[another] person’s conduct is sufficient to cause [a] harm does not prevent [an] actor’s conduct from being a factual cause of harm . Whereas the former component concerns the minimum requirements an action must meet in order to qualify as a cause of an injury,7×7. Matters within the scope of the defendant's duty cannot break the chain of causation. See Barnett v Chelsea & Kensington Hospital. The next section will argue that this approach is unavailable to the counterfactual theorist. How does a claimant establish factual causation in tort? In order to resolve these issues, the sufficiency theorist will likely have to clarify or revise her account; while Hall is confident that such tweaks are possible,85×85. In reality, the issue in Summers was one of factual uncertainty, in that the trial court was unable to determine which defendant caused the plaintiff’s injuries. Hall’s basic approach is to begin with a given structure S and to imagine the myriad ways in which its intrinsic characteristics might be changed to create a new structure S′. Law Inst. Moore would reply that “[t]he circularity of any such response should be apparent.” Moore, supra note 4, at 495; see also Fumerton & Kress, supra note 15, at 84 (arguing that Wright’s reliance on the notion of causal sufficiency “risks vicious conceptual circularity”). Factual causation is established if ‘but for’ the breach the claimant would not have suffered the loss: Barnett v Chelsea & Kensington Hospital 1 QB 428. Here the counterfactual theorist may respond that the two scenarios are not in fact intrinsically identical, because there must be some relevant difference (in Jay’s level of attention, for example) between the case in which Jay would have noticed Daisy and the case in which he would not have noticed her. 2005) (“[I]f a driver falls asleep and that driver’s car crashes into another’s home, assessing what would have occurred if the actor had not fallen asleep poses little difficulty. The conventional account also sets important limits, however, on who can be held liable in tort: if Jay is driving negligently, and Myrtle is injured in an unrelated accident on the other side of town, then Jay is not an actual cause of Myrtle’s injury because Myrtle still would have been injured but for Jay’s negligent driving.21×21. More specifically, on a counterfactual account of causation, the causal structure of two processes can differ even when the two processes are intrinsically identical. In this case, the conventional account is undeniably intuitive in its explanatory power. eds., 2004) (“Causation, understood as a relation between events, comes in at least two basic and fundamentally different varieties. . As above, however, we can easily revise the scenarios such that the injuries in each are indistinguishable. . The problem is that we can construct a scenario with an identical intrinsic structure to the one just described (Jay drives negligently into Myrtle while Daisy slows down and watches from afar), in which Daisy’s slowing down is not a cause of Myrtle’s injury: We may suppose, for example, that if Daisy had kept driving, Jay would not have become distracted; instead, Jay would not even have noticed Daisy, and he would have hit Myrtle all the same. The counterfactual theorist may still be able to address objections regarding noncausal relationships by relying on the non-backtracking arguments discussed above, supra pp. At first glance, this abstract formulation may seem obvious. .”). It does not follow that if the Earth had exploded, Trump would be happier.”). The question we initially sought to answer, after all, was at least partially one of reducing causal characteristics to noncausal terms. While an independent justification of causal direction will thus be required by theories of causation generally,42×42. Such theories, when combined with an intrinsic view of causal structure, appear capable of resolving issues that counterfactual accounts cannot. § 26 reporters’ note cmt. Paul & Hall, supra note 43, at 130. a healthy degree of skepticism is warranted in their absence.86×86. With respect to the objection that sufficiency theories allow for temporally reversed causation, we may argue, as we did in the case of counterfactual accounts, that the problem of temporal direction is not unique to sufficiency theories, but is instead endemic to multiple causal accounts. See, e.g., Wright, Richard, Causation in Tort Law, 73 Cal. The imposition of a non-backtracking condition is analytically distinct from the stipulation that causes precede their effects. A STEP FORWARD IN FACTUAL CAUSATION INTRODUCTION TORT lawyers traditionally distinguish between two meanings of the word “ cause.” Under the rubric of cause in fact, the focus is a historical one, and attention is directed to the simple question of what happened, of whether the defendant’s conduct produced the injury. See Moore, supra note 4, at 475 (“A common objection to . To illustrate one such case, we may construct a sort of hybrid of the overdetermination and preemption scenarios discussed above.83×83. — we might imagine that at the exact moment Jay drives negligently into Myrtle, another driver, Daisy, also drives negligently into Myrtle. Additionally, the objections from overdetermination and preemption would remain unresolved. More serious for counterfactual theories is the objection that these accounts allow for causation between unrelated events, such as Jay’s negligent driving and Nick’s making coffee later in the day. We can illustrate this problem by returning to a revised version of the scenario involving Jay, his morning coffee, and his roommate, Nick: Assume — in a slight variation of the original circumstances — that Jay is incapable of driving negligently if he has remembered to make coffee that morning. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27 cmt. Incorrect. However, it seems that if a defendant injures the claimant and the claimant would have subsequently developed that injury in any event due to natural causes, the defendant remains liable past the date of the natural cause: Jobling v Associated Dairies [1982] AC 794. See supra note 14; infra notes 28–29. Philosopher Tim Maudlin discusses this problem by assessing the following hypothetical: “If the bomb dropped on Hiroshima had contained titanium instead of uranium it would not have exploded.” Id. INTRODUCTION. . For a slightly less stylized example, Professors Richard Fumerton and Ken Kress offer the following: “[W]hen the sun is at a forty-five degree angle, and the shadow [of a flagpole] is five feet tall, law-like connections entail that the flagpole is ten feet tall. See Reeves v Commissioner of Police of the Metropolis. Test yourself on the principles of causation and remoteness of damage. After all, if Jay had not driven negligently — because, for example, he had slowed into the intersection instead of accelerating — then it seems like some prior events would almost certainly have had to be different, as a matter of basic physics. The plaintiff will claim that the relevant counterfactual scenario is one in which the injury does not occur, thereby supporting a finding of causation. This is not logic. Even more vexing are cases of preemption, in which one tortfeasor’s infliction of an injury prevents another actor from inflicting the same injury.24×24. they tend to embrace it as a generally accurate account.97×97. In most cases, factual causation alone will be enough to establish causation. Instead, if Daisy had kept driving, Jay would have become distracted, such that he swerved, thereby missing Myrtle and leaving her unscathed. 2007) (en banc) (discussing whether a plaintiff can prove causation based solely on the defendant’s market share in manufacturing and distributing a product that caused harm, without being able to match a particular harm to a particular defendant); Stubbs v. City of Rochester, 124 N.E. Instead: “The only obvious way to get the titanium bomb onto the flying Enola Gay is to have had it put there earlier . The takeaway is that but-for causation seems unable to account for cases of overdetermination and preemption. The way. ” ) loss ’ have suffered the loss s action.27×27 may be plausible irrelevant! Trace it Part of tort law — conception of actual causation v Harlow Urban District.. Have to be the exclusive focus of this note departs from mainstream complacency with but-for causation seems unable account! 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