Causation in Tort Law

Richard W. Wright

TABLE OF CONTENTS

I. THE SCOPE AND SIGNIFICANCE OF THE CAUSAL INQUIRY

1741
IN TORT LAW .• • .........• • • • .......• ............. • • .....
A. The Scope of the Causal Inquiry: Distinguishing the
Causal Inquiry from the Tortious-Conduct and
Proximate-Cause Inquiries ............................ 1741
1. Malone ........................................... 1742
2. Hart and Honore ................................. 1745
3. Epstein ......................................... .. 1750
B. The Significance of the Causal Inquiry: Linking
the Causal Inquiry and the Tortious-Conduct
Inquiry
Through the Tortious-Aspect Causation Requirement .... 1759
1. Green's Duty-Risk Theory ......................... 1761
2. Keeton's ''Harm Within the Risk" Theory .......... 1763
3. The Tortious-Aspect Causation Requirement ........ 1766
4. The Power of the Tortious-Aspect Causation
Requirement ...................................... 1771
II. THE NATURE AND CONTENT OF THE CAUSAL INQUIRY ...
1774
A. The But-For Test and Its Limits: Duplicative and
Preemp(ive Causation ....................... .......... 1775
B. Efforts to Modify the But-For Test ..................... 1777
1. Detailing the Manner of Occurrence ............... 1777
2. Detailing the Injury ............................... 1778
3. Excluding Hypothetical Facts ...................... 1780
4. Aggregating Multiple Potential Causes. ............. 1780
C. The Substantial-Factor Formula ....................... 1781
D. Undefined, Directly Observable Causal Contribution .... 1784
E. The NESS (Necessary Element of a Sufficient Set) Test . 1788
1. The Philosophic Basis of the NESS Test ............ 1789
2. The Duplicative-Causati on Cases ................... 1791
3. The Preemptive-Causati on Cases ................... 1794
4. Distinguishing the Damages Issue: The Successive-
Injury and Overwhelming-Force Cases .............. 1798
5. Theft, Nonuse, or Misuse of Defective or Missing
Safety Devices .................................... 1801
F. The Factual Nature of the Causal Inquiry .............. 1803

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1. The Hypothetical-Inquiry Argument .......... . ..... 1803

2. Malone's Arguments . ................... .......... 1807
III. CAUSATION, PROBABILITY, AND RISK: PROBLEMS ON THE
FRONTIERS OF TORT LIABILITY ...... . • ......... . . . ......•
1813
A. The Reduced-Chance and Increased-Risk Cases ........ 1814
B. The Alternative-Causati on Cases .............. ......... 1816
C. Distinguishing Probability Statements from Causal
Attribution ..................... . ................... . . 1821
CONCLUSION .• • ....... ....... .....• ..• • ....... . • .......• • . ..• • . 1826

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1985] CAUSATION IN TORT LAW 1737

Causation in Tort
Law
Richard W. Wrightt

In all of tort law, there is no concept which has been as pervasive

and yet elusive as the causation requirement, which relieves a defendant
ofliability if his tortious conduct was not a cause of the plaintiff's injury.
1
Although described by no less an authority than William Prosser as
one of the "simplest and most obvious" problems in determining tort
liabil ity,2 the causation requirement has resisted all efforts to reduce it
to a useful, comprehensive formula and has been the subject of widely
diver gent views concerning its nature, content, scope, and significance.
Through the early part of this century, judges applied causal analy
sis very broadly. They used causal rhetoric to determine not only
whether the defendant's tortious conduct had contributed to an injury
but also whether the defendant should be held legally responsible for
the injury in the light of the other contributing factors. This broad
use of causal language was sharply challenged during the second
quarter of this century by the legal realists and their colleagues. They
insisted that the only causal issue in a tort case is the simple factual
issue of actual causa tion or causation-in-fact: whether the defendant's
conduct actually con tributed to the plaintiff's injury. They noted
that most of the courts' allegedly causal analysis had nothing to do
with the issue of causation-in fact, but rather, under the misleading
label of "proximate cause" or "legal cause," served as a smokescreen
for policy judgments on whether the defendant ought to be held liable
for an injury to which his conduct had clearly contributed. The actual
causation question was considered to be of little help on this issue of
ultimate responsibility, since there are innumerable causes of each
injury. Instead, the realists argued that, in

t Associate Professor of Law, Chicago-Kent College of Law, Illinois Institute of

Technology. B.S. 1968, California Institute of Technology; J.D. 1973, Loyola University, Los
Angeles; LL.M. 1976, Harvard University. I would like to thank George Christie, Donald Marshall,
Paul Shupack, Stewart Sterk, Richard Weisberg, and Elliott Weiss for their helpful comments on the
initial draft of this article.
l. E.g., 0.W. HOLMES, THE CoMMON LAW 64 (M. Howe ed. 1963); W. PROSSER,
HANDBOOK OF THE LAW OF TORTS § 41, at 236-37, 241 (4th ed. 1971). This statement of
the causation requirement is not meant to exclude injunctive relief against threatened injury. See id.
§ l, at 2. The statement also is ambiguous with respect to whether the causation requirement
applies to the defendant's conduct as a whole or to the tortious aspect of the conduct. This
ambiguity is addressed infra in Part I, Section B.
2. w. PROSSER, supra note l, § 41, at 237; accord L. GREEN, RATIONALE OF PROXIMATE
CAUSE 4, 132-33, 135-36 (1927); 2 F. HARPER & F. JAMES, THE LAW OF TORTS § 20.2, at
1110-21
& n.4 (1956 & Supp. 1968). Harper and James's chapter 20 is a reprint of James & Perry, Legal
Cause, 60 YALE L.J. 761 (1951).

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order to reach the socially advantageous, expedient, or just result in each

case, the policy issues should be openly addressed under the more appro
priate headings of "duty," "interests protected," "damages," and so
forth.3
Although the realists were unable to eliminate the use of proximate
cause language, they were very successful in gaining academic and judi
cial acceptance of their view that causation-in-fact is the only truly causal
issue, and that proximate-cause determinations are noncausal policy
judgments on the appropriate limits of liability for actually caused
harm.4
However, courts and legal scholars were unable to formulate a com
prehensive, policy-neutral account of actual causation.5 These failures
eventually led to the view that the actual causation issue itself is perme
ated by policy considerations. This view was expressed most forcefully in
an influential article published in 1956 by Wex Malone. He asserted that
the actual causation requirement is just one more doctrinal concept that
is manipulated by judges to further the relevant socially preferred policy
in each case.6 His view has been widely accepted,7 even in limited form
for the most difficult cases by some of the staunchest defenders of actual

3. See L. GREEN, JUDGE AND JURY 29-37, 191, 195-96, 222-25, 230-31, 242-43 (1930); L.
GREEN, supra note 2; W. PROSSER, supra note 1, §§ 41, 42, at 236-37, 239, 244-50 (4th ed. 1971); id.
§§ 45, 46 ' at 311-21 (1st ed. 1941); see F.HARPER, A TREATISE ON THE LAW OF TORTS § 110, at
257-58 (1933); Edgerton, Legal Cause (pt. 2), 72 U. PA. L. REV. 343, 373 (1924); Gregory,
Proximate Cause in Negligence-A Retreat from "Rationalization," 6 U. CHI. L. REV. 36 (1938);
Morris, On the Teaching of Legal Cause, 39 COLUM. L. REV. 1087 (1939).
4. See, e.g., G. CHRISTIE, CASES AND MATERIALS ON THE LAW OF TORTS 245-46, 264
{1983); R. EPSTEIN, C. GREGORY & H. KALVEN, CASES AND MATERIALS ON TORTS 272-73,
309 (4th ed. 1984) [hereinafter cited as EPSTEIN, TORTS]; J. FLEMING, THE LAW OF TORTS 170-
71, 179- 80 (6th ed. 1983); M. FRANKLIN & R. RABIN, CASES AND MATERIALS ON TORT
LAW AND ALTERNATIVES 269, 302 (3d ed. 1983); 2 F. HARPER & F.JAMES, supra note 2, §§
20.1, 20.2, 20.4;
c. MORRIS & C.R. MORRIS, MORRIS ON TORTS 154-201 {2d ed. 1980); w. PROSSER, supra note 1,
§§ 41, 42, at 236-37, 239, 244-50.
5. See infra text accompanying notes 166-225.
6. Malone, Ruminations on Cause-in-Fact, 9 STAN. L. REV. 60 (1956).
7. See, e.g., Cole, Windfall and Probability: A Study of "Cause" in Negligence Law (pis. 1 &
2), 52 CALIF. L. REv. 459, 764 (1964); Delgado, Beyond Sindel!: Relaxation of Cause-in-Fact Rules
for Indeterminate Plaintiffs, 10 CALIF. L. REV. 881, 891-92 (1982); Pedrick, Causation, the "Who
Done It" Issue, and Arno Becht, 1978 WASH. U.L.Q. 645; Pound, Causation, 61 YALE L.J. 1 (1957);
Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 VA. L. REV. 713, 713-
14 (1982); Rosenberg, The Causal Connection in Mass Exposure Cases: A "PublicLaw" Vision of the
Tort System, 91 HARV. L. REV. 849, 855 n.27, 863-64 (1984); Strachan, The Scope and Application of
the "But For" Causal Test, 33 Moo. L. REV. 386, 389-95 (1970); Weinrib, A Step Forward in Factual
Causation, 38 Moo. L. REv. 518, 529-33 (1975); Zweir, "Cause in Fact" in Tort Law-A
Philosophical and Historical Examination, 31 DE PAUL L. REV. 769 (1982); see 2 F. HARPER & F.
JAMES, supra note 2, § 20.2 & nn. 16 & 17 comments at 92-93, 94-95 (Supp. 1968); W. KEETON, D.
DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS §§ 41, 42, at 264-
65 & n.7, 279-80 (5th ed. 1984) [hereinafter cited as PROSSER & KEETON]; cf.c. MORRIS & C.R.
MORRIS, supra note 4, at 188-90 (asserting that liability is sometimes imposed for policy reasons
although causation is lacking).

