Wright on Causation and Legal Responsibility

Richard Wright has posted to SSRN a series on Causation and Legal Responsibility, Parts 1 and 2.  Part 1 is “Actual Causation and Scope of Liability,” and the abstract provides:

This is part 1 of an article published in the Connecticut Trial Lawyer Association’s journal, the CTLA Forum, which discusses the confusion caused in Connecticut and elsewhere by the first and second Restatement of Torts’ misdescription and merging of the actual causation and scope of liability elements of a tort liability claim and the Restatement Third’s correction of most of the problems in the prior Restatements while still misstating or not properly understanding several significant issues. Part 2 is available at https://papers.ssrn.com/abstract_id=5291799. A complete and more readable version of the article is available at https://papers.ssrn.com/abstract_id=5130213.

This part 1 discusses the substantial confusion regarding the required elements for tort liability caused by the the first and second Restatements’ misdescription and merging together of the actual causation and scope of liability elements under the question-begging and misleading phrases “substantial factor,” “legal cause” and “proximate cause.” It describes the first and second Restatements’ defective treatments of actual causation, their unsupported adoption of the harm-risked (foreseeable consequences, harm matches the risk) limitation as a limitation on duty, and their unsuccessful attempt to make that limitation more consistent with the cases by excluding significant aspects of the foreseeable risks, acknowledging significant exceptions, and employing explanations that gutted the limitation by using hindsight rather than foresight. Many of the comments in the first and second Restatements employed normatively more attractive and descriptively more plausible risk playout (harm results from the risk) language rather than harm-risked language, without apparently being aware of the significant difference between these two formulations.

The Restatement Third abandons use of the “substantial factor,” “proximate cause” and “legal cause” terminology and clearly distinguishes the “factual causation” issue from the “scope of liability” issue. It adopts (except for the deficient blackletter in section 27) the proper NESS analysis as the comprehensive test of factual causation. It  adopts Andrews’ position in the Palsgraf case that a duty is owed to everyone to exercise reasonable care when engaging in conduct that creates foreseeable risks to others, subject to categorical principle-or-policy-based limits in specific types of situations. It adopts the risk-playout limitation on the scope of liability in place of the previously adopted harm-risked limitation on duty, although it also does not seem to recognize the significant difference between the two limitations. It properly recognizes, as distinct limitations on the scope of liability, the “no worse off” and “trivial contribution” limitations.

    Part 2 is “Superseding Causation and Case Study,” and the abstract provides:

This is part 2 of an article published in the Connecticut Trial Lawyers’ Association’s journal, the CTLA Forum, which discusses the confusion caused in Connecticut and elsewhere by the first and second Restatement of Torts’ misdescription and lumping together of the actual causation and scope of liability elements of a tort liability claim under the question-begging and misleading phrases “substantial factor,” “legal cause” and “proximate cause” and the Restatement Third’s correction of most of the problems in the prior Restatements while still misstating or not completely understanding several issues. Part 1 is available at https://papers.ssrn.com/abstract_id=5291875. A complete and more readable version of the entire article is available at https://papers.ssrn.com/abstract_id=5130213.

In this part 2, I discuss the arguments in all three Restatements, which are implemented in the Third Restatement, that the superseding cause limitation on the scope of liability can and should be absorbed and replaced by the harm-risked (foreseeable consequences, harm matches the risk) limitation, despite the courts’ continued regular use of the superseding cause limitation and the Third Restatement’s having correctly replaced the harm-risked limitation with the risk playout (harm results from the risk) limitation. The Restatements fail to note the significant differences in the proper formulation and application of each limitation. The Restatement Third argues that the primary/sole rationale for the superseding cause limitation was mitigation of the inequitable allocation of liability among multiple responsible parties, which supposedly is no longer a concern given the modern practice of using comparative responsibility principles to allocate liability between plaintiffs and defendants and among defendants. Both parts of this argument are defective. First, the superseding cause limitation has never been based on a concern about inequitable apportionment of liability among multiple responsible parties in the absence of modern apportionment rules, but rather a concern that a defendant should not be deemed responsible at all for a harm that occurred only because of some highly unexpected or extraordinary conduct or event for which it would not be just to hold her responsible. Second, elimination of the superseding cause limitation would not change existing apportionment rules, none of which provide for comprehensive pure comparative responsibility and most of which would continue, in the absence of the superseding cause limitation, to impose substantial and even full legal responsibility on an actor for a harm that would not have occurred if not for the intervention of some highly unexpected or extraordinary conduct or event for which he should not justly be held responsible.

Part 2 concludes with a description and critique of the jury instructions, interrogatories and judicial opinions in Snell v. Norwalk Yellow Cab, Inc. (Conn. 2019), as an example of the confusion generated by the Restatements, especially the first and second Restatements, which has yet to be fully clarified and resolved in the Restatement Third.