REMEMBERING MRS. O’LEARY’S COW

[Note:  This posting is a continuation of a report on the development of a civics unit of study.  This unit is directing students to formulate informed positions on a governmental topic:  ground rules overseeing tort law.  It is being developed in real time.  Writer wants to identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]

When it comes to legal causation, the last topic this history of tort law is reporting, the courts hold approximation as a determining, key concern.  The Palsgraf v. Long Island Railroad[2] case illustrates how approximation works – or how far down the chain of events does factual causation stretch –in determining liability for a negligent act in a tort claim.  In that case, a chain of cause and effect occurrences borders on the bazar.

Here goes that chain:  two men in 1924 are running after a train at a railroad station.  One gets on but the other struggles to make it.  A railroad employee helps by extending his hand out.  The struggling man grabs the hand and another man on the platform also helps but what is important is not whether the teetering man makes it, but that in the jostling he drops his package.  Unfortunately, the package has explosives in the form of fireworks.  Upon hitting the tracks, they explode.

So far, the plaintiff of this case is not involved in these events.  She, Helen Palsgraf, happens to be standing some distance away.  She is not injured directly from the fireworks; her clothing doesn’t catch fire from a spark or she is not hit by flying debris.  Instead, she stood under these scales and the explosion caused a shock wave that then loosens the scales causing them to descend on Palsgraf and they injured her. 

Was the negligence of the teetering passenger or the railroad employees liable for Palsgraf’s injuries?  That was Palsgraf’s claim in a tort case against the railroad company and the trial court agreed.  That decision was further supported by the Appellate Division.  But when the case reached New York’s highest court, the Court of Appeals, it overturned the lower courts’ decisions and found that the harm in this case was too far down the chain of causation.

Yes, one could readily trace a “but for” chain between the explosion and Palsgraf’s injuries, but there was a certain aspect missing, and this being the situation, the New York court found the link between the explosion and the harm as being too far.  The missing ingredient that subsequently helped establish the standard that today helps courts determine whether a factual causation link is viable or not is foreseeability. 

That is, can one determine that there was a foreseeable consequence to a negligent act?  If so, then an actionable claim can be successful – the chain of causation is recognized.  If not, the chain is broken – the chain is not recognized in a tort claim.  The New York Court of Appeal determined that the negligent acts causing the fireworks to explode was too remote from the injuries because that consequence was an unforeseeable result.

Another case, Madsen v. East Jordan Irrigation,[3] also illustrates, in 1942, this standard.  And it also, as with Palsgraf, is a case involving explosives.  Without reviewing the facts of that case – having to do with mother minks eating their young – both cases have ultrahazardous, explosive products initiating the harm – which is usually subject to strict liability.  Again, the plaintiff did not prevail and, as with the railroad platform case, what was missing was a foreseeable consequence.

Does that mean that all harm must be foreseeable for it to be actionable in a tort case involving negligence?  No.  The courts have also adopted an “eggshell-skull” rule.  This rule holds that if one is responsible for a negligent act that is generally innocuous or reasonably considered unharmful, but in a specific case turns out to be harmful, the perpetrator of the negligence is held responsible and liable to make the victim whole. 

In other words, a light tap on a shoulder that somehow turns out to result in serious harm, illustrates an “eggshell-skull” event, and such claims have been found to be successful in tort cases.  The reader is referred to an 1891 case, Vosburg v. Putney,[4] that illustrates this limitation to the foreseeable standard.  But generally, the foreseeable standard does help courts determine how far a chain of causation can go in terms of determining liability.

That completes this blog’s review of legal causation and with that it concludes this history of tort law.  The history, presented in this blog, summarized three tensions within the nation’s treatment of tort law.  The three are strict liability vs. negligence, misfeasance vs. nonfeasance, and factual causation vs. legal causation.  These tensions were described and explained as the product of the nation’s common law or case law history.

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[1] Edward K. Cheng, “Torts,” Law School for Everyone – a transcript book (Chantilly, VA:  The Teaching Company/The Great Courses, 2017), 230-445.

[2] “Palsgraf v. Long Island Railroad,” Case Briefs, n. d., accessed October 17, 2018, Palsgraf v. Long Island R. Co., 248 N.Y. 339 (N.Y. 1928), accessed October 17, 2018, https://www.casebriefs.com/blog/law/torts/torts-keyed-to-dobbs/negligence-the-scope-of-risk-or-proximate-cause-requirement/palsgraf-v-long-island-r-co/ .  Another case resolved with a Judge Benjamin Cardoza opinion.

[3] “Madsen v. East Jordan Irrigation, 1942” Case Briefs, n. d., accessed October 18, 2018, https://www.casebriefs.com/blog/law/torts/outline-torts-law/strict-liability-outline-torts-law/case-overviews-66/22/ .

[4] “Vosburg v. Putney,” Case Briefs, n. d., accessed October 18, 2018, Vosburg v. Putney, 86 Wis. 278, 56 N>W> 480, 1893 Wisc. LEXIS 133 (Wis. 1893), https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/intentionally-inflicted-harm-the-prima-facie-case-and-defenses/vosburg-v-putney/ .

“BUT FOR”

[Note:  This posting is a continuation of a report on the development of a civics unit of study.  This unit is directing students to formulate informed positions on a governmental topic:  ground rules overseeing tort law.  It is being developed in real time.  Writer wants to identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]

Finally, this blog can address more directly the legal concept of causation.  It turns out, causation is very important in determining liable negligence.  Legal analysis identifies two types of causation:  factual causation and legal causation.  This posting will review one and introduce the other. 

