The following article has been written by Ishani Samajpati, pursuing B.A. LL.B. (Hons) under the University of Calcutta. This article focuses on the issue of causation and remoteness of damage, their historical development, legal tests, and important elements, along with relevant case laws in the United States. In the beginning, it provides a detailed view on causation, followed by a discussion of remoteness of damage.

It has been published by Rachit Garg.

Introduction

Establishing harm in the law of torts is a critical issue. Let’s take a hypothetical situation where one person causes harm to another. The victim files a lawsuit under the law of torts. Now, the victim, i.e., the plaintiff, has to establish two factors. Firstly, that the event in which the plaintiff suffered harm is within the scope of the defendant’s liability, and that it is of a causal nature, which makes it eligible for further consideration. After establishing that the event is within the scope of liability, the plaintiff has to further establish that the defendant is liable to pay damages. Proving either of the two will not help the plaintiff succeed. Seems complex, right? It is, because the act of establishing a causal connection between the defendant’s act and the damage caused to the plaintiff often becomes very difficult, mostly due to the complexities present or the circumstances of the case.

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Under the law of torts, in order to prove a tortious act, the victim should establish that the damage was caused by the defendant’s negligent act, either directly or contributed materially. Though the defendant is liable for the negligent or wrongful acts which directly cause harm to the plaintiff, there may be situations when the plaintiff is far away from the place and is not even directly related but is adversely affected by the defendant’s act. In such a situation, the defendant’s liability may become too remote and a confusion arises whether the defendant is to be held liable or not. In these cases, the “remoteness doctrine” under tort comes to rescue.

Let’s elaborate with a more specific case. Suppose a man is killed by suffocation caused due to smoke while sleeping in his hotel bed at night. The hotel also failed to install proper fire escape mechanisms. If the circumstances prove that the man would have been suffocated even in the presence of a fire escape or there was no place to install fire escape, the hotel owners would have no liability. The same was ruled in a 1898 case of Weeks v. McNulty.

The concept of causation and remoteness in tort law is a complex one. This article is a humble attempt to provide a meaningful insight on the same by elaborating various aspects including the judicial development, related legal tests and how the concept operates. Read further to find out.

The concept of causation

“Here is the key to the juridical treatment of the problems of causation. We pick out the cause which in our judgment ought to be treated as the dominant one with reference, not merely to the event itself, but to the jural consequences that ought to attach to the event.”

Eminent American lawyer and jurist Benjamin Cardozo wrote the above lines in his book “The Paradoxes of Legal Science”. Black’s Law Dictionary defines “causation” as an act that causes or produces an effect of something occurring or not.

In tort liability, causation is an essential element. It refers to the  cause and effect relationship between an act and its result. In tort law, causation must be established between any tortious act (such as negligence) and its damage. Then the issue of the imposition of liability is decided. Under the law of torts, the defendant is not held liable unless a court finds that the defendant’s conduct caused the damage. It must be noted that the plaintiff has to establish causation. 

In torts of negligence, causation is one of the basic requirements that the plaintiff must establish. The other components are duty, breach, and damages. In practice, due to various complex circumstances, sometimes the facts of a case may be too uncertain for a court to decide whether the defendant’s negligence actually caused the plaintiff damage, and the plaintiff will not succeed in the lawsuit. Also, the concept of causation is one that is not specifically related to the tort of negligence only. For every tort, it must be proved that there is a causation of damage.

Causation has some distinct issues. Let’s illustrate this with a hypothetical situation illustrated by Professor Steven Shavell of Harvard Law School in his paper, “An Analysis of Causation and the Scope of Liability in the Law of Torts”. Suppose a dog drinks nitroglycerine from an unguarded bucket left near a mine. Nitroglycerin acts as both a  dangerous explosive and a life-saving drug, when used in measured quantities. Subsequently, the dog stumbles, injuring a person present there.

This negligent act has to be judged as an accident and a “freak occurrence,” and not as a tort of negligence. It is not possible to guess for anyone that leaving the bucket unguarded for a few moments would result in such damage. Besides, the appearance of the dog at that place is not usual. Hence, leaving the bucket unguarded is not the “proximate cause” of the damage, rather, the appearance of the dog is an “unforeseeable intervening cause.” It is also to be inferred that the damage was not due to the “natural and probable consequence” of the negligence. Finally, it is very difficult for the victim to collect evidence and prove the act of negligence.

