renter’s

insurance policy, or perhaps a homeowners’ policy.

If liability insurance had been widespread in 1866, would Ryan have come out the

other way?

Note that today, Ryan is almost certainly not a good statement of the law: courts

today virtually always draw the line between proximate injuries and remote ones more