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causation as a factual inquiry.8 It has been adopted enthusiastically by

the economic analysts of tort law, who argue that the socially preferred
policy in every case is the maximization of social wealth.9
But there has also been another, very different reaction to the
views of the legal realists, which was initiated by H.L.A. Hart and
Tony Honore's landmark book, Causation in the Law, originally
published in
1959.10 As an alternative to the ad hoc social policy analysis of the legal
realists, Hart and Honore attempted to rehabilitate the broad use of
causal analysis to address questions of ultimate liability. They argued
that the ordinary, nonlegal use of causal language provides definite,
com monsense causal principles that can be, should be, and are used
by the courts to frame factual inquiries which encompass not only the
narrow issue of cause-in-fact but also most of the proximate-cause
issues.11 Indeed, they stated, "causing harm constitutes not only the
most usual but the primary type of ground" for imposing liability. 12
Subsequent tort scholars, most notably Richard Epstein, have attempted
to elaborate on this statement.13

8. See A. BECHT & F. MILLER, THE TEST OF FACTUAL CAUSATION IN NEGLIGENCE

AND STRICT LIABILITY CASES 24, 44 n.57, 78 n.109, 81-82 & n.114, 85-87, 99, 104-06 & n.157,
112 n.173, 118, 120, 124-26, 128-30, 135-37, 221 (1961); J. FLEMING, supra note 4, at 172-73;
H.L.A. HART & T. HONORE, CAUSATION IN THE LAW lxi-lxii, 7-8, 62, 101-02 & n.46, 239-41,
410, 412-16 (2d ed. 1985); Green, The Causal Relation Issue in Negligence Law, 60 MICH. L.
REV. 543, 548-49, 553-55
& n.29, 560-61, 568 (1962); see also W. PROSSER, supra note 1, § 41, at 243 & n.53.
9. See, e.g., Calabresi, Concerning Cause and the Law of Torts, 43 U.CHI. L. REV. 69, 69 n.
l, 86-87, 105-08 (1975); Grady, A New Positive Economic Theory of Negligence, 92 YALE L.J.
799, 799- 800, 804 n.21 (1983); Landes & Posner, Causation in Tort Law: An Economic
Approach, 12 J. LEGAL STUD. 109, 110-11, 134 (1983); Shaven, An Analysis of Causation and the
Scope of Liability in the Law of Torts, 9 J. LEGAL STUD. 463, 464, 502-03 & n.79 (1980). For
my critique of the economic analysts' views on causation in tort law, see Wright, Actual Causation
vs. Probabilistic Linkage: The Bane of Economic Analysis, 14 J. LEGAL STUD. 435 (1985).
10. H.L.A. HART & A. HONORE, CAUSATION IN THE LAW (1st ed. 1959). The recently
published second edition of this book contains a lengthy new preface but otherwise is generally the
same as the first edition. H.L.A. HART & T. HONORE, supra note 8. Two changes relevant to the
issues addressed in this Article are discussed infra at notes 12 & 31.
11. H.L.A. HART & A. HONORE, supra note 10, at 3-5, 23-25, 61-63, 65, 83-105, 123-25, 261-
62, 273-76; H.L.A. HART & T. HONORE, supra note 8, at xxxiv-xxxvi, Iii-liii, 3-5, 24-27, 65-67, 69-
70, 88-111, 130-32, 291-92, 304-07. This objective is stated so emphatically and repeatedly
throughout the book that it is difficult to comprehend Izhak Englard's failure to see it and his
criticism of John Borgo, who did see it, for "misunderstanding" Hart and Honore. Englard, The
System Builders: A Critical Appraisal of Modern American Tort Theory, 9 J. LEGAL STUD. 27,
57
n.135 (1980) (criticizing Borgo, Causal Paradigms in Tort Law, 8 J. LEGAL STUD. 419, 421-25 &
n.17 (1979)). Apparently, Englard does not distinguish between the prevailing academic policy
oriented interpretation of proximate cause, which Hart, Honore, and Borgo were attacking, and the
commonsense judgments independent of particular legal policies which Hart, Honore, and Borgo
argue are controlling in actual adjudication.
12. H.L.A. HART & T. HONORE, supra note 8, at 65; see id. at lxxvii-lxxxi, 66-67, 302.
However, in other passages (especially in the second edition of their book), Hart and Honore state
that causing harm usually must be coupled with wrongful conduct to create liability. Id. at xxxv,
xliii-xlvii, lxxv-lxxvii, 131-32, 254-55, 466.
13. A. HARARI, THE PLACE OF NEGLIGENCE IN THE LAw OF TORTS 49-56 (1962); Epstein, A

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In this Article, I present a systematic critique of these various

accounts of the causation requirement in tort law, 14 and, building on
that critique, I construct a comprehensive new account which hopefully
will be more satisfactory than any of the earlier accounts.
This Article is divided into three parts. Part I discusses the manner
in which the causal inquiry fits into tort liability analysis. Part II
dicusses the nature and content of the causal inquiry itself. Part III dis
cusses some current problems and controversies dealing with the rela
tionships among causation, probability, and risk. 15
More specifically, I argue in Part I that much of the
disagreement and confusion in the debates about causation stems
from failures to dis tinguish the causal inquiry from other elements
of the courts' liability analysis, or to pay sufficient attention to the
links that connect the differ ent elements. As a result of these
failures, most writers substantially overrate or underrate the role that
the causal inquiry plays in tort liabil ity analysis. Thus, some writers
attribute to the causal inquiry issues that are properly associated with
the tortious-conduct or proximate-cause inquiries. Conversely, other
writers trivialize the causal inquiry by link ing it to the actor's
conduct as a whole, rather than focusing it-as the courts do-on the
tortious aspect of the actor's conduct, and seek to fill the resulting
void with inadequate duty or "harm within the risk" analy ses. When
the causal inquiry is properly limited and focused, it is seen to play a
powerful but not conclusive role in determining tort liability.
Part II begins with a brief discussion of the traditional "but for"
(necessary condition) test of causation and its inability to account for
the overdetermined-causation cases-cases in which two or more
factors each would have been sufficient to produce the injury, so that
none of them was a necessary condition for the injury. The various
tests that have been proposed as refinements of, supplements to, or
substitutes for the but-for test are then examined. All these tests, with
the exception of the "NESS" (Necessary Element of a Sufficient Set)
test, are shown to be inadequate. The NESS test, which incorporates
the traditional Humean philosophic account of the meaning of
causation, as modified by John Stuart Mill, was first suggested by Hart
and Honore. Their brief exposi tion of this test, however, was
submerged and weakened by their attempt to treat the tortious-conduct
and proximate-cause inquiries as part of the causal inquiry. In Part II
the NESS test is more fully elaborated. It is

Theory of Strict Liability, 2 J. LEGAL Sruo. 151, 163, 168·69 (1973). Compare Borgo, supra note
11, at 425 & n.17, 431 & n.31, 43240, 452-55 & nn. 55 & 59 (selecting responsible causes) with
H.L.A. HART & A. HONORE, supra note 10, at 26-47, 58-76 (same).
14. For my critique of the accounts of the economic analysts, see Wright, supra note 9.
15. Throughout this Article, the arguments presented will be descriptive rather than
normative. The normative issues will be addressed in a separate article now in progress.

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then used to resolve the problematic causation cases that have resisted
solution under all the alternative tests. In the final section of Part II, the
steps involved in applying the NESS test are analyzed to demonstrate
that, contrary to the currently popular view among legal writers, the
causal inquiry is a factual inquiry not dependent on policy
considerations.
In Part III I address the difficult issues raised by the "increased
risk," "reduced chance," and "alternative liability" cases-cases in
which it can be proven that the defendant tortiously exposed the
plaintiff to an increased risk of injury but not that the defendant
actually contrib uted to the subsequent injury. It is commonly
argued that the causation requirement is properly ignored or relaxed
in these cases, or that the requirement should be satisfied by a
probabilistic "increased risk" con cept of "causation." I contend that
these cases are more plausibly and fruitfully viewed as cases that
recognize a new type of injury-risk expo sure-in certain narrowly
circumscribed situations. Causation of this risk-exposure injury is
easily established using the basic concept of causa tion embodied in
the NESS test. Finally, I argue that the probabilistic increased-risk
concept of causation must be rejected, because it lacks the attributive
element that distinguishes causal explanations from mere probability
statements. This attributive element, which has always been essential
for tort liability, explains the courts' refusal to admit pure or "naked"
statistical evidence as proof of causation or identification.

