Thanks for joining this episode of the No. 86 lecture series, where we discuss basic principles and applications of Tort Law along with landmark cases. Today's episode features Gregory Dolin, who is a Professor of Law at the University of Baltimore, where he teaches Torts, Contracts, Property, Intellectual Property, Federal Courts, and Constitutional Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Dolin, today we’re tackling causation, one of the four pillars of tort law: duty, breach, causation, and damages. Can we start with factual causation? What’s it all about? Gregory Dolin: Causation is one of those four elements in torts: duty, breach, causation, damages. Let's talk about, kind of perhaps, the easier one, the factual cause. So one case that I teach is about, unfortunately a tragic case, but it's called Grimstead versus New York, I think New York Railroad. Interestingly enough, it's actually, even though it's a railroad, it's happening on the water. I guess the railroad owns some boats. So, there was a Mr. Grimstead, he worked on a boat. He was, I guess he was keeping watch fairly late at night. Weirdly enough, Mr. Grimson did not know how to swim. And as luck would have it, he falls overboard and there's no safety equipment on the deck. I guess the company stores all the safety equipment below the deck. Mr. Grimstead's wife, who is also on the boat there, I guess they're, basically living there, supervising this boat. She starts frantically running around the ship. She doesn't find the safety equipment. She runs downstairs below the deck, finally finds something comes up, and by the time she's ready to throw that hook or that, you know, that orange buoy in the water, Mr. Grimstead is nowhere to be seen. He drowns. She sues the employer and says, you had a duty to provide a safe working environment that involves saving equipment at the ready. You have failed at that duty, you breached. And she says, because of your breach, my husband is now dead. Kind of a story that makes sense. Unfortunately, she is unable to show that the outcome would've been any different had the equipment been at the ready. She's unable to say that, look, she saw him at the exact moment that he fell in, that she's unable to show that she's actually able to throw it far enough. She's unable to show that it was sufficiently light. In fact, it was actually dark when it happened, so, the company essentially can concede that they had a duty to keep equipment on board and keep it at the ready. They can concede that they failed to do so. They breached the duty. They can concede that there were damages, the drowning of Mr. Grimstead, and yet they escape liability because their breach is not factually connected to the damage. Basically when we talk about cause-in-fact, we ask a simple question, would the world have been different but-for the defendant failing to live up to its duty? And if the answer is yes, that it would have been different, but-for, then factual causation is established. But if the answer is, no, it would not have made any difference, then factual causation is absent. When we talk about factual causation, we apply this test known as the but-for test and a but-for test asks, would the world have been different? But-for the failure you are complaining about had not existed. And if the answer is yes, you have factual cause. And if the answer is no, you do not have factual cause. PUBLIUS: What happens when there are multiple parties and multiple causes of an injury? Does the “but-for” test still apply? Gregory Dolin: So of course sometimes situations arise when there's more than one party responsible for the ultimate injury. So there's this other case that I teach. This is an actual case. So there's a house standing somewhere in the middle. Fire is started by the railroad in the northeast corner, and it starts because of the wind that spreads towards the house. Kind of going down to, I guess, southwest. As luck would have it at exactly same time, a fire in the northwest side starts as well of unknown etiology and unknown causes, and it also starts bearing down on the house eventually about 400 feet or or so before the, they reached the house, the fire unites into one big fire and they destroyed the house. We don't know who started the fire out in the northwest. We do know the fire northeast started by the railroad, and so the owner of the house sued the railroad and the railroad says like, but wait a second, but-for us not being there, you still would not have had the house because the fire at the northwest was big enough to destroy you anyways. So we are not a cause in fact because the world would've been exactly the same even if we had run the railroad in a perfect fashion. Of course, the problem is, had he sued, had he known who the guy at the northwest who started the fire, he would've had the exact same answer. And it would've been a weird circumstance where two people operating negligently, both of them, and neither one of 'em was liable because they could point fingers at each other. So how does the court deal with that situation where neither really is a but-for cause? The court says when there's more than one tortfeasor, so more than one actor, what we do is we'll look at whether or not the action of any given actor is sufficiently great to give sufficient contributing effect to the ultimate damage. Well, there's a substantial contribution, so we flip, but-for because in that world a but-for could create a situation where multiple tortfeasors can just start pointing fingers at each other, leaving the actual victim without any recourse. And so what we do is instead of doing the but-for test, we move on to con-substantial factor. Another kind of classic case called Summers versus Tice, comes out from California. There you had three friends that go out to shoot their rifles. One kind of goes up the hill and then the two others discharge