Examples to Show How Different and Better Dean's Law Dictionary Has Become.

A negligent defendant is not liable for every injury for which her conduct is a cause in fact.


The adjective 'proximate', as commonly used in this connection, is perhaps misleading, since to establish liability it is not necessarily true that the defendant's culpable act must be shown to have been the next or immediate cause of the plaintiff's injury. In many familiar instances, the defendant's act may be more remote in the chain of events; and the plaintiff's injury may more immediately have been caused by an intervening force of nature, or an intervening act of a third person whether culpable or not, or even an act by the plaintiff bringing himself in contact with the dangerous situation resulting from the defendant's negligence. See Johnson v. Kosmos Portland Cement Co., 6 Cir., 1933, 64 F.2d 193; Mitchell v. Churches, 1922, 119 Wash. 547, 206 P. 6, 36 A.L.R. 1132; Morrison v. Medaglia, 1934, 287 Mass. 46, 191 N.E. 133; Smith v. Twin State Gas & Electric Co., 1928, 83 N.H. 439, 144 A. 57, 783, 61 A.L.R. 1015.


Therefore, perhaps, the phrase 'legal cause', as used in Am.L.Inst., Rest. of Torts § 431, is preferable to 'proximate cause'; but the courts continue generally to use 'proximate cause', and it is pretty well-understood what is meant. 


'The word 'proximate' is a legacy of Lord Chancellor Bacon, who in his time committed other sins. The word means nothing more than near or immediate; and when it was first taken up by the courts it had connotations of proximity in time and space which have long since disappeared. It is an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness.' (Prosser & Keeton on Torts, supra, § 42, at p. 273, fn. omitted.) Prosser and Keeton's concern that the word 'proximate' improperly imputes a spatial or temporal connotation is well founded. Yet, '[p]roximity in point of time or space is no part of the definition [of proximate cause] . . . except as it may afford evidence for or against proximity of causation.' (Osborn v. City of Whittier (1951) 103 Cal.App.2d 609, 616 [230 P.2d 132].) 


Liability depends not only on the breach of a standard of care but also on a proximate causal relationship between the breach of the duty of care and resultant losses. Proximate or legal causation is that combination of ''logic, common sense, justice, policy and precedent'' that fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery. Caputzal v. Lindsay Co., 48 N.J. 69, 77-78 (1966), (quoting Powers v. Standard Oil Co., 98 N.J.L. 730, 734 (Sup.Ct.1923), aff'd o.b., 98 N.J.L. 893 (E. & A. 1923); see also Palsgraf v. Long Island R.R., supra, 248 N.Y. at 350, 162 N.E. at 103 (Andrews, J., dissenting). The standard of particular foreseeability may be successfully employed to determine whether the economic injury was proximately caused, i.e., whether the particular harm that occurred is compensable, just as it informs the question whether a duty exists. See Hill v. Yaskin, 75 N.J. 139, 143 (1977) (citing L. Green, Rationale of Proximate Cause 82-83 (1927)). 


Proximate cause is neither easily defined nor readily understood. Dean Prosser begins his discussion of proximate cause with this disclaimer: There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion. Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the proper approach. Much of this confusion is due to the fact that no one problem is involved, but a number of different problems, which are not distinguished clearly, and that language appropriate to a discussion of one is carried over to cast a shadow upon the others. W. Prosser, Torts § 41, at 236 (4th ed. 1971).


Confusion is generated by the fact that proximate cause is a uniquely legal concept. It is not synonymous with the concept of cause in a philosophical sense because, hypothetically, an act may cause endless consequences. See Restatement (Second) of Torts § 431, comment a (1965). Proximate cause, however, represents the judicial limitations placed upon an actor's liability for the consequences of his or her conduct. See King v. Seattle, 84 Wn.2d 239, 249, 525 P.2d 228 (1974); cf. Hunsley v. Giard, 87 Wn.2d 424, 434, 553 P.2d 1096 (1976) (liability limited through judicial definition of duty). The boundaries of proximate cause are not self-determinative. The question is one of law, not fact alone, and it is one that necessarily involves a policy decision. See Probert, Causation in the Negligence Jargon: A Plea for Balanced 'Realism', 18 U. Fla. L. Rev. 369 (1965); Green, The Causal Relation Issue in Negligence Law, 60 Mich. L. Rev. 543 (1962).