I
THE SCOPE AND SIGNIFICANCE OF THE CAUSAL INQUIRY
IN TORT LAW

A. The Scope of the Causal Inquiry: Distinguishing the Causal

Inquiry from the Tortious-Conduct and Proximate-Cause
Inquiries
A number of legal scholars have equated causation of injury with
legal responsibility for the injury. 16 Relying on this assumed equiva
lence, some of these writers argue that because the determination of
responsibility is policy-dependent, the causal inquiry also must be
policy dependent. Conversely, others argue that because the causal
inquiry is policy-free, the responsibility determination also must be
policy-free.
In this Section it will be demonstrated that both of these competing
arguments are built on a false premise. Causation is not equivalent to
responsibility. Rather, before a decision is made on legal responsibility,

16. See supra notes 12 & 13 and accompanying text; see also Green, supra note 8, at 545,
562; Malone, supra note 6, at 62-67; cf. RESTATEMENT (SECOND) OF TORTS § 431 comment a
(1965) (substantial factor test of causation includes notion of responsibility).

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the causal inquiry must be combined with the tortious-conduct inquiry

"Was the defendant's conduct tortious?"-and the proximate-cause
inquiry-"Is there an applicable policy or principle which absolves the
defendant from liability, even though his tortious conduct was a cause
of the injury?"
As we shall see, the writers who equate causation with
responsibility erroneously attribute to the causal inquiry issues that are
properly associ ated with the tortious-conduct and proximate-cause
inquiries. Three dif ferent examples will be discussed. The first is
drawn from Wex Malone's influential article on causation in tort law.
In this article, Malone con tends that the causation requirement is just
one more policy-dependent doctrine that is manipulated by the judge
or jury to reach a desired result. The second and third examples are
Hart and Honore's and Richard Epstein's respective theories of tort
liability, which attempt to avoid ad hoc, policy-dependent liability
determinations by basing liability on expanded notions of causation.

1. Malone
Malone's article contains a series of arguments that are meant to
establish the policy-dependent nature of the causal inquiry. Only one of
them is pertinent here. 17
This argument focuses on the policy considerations that underlie
any decision to identify one of several contributing factors as "the
cause" of an injury. Malone notes that, depending on their respective
back grounds and motivations, different persons may identify different
con tributing factors as the cause of an injury. In one of his examples,
an irresponsible youth drives too fast down a road recently covered
with loose gravel, and a stone is thrown by a wheel of the car into the
face of a pedestrian. Malone observes that the neighbors may say that
the parents' letting their irresponsible son drive was the cause of the
harm, while a road engineer may say that the cause was improper
road construction, and a physics teacher may say that the impact of the
wheel's momentum on the rock was the cause. Thus, Malone states,
causal determinations are evaluative and purposive. 18
In Malone's other example, an elderly worker with a long-standing
heart ailment dies of heart failure while engaged in some trivial task for
his employer. A medical expert, says Malone, is likely to testify that the
trivial task was not a cause of the death, since he will view it as an
instance of a commonplace recurrent event with which medical science
is helpless to deal. But a judge, considering the compensatory purposes
of

17. Malone's other arguments will be discussed later. See infra text accompanying notes 240·
42 & 304-30.
18. Malone, supra note 6, at 62.

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the workers' compensation statute, might decide, or allow a jury to

decide, that the trivial exertion was a work-related cause of the elderly
employee's death.19 Malone concludes:
"[S]imple" causation is not merely an abstract issue of fact. . . .
[T]he resolution of the cause problem depends largely upon the
purpose for which cause is to be used. . . . It is through the process
of selecting what is to be regarded as a cause for the purpose of
resolving a legal dispute that considerations of policy exert their
influence in deciding an issue of cause-in-fact. 20
This argument confuses several distinct parts of the liability analy
sis. It is generally agreed that the purpose and context of the particular
inquiry determine which of several contributing factors will be selected
as "the cause."21 But many writers, including Malone, do not recognize
that the influence of purpose or policy extends only to the noncausal
parts of this selection process: the focus on only one or a few of the
many potential causes, and the limitation of responsibility to only
certain types of consequences.
Thus, in the elderly worker case, policy considerations are quite
important in deciding which causes and consequences the workers'
com pensation statute was meant to cover. At a minimum, such
statutes require that the employee's work or working conditions have
contributed to (been a cause of) the injury. That is, only work-related
activities and conditions are relevant as potential causes. This is a
policy decision. The trivial exertion was a work-related exertion. But
did it contribute to the failure of the employee's heart? That is the
causal question. The causal issue need not be addressed if it is
decided that an injury will not be treated as work-related, even if the
injury occurred while at work, when-as seems to be the case here-the
risk of such injury was not increased by being at work and, moreover,
the risk was personal to the employee. This also is a policy issue.22
If the court decides that such injuries are work-related, the causal
issue must be addressed. The judge should clarify the causal issue for
the medical expert by explaining that the medical controllability of the
risk is irrelevant. The question is rather whether the exertion in fact
contrib uted to the employee's death by triggering or accelerating the
failure of

19. Id. at 63-64.

20. Id. at 64.
21. E.g., T. BEAUCHAMP & A. ROSENBERG, HUME AND THE PROBLEM OF CAUSATION
261- 62, 282, 284-95 (1981); H.L.A. HART & T. HONORE, supra note 8, at lxxvi, 11-12, 35-38,
62; Borgo, supra note 11, at 430-32, 439-40; Cohen, Field Theory and Judicial Logic, 59 YALE
L.J. 238, 251-59 (1950); Cole, supra note 7, at 459-60, 462-65; Mackie, Causes and Conditions, in
CAUSATION AND CONDITIONALS 21-24 & n.15 (E. Sosa ed. 1975); Williams, Causation in the
Law, 1961 CAMBRIDGE L.J. 62, 63-65, 69.
22. See EPSTEIN, TORTS, supra note 4, at 925-27; 1 A. LARSON, THE LAW OF WORKMEN' S
COMPENSATION § 7.20 (1984). See generally id. §§ 6, 7, 12 & 13.

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his heart. Malone's causal-selection argument does not demonstrate that

policy considerations do or should play any role in this causal part of
the analysis. All Malone's argument shows is that policy
considerations determine which causes and consequences will give rise
to liability.
The elderly worker example is a workers' compensation case,
rather than a tort case. But the liability analysis in tort law proceeds
in the same manner. First, those potential causes that may give rise
to tort liability are identified. We are not interested in all the possible
causes, but only those that were tortious. This is the tortious-conduct
inquiry. Policy considerations determine whether certain conduct will
be treated as tortious. 23
The second step, after the identification of tortious conduct which
may have contributed to the injury, is the application of the actual-
causa tion requirement, which requires that the tortious conduct
actually have contributed to the injury.24 This is the causal inquiry. At
this stage it is irrelevant that there may also be other contributing
factors (causes).
In fact, it is never necessary for the court to identify or investigate
all the contributing factors. It usually will consider only a few contribut
ing factors other than the defendant's tortious conduct: those which
might reduce or eliminate, for reasons of policy or principle, the
defend ant's legal responsibility for harm that was caused by his
tortious con duct.25 This is the proximate-cause inquiry.
All three steps-the tortious-conduct inquiry, the causal inquiry,
and the proximate-cause inquiry-are involved in determining whether
the defendant's conduct was "the cause" of the injury. The causal
inquiry determines whether the defendant's conduct was a cause of the
injury. The tortious-conduct and proximate-cause inquiries determine
whether the defendant should be held legally responsible as "the" cause
of the injury. That is, the phrase "the cause" is simply an elliptical way
of saying "the responsible cause." Malone asserts that the
determinations involved in establishing that a certain factor not only
was a cause but also should be held responsible as "the" cause often
are inseparable in the conversations and minds of ordinary people.26
The distinction may not be explicit in conversations, but it is certainly
implicit. It is essential to distinguish each step in the adjudication of
legal disputes to ensure that the causal inquiry will focus only on the
legally relevant potential causes and not be confused with the noncausal
issues, as occurred in Malone's

23. The traditional types of tortious conduct recognized by the courts are intentional,
negligent, and ultrahazardous behavior.
24. More precisely, the tortious aspect of the conduct must have contributed to the injury. See
infra text accompanying notes 100-64.
25. J. FLEMING, supra note 4, at 171; Green, supra note 8, at 548, 557-59, 564; Williams, supra
note 21, at 63-65.
26. Malone, supra note 6, at 66-67.