their rifles at roughly the same time. And these basically discharge buckshot, so you can't actually tell which rifle a given bullet came from. And they hit their friend, luckily without grave injury. But they, one of 'em hit some, I think in the cheek and another one like near the eye. And they can't tell which one of them discharged the rifle. Whether it was, you know, friend on the right or friend on the left, and again, the court says, both parties were kind of substantially contributing to the injury, but how can that be because only buckshot from one of 'em hit the person? How can there be substantial contribution? And so the way scholars oftentimes think about that case is they think of it as follows: that like, look, one, we don't know which one, but one friend discharged the rifle in a careless manner and hit our victim. The other friend, again, we don't know which one, but the other friend also discharged the rifle and by doing so at the exact same time, essentially, again, this is negligence, it's not intentional, but essentially helped the person who hit the friend cover up. He made it impossible to figure out who did it. So they're both at fault. And so they're both liable to the victim. PUBLIUS: Are there more case examples where it is even more complex to prove factual causation when multiple parties are involved? Gregory Dolin: Let me give you a third example that is a bit more controversial. So, what happens is it's easy to figure out when there's two defendants, three defendants, but what happens when there are hundreds of defendants and you can't really figure out which one of them caused the injury. And none of them, because there's hundreds of them, actually had a substantial contribution to the injury. What did we do then? And so there's this case, also coming out of California again, a bit more controversial, was not adopted in all states, but this came from the drug DES, and Drug DES, it was an interesting drug. It was prescribed to pregnant women back in the fifties and sixties, and it had, it's, it was not like thalidomide which showed this effect very quickly, with kids being born without limbs. DES was equally bad, but much more delayed. The effects of drug DES was on the female offspring of the women to whom it was administered. So it's to their daughters, and even then it didn't show up, its ill effects, until decades later. So what DES did, it made the daughters of the women who took the drug much more likely to have cervical cancer, but developing decades later. The problem was that there were lots and lots of manufacturers of DES on the market. It was a generic pill. It was cheap to manufacture. There were a bunch of companies that were doing it. Some stayed on the market a long time, some stayed on the market a short time. It was because the effects were seen so much later, it was impossible to figure out which company's pill did a particular mother buy. And I guess most of us should sympathize with it because if I ask you last time you had a headache, which medications did you take? Unless you are always taking only Advil, you might say, I don't know, whatever was available, right? I have no idea. Maybe it was Advil, maybe it was Tylenol. Maybe it was some generic aspirin. I don't know. And, imagine asking this question 30 years later. So what did the California Court do at the time? They came up with a somewhat controversial but interesting solution. They said none of those companies are a substantial contributor because for all we know, the mother of our plaintiff took pill only of company A and never took pill from company B, C, D through Z. So they didn't contribute, not just substantially, they didn't contribute anything to her injury, but of course they contributed to injuries of others who never took pills of company A. So how does the court resolve it? The court says perhaps the fairest way is for every victim that comes forth, that they should get compensation, from all of these companies proportionate to their market shares. So if you were on the market for 10%, basically sold 10% of the pills, you will pay 10% of any judgment. And sure, for this particular person, maybe her mother didn't take your pills at all, and so you're overpaying. But then for the next victim, whose mother took a hundred percent of your pills, you'll still only pay 10% of the injury, so you'll be under paying. And in the long run it ought to work out. So to wrap it all up, generally speaking, when we talk about factual causation, because usually it's one-on-one, it's right, it's you were driving a car, the other guy was driving a car, he ran into you, just you and them. It's a, but-for causation, would the accident have happened, but-for that guy speeding. When there are multiple, but few, two, maybe three. Each of them is liable, if each of them is a substantial factor to your injury. And if there are multiple, and lots of them, then it's kind of a, sort of, all bets are off, but the, at least one state…number of others as well, solve the problem by saying you pay proportionate to the overall harm you cost to the market. PUBLIUS: What is Lost Chance doctrine? Does that involve an actual cause? Is it hard to prove? What kind of liability is involved? Gregory Dolin: So the Lost Chance doctrine is, if you think back to, our case of Grimstead, remember. So in Grimstead you have our, you know, night watchman. He falls off the boat, he dies, and the wife cannot prove that but-for the company not having safety equipment nearby, he would have survived. But imagine a situation of like, look, I don't know if he would've survived, but he would've had a better chance, so I would've liked compensation for that delta - kind of the chance they had to survive without the equipment, and the chance they had to survive with the equipment. Most of the time it comes up in the following circumstance: usually comes up in uh medical