Judicial development of causation in the US

Over the years, a series of cases shaped the doctrine of causation in the US. An early case of Berry v. Borough of Sugar Notch (1899) can serve as a very good example. Here, the plaintiff, a motorman, was traveling to the Borough of Sugar Notch during a violent windstorm. A local ordinance stated that no cars could travel more than eight miles per hour. The plaintiff drove faster than the mentioned speed. It was a direct violation of the local ordinance by the plaintiff. Meanwhile, a large tree fell on his car by a gust of wind and injured him. The plaintiff filed a suit for recovery of damages. The Court held that even though the plaintiff violated the statutory speed limit, his right to recover is not affected. It cannot be clearly stated that the speed violation was contributory negligence to the damage caused. The tree might have fallen irrespective of the speed. Besides, the chance of an accident was not foreseeable. Hence, despite the plaintiff’s negligence, it is outside the scope of liability. The legal tests for determining the scope have been dealt with later.

During the 1970s, causation became an important locus standi, also termed “standing,” in personal injury and tort cases. Justice Powell personally took initiatives to create guidelines regarding causation and relief for indirect harms. However, a controversy regarding the use of judicial restraints erupted. It also raised concerns regarding the issues of violation of Article III of the US Constitution and the proper role of the federal judiciary. 

Some of the notable cases in this regard are Association of Data Processing Service Organizations v. Camp (1970), Sierra Club v. Morton (1972) and United States v. SCRAP (1973). In the case of Association of Data Processing Service Organizations v. Camp (1970), the US Supreme Court ruled that a plaintiff must show that the action for which the lawsuit has been filed has caused him or her “injury in fact” and that it comes under the scope of liability of the defendant. In Sierra Club v. Morton (1972), it was held that if a person himself or herself suffers an economic or other injury,  only then can a judicial review be sought. Conversely, in the United States v. SCRAP (1973), it was concluded by Justice Stewart that standing is not limited to economic harm but also includes harm in injury of natural resources. It was also ruled that if the appellees cannot prove their allegations, because if they had to prove, “would place them squarely among those persons injured.” Hence, it was recognized that in order to claim relief,  a perceived indirect future harm was required. These three cases set the background of causation in the US.

Emergence of the doctrine of causation

While the above mentioned cases set the stage after which the US Supreme Court seriously started examining  causation, a further trilogy of cases strongly helped the doctrine of causation emerge. This is famously referred to as the Linda- Warth-Eastern Kentucky trilogy.

In Linda R.S. v. Richard D. (1973), Article 602 of Vernon’s Ann, Texas Penal Code, 1984 made parents guilty for their children’s negligence. It was only applicable to married parents and legitimate children. The petitioner, a mother of an illegitimate child, alleged that the father of her child, the defendant, refused to provide child support. The Court ruled that the enforcement of the statute for unmarried parents does not ensure child support. It was concluded that a claimed harm does not provide a standing of causation.

In Warth v. Seldin (1975) and Simon v. Eastern Kentucky Welfare Rights Organization (1976), Justice Powell held that the plaintiffs had to establish that their harms or injuries would be redressed with a favorable verdict and that the act for which the lawsuit was filed directly contributed to their injury.

Hence, in order to establish causation, the following essentials are important:

  • the plaintiff himself or herself must suffer a damage;
  • Even if the damage caused is indirect, the plaintiff must establish that the defendant’s act or omission caused it.
  • The plaintiff should prove before the court that a favorable ruling by the court should redress the damage.

Classification of causation

To prove liability for any harm under the law of torts, establishing causation is essential. In tort law, the question of whether the particular action of the defendant caused the harm always arises. The modern view on this is to invoke a two part legal test to establish causation. 

Hence, causation cases can be classified into two types. They are: 

  • factual causation, and;
  •  proximate causation. 

Factual causation is more related to the facts and situations of any case. It investigates whether the harm to the victim, the plaintiff, could have been avoided had the defendant taken enough care to avoid the situation. For this reason, factual causation is commonly known as “but-for causation.”

On the other hand, proximate causation is related to the foreseeability of the harm. It seeks to investigate if the harm to the plaintiff was foreseeable, given the fact that the defendant was negligent in his or her actions.

In but-for causation, the question of whether but-for the negligence or the action of the defendant, would the harm to the plaintiff happen is decided. If the answer to this question is no, the defendant is not held liable.

But, in some cases, it turns out that the but-for test is too extensive. There can be all sorts of events in a case, including many complex situations. Here, proximate causation is used to set limitations regarding the particular harms the defendant is not responsible for. A foresight or directness test is developed, similar to the old Roman doctrine of  corpori corpore, which literally means “by the body, to the body.”

The plaintiff’s harm and the defendant’s negligence are intertwined by a “probabilistic linkage” in proximate causation. It implies the plaintiff’s harm cannot be predicted by mere knowledge of the defendant’s negligence.

Factual and proximate causation may take place in the same case or may be independent. Hence, the conditions for factual causation may be satisfied without satisfying the conditions of proximate causation and vice versa.