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discussion of the elderly-worker example.27

2. Hart and Honore

Like Malone, Hart and Honore apply the causal label to a

combined tortious-conduct, cause-in-fact, and proximate-cause
inquiry. Unlike Malone, they argue that the combined inquiry is a
factual inquiry based on commonsense causal principles, rather than a
policy-dependent inquiry based on ad hoc judgments of legal purpose
or social expedi ency.28 However, their commonsense principles are
essentially the negli gence and intentional tort prongs of the tortious-
conduct inquiry and have nothing to do with causation. The causal
label is not only mislead ing, but also makes it difficult for them to
account for strict tort liability and certain types of proximate-cause
cases.
Hart and Honore divide their causal analysis into two steps. The
first step is the cause-in-fact inquiry, which determines whether the
defendant's conduct actually contributed to the injury. If it did, it was a
condition for the occurrence of the injury.29 The second step is a confla
tion of the tortious-conduct and proximate-cause inquiries, in which
Hart and Honore's commonsense "causal" principles are used to deter
mine whether the defendant's conduct can be distinguished from the
other contributing factors ("mere conditions") as "the cause" of the
injury.30
According to Hart and Honore, the central notion in the common
sense concept of causation is that the cause is the factor which "makes a
difference" by interfering with, intervening in, or otherwise changing
the normal or reasonably expected course of events. Thus, a
contributing factor is treated as the cause rather than as a mere
condition if it was (1) a voluntary human intervention that was
intended to produce the conse quence (for example, deliberately
breaking a vase) or (2) an abnormal action, event, or condition in the
particular context (for example, a freak

27. A. BECHT & F. MILLER, supra note 8, at 5-7, 12-13; Williams, supra note 21, at 63-65,
69. In another "Rumination" published fourteen years later, but much less well known (outside
Louisiana), Malone reversed his position and insisted that the causal inquiry is purely factual and
should be sharply distinguished from the independent policy considerations that enter into
determination of the responsible cause. Malone, Ruminations on Dixie Drive It Yourself Versus
American Beverage Company, 30 LA. L. REV. 363, 370-71 (1970). For a valiant effort to reconcile
the two Ruminations, see Note, When Cause-in-Fact Is More Than a Fact: The Malone-Green
Debate 011 the Role of Policy in Determining Factual Causation in Tort Law, 44 LA. L. REV. 1519,
1540-41 & n.89 (1984).
28. See supra note 11.
29. H.L.A. HART & T. HONORE, supra note 8, at 109-11; see id. at 72. Hart and Honore
use the "necessary element of a sufficient set" test in this cause-in-fact inquiry. See infra text
accompanying notes 226-83.
30. H.L.A. HART & T. HONORE, supra note 8, at 1-2, 24-25, 33, 72-73, 110-11.

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storm or driving at an excessive speed).31 If there are two or more con

tributing factors which satisfy one of these criteria, the last one to occur
is treated as the cause. When searching for the cause of an injury, we
do not trace back any further once we come across a deliberate
intervention or an independent abnormal condition.32
It soon becomes clear that these criteria are neither policy-neutral
nor causal. As applied to human conduct in a tort case, the two criteria
simply call for inquiries into the intentional or negligent character of the
conduct. This is, in effect, a restricted form of the tortious-conduct
inquiry.
Thus, a human intervention is considered to be voluntary only if it
was a free, deliberate, and informed act or omission, intended to bring
about what in fact happened in the manner in which it happened. An
intervention is not voluntary if the consequence was not intended, or
even if it was intended if the intervention occurred as a result of
mistake, ignorance, coercion, or the pressure of moral or legal
obligation, or if the choice to intervene was the lesser of two evils.33
More generally, Hart and Honore admit that their voluntary-
intervention criterion calls for

31. Id. at 2, 29, 33-35, 41-42, 130-31. Both editions of Hart and Honore's book use these
criteria as the bases for the initial distinction between causes and "mere conditions." See id.;
H.L.A. HART & A. HONORE, supra note 10, at 27, 31-33, 38-39, 130-31, 131 n.1. This part of
their analysis corresponds to the tortious-conduct inquiry and is the primary focus of my critique.
The second part of their analysis-the proximate-cause inquiry-is concerned with the problems that
arise when two or more contributing conditions satisfy one of the two criteria. Generally, they
treat the last deliberate intervention or independent abnormal condition as the cause of the
injury. Any prior conditions which also satisfy one of the criteria are reduced to the status of
"mere conditions." See i11fra note 32.
In the first edition, Hart and Honore use the same notion of voluntary intervention in both the
proximate-cause inquiry and the tortious-conduct inquiry. H.L.A. HART & A. HONORE, supra
note 10, at 38-39, 129-31. In the second edition, however, they use a different definition in the
proximate cause inquiry. They replace the requirement that the intervenor have intended the actual
injury with a requirement that he have intended to exploit the situation created by the defendant.
H.L.A. HART
& T. HONORE, supra note 8, at 136 & n.23. This definition would not work in the
tortious·conduct inquiry, since that inquiry evaluates the conduct of the defendant herself.
Moreover, it also appears to be unworkable in the proximate-cause context, unless it is
interpreted to require that the intervenor be aware of the "untoward" risks involved in the situation
created by the defendant and that the intervenor deliberately (tortiously) act to exploit those risks.
See id. at 136. Otherwise, any voluntary action affecting the situation created by the defendant
would be a superseding cause.
In both editions, the notion of abnormal conditions employed in the proximate-cause inquiry is
different than the one employed in the tortious-conduct inquiry. In the proximate-cause inquiry, the
notion of abnormality is expanded to include not only conditions which are per se unusual but also
unusual or coincidental conjunctions of normal events. Conversely, Hart and Honore state that
intervening human actions do not relieve the defendant ofliability unless they are grossly abnormal.
Id. at 77-81, 162-66, 184-85; H.L.A. HART & A. HONORE, supra note 10, at 151-55, 169-70.
The problems created by Hart and Honore's attempt to fit the tortious-conduct and proximate
cause inquiries into a unitary causal rubric are discussed further i11fra, at text accompanying notes
42-47.
32. H.L.A. HART & T. HONORE, supra note 8, at xlviii-xlix, Ixxviii-lxxix, 42-43, 49-50, 71,
74, 77-80, 130-31, 135-36, 162-63.
33. Id. at 41-42, 75-77, 138 & n.40; see supra note 31.

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policy judgments on matters of degree and reasonableness. Many of the

circumstances which are treated as rendering even deliberate conduct
nonvoluntary correspond to the recognized moral and legal grounds for
justifying or excusing harmful behavior. Examples include reasonable
actions taken to defend persons or property against reasonably perceived
perils, to safeguard legal rights or interests, to rescue others, and so
forth.34 Overall, Hart and Honore's voluntary-intervention criterion
simply describes one of the principal recognized types of tortious con
duct: the intentional, unjustified, and unexcused infliction of injury.35
Similarly, the abnormal-condition criterion also calls for nonfactual
and noncausal judgments. When it is applied to human action, it is
essentially identical to the negligence category of tortious conduct, par
ticularly when attribution of responsibility is at issue. Hart and Honore
note that the distinction between the abnormal condition and the other
normal conditions is not based on differences in actual contributions to
the consequence, but rather depends, as Malone pointed out, on the con
text and purpose of the inquiry.36 They state that abnormal human con
duct is conduct that deviates from the usual, expected, or established
standards of behavior. They treat omissions s abnormal conditions only
when the failure to act constitutes a breach of duty-that is, when the
omission is negligent.37 More generally, they observe that, "[i]n relation
to human conduct, . . . the notion of what is 'natural' is strongly influ
enced by moral and legal standards of proper conduct, though weight is
also given to the fact that certain conduct is usual or ordinary for a
human being."38
In sum, as Hart and Honore acknowledge, 39 their two "causal" cri
teria (voluntary or abnormal conduct) do not have anything to do with
the inquiry into actual contribution to the injury, which is the causal
aspect of responsibility denoted by the word "cause" in the phrase "the
cause." Instead, the two criteria are relevant only in determining
whether the defendant's conduct was "the" (responsible) cause. The two
criteria accomplish this task by focusing on the tortious (intentional or
negligent) character of the conduct that contributed to the injury.
Thus, it is the combination of causation (the causal inquiry), tor-

34. H.L.A. HART & T. HONORE, supra note 8, at lv, 138, 141-60.
35. However, the criterion is too narrow to serve as a complete description of tortious
intentional conduct. See infra text accompanying notes 45-47.
36. H.L.A. HART & T. HONORE, supra note 8, at lxxvi, 11-12, 35-38, 62, 72, 110-1l.
37. Id. at 37-38, 50-51, 59-60, 64, 135 n.15, 138-41, 183-85.
38. Id. at 183. The correspondence between the abnormal conduct criterion and negligence
inspired Abraham Harari's effort to demonstrate that negligence (as a supposed aspect of causation)
is the basis of all tort liability. A. HARARI, supra note 13, at 49-55. One of the weaknesses in
Harari's argument is the assumption that the abnormal conduct criterion is a causal criterion.
39. H.L.A. HART & T. HONORE, supra note 8, at xlviii-xlix, 72-74, 110-1l.

