Understanding Torts, Sixth Edition by Bernstein Anita & Levine Lawrence C. & Diamond John L

Author:Bernstein, Anita & Levine, Lawrence C. & Diamond, John L. [Bernstein, Anita]
Language: eng
Format: epub
Publisher: Carolina Academic Pr
Published: 2018-04-30T16:00:00+00:00

§ 12.04 Policy Objectives Addressed by Proximate Cause

The increasing dominance of the foreseeability test can be explained by its effectiveness in advancing several tort law objectives. Limits based on foreseeability appear proportionate to the culpability of the defendant and in this sense consistent with notions of corrective justice. Foreseeability allows for appropriate insurance or other techniques for distributing losses and for efficient compensation. 68 It also deters negligent conduct proportionate to the risks that should be foreseen and, conversely, does not over-deter socially useful conduct. 69

Foreseeability is less dominant in resolving the proximate cause issue in personal injury than injury to property cases, although one could argue that all personal injuries can be characterized as a single, foreseeable type of injury. 70 Although foreseeability of the extent of the injury is not required under proximate cause analysis, liability for the extent of injury is often limited by the concept of duty. 71

It is tempting to define a comprehensive approach to proximate cause and, ultimately, liability. While foreseeability has been, since Palsgraf , 72 an accepted component of the duty as well as proximate cause analysis, there is an increasing proliferation and reshuffling of limited duties which modify foreseeability in the duty element of negligence. In short, a review of current concepts of duty 73 reveals that there is no overarching, comprehensive theory of duty. The decision to impose liability is too multifaceted. The more relative coherency of proximate cause theory can therefore be misleading.

Ultimately, the foreseeability test, as noted above, can provide a large cover for courts to inject a variety of values in deciding whether a culpable defendant who caused in fact an injury should nevertheless be found not to be a proximate cause and thereby escape liability. Foreseeability allows for a large degree of malleability, particularly in how courts delineate between the type of harm, which must be foreseeable, and the precise manner of injury, which need not be foreseeable. This enables a court to exercise discretion without always requiring its acknowledgement of other policy factors that may influence its decision. To the extent proximate cause ever in practice becomes inhospitable to multifaceted analysis of whether to impose liability on a defendant, duty or some other element of negligence will inevitably pick up the slack.

41 . In Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970), the court held that a 14-year-old girl with a predisposition to schizophrenia could recover when a slight automobile accident causing no bodily injuries was a precipitating factor in causing her to suffer schizophrenia. See Malcom v. Broadhurst, 3 All E. R. 508 (Q. B. Div'l Ct. 1970) (stating no difference in principle between an egg-shell skull and an egg-shell psyche). See also Aflague v. Luger, 589 N.W.2d 177, 183–184 (Neb. Ct. App. 1999), where defendant could be liable when victim became agitated, unable to focus, and unemployable as a result of minor automobile accident.

42 . See § 14.03[B], infra . See also McCahill v. New York Transp. Co., 94 N.E. 616 (N.

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