Class 20

               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.”  Some injuries, courts say, are too unpredictable for defendants to be held responsible for them.  Generally, courts ask whether an injury is foreseeable. But why do we have proximate cause as a requirement? Should we? And what does it mean for an injury to be foreseeable? How generally or abstractly should the question be framed? What needs to be foreseeable—the specific plaintiff or type of injury, or is any type of harm adequate?  

               Some courts make a special exception for proximate cause when the plaintiff’s case involves not only the defendant but also third-party actors. The Second Restatement uses the language of “superseding causes” that cut off liability, but specifically excludes criminal or negligent acts from being a superseding cause if those acts were a foreseeable consequence of the defendant’s negligence or if the likelihood of those acts was the reason why the defendant’s conduct was negligent. Restatement (Second) of Torts, §§ 448, 449. The Third Restatement abandons the “superseding” language from the Second Restatement, but it arrives at much the same conclusions.  The Third Restatement holds that defendants will be liable, despite intervening actors, for all damages that “result from the risks that made the [defendant’s] conduct tortious.” Restatement (Third) of Torts: Liab. for Phys. and Emot. Harm, § 34 (2010). Does it make sense to treat these cases differently?

As you read the following cases, think through the normative judgments inherent in the law of proximate cause and judge for yourself whether the balance struck by current law is the right one.