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tious conduct by the defendant (the tortious-conduct inquiry), and the

absence of any intervening abnormal physical occurrences or tortious
behavior by third parties (the proximate-cause inquiry) that creates the
strong and usually sufficient case for legal responsibility. Hart and
Honore's statements treating causation as the primary ground of legal
responsibility are plausible only when it is understood that they are
using the term "causation" to refer to this combination of the three
different elements of tort liability analysis.40 They nevertheless insist
that their approach is based almost exclusively on causal principles.
This insis tence seems to be motivated by a desire to distinguish their
common sense, principled account of proximate-cause analysis from
the social policy accounts of the legal realists and others.41 The causal
label creates an appearance of policy-neutrality, which contrasts with
the explicit and broader notion of policy in the alternative accounts.
However, the causal label is misleading and unnecessary, and it
cre ates major difficulties for Hart and Honore.
For example, since Hart and Honore insist that the defendant's con
duct was a cause of an injury only if it was deliberate or abnormal
(negli gent), they are forced to classify strict liability as a noncausal
form of liability.42
Similarly, because they treat the last deliberate intervention or
independent abnormal occurrence as the cause of an injury, to the
exclu sion of all prior interventions or occurrences,43 they find it
difficult to account for cases in which liability is imposed on the
defendant despite some subsequent deliberate intervention or
independent abnormal occur rence. They describe these as cases of
"inducing" or "occasioning" harm rather than "causing" harm. They
claim that there is a "causal connec tion" only in a metaphorical sense,
even though the defendant's tortious conduct clearly contributed to the
injury. They assert that responsibility in these cases is based on
noncausal policy considerations, and they therefore use tortious
conduct language rather than their usual causal language to state the
grounds for (and limits on) liability. The defendant is held liable only
if he intentionally induced the subsequent deliberate action of another
or negligently provided the opportunity for a subse quent deliberate
intervention or abnormal occurrence.44

40. See supra note 12 and accompanying text; see also H.L.A. HART & T. HONORE, supra
note 8, at 117-18, 131-85, 135 n.9, 205-53 (tort liability discussed in terms of causal connection
between tortious conduct and harm, and liability negated despite such causal connection if
there was an intervening abnormal physical occurrence or intervening tortious behavior).
41. H.L.A. HART & T. HONORE, supra note 8, at xxxv-xxxvii, xlvii-lv, 3-7, 24-25, 65-67,
88- 111, 130-32, 254, 304-07.
42. See id. at 85-86.
43. See supra note 32.
44. H.L.A. HART & T. HONORE, supra note 8, at 51-52, 57, 59-61, 71, 81-83, 133, 186. Hnrt

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Finally, Hart and Honore face an insuperable dilemma when they

attempt to formulate definitions of their voluntary-intervention and
abnormal-condition criteria that will properly handle both the tortious
conduct inquiry and the proximate cause inquiry. Since these are sup
posedly causal criteria, their content should not vary when applied to the
tortious-conduct inquiry as opposed to the proximate-cause inquiry.
Yet, in practice, broader definitions of "voluntary" and "abnormal" are
required for the tortious-conduct inquiry than for the proximate-cause
inquiry. In the proximate-cause inquiry, narrow definitions are needed
to avoid cutting off the defendant's liability when subsequent contribut
ing conduct, although intentional ("voluntary"), was justified or done in
ignorance of the circumstances or the possible consequences or,
although negligent ("abnormal"), was "routine" rather than "highly
unusual. "45 In the tortious-conduct inquiry, on the other hand, broader
definitions are needed. The defendant's intentional ("voluntary")
intervention often may be treated as tortious despite ignorance,
mistake or necessity, and his negligent ("abnormal") conduct will be
treated as tortious whether it is "routine" or "highly unusual."46 Hart
and Honore respond to this dilemma by adopting a definition of
"voluntary" that is suitable for the proximate-cause inquiry but too
narrow for the tortious-conduct inquiry and, conversely, a definition of
"abnormal" that is suitable for the tor tious-conduct inquiry but too
broad for the proximate-cause inquiry.47
Hart and Honore could have avoided these and other difficulties
eas ily had they correctly described their commonsense principles as
princi ples of responsibility rather than as principles of causation, and
had they separated the proximate-cause element in these principles
from the tor tious-conduct and causal elements. As with Malone's
argument, Hart

and Honore's position on this issue is influenced by their view that volitional human actions, unlike
physical events, are neither subject to nor explainable in terms of causal generalizations. Id. at 51-
52, 55-57, 60-61; accord Kadish, Complicity, Cause and Blame: A Study of the Interpretation of
Doctrine, 73 CALIF. L. REV. 323, 326-27, 332-35 & n.8 (1985); Williams, supra note 21, at 66-68.
But, with human actions just as with physical events, if all the relevant circumstances (accumulated
experience and knowledge, mood, and so forth) were the same, surely the decision or action also
would be the same. To assert otherwise is to assert that human action is random or arbitrary. Cf
H.L.A. HART & T. HONORE, supra note 8, at 56-57 (acknowledging that generalizations apply to
human action, but nevertheless denying repeatability in identical circumstances). Human action is
less regular and predictable than physical events because humans learn from prior experiences and
new information, because the range of relevant conditions is much broader, and because the
applicable causal generalizations are much more complex and less well understood. See generally T.
BEAUCHAMP & A. ROSENBERG, supra note 21, at 314-27; J. MACKIE, THE CEMENT OF
THE UNIVERSE 120-26 (1974); Moore, Causation and the Excuses, 73 CALIF. L. REV. 1091,
1112, 1124- 27, 1132-37 (1985).
45. H.L.A. HART & T. HONORE, supra note 8, at 41-42, 75-77, 136, 152-53, 183-84; w.
PROSSER, supra note 1, § 44, at 274, 276-78, 282.
46. W. PROSSER, supra note 1, §§ 7-8, at 30-33; id. § 9, at 35; id. § 17, at 99-100; id. § 24, at
126-27; id. § 31, at 145; id. § 32, at 150-51.
47. See supra note 31 and text accompanying notes 33-38.

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and Honore's theory illustrates the conceptual confusion and practical

difficulties that inevitably result when these three elements of tort liabil
ity analysis are not carefully distinguished from one another.

3. Epstein
Hart and Honore's book has inspired several other attempts to
develop causal theories of tort liability.48 The best known example in the
United States is Richard Epstein's theory of "strict" liability. 49
Epstein, even more than Hart and Honore, opposes the ad hoc,
social-policy accounts of tort liability, including the currently
fashionable wealth-maximization accounts.50 He argues that tort
liability should be based on principles of individual autonomy and
responsibility, with the dividing line between autonomy and
responsibility being marked by cau sation of harm to others.51 Epstein's
emphasis on individual autonomy is coupled with a strong preference
for precise rules of responsibility. He seeks to eliminate or greatly
restrict those aspects of traditional tort lia bility analysis-such as tests of
reasonableness, negligence, or proximate cause-which, because of
their imprecision, can be used by judges or juries to validate
substantial incursions on individual autonomy.52
Although Epstein refers to his theory as a theory of strict liability,
it is in fact a system of defeasible absolute liability. Tort theories are
classi fied as "absolute," "strict," or "fault-based" depending on the
elements required to state a minimally sufficient prima facie case.53
Traditionally, absolute liability has meant prima facie liability based
merely on causa-

48. See supra note 13. Abraham Harari's causal theory is discussed briefly supra in note 38.
John Borgo's analogical reasoning approach suffers from precisely the same flaw that Bargo
correctly identifies in Epstein's approach. It abstracts responsibility paradigms from situations while
overlooking critical aspects of those situations and then tries to apply the abstracted paradigms to
situations where the critical aspects are different. See Bargo, supra note 11, at 429-31, 436-40.
49. Epstein, supra note 13; Epstein, Defenses and Subsequent Pleas in a System of Strict
Liability, 3 J. LEGAL STUD. 165 (1974) [hereinafter cited as Epstein, Defenses]; Epstein,
Intentional Harms, 4 J. LEGAL STUD. 391 (1975) [hereinafter cited as Epstein, Intentional
Harms]; Epstein, Nuisance Law: Corrective Justice and its Utilitarian Constraints, 8 J. LEGAL
STUD. 49 (1979) [hereinafter cited as Epstein, Nuisance Law]; Epstein, Causation and Corrective
Justice: A Reply to Two Critics, 8 J. LEGAL STUD. 477 (1979) [hereinafter cited as Epstein,
Reply]. Hart and Honore's influence on Epstein is indicated in, for example, Epstein, supra note 13,
at 161-64 & n.39; Epstein, Intentional Harms, supra, at 431-32 & n.100; Epstein, Reply, supra, at
479, 486 n.33. Compare Epstein, supra note 13, at 166-69, 175 (building on simple transitive
propositions), with H.L.A. HART & A. HONORE, supra note 10, at 26-28, 68-69 (same).
However, in their second edition Hart and Honore reject Epstein's "causal maximalism." H.L.A.
HART & T. HONORE, supra note 8, at lxxiii-lxxvii; see id. at 30-31, 96-97 (notion of force is
inadequate basis for causal theory).
50. Epstein, supra note 13, at 151-57, 198-99.
51. Id. at 198-201, 203-04; Epstein, Intentional Harms, supra note 49, at 441-42; Epstein,
Reply, supra note 49, at 479-80.
52. Epstein, supra note 13, at 198-99; see id. at 162-66, 185-87; Epstein, Defenses, supra
note 49, at 178-81, 184; Epstein, Reply, supra note 49, at 478-80 & n.5.
53. See Epstein, Pleadings and Presumptions, 40 U. CHI. L. REV. 556, 558-59, 570-71,
577 (1973) (minimally sufficient elements for responsibility constitute prima facie case and