malpractice. So imagine you go to a doctor and a doctor misreads your x-ray and misses say some sort of terrible disease, say cancer. And then you know you are still feeling sick until you go to the doctor for another checkup a year later. And finally, it's caught but unfortunately a year has passed and now you have a lower chance of surviving. But let's imagine it's a pretty terrible disease, right? So you never had a very good shot. But imagine like, you know, if had the doctor caught it on time, you'd have had say, 40% chance of survival, and now that it's a year later, you only have a 20% chance of survival. Now, one way to look at the problem saying like, well, listen, by the time you came in the first time, you were already a goner. You had 60% chance of dying, right? Only 40% chance of living. So, really the doctor didn't, yeah, he did something wrong, but really didn't cause you any harm because odds are gonna be dead anyways, right? And odds still are that you're dead. Worse odds, but still. The other way of looking at it, and so this is the Lost Chance Doctrine is saying, look, that extra 20% chance of living between 40 and 20 is worth something. It's worth your peace of mind. It's worth, how aggressive your treatment you are going to undertake. It's worth actually, you know, the actual likelihood that you will live or die. And so while we cannot compensate, we cannot say that, you know, if the person is gonna die, it's because of the doctor, because even at the initial stage, you were more likely to die than not. You've lost something, right? And you've lost that chance of staying alive. And so we can compensate that. Again, not all states have adopted it, but that's kind of, that's the idea. To the extent that states have adopted the doctrine, not all of 'em adopted it uniformly. For example, in some states they say that if you are gonna invoke lost chance doctrine, you have to begin with greater than 50%. Right. So if you came in at 40% of survival, you can't claim lost chance doctrine. But if you started at 51 and now are 49 because of the doctor's mistake, you can claim that, 2% chance some states take is say, look what, whatever you've lost, you've lost, and we'll compensate for that. But as you can imagine, it creates its own problems. How do you calculate what is the chance of staying alive is worth, et cetera. But that is kind of the, that's how it comes up. So sometimes there are, not just multiple tortfeasors, but multiple causes of the tort. You know, so the reason you got sick is because you know, or the reason, for example, you have a particular injury, is both because someone crashed into you in their car and, you know, broke your leg and the doctor didn't set your leg right, and that is why you are now limping, right? So there's two causes. One is the car ran into you because they ran a red light, right? So that's kind of factor number one. And, but that could have been fixed, had the doctor only set your leg right, but the doctor also failed to set your leg right, and now you're limping. In those situations, we generally treat it like any other situation when there are two tortfeasors coming to a single, ultimately a single injury we ask is behavior that you're complaining about is it a substantial contributor to the final injury. Also, we generally take this view, and so this, we actually should probably go back and talk about proximate causation, so legal causation, but it would generally take this view that when you injure someone, some downstream effects may be foreseeable, including that they will not be taken to the hospital quickly enough, and a doctor will screw up. Because those things happen and they're not super weird. They happen. And so just because there may be an intervening actor also causing injury doesn't necessarily cut off the liability of the initial tortfeasor. Sometimes it does, right? If their intervening act is so out of the ordinary that it cannot be foreseen. But if the intervening act is something that is foreseeable, then the original tortfeasor remains on the hook for the entirety of the ultimate injury. PUBLIUS: Let’s talk more about proximate cause like you mentioned. How does it differ from the factual causation we talked about earlier? What is required to prove proximate cause? Gregory Dolin: So proximate cause is also known as a legal causation. And it's a twofold question. The first question is whether or not the injury, the ultimate injury, is too far removed, whether there are too many intervening events that happened between the negligence, between the kind of the breach of duty and the ultimate injury. And the second question is, even if there were not too many intervening events, is the plaintiff within the class of people to whom the defendant owes any duty? A proximate cause is a question of whether or not there's a lot of intervention. We'll look at, you know, whether actions by a third party cut off liability. So let's talk about that first. So I teach this case, also a very tragic case. Happened actually right here in Northern Virginia, at the beginning of the 20th century. There, a young woman, she was working in the city in DC and she was taking a train home and somehow, it's not exactly clear, but she missed her stop. She talked to the conductor and - at least the allegation was - the conductor was so rude and so, um, threatening to her that he essentially basically kicked her off the train at the very next stop. He didn't give her an opportunity to get to a safer place. And so she had to walk home from that next stop. So she involuntarily disembarked the train, had to walk home. Unfortunately, to walk home through a place well known to the residents, in fact, referred to as quote “Hobos Hollow.” And as the court describes, it was filled by “hobos, tramps, and other questionable characters.” End quote. On the way home this poor young woman gets raped, not once, but