The ‘but for’ test

The but-for test is the easiest and most commonly applied test for factual causation. The Model Penal Code under Principles of Liability states that the defendant’s conduct is an actual cause of the plaintiff’s injury when his conduct is a direct antecedent to the injury. But for which the injury would not have occurred. In other words, the defendant’s negligent conduct happened before the injury, and the injury would not have occurred in the absence of the defendant’s negligent conduct.

The but-for test is a general test for factual causation adopted by most of the jurisdictions in the United States and used by the Third Restatement of Torts. The but-for test works properly in most cases, especially when there is a direct connection between the defendant’s negligent action and the plaintiff’s harm. However, it is not very effective in cases involving omissions where there is an indirect connection between the defendant’s act and the plaintiff’s harm.

Elements

The elements of the but-for test are as follows:

  • The but-for test is helpful for relatively simple situations. In multifunctional problems and complex situations, such as in an accident, it is not helpful.
  • In this test, causation is established by proving that the defendant’s act was the cause of the plaintiff’s situation.
  • To determine the issue, the first question investigated is whether the damage would have occurred but for the defendant’s action; hence, it is called the ‘but for’ test.
  • But-for test acts as a “preliminary filter” by differentiating the relevant facts from the irrelevant ones.
  • In several successive causes, discussed later, it is not applicable.

In the opinion of some legal scholars, notably Professor Richard Epstein, but-for causation has a very vague notion. But-for causation simply stands on the rule, “but for the occurrence of this, that would not have happened.” It presents an extremely counterfactual situation, and there is no inherent physical or temporal connection in the formulation of the but-for test.

Substantial factor

The but-for test is sometimes replaced with the substantial factor test in cases involving an independent sufficient cause. Some jurisdictions also apply it where the but-for test does not work in all cases of negligence.

The substantial factor test is a minority approach and was adopted by the Second Restatement of Torts. It is still retained by California.

In a substantial factor test, juries look for whether the defendant’s negligence acted as a substantial factor in producing the plaintiff’s harm.

Elements

  • The substantial factor test is a dual component test. Firstly, the defendant’s negligence should be a factor somehow related to producing the plaintiff’s harm. The second component is of evaluative nature. While it is assumed that the defendant’s negligence is a factor, the question of whether or not it is so substantial that the defendant can be held liable.
  • The Second Restatement does not provide a lot of guidance regarding how to determine substantiality. The main test is whether or not any reasonable person would find the defendant’s negligence a substantial factor.
  • Since the elaboration is not very clear, the Second Restatement provided comparative comparisons to guide. It states the three factors to determine what a reasonable person would find to be substantial. They are: 
  • number of other causes that may have contributed to the plaintiff’s harm and the extent of their influence on the plaintiff’s harm. It is a comparative analysis using which it is examined whether the other factors outweigh the defendant’s negligence and its contribution to the damage or not.
  • Whether or not the defendant’s act or influence was active and direct as opposed to being passive and indirect. If the answer is passive and indirect, it provides other forces to intervene, thereby, reducing the gravity of the defendant’s action.
  • The last one is the lapse of time. It examines whether or not the defendant’s act and the plaintiff’s harm is simultaneous or there has been a gap between them. 

In the case of Brisboy v. Fibreboard Paper Products Corporation (1988), the wife of an asbestos insulation worker filed a lawsuit against the defendant employers for the wrongful death of her husband when he passed away from asbestosis and, ultimately, lung cancer. The deceased husband was employed by the defendant organization and eight other organizations, all of which made a settlement, for a period of 26 years. The jury found that the defendant was indeed negligent and that their negligence was a factual causation of his death. Another factor in the case was that the deceased was a heavy smoker.

The substantial factors in the case can be decided as follows:

Firstly, the deceased was heavily exposed to asbestos dust for a long period. The smoking also contributed to deteriorating the deceased’s lungs. 

Secondly, the deceased was directly exposed to the asbestos particles at the job site. Hence, the defendant’s negligence and the plaintiff’s harm are directly related.

Thirdly, the lapse of time factor was difficult to evaluate since there was no concrete information available regarding how long it took him to get asbestosis and develop cancer. It might be possible that the deceased had  already developed asbestosis before joining the defendant organization.

The Supreme Court of Michigan held that the deceased’s exposure to the defendant’s asbestos product was a substantial factor in causing the lung cancer that ultimately led to his death. 

Independent sufficient cause 

The independent sufficient cause scenario is an exception to the but-for test. In these situations, the problems are so huge that they cannot be surmounted. Here, courts drop the but-for test and replace it with some other measures.

The independent sufficient cause was properly illustrated in the case of Kingston v. Chicago and N.W. Railway (1927). In this case, a railroad negligently sparked a fire which grew large. Another fire from an unknown source started at the time. Two fires merged and resulted in a bigger fire. Due to this, the plaintiff’s property was burned down. The issue was whether the plaintiff could prove factual causation against the railroad for its negligence in starting the first fire.

