The term “Proximate Cause” is as mysterious as any in law, and many have criticized the very use of the term to describe this next stage of the analysis, proposing such alternative descriptions as “legal cause” or “scope of liability.” The point is to emphasize that this inquiry asks different questions than the preceding cause in fact analysis. Granting that the negligent conduct of the defendant was in some way the cause of the harm, we now ask whether or not the defendant should in fact be held liable for it. 

After establishing that the defendant’s negligent conduct was the cause in fact of the plaintiff’s injury, the next step in the negligence analysis is determining whether the negligence was the “proximate cause” as well.

1. Introductory Problem: Jury Instructing on Proximate Cause

As noted, proximate cause in theory is a distinct step in the analysis, which is reached if and only if actual cause is established. In practice, unfortunately, the two issues are not always kept clearly separated. Consider, for example, the following jury instructions, which will serve to introduce the type of issues presented in proximate cause analysis, as well as to present the two dominant approaches used in resolving them:

1.1 Jury Instruction: Direct Cause

The “proximate cause” is that which produces an injury directly, or in the natural and normal sequence of events without the intervention of any independent intervening cause. It is the direct and immediate cause, the predominant cause which, acting directly or in the natural sequence of events, produces the accident and resulting injury, and without which the injury would not have occurred.

1.2 Jury Instruction: Foreseeability of Injury

The “proximate cause” of a jury is a cause which in its natural and continuous sequence produces an event, and without which the event would not have occurred. In order to warrant a finding that the defendant’s negligence is the proximate cause of an injury, it must appear from a preponderance of the evident that facts and circumstances existed that were such a person of ordinary prudence would have reasonably foreseen that the injury would be the natural and probable consequence of the negligence.

Examine these jury instructions. Both contain a “but-for” cause element. But they also contain an additional requirement, and it is those additional elements that will be the focus of study in this chapter. In the “Direct Cause” instruction is on the directness of the causation and the lack of any “independent, intervening causes.” The second instruction also speaks to the sequence of events, but adds the requirement that the defendant be able to foresee that the injury would be the result of the negligence.

 

2. Foreseeability and Intervening Cause

Intervening causes presenting this problem usually presents the same general fact pattern. First, the defendant will act negligently. The negligently creates a dangerous situation or, more broadly, places the plaintiff in a position of vulnerability. Some other actor or force then comes into play to trigger the potential danger created by the defendant and to thereby cause injury to the plaintiff. This other actor or force is the intervening cause. The difficulty is to decide whether or not this intervening force is so extraordinary or so independent of the original negligent conduct that the defendant should be excused from liability.