twice. They never find that assailant. Eventually she filed a suit against the railroad, and the railroad basically goes, wait a second. We are not the ones who attacked you. These people who attacked you are not our employees. It's not like we telegraphed ahead of time, “look, young woman walking home, she's fair game.” How is this our fault? How is that? We, yeah, sure, fine–we were perhaps rude to you, perhaps, we did push you off the train, but how is what we did, how is this proximately…you can certainly draw a factual position saying, but-for us taking you off the train, you would not have been walking through Hobos Hollow had you not been walking through hobos hollows, you would not have encountered your assailant, did you not encounter your assailant, you would not have been attacked, et cetera. Factual causation is easy to draw, but the railroad says, how is what we did? How is it close enough in time? Why isn't our liability cut off by the people who actually attacked you by these unlawful intervening acts? And the court explains that the reason the liability is not cut off is because what did you, the railroad do? You exposed her to a new and particular danger. What was the danger you exposed her to? Interaction with hobos, tramps and other questionable characters. What might happen when a young defenseless woman encounters those types of questionable characters? Crime might happen. Now, we might not say like necessarily rape might happen, but maybe pick-pocketing, maybe assault, maybe all sorts of things might happen. What did happen? Exact event, exact danger to which she was exposed by the railroad's conduct. And so the court says the railroad’s liability is not cut off precisely because what happened to this poor woman is exactly what was expected to happen when the railroad exposed her to this new danger. It's not the railroad that did it, but the reason it's proximate in time right, is because, the railroad because the very danger to which she was exposed, befell her. Okay. So that's one aspect of proximate causation. Did the danger that ultimately befall the victim was that the danger to which the negligent conduct of the defendant exposed the victim to? The second aspect of proximate cause is, is the victim within the group of people to whom the duty is due. So for that, you can turn back to the case we talked about before, Palsgraf. Palsgraf is a little convoluted case, but the basic story is there's a guy, he's rushing to catch a train. He's carrying a package underneath his arm. The train is pulling off the station and a conductor who's on the train is pulling him by his lapels onto the train. Somebody on the platform is pushing him into the train. So hopefully he makes it. And as all this commotion is happening, a package falls out, the package contains fireworks, they explode, there's commotion in the station, people are running back and forth. And at the far end of the station, there's Mrs. Palsgraf. And because of all this commotion, maybe because of the explosion, there's a grandfather clock there and they fall on Mrs. Palsgraf and she gets injured. And so again, the factual connection is easy to draw, right? They say, but-for the railroad employees, contrary to their own regulations, but-for them pulling this person and pushing him onto the train, the package would not have fallen off, fallen out of, from his, under his arm. Had it not fallen out from under his arm, it would not have exploded. Had it not exploded, it would not have been commotion, had there not been commotion, the clock would not have fallen and had it not have fallen, they would not have injured Mrs. Palsgraf. The question was did the railroad owe a duty to Ms. Palsgraf?. And the court says no. It said they had a duty to the actual passenger whom they tried to pull on the train not to do that. That's against their regulation. He's a paying passenger. He's, you know, he's using the railroad. It said like they had a duty to him. They had a duty to other people standing around, because, you know, once you start pushing and pulling people on the train, it may be foreseeable that something will fall, fall out from, you know, that they'll drop something. Maybe it'll hit somebody's foot and injure them. But Mrs. Palsgraf, says the court, was not in that group. She was on the far end of the platform. She was not one of the passengers. That's actually a footnote where Judge Cardozo ignores the fact that she was actually a ticket paying patron. She was just catching a different train. He basically said like, oh, she was just hanging out on the platform for no reason. He actually ignores kind of an important fact, but we'll take Cardozo at his word that she is not part of the group to whom injury's foreseeable through bad actions of the railroad company to whom is injured, foreseeable, to the guy who is being pulled to the people who may be nearby. To maybe the conductor himself because, you know, as he's pulling somebody, maybe he'll fall back or fall forward and fall out of the train, but not to somebody on the other side of the platform who had no interaction with what was happening, near the train. And so the court says, although factually you can draw the straight line between what happened on the train and what happened to Mrs. Palsgraf, legally, this is insufficient because the railroad owed Ms. Palsgraf no duty, right? So question one is the injury, the type of injury that was foreseeable. Number two is the injured party there in the group of people to whom injury was foreseeable? And that is really proximate cause. To the extent it's confusing, it's meant to be. It is probably one of the most difficult topics of tort law. I spend a fair amount of time on it and the line drawing exercise is not an easy one. Thank you for listening to this episode of the No. 86 Lecture series on Tort Law. 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