          Sometimes causation appears to be obvious; other times it is not.  There are times, because one tends to associate the sequence of events to indicate causation, that if one event precedes another, the first is the cause of the second.  This blog has already identified this proclivity as a source of potential illogical argumentation.  Here, the issue is ascribing legal responsibility for causing harm and one should remember getting it wrong can augment an already harmful event with another.

          A saying that helps identify a cause and effect relationship is “but for.”  Y would not have happened but for X.  In this arrangement, X is determined to have caused Y.  But this is not always easy to determine, and no court case illustrates this issue more than Daubert v. Merrell Dow Pharmaceuticals, a 1993 tort case.  And the harm in question could not be more serious, that of birth defects. 

In the years before this case there was a noticeable number of birth defects involving babies being born to women who had taken the drug Bendectin, which was produced and distributed by the defendant, Merrell Dow.  Here is part of the context of the case:  during those years, some women who consumed the drug did not give birth to babies with defects and, of course, not all birth defects in that time were to women who took this drug. 

So, in terms of causation, was the incidences of birth defects and the consumption of the drug happenstance or was there a cause and effect relationship?  That was the legal question in this case.  How to find out?  Here is what Cheng reports on how the plaintiff in Daubert attempted to prove causation:

          In Daubert, the plaintiff wanted to prove that Bendectin caused his birth defect.  But how could he do this?  One argument made by the plaintiff was a rather simple one – the plaintiff’s mother took Bendectin, and plaintiff suffered birth defects.  In addition, there were reports of other mothers who also took Bendectin, and also gave birth to children with birth defects.  This is anecdotal evidence; it’s based on individual anecdotes.  On one hand, you might say that inferring things from anecdotal evidence is pretty natural.  We do it all the time.  If you touch a pot and burn yourself, you suspect that the pot was hot and caused the burn.  A friend tells you she did the same thing.  You both conclude that touching a hot pot is a bad idea.  Anecdotal evidence of causation.  But anecdotal evidence can be dangerous and misleading stuff.  Why?  Well, because two things are associated with each other doesn’t mean that one thing caused the other.[2]

          Cheng goes on to point out that birth defects unfortunately happen regularly without taking this drug; that other chemicals could be to blame; or perhaps the reason the women took the drug in the first place – morning sickness – is causing the defects.

Central to the arguments of the plaintiff was testimony of experts to make the link between the drug and the defects.  This last factor provides the central precedent from this case.  It turns out the plaintiff’s experts testified that, yes, the drug caused the birth defects.  The eventual appeal decision concerning this argument was that the expert testimony was not accepted because the methodology these experts used were not those methods generally accepted by the scientific community.  This case, in other words, established a “high-bar” standard.

The point here is to give a sense of how difficult it is to establish factual causation.  It can be very difficult and tricky.  The disadvantage of taking on a corporate defendant, often a large corporation, is that it can secure top legal representation.  Those lawyers successfully questioned how the plaintiff’s experts arrived at their conclusions.  In terms of Daubert, the plaintiff’s experts used what is called epidemiological studies; i.e., observing the incidence and distribution of the phenomena in question – that being birth defects.[3]  Merrill Dow’s lawyers attacked this methodology.

That approach was not good enough, they claimed, and they were supported by the scientific community.  Before moving on, given the subject matter – birth defects – one should note that optional methodologies are highly limited.  It is not like studies can purposefully expose pregnant women to medications to see if birth defects will result in an experimental design. 

So, according to the Daubert standard, to establish factual causation, a plaintiff must employ findings that are arrived at by accepted methods.  By whom?  By the scientific community.  This reminds one of the authority professional customs enjoy in tort courts especially if the case involves a medical concern.

In summary, then, factual causation needs to be established by scientific information.  Usually, that would be obvious; one heavy automobile hits another due to negligence and someone is injured in the car hit, the scientific backing that the accident caused the injury is not debated.  But in some cases, as one finds in the Daubert case, the question can become quite complex. 

But, one needs to add, when the “but for” formula, even if unchallenged, is used, it doesn’t always arrive at liable causation.  For some cases, legal causation comes into play.  A person injured or somehow suffers a harm even if but for the acts of another party, he/she needs to consider the concerns of legal causation.  What is that?

In way of introducing this other form of causation, the tension between it and factual causation exists not in determining whether some event or factor caused the harm, but whether the factor or event was approximate enough to the harm. 

To give an example where legal causation might be a factor the following is offered:  a person negligently swings a baseball bat and hits another.  Surely, a clear case of liability exists for the injuries incurred by the victim.  But suppose that victim was to attend his daughter’s marriage that afternoon and since the injury precluded his attendance, the ceremony is delayed at some expense to the father and his family.

Surely, “but for” the accident, the father would have attended the wedding ceremony, but now cannot.  Is the “swinger” liable for those non-medical expenses?  This is a question of legal causation.  Events when they happen can and often do affect many consequences, some immediate to the harm and others more distant from the harm.  The next posting will further delve into this type of event and how they entail legal causation.

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[1] Edward K. Cheng, “Torts,” Law School for Everyone – a transcript book (Chantilly, VA:  The Teaching Company/The Great Courses, 2017), 230-445.

[2] Ibid., 310.

[3] Ibid.