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tion of harm to another.54 Strict liability requires, in addition to causa

tion, that the harm result from conduct which created a foreseeable,
unaccepted risk of harm to another that could have been avoided.55
Fault liability requires, in addition to causation, that the harm result
from conduct which should have been avoided given the foreseeable
risks.56 Epstein purports to base prima facie liability simply on causation
of harm to another.57 This prima facie absolute liability, however, may
be eliminated or reduced if certain defenses are established.58
Epstein's normative arguments on behalf of his absolute liability
theory assume that there are only two possible types of prima facie tort
liability-fault and absolute.59 His negative arguments point out the
flaws in the fault theories and the failure of those theories to account for
various cases in which liability was imposed (or arguably should have
been imposed) although there was no faulty behavior by the defendant.
60
The cases he discusses, however, are strict liability cases-cases in
which the defendant knew or should have known that he was imposing
an unac cepted risk on others.61 Similarly, his affirmative arguments
are almost

theory of recovery, even when responsibility defeasible through defenses or other subsequent
pleadings).
54. E.g., O.W. HOLMES, supra note I, at 67-68, 72; Ehrenzweig, Negligence Without Fault,
54 CALIF. L. REV. 1422, 1426 nn.13 & 18 (1966), and the sources cited therein.
55. E.g., PROSSER & KEETON, supra note 7, § 75, at 536-38; id. § 78, at 555-56; Ehrenzweig,
supra note 54, at 1450-51 & n.I; see O.W. HOLMES, supra note I, at 77, 93-95, 115-18.
56. E.g., O.W. HOLMES, supra note 1, at 85-88; Ehrenzweig, supra note 54, at 1444-45.
57. Epstein, supra note 13, at 152, 168-69.
58. These defenses include reciprocal causation of harm to the defendant by the plaintiff,
assumption of the risk by the plaintiff, and trespass on the defendant's property by the plaintiff.
Epstein, Defenses, supra note 49, at 167-68, 174, 185, 201.
59. Epstein, supra note 13, at 152, 171; Epstein, Intentional Harms, supra note 49, at 398.
This erroneous assumption also appears in most economic analyses of tort liability. See, e.g.,
Brown, Toward An Economic Theory of Liability, 2 J. LEGAL STUD. 323 (1973); Shavell, Strict
Liability Versus Negligence, 9 J. LEGAL STUD. 1 (1980).
60. Epstein, supra note 13, at 153-60, 169-71.
61. Morris v. Platt, 32 Conn. 75 (1864); Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124
N.W. 221 (1910). Both cases are discussed in Epstein, supra note 13, at 157-60. See also Bolton
v. Stone, 1951 A.C. 850, revg [1950] 1K.B. 201 (C.A. 1949), revg [1949] 1All. E.R. 237
(Manchester Assizes 1948). Bolton is discussed in Epstein, supra note 13, at 169-71. In Bolton,
the defendant cricket club maintained and used a playing field not only with the knowledge that
cricket balls might be hit out of the grounds and endanger passersby such as the plaintiff, but also
with the knowledge that one of the objects of the game is to hit the ball away from the opposing
team, the further away the better. Although balls are rarely hit out due to the size of the playing
fields, those that are hit out earn extra points. See 1 THE ENCYCLOPEDIA OF SPORT 447
(1898). Thus, although the risks to passersby such as the plaintiff were slight, the possibility was
knowingly and eagerly pursued as an integral part of the defendant's activity. This latter aspect
of the case, together with the likely severity of the harm should a ball actually escape the grounds
and hit someone, may well explain (a) the House of Lords' unease in refusing to hold the defendant
liable, (b) the public interest in the case, and (c) the decision of the Cricket Clubs of England to
compensate the plaintiff despite the lack of a holding of legal liability. See Epstein, supra note 13,
at 170. It seems unlikely that the case would have aroused such controversy if the possibility that
cricket balls would escape the grounds had been completely unintended, unknown, and
unforeseeable.

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always couched in strict-liability terms. They explicitly or implicitly

rely not only on causation of harm by the defendant, but also on the
defend ant's acting despite actual or constructive knowledge of a
foreseeable, unaccepted risk to another.62
This mental element, however, is absent in Epstein's description of
the prima facie case under his theory, which initially is based solely on
causation of harm. Epstein does not provide any general definition or
account of causation. He rejects the traditional "but for" (necessary
con dition) test because it treats too many conditions as causes of the
injury and therefore allegedly throws all the critical liability decisions
into the policy-laden proximate-cause inquiry.63 In place of the but-for
test and the proximate-cause inquiry, he identifies a set of "causal
paradigms" which purportedly explicate the concept of causation and
constitute nec essary and prima facie sufficient bases for the imposition
of liability.64
But neither of these claims holds up. Epstein's paradigms do not
explicate the concept of causation.65 Instead, he uses the concept of cau
sation, undefined and unelaborated, to construct what are actually para
digms of responsibility, by combining certain methods of causing harm
(primarily force and the threat of force) with certain noncausal criteria.
However, the prescribed methods of causing harm are too restrictive,
while the prescribed noncausal criteria do not include the mental
element required for true strict liability. Consequently, Epstein's theory
produces results which diverge substantially from those reached by the
courts.66
The first paradigm is "A hit B," which is meant to be an
abbreviated way of saying that A, by application of force to B or B 's
property, broke, cut, or otherwise harmed B or B 's property.67 Note the
implicit circular reference to the concept of causation in this
"causal" paradigm. The

62. Epstein, supra note 13, at 158-59 & n.22, 173; Epstein, Defenses, supra note 49, at 169,
213; Epstein, Intentional Harms, supra note 49, at 398, 414.
63. Epstein, supra note 13, at 161-63; Epstein, Reply, supra note 49, at 478-79. But see
Epstein, supra note 13, at 183 (but-for test applied to dangerous position of vase), 184 (same:
dangerous condition of c'.lr).
64. Epstein, supra note 13, at 160, 165-66, 168-69, 190-91, 194-95; Epstein, Defenses, supra
note 49, at 167-68; Epstein, Intentional Harms, supra note 49, at 398-400; Epstein, Reply, supra
note 49, at 479-80.
65. This point has also been made by Borgo, supra note 11, at 427-31; see supra note 48.
66. Epstein states that his theory is predominantly normative. Epstein, supra note 13, at 151;
Epstein, Reply, supra note 49, at 477. Nevertheless, he recognizes that any plausible normative
theory cannot stray too often or too far in its results from the commonly accepted notions of
responsibility embodied in traditional tort law, and he claims to base his theory on those commonly
accepted notions. See Epstein, supra note 13, at 151, 163-64, 166; Epstein, Reply, supra, at 479,
503-
4. Indeed, he argues that his theory best accounts for the results reached by the courts. Epstein,
supra note 13, at 165-66, 189; Epstein, Defenses, supra note 49, at 168-69, 173-74, 204-05, 213-
15; Epstein, Intentional Harms, supra note 49, at 406-07; Epstein, Reply, supra, at 480.
67. Epstein, supra note 13, at 166-67; Epstein, Intentional Harms, supra note 49, at 399;

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paradigm implicitly states that A, by application of force, caused harm

to B or B 's property-for example, that the force initiated (caused) by
A caused B 's cut, which is itself the harm for which compensation
is sought or which led to (caused) the ultimate harm for which
compensa tion is sought. The paradigm does not explain or help to
identify any of these instances of causation. It rather assumes that we
somehow per ceive them, and it restricts liability to those that
involve force as the causal mechanism.
Epstein also requires that the force have been initiated by a voli
tional act of A, rather than by someone's throwing A or by some auto
matic or reflex action of A.68 Thus the paradigm includes, in addition to
(unelaborated) actual causation, the noncausal criteria of a volitional act
and a particular method of causation (the application of force).
Similarly, the second paradigm, ''A frightened B," requires, in
addi tion to actual causation, that A have caused the harm to B by a
volitional act and through the causal mechanism of fright or shock. As
originally stated, the paradigm would cover cases in which
extrasensitive or even normal people are frightened by the completely
innocent and inoffensive acts of others. Epstein suggests that, in these
cases, the frightened person should be treated as having caused her own
fright, but he does not indi cate which of his causal paradigms would
apply.69 None would, espe cially since the person's fright is not
considered to be volitional. Eventually Epstein modifies the paradigm
by requiring that A's volitional act be an "offer of force" against B,
or, to the same effect, that a de minimus rule be applied to A's
conduct.70 These modifications, of course, introduce additional
noncausal criteria into the paradigm.
The third paradigm holds A liable to C if ''A [by a volitional act]
compelled B to hit C."71 The compulsion must be accomplished through
force or the threat of force.72 Under this third paradigm, B as well as A
is liable to C: since B satisfies the initial paradigm, "B hit C."
Moreover, B has an action against A for the damages that he is
required to pay C: since A satisfies the paradigm, "A hit (or offered to
hit) B."73
The fourth paradigm most clearly demonstrates the circularity and
ambiguity of Epstein's causal paradigms. It holds A liable to B if "A
[by a volitional act] created [caused] the dangerous condition that
resulted in

68. Epstein, supra note 13, at 166-67. See generally Moore, supra note 44, at 1132-36
(distinguishing action from mere causal sequence).
69. Epstein, supra note 13, at 172.
70. Epstein, Reply, supra note 49, at 483-84.
71. Epstein, supra note 13, at 174. See generally Moore, supra note 44, at 1129-32
(distinguishing compulsion from mere causation).
72. See Epstein, Defenses, supra note 49, at 175; Epstein, Intentional Harms, supra note 49,
at 399.
73. Epstein, supra note 13, at 175; Epstein, Defenses, supra note 49, at 174-75.