Here, the application of the but-for test states that the defendant’s reasonable care might have saved the plaintiff’s property. But, the other unknown fire could have burnt it down. So, the negligence of the railway was not a but-for cause of the damage. The railroad had the chance to escape responsibility even though it was negligent. Hence, the court asked the defendant to disprove the but-for causation

However, the majority approach in such a situation is to apply a substantial factor test instead of a but-for test. Hence, the defendant railroad is held responsible because its fire contributed substantially to the damage.

Elements

The elements of an independent sufficient cause are as follows:

  • Where the acts of multiple actors combine to contribute to the plaintiff’s harm, but each of the actors is sufficient to cause harm to the plaintiff alone, none is a but-for causation since each of the acts contributed to the harm.
  • In such a situation, the but-for test is replaced with the substantial factor test since under the substantial factor, each defendant is responsible for the plaintiff’s harm.

Proximate cause

Proximate cause refers to the cause that sets a chain of events in motion. For any cause to be termed a proximate cause, it must be the dominant cause, and there must be a direct link between it and the plaintiff’s harm. 

The Third Restatement of Torts sets forth the basic rules of proximate cause. It states that an actor’s liability is related to those harms resulting from the risks for which the actor’s conduct is held to be tortious. In other words, a defendant is not necessarily and immediately held liable for the plaintiff’s injury. In fact, the defendant should only be held liable for actions that any person in place of the defendant would be able to foresee. 

Elements 

To determine the proximate cause, the following factors are taken into account:

  • Whether the defendant’s action occurred in close proximity in time with regard to the plaintiff’s harm;
  • Whether the defendant’s action occurred in close proximity in space where the plaintiff’s harm took place;
  • Whether the plaintiff’s harm results naturally from the defendant’s action.

To prove liability, the plaintiff must show that the defendant’s action was a proximate cause of the plaintiff’s injury or damage. It requires a sufficiently close relationship between the defendant’s act and the plaintiff’s harm.

Several successive causes

Sometimes there may be a situation where a sequence of events may take place, causing injury to the plaintiff. In such cases, the ‘but-for’ test does not help to determine the plaintiff’s damages or the defendant’s liability. Here, the courts rely on “operative cause,” the principle of which is based on the fact that the defendant may not be directly liable for causing the plaintiff’s injury. This method is comparatively consistent, and it investigates whether the defendant is directly liable for the plaintiff’s damage or whether some other related event caused it. 

Novus actus interveniens

The Latin phrase novus actus interveniens simply means “a new interveningaction.”. In between the defendant’s action and the plaintiff’s injury, any event can take place that may make the situation worse. Here, the liability of the defendant is only for the damages that took place before the intervening act occurred.

If it can be established that the intervening act caused the plaintiff’s damage, the original defendant will not be liable anymore. In such a situation, the said event is said to “break the chain of causation” and is also termed an “intervening act.” 

It is illustrated in a simpler way below:

  • Defendant’s action causes plaintiff’s injury, hereby termed as the first event;
  • Another event causes more damage to the plaintiff, termed as second event;
  • The court finds the second event to be an intervening act; hence, the defendant is only liable for the injuries that occurred right before the said event.
  • The court does not find the second event to be an intervening act; hence, the defendant is wholly liable for the damage caused to the plaintiff.

Dilemma principle

The principle of novus actus interveniens is not valid if it is established that the intervening act or the actor is not totally responsible for his or her own actions because his or her action was due to the result of the defendant. The actor was put in a state of dilemma due to the defendant’s indecisiveness. Here, the intervening act does not break the chain of causation. Since the intervening act was caused because the defendant put the said actor in a dilemma, the principle is known as the dilemma principle.

Multiple causes

In some situations, the damage can be caused by more than one cause. It creates a confusing situation because the injury may be caused by several possible underlying causes. There is no consistent approach developed to prove the causation. 

In a situation involving multiple causes, the plaintiff can prove causation by establishing that the defendant’s action was materially responsible for the injury caused.

If this is not the case, the plaintiff should prove that it increased the risk of injury, on a balance of probabilities.

Causation can also be established by showing that the defendant’s action was the probable cause when multiple causes are involved.

Omissions 

If the negligent conduct of the defendant is due to an act of omission, some difficulties arise. In such a situation, the court must first decide what the consequences would have been if the defendant acted properly instead of an act of omission. Thereafter, it must be found out the differences that the omission caused. If it is found out that the plaintiff’s damage is due to the defendant’s omission, the defendant should be held liable.

Loss of a chance

The loss of a chance is a doctrine related to causation. While it is a doctrine present in English law, in the United States, it is mostly used in cases of medical malpractice and medical negligence to establish causation.