Whether the case goes to the jury or the judge dismisses the claim for a failure to make a case for causation may depend on the actors and the circumstances involved. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev. 60, 73 (1956).


For example, the standard of proof of causation involving an intentional wrongdoer or joint tortfeasors may often be relaxed, whereas stringent proof requirements have been applied if the plaintiff was partially at fault. Compare Madigan v. Teague, 55 Wn.2d 498, 348 P.2d 403 (1955) (joint tortfeasors found liable) with Scott v. Rainbow Ambulance Serv., Inc., 75 Wn.2d 494, 452 P.2d 220 (1969) (case dismissed because of plaintiff's failure to segregate his contribution to the damages). 


 One who by his negligent act puts into operation a train of events which is likely to lead, in a continuous sequence, to an injury which is the natural and probable result of his original act, so that there is a natural causal connection between the two, is responsible for such injury, notwithstanding the fact that the latter may have been directly and immediately caused by the last link in this natural chain of events. Milwaukee & St. Paul Railroad Co. v.  Kellogg, 94 U.S. 469, 24 L. Ed. 256; AEtna Insurance Co. v. Boon, 95 U.S. 117, 24 L. Ed. 395; The Joseph B. Thomas, 86 Fed. 658, 30 C.C.A. 333, 46 L.R.A. 58; Teis v. Smuggler Mining  Co., 158 Fed. 260, 85 C.C.A. 478, 15 L.R.A. (N.S.) 893; City of Winona v. Botzet, 169 Fed. 321, 94 C.C.A. 563, 23 L.R.A. (N.S.) 204. 


The term 'proximate cause' has been variously defined. Courts have said that proximate cause is ''any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.'' Daniel v. State, Dep't of Transp., 239 N.J. Super. 563, 595, 571 A.2d 1329 (App. Div.) (quoting Polyard v. Terry, 160 N.J. Super. 497, 511, 390 A.2d 653 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)), certif. denied, 122 N. J. 325 (1990). It has otherwise been defined as ''a cause which necessarily set the other causes in motion and was a substantial factor in bringing the accident about,'' or as a ''cause which naturally and probably led to and might have been expected to produce the accident'' which is the subject of the claim. Scafidi v. Seiler, 119 N. p.p1 {margin: 0.0px 0.0px 0.0px 0.0px; } p.p2 {margin: 0.0px 0.0px 0.0px 0.0px; ; min-height: 14.0px} p.p3 {margin: 0.0px 0.0px 0.0px 0.0px; ; color: #3366ff} span.s1 {color: #3366ff} span.s2 {color: #ff0000} span.s3 {color: #0070c0} span.s4 {color: #000000} pan>J. 93, 101, 574 A.2d 398 (1990) (quoting Model Jury Charges (Civil) § 7.11).


The New Jersey Supreme Court has emphasized that 'a tortfeasor is generally held answerable for the injuries which result in the ordinary course of events from his negligence and it is generally sufficient if his negligent conduct was a substantial factor in bringing about the injuries.' Rappaport v. Nichols, 31 N.J. 188, 203, 156 A.2d 1 (1959). 'The fact that there were intervening causes which were foreseeable or were normal incidents of the risk created [does] not relieve the tortfeasor of liability.' Ibid. (citing Prosser, Torts § 49 (2d ed. 1955); Menth v. Breeze Corp., 4 N.J. 428, 442, 73 A.2d 183 (1950); Andreoli v. Natural Gas Co., 57 N.J. Super. 356, 366, 154 A.2d 726 (App. Div. 1959)).


Stated somewhat differently, 'to be a proximate cause . . . conduct need only be a cause which sets off a foreseeable sequence of consequences, unbroken by any superseding cause, and which is a substantial factor in producing the particular injury.' Bendar v. Rosen, 247 N.J. Super. 219, 229, 588 A.2d 1264 (App. Div. 1991). The tortfeasor need not foresee the precise injury; it is enough that the type of injury be within an objective ''realm of foreseeability.'' Id. at 229-30 (quoting Koenig v. General Foods Corp., 168 N.J. Super. 368, 373, 403 A.2d 36 (App. Div.), certif. denied, 81 N.J. 329 (1979)); see also Kelly v. Gwinnell, 96 N.J. 538, 543, 476 A.2d 1219 (1984); Restatement (Second) of Torts § 442 (1965). The point that cases have stressed is that a tortfeasor should not be permitted 'to absolve himself from responsibility for an objectively anticipatable injury' resulting from his conduct. Vallillo v. Muskin Corp., 212 N.J. Super. 155, 162, 514 A.2d 528 (App. Div. 1986).