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[caused] harm to B."74 Note that two instances of causation are implied
by the expression "resulted in." First, some act or event must "trigger"
the dangerous condition, and, second, the triggered condition must then
cause the harm.
Epstein attempts to avoid the charge that this paradigm, by use of
the expression "resulted in" (he overlooks the verb "created"), defines
causation in terms of itself. He says that the expression "resulted in"
must be replaced in each particular case with a description of the act or
event which is the immediate cause of the harm, using one of the three
previously elaborated paradigms-force, fright or compulsion.75 How
ever, even if both the expression "resulted in" and the verb "created"
were interpreted and used in this restricted fashion, it would only push
the circularity one level deeper, since-as we have seen-the three previ
ous paradigms themselves contain implicit, unelaborated causal state
ments. Moreover, Epstein does not actually restrict either term in this
fashion.
Thus, in Epstein's examples dangerous conditions are "created" by
"storing" or "handling" explosives, by "placing" or "leaving" an
object in a precarious or obstructive position, or by "manufacturing" a
defective product. And dangerous conditions are "triggered" by a
"small change in conditions, like temperature and humidity," or by mere
use of a defec tive product (which might simply be turning it on or
eating it).76 Clearly, given these examples, the creation or triggering of
dangerous conditions is not limited to the use or threat of force, unless
"force" is construed so broadly as to encompass any action.
Similarly, in Epstein's examples dangerous conditions, when trig
gered, can cause harm not just by "releas[ing] or otherwise set[ting] in
motion large forces" that are associated with the dangerous condition
itself, but also by absorbing or "redirecting" forces that are not associ
ated with the dangerous condition. For example, an obstruction in a
highway is treated as a dangerous condition that "results in" injury to B
when B drives into it or swerves to avoid it.77 Here "results in" cannot
be replaced by one of the three previous paradigms: the obstruction did
not hit B, or offer to hit B, or compel anyone to hit B. Rather, the con
verse is true: the obstruction was hit by B or, in the swerve case,
"offered" to be hit by B!78

74. Epstein, supra note 13, at 177.

75. Id.
76. Id. at 177-78.
77. Id. at 178, 185.
78. Epstein might argue that A's obstruction compelled B to hit A's obstruction. This
argument, however, would have to rely on a definition of compulsion that includes more than the
actual or threatened use of force by A. At most, A only threatened to absorb B's force. Moreover,
the argument would only establish B's right to be indemnified by A for damages that B caused to
A's

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In other examples, the triggered condition "results in" harm

through causal mechanisms involving fire, pollution, unwanted oxygen,
delays, and so forth, in which there is no use or offer of force by
anyone, unless once again "force" is interpreted so broadly that it
applies to anything.79
In addition to its causal circularity and ambiguity, the dangerous
condition paradigm contains the most obvious noncausal criterion of
any of the paradigms: the requirement that the condition which
resulted in the harm have been "dangerous." Epstein tries to tie the
term "danger ous" into his notion of causation-as-force by limiting
the paradigm to those "dangerous conditions that release or otherwise
redirect forces in the narrowest sense of causation."80 Thus, he asserts,
a sharp knife is a "mere" condition rather than a "dangerous"
condition, because it con tains no store of energy waiting to be released
(nor, presumably, does it "redirect" forces). 81 But, as we have already
seen, Epstein does not adhere to this limitation. An obstruction, when
hit by something, does not release or redirect forces. It absorbs forces,
as does B in the para digm "A hit B." Similarly, if a knife with a sharp
edge does not release or redirect forces, then neither does a toy that is
defective because it has a sharp edge. Yet these two examples clearly
illustrate two of Epstein's three categories of dangerous conditions:
things in dangerous positions and defective products. (The third
category is inherently dangerous or ultrahazardous things, such as
stored explosives.)82
The examples discussed so far indicate the accordion-like quality
of Epstein's paradigms and his causal theory as a whole, which
alternately expand and contract to fit the particular argument. When
Epstein wants to deny liability in a certain case or to emphasize the
coherence of his theory, he insists on causation through force, the
offer of force, or the creation of a dangerous condition which releases
or redirects force.83 But strict adherence to this limitation would require
him to deny liability in many types of cases in which liability is
imposed by the courts: fires, poisonings, fraud, defamation, emotional
distress cases not involving the use of force, and so forth. When
discussing these types of cases, Epstein

obstruction (or other object, in the swerve case). There is no embedded paradigm, "A hit (or offered
to hit) B" that would support an action by B against A for damages suffered by B when B hit the
obstruction. See supra text accompanying notes 71-73. Nor, unless we are to twist language, can it
be said that A compelled B to hit himself. B hit the obstruction (or other object), not himself.
79. Epstein, Nuisance Law, supra note 49, at 56·57, 68, 100; Epstein, Reply, supra note 49,
at 486·87.
80. Epstein, supra note 13, at 185; see id. at 179.
81. Id. at 179.
82. See id. at 177-78; see also Epstein, Intentional Harms, supra note 49, at 415 (barbed
wire as a dangerous condition).
83. Epstein, supra note 13, at 180, 185; Epstein, Intentional Harms, supra note 49, at 399-400,
431; Epstein, Reply, supra note 49, at 479-81.

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usually abandons the force limitation and recognizes any "paradigm"

that expresses a "nonreciprocal" (transitive) causal relationship-for
example, "A poisoned B," "A segregated B where aid could not be
given," "A misled B," "A entered B's land," "A damaged B's property,"
or "A infringed B' s interest."s4
At this point, the alleged power of the causal paradigms disappears.
As Epstein implicitly admits, the inquiry has dissolved into a debate
over rights and protected interests.ss He belatedly notes that the
question of nonreciprocal causation of harm-of who harmed whom-
cannot be resolved without a prior determination of the parties'
respective rights.s6 Indeed, he goes so far as to identify the "causal
question" with "the ques tion of what legal right of the plaintiff was
involved."s7 Unfortunately, he assumes that a person's rights in her
body or property are absolute: theoretically, any invasion creates
liability.ss As a result, he is forced to introduce "utilitarian constraints"
into his system to avoid liability for de minimus harms.s9
Similar problems appear in Epstein's infrequent discussions of
prox imate-cause limitations. Although Epstein intended to replace
tradi tional proximate-cause analysis with his causal paradigms, 90 he
never demonstrates how his paradigms accomplish this goal, and it is
not clear how they could accomplish it. The four initial paradigms
merely require that the injury result from force (or an offer of force)
initiated by A him self or by someone compelled by A or by a
dangerous condition created by A. The basic proximate cause problems
remain. How far is the force

84. Epstein, supra note 13, at 195 n.104; Epstein, Defenses, supra note 49, at 202; Epstein,
Intentional Harms, supra note 49, at 432; Epstein, Nuisance La111, supra note 49, at 51. In the
emotional distress cases not involving the use or threat of force, Epstein adheres to the force
limitation and denies liability under his "invasion model." He suggests that liability in these cases is
based on "breaches of implied contracts for good social behavior" and that the "contractual mold" is
appropriate since these cases "all involve direct personal contact between plaintiff and defendant."
Epstein, Nuisance La111, supra, at 64 n.44. This reasoning, of course, would apply to almost every
tort. Epstein's discussion demonstrates the difficulties created by his narrow view of tort theory and
his frequent resort to dubious contractual arguments to escape those difficulties. See also Epstein,
Reply, supra note 49, at 481 (drivers on highway are not strangers since they are "bound together by
. . . statutory . . . bonds," thus calling for "complicated notions of 'avoidance of harm'
which arc not captured by my paradigms").
85. Epstein, Intentional Harms, supra note 49, at 432-41.
86. Id. at 432-34, 441; Epstein, Nuisance La111, supra note 49, at 50-53. Compare Epstein,
supra note 13, at 164-69 (nonreciprocal causation defines rights), 111ith Epstein, Nuisance La111,
supra, at 58- 60 (question of causation depends on prior definition of rights) and Epstein, Reply.
supra note 49, at 498 & n.64 (references to Epstein's gradual recognition of the primacy of rights
analysis).
87. Epstein, Intentional Harms.supra note 49, at 433.
88. See Epstein, Nuisance Law, supra note 49, at 63-64 & n.40, 82, 92-93; Epstein, Reply, supra
note 49, at 488-500.
89. Epstein, Nuisance La111, supra note 49, at 50, 74-102; Epstein, Reply, supra note 49, at 483-
84, 488-89, 503.
90. Epstein, supra note 13, at 161-63, 164-65, 168, 184-85; Epstein, Reply. supra note 49, at
478-80.