Suppose a patient is diagnosed with cancer but has a chance of being completely cured. But due to the doctor’s negligence, the chance is reduced. In such a situation, the court needs to decide whether the doctor’s negligence reduced the patient’s chance of being cured and what  the situation would be if the doctor had not acted negligently.

Apart from causation in medical negligence cases, the loss of a chance can also be financial. For example, due to the defendant’s negligence, the plaintiff may lose a good job offer or a lucrative business deal.

While using the doctrine of ” loss of a chance,” the burden of proof of causation is on the plaintiffs.

In the United States, the use of this doctrine is not uniform. While some states have adopted this doctrine of the loss of a chance, others have rejected or deferred ruling, and some states are yet to address it.

Multiple tortfeasors

Multiple tortfeasors come into play when the plaintiff’s damage is due to the wrongdoings of more than one tortfeasor. A common example of a case related to multiple tortfeasors may be an occupational illness that may take many years to develop. It may also involve an accident caused due to the negligence of multiple defendants. The causation in this case is termed as multiple causation, and in law of torts, the issue of multiple causation is quite complex.

Here, the principle of guilty fiber is applied to determine the causation. It determines whether all of them are equally liable for the damage caused or not.

Remoteness of damage

In a tort lawsuit, it needs to be proved that the plaintiff’s harm was caused by the defendant’s act, but the plaintiff also has to prove that the defendant’s act was not too remote to cause the harm, injury, or damage.

There are certain legal tests used by the court to prove the remoteness of damage. It ensures whether a plaintiff’s harm can be compensated or not for the defendant’s particular act, claimed to have caused the damage. It also implies that in some situations, even though the defendant is somehow related to the plaintiff’s harm, he or she does not have to compensate for it.

Remoteness of damage is most common in the tort of negligence, however, it may arise in some other torts also.

The claims for which the doctrine of remoteness of damage is applicable can be of two types. They are: claims for attenuated harms and derivative claims. The doctrine of remoteness of damage is further clarified with the help of specific US cases related to claims arising from attenuated harms and derivative claims.

Claims involving attenuated harms

The word “attenuated” means “reduced” or “lessened.” Attenuated harms are those harms where the defendant’s liability is severely attenuated due to the occurrence of an unforeseeable event.

The case of Overseas Tankship (U.K.) Limited v. Morts Dock and Engineering Company Limited (1961), also known as The Wagon Mound No. 1, is one of the earliest landmark cases where a claim related to attenuated harm was barred. In this case, the defendants were the owners of the vessel Wagon Mound. The vessel discharged large quantities of furnace oil in Sydney Port, Australia, due to the defendant’s negligence. The oil quickly spread across the bay and came into contact with the plaintiff’s property, a wharf. It caused nominal damage. When the molten metal from the wharf came into contact with cotton waste floating on the water, the oil suddenly ignited. It caused huge damage to the plaintiff’s property. 

Here, even though the defendant is responsible for the plaintiff’s damage, the court did not hold the defendant liable. This is because the event was totally unforeseeable and the connection between the plaintiff’s damage and the defendant’s action is too remote. 

Let’s take a hypothetical situation resting on the remoteness of attenuated harms. Suppose  an individual was driving too fast and it caused an accident on the highway, causing road blockage and traffic jams. Meanwhile, a doctor is going to the hospital to treat a patient in a serious condition. Due to the situation, the doctor is late to reach the hospital. Meanwhile, the patient’s condition worsens, and he dies. The patient’s family cannot get the damages recovered from the individual who caused the accident since the damage caused is too remote.

In the case of Palsgraf v. Long Island Railway Company (1928), the plaintiff was standing on the railroad owned by the defendant to go to Rockaway Beach near New York. A train bound for a different location stopped at the station. When the train was already moving, a man tried to jump aboard with a huge package containing fireworks. Two guards rushed to help him board the train with the package. But the package was dislodged, fell onto the railroad, and exploded. Resulting from the shock of the explosion, some scales located at the other end of the platform fell on the plaintiff and injured her. She filed a lawsuit against the defendant railroad, citing their alleged negligence. 

Here, the court affirmed the doctrine of remoteness and held that the defendant is only liable for negligence if the defendant can reasonably foresee the consequences of his or her action. Hence, the claim for damage was too remote. 

In another case, Lewis v. Kehoe Academy (1977), the issue was whether the uncle and aunt of a child could recover damages against a day camp. Due to the defendant’s (the day camp) negligence, the child consumed rat poison and developed serious bruises, which were  mistaken for signs of child abuse. The Louisiana State Authorities took away the child from the voluntary custody of the couple.They sued the day camp for “extreme mental hardship, anguish and humiliation, loneliness and disruption from the loss of the companionship of the child.”  It was held that the couple had no cause  of action against the defendant’s negligence, which resulted in all those hardships. Hence, the claim for damages was dismissed for being too remote.