Proximate cause is 'a standard for limiting liability for the consequences of an act based 'upon mixed considerations of logic, common sense, justice, policy and precedent.'' Scafidi v. Seiler, 119 N.J. at 101 (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 77-78, 222 A.2d 513 (1966)). Fairness and policy 'enter into [the] assessment of the causal relationship between the conduct and the accidental harm.' Griesenbeck by Kuttner v. Walker, 199 N.J. Super. 132, 139 (App. Div.), certif. denied, 101 N.J. 264 (1985); see also Brown v. United States Stove Co., 98 N.J. 155, 173, 484 A.2d 1234 (1984). Thus, 'the actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.' Caputzal v. Lindsay Co., 48 N.J. at 78 (quoting Restatement (Second) of Torts § 435(2) (1965)).


Ordinarily, questions of proximate cause are left to the jury for its factual determination. Scafidi v. Seiler, 119 N.J. at 101; Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 209-10, 485 A.2d 305 (1984); Rappaport v. Nichols, 31 N.J. at 203; Martin v. Bengue, Inc., 25 N.J. 359, 374, 136 A.2d 626 (1957); Vadurro v. Yellow Cab Co., 6 N.J. 102, 108, 77 A.2d 459 (1950); Geherty v. Moore, 238 N.J. Super. 463, 478-79, 570 A.2d 29 (App. Div. 1990), appeal dismissed, 127 N.J. 287, 604 A.2d 110 (1991); Butler v. Acme Markets, Inc., 177 N.J. Super. 279, 289, 426 A.2d 521 (App. Div. 1981), aff'd, 89 N.J. 270, 445 A.2d 1141 (1982); Palmisano v. Ehrig, 171 N.J. Super. 310, 313, 408 A.2d 1083 (App. Div. 1979), certif. denied, 82 N.J. 287 (1980); Torsiello v. Whitehall Labs., 165 N.J. Super. 311, 327-28, 398 A.2d 132 (App. Div.), certif. denied, 81 N.J. 50 (1979). Likewise, questions of intervening cause are generally within the jury's domain. See Rappaport v. Nichols, 31 N.J. at 203 (citing Martin v. Bengue, Inc., 25 N.J. at 374; Brower v. New York Cent. & H.R.R. Co., 91 N.J.L. 190, 191 (E. & A. 1918)); Vadurro v. Yellow Cab Co., 6 N.J. at 106-08; Geherty v. Moore, 238 N.J. Super. at 478-79; Palmisano v. Ehrig, 171 N.N. J. Super. at 313; Torsiello v. Whitehall Labs., 165 N.J. Super. at 327-28.


Prosser and Keeton have instructed that: if reasonable persons could differ, either because relevant facts are in dispute or because application of the legal concept of 'proximate cause' to the case at hand is an evaluative determination as to which reasonable persons might differ, the issue of 'proximate cause' is submitted to the jury with appropriate instructions on the law. Thus, in any case where there might be reasonable difference of opinion as to the foreseeability of a particular risk, the reasonableness of the defendant's conduct with respect to it, or the normal character of an intervening cause, the question is for the jury, subject of course to suitable instructions from the court as to the legal conclusion to be drawn as the issue is determined either way. By far the greater number of the cases which have arisen have been of this description; and to this extent it may properly be said that 'proximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.' [Prosser and Keeton on Torts § 45 at 321 (5th ed. 1984).]


If an injury and the manner of its occurrence was so highly unusual that it can be said as a matter of law that a reasonable man, making an inventory of the possibilities of harm which his conduct might produce, would not have reasonably expected the injury to occur, there can be no legal liability under proximate cause.' 255 Or at 609.See also Negligence (proximate cause).