In all the mentioned cases, even though the remote harm was very serious, under tort law, the connection between the defendant’s action and the plaintiff’s damage was considered to be too remote to allow recovery.

Claims involving derivative harms

Derivative harm refers to the harms or damages caused due to the injury caused or death of any third party. For example, an employee suffers a serious injury while working with a defective machine tool. The machine tool manufacturer itself manufactured and sold a defective machine. But the employer is forced to pay medical expenses and other compensation benefits. Now, if the employer directly sues the manufacturer company to recover the damage, no court will allow it. In this case, even though the damage is foreseeable, no recovery will be granted on the grounds of remoteness.

In the case of Oehler v. Davis (1972), the plaintiff sued the defendant when she was injured by the defendant’s dog. The defendant purchased a defective dog collar from the manufacturer and secured his dog in his premises. It broke, and the dog ran loose, injuring the plaintiff. The  court ruled that the dog collar manufacturer was not liable for any harm within the scope of his duty. A manufacturer cannot be held liable unless his action is both the ‘but-for’ and the legal cause of the harm. Hence, the dog collar manufacturer was not held liable because the harm is too remote.

In cases of derivative harm, the application of the doctrine of remoteness is even stronger.

Early judicial development of the doctrine of remoteness in the US

The judicial development of the doctrine of remoteness in the US dates back to the mid-nineteenth century. Anthony v. Slaid (1846) is one of the earliest cases where this doctrine was applied. In this case, the plaintiff was a contractor to support the needs of all the paupers in the town of Adams for a fixed sum. The defendant’s wife caused an injury to one of the town paupers, for which the plaintiff had to increase costs to support the injured pauper. The plaintiff filed a suit against the defendant and his wife for causing him an indirect economic loss and thereby a derivative harm. The Massachusetts Supreme Judicial Court rejected the plaintiff’s claim for being too remote.

Even after almost 150 years of passing the judgment, the case was cited by the US Supreme Court in the case of Associated General Contractors of California, Inc. v. California State Council of Carpenters (1983). In this case, the court stated that the general principles of damages is that if the plaintiff suffers damages from the defendant’s conduct to a third party, the claim of the plaintiff is too remote to recover damages from the said defendant.

Determination of the application of the doctrine of remoteness of damage 

To determine the applicability of the doctrine of remoteness of damages, the courts usually apply traditional methods, in both cases involving attenuated and derivative claims. Usually, public policy doctrines are applied to determine the remoteness of damage. In public policy doctrines, even though the defendant’s wrong and the plaintiff’s action may be clearly related, in some situations, it bars or limits the claims. 

The concepts of proximate cause, locus standi (standing) or duty are commonly used to support the doctrine, according to the Third Restatement of Torts.

In the case of International Brotherhood of Teamsters Local 734 Health and Welfare Trust Fund v. Philip Morris (1998), The plaintiffs were “employee welfare benefit plans” and “employee benefit plans” under the Employee Retirement Income Security Act (ERISA), 1974. The plaintiffs claimed that the persons related to the tobacco industry intentionally suppressed evidence of the causal relationship between  tobacco and lung cancer. They also claimed that the tobacco industry was involved in a nationwide conspiracy by withholding the adverse effects of tobacco on health. Due to the negative publicity, the Tobacco Industry Research Committee (TIRC) was established, and the lethal health effects of tobacco products were misrepresented.

The issue was to decide whether the plaintiff could recover for remote and derivative injuries caused by the tobacco industry. The plaintiffs suffer economic loss due to the injuries suffered by the members of the fund, therefore, it is a claim involving derivative harms.

The court held the plaintiff’s claims were too remote because “the remoteness doctrine involves public policy concerns which are determined as a matter of law.” 

In another similar case involving the same defendant, namely,  Iowa v. Philip Morris (1998), the suit for claim for damage filed by the state of Iowa was found to be too remote. It was stated that the doctrine of remoteness is a legal doctrine that incorporates considerations regarding public policy and is not based on whether the damages were foreseeable or the result of a proximate cause.

Even though the concepts of proximate cause, locus standi (standing), or duty acted as basic concepts to determine the doctrine of remoteness, the courts made some exceptions in some cases, even though the rule of basic fairness states that the doctrine should be applied uniformly to all defendants. For example, in the case of Beshada v. Johns-Manville Prods. Corp., (1982), the plaintiffs were exposed to asbestos products during the course of their employment and claimed damages for the defendant’s failure to warn about the medical hazards. The defendant stated that the danger relating to asbestos exposure was undiscovered at the time of the worker’s employment during the 1930s. However, the court imposed strict liability and stated that the defendants should bear the “ should bear the unforeseen costs.”

Similar is the case of Halphen v. Johns-Manville Sales Corp. (1986), the plaintiff, a widow, filed a suit claiming damages against an asbestos products manufacturer for the death of her husband due to the asbestos exposure in the course of his employment. The Louisana Supreme Court held that the manufacturer selling or making defective products is liable even if there is no proof of  negligence by the manufacturer in creating or failing to discover the defect.

The rulings in Beshada and  Halphen  were taken into consideration in Section 2A: 58C-2 of the New Jersey Statutes relating to the liabilities of the manufacturer or seller in suits containing product liabilities.

Legal tests for remoteness

The doctrine of remoteness of damage is based on the Latin maxim injuria non remota causa sed proxima spectatur, which means that in law, while determining liability, the proximate cause should be considered and not the remote cause.

Upto the 1870s, the courts relied on the two basic legal tests for determining remoteness. They  are: 

Foreseeability

The test of reasonable foreseeability is based on the reasoning powers of a reasonable person to foresee events. It states that if a reasonable man can foresee the consequences of a wrongful act, they are not too remote. While, if it is not possible, they are considered to be too remote. An individual was only held liable for the consequences that are not too remote and can be foreseen.

Directness

On the other hand, the test of directness states that a defendant is liable for all the consequences irrespective of whether or not any reasonable person can foresee. The directness test is based on the fact that the defendant or the wrongdoer is responsible for all the consequential damages of the wrongful act he committed.

Modifications

The tests for remoteness of damages were further modified when the English case of Smith v. The London and South Western Railway Company (1869) provided two modified versions of the existing legal tests, based on the rulings of two earlier English cases. They are:

Direct consequence

It is also known as the Re Polemis test, since the test is based on the rulings of the English case of In R\re Polemis & Furness, Withy and Co Ltd (1921). In this case, the court ruled that even though no reasonable person can foresee an event, if it takes place due to his or her wrong action and the harm caused to the plaintiff is a direct consequence of the defendant’s action, the defendant is still liable for all direct consequences of his action. 

The test of direct consequence is based on the fact that the damage is directly traceable to the negligent act of the defendant. 

Reasonable foreseeability

The test of reasonable foreseeability is also known as the Wagon Mound test, as it originated in the English case of Overseas Tankship (U.K.) Limited v. Morts Dock and Engineering Company Limited (1961), also known as The Wagon Mound No. 1. The Re Polemis case was overruled by this judgment. Here, the court rejected the test of direct consequences and applied the test of reasonable foreseeability.

Here, it was held that even though the plaintiff’s damage was due to the result of the defendant’s action, no reasonable man could foresee the consequences, and the connection between the plaintiff’s damage and the defendant’s action is too remote. 

Uses of the doctrine of remoteness

The factors that support the doctrine of remoteness in torts are discussed below, along with relevant US case laws.

Independent intervening acts

If there are any intervening acts between the plaintiff’s injury and the defendant’s action, the doctrine of remoteness is used. This is mostly applicable for cases involving claims for attenuated harms. Here, the independent intervening act dilutes the defendant’s liability.

In the very well-known case of Petition of Kinsman Transit Company (1968), the employees of the Kinsman Transit Company negligently anchored a ship, the S.S. MacGilvray Shiras, in the dock in the Buffalo River. The dock was situated above a lift bridge situated in the city of Buffalo. The weather was extremely freezing, and the river, full of ice and debris, was full of rapid currents. The ice and debris accumulated between the improperly anchored ship and the dock. Due to the huge pressure from the accumulation, the ship broke loose and started floating. After floating downwards, the ship suddenly collided with another ship called the S.S. Michael K. Tewksbury. Due to the collision, the two ships started floating randomly together.

Since the employed bridge crews were not present at the time of occurrence, they could not control the situation. As a result, both ships crashed together. As a result, it caused the bridge to collapse.

Due to the bridge collapse, the owners of wheat stored in a ship at the Buffalo harbor were affected since their ship could not be moved, resulting in their indirect economic loss.

The United States Court of Appeals held that the injuries to the owners were too remote to create liability. Though the consequence was foreseeable, it was an indirect consequence of the defendant’s negligence. 

Prevention of double recovery

The doctrine of remoteness is also used to prevent double recovery for the same damage. It protects the defendants from paying double compensation for the same harm. This is especially applicable for cases involving claims for derivative harms. Suppose an employee gets injured while working with a defective tool. The damage to the employee is covered by the claim of product liability. Now, if the employer also files a suit with a separate cause of action claiming for damages, the manufacturer may have to pay the damage twice.

Here, the application of the doctrine of remoteness prevents the recovery of damages twice.

This was cited as a reason in a number of cases, including Texas Carpenters Health Benefit Fund v. Philip Morris (1998); Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip Morris (1998); Seafarers Welfare Plan v. Philip Morris (1998); Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris (1999); and many similar cases involving the same defendant.  

Prevention of an avalanche of claims

In cases involving claims for derivative harms, an avalanche of claims may be present. The use of the doctrine of remoteness prevents the avalanche of claims. As happened in the case of Iowa v. Philip Morris (1998), initially the state attorney general filed a suit for recovery of damages. When the states realized that recovery of claims was possible, more suits for claims were filed, resulting in an avalanche of claims. While the courts did not allow recovery of damages in some of the cases, the rules were bent in other cases. 

In the cases of Laborers Local 17 Health and Benefit Fund v. Phillip Morris, Inc. (1999); Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., (1999), Oregon Laborers-Employees Health and Welfare Trust Fund v. Philip Morris, Inc. (1999), the claims were not allowed. While most courts dismissed these derivative claims by following and applying the doctrine of remoteness, others relied on “justness.” Some of these cases include Texas v. American Tobacco Co., (1997); Iron Workers Local Union No. 17 Insurance Fund and its Trustees v. Philip Morris Inc., (1998) etc.

Indirect economic loss

In a suit containing claims for derivative harms, especially which involve an indirect economic harm, the doctrine of remoteness is applied. In the case of  the United States v. Standard Oil of California (1947),  the United States Supreme Court did not allow the Federal Government to recover funds to treat a soldier injured by the independent cause of action of the defendant.

The ‘thin skull’ rule or eggshell skull rule: Exception to the doctrine of remoteness of damage

The ‘thin skull’ rule or eggshell skull rule is a common law doctrine where the defendant is held liable for worsening the plaintiff’s pre-existing injuries or damages through his or her negligent action. Though the event is mostly unforeseeable, the ‘thin skull’ rule or eggshell skull rule makes the defendant liable. Here, the plaintiff must have some pre-existing injuries which worsens with the defendant’s negligent conduct. The pre-existing conditions may include any medical conditions or weakness or previous existing injury. The plaintiff’s physical, social, and economic conditions which make the plaintiff more vulnerable to damage are taken into consideration while determining the eggshell skull rule.

This rule was greatly exemplified in the American tort case of Vosberg v. Putney (1891). In this case, the plaintiff was a boy of fourteen years while the defendant was a boy of twelve years and the students of the same school. The plaintiff lost the use of his leg after being kicked by the defendant in the shinbone while they were present in the school. The plaintiff also testified that besides the injury by the defendant, he had received another injury earlier.

The defendant appealed the case multiple times, The court held that even though the defendant did not intend to cause harm to the plaintiff, due to worsening his pre-existing damage. Hence, the plaintiff was entitled to recover damages. 

In simple words, if an individual has a skull as delicate as an eggshell and the defendant unknowingly damages it, causing it to break, the defendant is liable for the damage caused.

Comparison between causation and remoteness of damage

Causation is the act of causing an event. It can also be referred to as the relationship between cause and effect and is called “cause in fact.” On the other hand, remoteness is the lack of relationship between cause and effect. Remoteness is also called the “cause in law.” Hence, it is clear that causation and remoteness are two completely separate attributes and should be dealt with as separate requirements. 

Since causation is mostly related to facts, the plaintiff is required to prove that it was the defendant’s negligent act that caused the plaintiff’s damage. Conversely, the doctrine of remoteness of damage involves a lot of legal complications. However, it is implied that the burden of proof for the doctrine of remoteness is mostly on the defendant against whom the damage is claimed and the courts, while deciding the defendant’s liability. The several legal tests also help the court decide whether the damage caused is too remote to allow the plaintiff to recover damages from the defendant.

Remoteness of damage is mostly concerned with the limitations upto which a defendant is allowed to be held liable.

However, it must be noted that the fine line of difference between the causation and remoteness of damage is not always clearly visible. The matters necessary to establish both causation and the remoteness of damage are not always clear-cut and simple because of the complexities present in cases. 

As discussed before, causation and remoteness of damage are decided on the issues of various public policies. Both the causation and remoteness of the damage are very relevant in the law of torts to decide cases relating to negligence.

Conclusion

Under the law of torts, the plaintiff is given compensation only when another individual is responsible for the injuries, harms, or damages caused. The defendant will not be liable to pay compensation if his or her wrongful action has caused the plaintiff to suffer. The principles of causation and remoteness examine whether a defendant is liable for his or her actions and whether the plaintiff can be provided to recover damages.

In the law of torts in the United States, causation and remoteness of damage have a special significance. While the principles of the law of torts originated mostly from the English laws, they have greatly evolved to take an important place in the judicial remedies of the United States. This is evident from the application of causation and the remoteness of damage in various landmark cases in the United States. Both the judicial developments of causation and remoteness of damage date back to the late nineteenth century and are still very relevant in the law of torts.

References

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