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to be traced? Is A liable for harm caused by the dangerous condition

despite intervening events?
Epstein compares the case in which B is injured when he swerves
to avoid A' s obstruction with the case in which B is injured while
traveling back and forth to remove A' s obstruction. Epstein claims
that the dan gerous-condition paradigm distinguishes the two cases. A is
liable only in the swerve case, because in that case A's obstruction
"redirected" B's force, and B was injured by the redirected force. But
this is true also in the traveling-back-and-forth case. Epstein's further
assertion that the "causal connection ends once the road is repaired" is
unsupported by his paradigms. Moreover, the logic of the assertion
would permit (indeed, require) liability if the injury occurred on the
way to the obstruction.91 Epstein sometimes states that the injury must
be produced directly
92
and immediately by the force, but he provides very little elaboration.
In some cases, he is willing to treat intervening events as "means," 93
while in other cases he is willing to trace forces through lengthy,
complex causal chains.94 On the few occasions that he discusses
proximate-cause problems, he frequently relies on traditional
proximate-cause arguments.95
In sum, Epstein's causal paradigms as initially elaborated are much
too narrow to serve as the basis for a comprehensive theory of tort
liabil ity. When he expands the content and number of the paradigms to
make his theory more plausible, the paradigms become superfluous.
There is liability for any volitional act that infringes a legally protected
interest, and any method of causation qualifies as an infringement,
subject to unspecified but apparently traditional proximate-cause
limitations.
However, no matter how many methods of causation are allowed,
Epstein's theory still diverges substantially from the decisions of the
courts, since his paradigms do not include the critical mental element
that is required for liability. A volitional act is not enough. At a mini
mum, the courts require the plaintiff to establish that the defendant
knew or should have known that his act would impose an unaccepted
risk on others.96 Epstein's paradigms do not include this element
(except per haps the fright paradigm when modified to require an
"offer" of force).

91. Epstein, supra note 13, at 185.

92. Id. at 177, 184-185; Epstein, Intentional Harms, supra note 49, at 399-400; Epstein,
Nuisance Law, supra note 49, at 56.
93. Epstein, supra note 13, at 167-68.
94. Epstein, Nuisance Law, supra note 49, at 56-57 (nuisance cases); see also Epstein,
Illlentional Harms, supra note 49, at 429 (defendant used force to drive away plaintiff's potential
customers).
95. See Epstein, supra note 13, at 174 n.70, 176 n.73, 185; Epstein, Defenses, supra note 49,
at 183-84; Epstein, Intentional Harms, supra note 49, at 431-32 & n.100; Epstein, Nuisance Law,
supra note 49, at 56-57; Epstein, Reply, supra note 49, at 486-87 & n.37.
96. O.W. HOLMES, supra note l, at 76-78; see also id. at 92-95, 115-18.

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The gap between Epstein's theory and the actual practice of the
courts is narrowed somewhat in the reciprocal-causation cases. In these
cases, both the plaintiff and the defendant have harmed each other under
one of the causal paradigms. The plaintiff's reciprocal causation of
harm to the defendant provides a defense, in the second stage of the
pleadings, to the plaintiff's prima facie case against the defendant, which
was estab lished in the first stage. Epstein then allows the plaintiff, in a
third stage of the pleadings, to reestablish his claim by proving that the
defendant's conduct was tortious.97 But by then it is too little and too
late. The tortious-conduct inquiry is never reached in the many cases in
which the pleadings do not progress beyond the first stage because there
is no recip rocal causation. Even when the tortious-conduct inquiry is
reached, Epstein refuses to consider one of the principal types of
tortious con duct-negligence-because of his strong distrust of
imprecise liability principles.98 Thus, under Epstein's theory, a driver
whose car acciden tally breaks down on the highway and who sets out
adequate warnings for other drivers is liable to, but cannot recover
from, the operator of a truck who negligently crashes into the car. The
driver of the car creates a dangerous·condition by blocking the right of
way, the truck's crashing into the car merely completes the paradigm,
and the truck operator's negligence is (according to Epstein)
immaterial.99
It should by now be clear that causation is not equivalent to
respon sibility, nor is it prima facie sufficient for liability. The tortious-
conduct and proximate-cause inquiries are distinct from the causal
inquiry, and all three are required to complete the liability analysis
under traditional notions of legal responsibility.
An important question remains, however. Is the causal inquiry a
significant part of tort analysis, or is it, as alleged by Malone and feared
by Hart, Honore, and Epstein, dominated by the tortious-conduct and
proximate-cause inquiries?

97. Epstein, Defenses, supra note 49, at 177-84; Epstein, Intentional Harms, supra note 49,
passim.
98. Epstein, Defenses, supra note 49, at 172; Epstein, Reply, supra note 49, at 482; see
supra note 52 and accompanying text. But cf. Epstein, Defenses, supra, at 177-84 & n.49
(statutory duties); Epstein, Nuisance Law, supra note 49, at 71-72 & n.58 (reasonableness
considerations in highway cases); Schwartz, The Vitality of Negligence and the Ethics of Strict
Liability, 15 GA. L. REV. 963, 986-89, 994 (1981) {discussing Epstein's reliance on negligence
notions in certain situations); supra note 84 (reasonableness considerations in emotional distress
cases).
99. Epstein, supra note 13, at 180-81, 191-92 & n.99; Epstein, Defenses, supra note 49, at 177-
78.

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B. The Significance of the Causal Inquiry: Linking the Causal

Inquiry and the Tortious-Conduct Inquiry Through the
Tortious-Aspect Causation Requirement
The significance of the causal inquiry in tort law varies
dramatically depending on how it is linked to the tortious-conduct
inquiry. There are two principal options. The first is to apply the
causal inquiry to the defendant's conduct as a whole, for example,
operating a hotel or driving a car. The second is to focus the causal
inquiry on the tortious aspect of the defendant's conduct, for example,
failure to provide a fire escape in the hotel, or excess speed or
inattentiveness while driving the car. The choice between these two
approaches is a decision of policy or principle. This, however, does not
make the causal inquiry itself any less factual.
Adoption of the first (overall-conduct) approach makes it easy to
satisfy the actual-causation requirement, unless the defendant had no
connection with any of the conditions or events that contributed to the
injury. The causal inquiry therefore plays a relatively minor role in the
determination of liability. Instead, liability turns primarily on policies
related to deterrence of tortious behavior, allocation of losses to a tor
tious defendant when the losses are "within the risk" created by the tor
tious behavior (whether or not they were caused by the tortious aspect
of the behavior), providing incentives for wealth-maximizing behavior,
and so forth.lOO
Adoption of the second (tortious-aspect) approach, however,
signifi cantly constrains pursuit of such policy goals by according a
much greater role to the causal inquiry in determining tort liability.
The defendant cannot be held liable unless the tortious aspect of his
conduct contributed to the injury.101 The role of the causal inquiry
becomes even more significant if, as appears to be the case,
defendants are often held liable for harm caused by the tortious
aspect of their behavior even though the harm was neither foreseeable
nor "within the risk." 102
It is clear from the cases that the courts follow the tortious-aspect
approach. 103 In fact, it is so clear that many readers may wonder why I
have devoted even this many lines to belaboring the obvious. My
justifi cation is that, surprisingly, very few legal writers have noted this
point,

100. E.g., G. CALABRESI, THE COSTS OF ACCIDENTS 6-7 & n.8, 131-97 (student ed.
1970); Calabresi, supra note 9; Green, supra note 8; Pound, supra note 7; Thode, The Indefensible
Use of the Hypothetical Case to Determine Cause in Fact, 46 TEX. L.REV. 423 (1968).
101. For a discussion of the difficulties that this restriction creates for the wealth-maximizing
theories of tort liability, see Wright, supra note 9.
102. See infra text accompanying notes 161-64.
103. E.g., Weeks v. McNulty, 101 Tenn. 495, 48 S.W. 809 (1898); Texas & Pac. Ry. v.
Mccleery, 418 S.W.2d 494 (fex. 1967); Peterson v. Nielsen, 9 Utah 2d 302, 343 P.2d 731 (1959);
Sowles v. Moore, 65 Vt. 322, 26 A. 629 (1893); see RESTATEMENT (SECOND) OF TORTS §
432 (1965); RESTATEMENT OF TORTS § 519 (1938).

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much less emphasized its significance. 104 A substantial number of writ

ers have expressly rejected the tortious-aspect approach to the cause-in
fact inquiry. 105 Others have written ambiguously about the need to
establish a causal connection between the defendant's tortious conduct
and the injury.106
The proponents of the overall-conduct approach replace the tor
tious-aspect causation requirement with risk-related limitations on
liabil ity. One theory, championed by Leon Green, relies on ad hoc,
open ended policy considerations as part of the duty (tortious-conduct)
inquiry. The other theory, developed most extensively by Robert Kee
ton, limits liability to harm that is "within the risks" that made the
defendant's conduct tortious. This limitation occurs as part of either the
tortious-conduct inquiry or the proximate-cause inquiry.
In this section I first argue that the risk theorists must smuggle the
tortious-aspect causation requirement into their risk analyses to obtain

104. Those who have at least noted the point include A. BECHT & F. MILLER, supra note
8, passim; Carpenter, Workable Rules for Determining Proximate Cause (pt. 2), 20 CALIF. L.
REV. 396, 408-19 (1932); Phillips, Reflections on Factual Causation, 1978 WASH. U.L.Q.
661, 663; Williams, supra note 21, at 64-65, 70-71, 73-75; see also H.L.A. HART & T.
HONORE, supra note 8, at xxxvii-xxxviii, lviii-lxi, 117-21, 208-11, 293-94; R. KEETON, LEGAL
CAUSE IN THE LAW OF TORTS 4-9, 12-13, 18 (1963). The economic analysts generally have
assumed the tortious-aspect approach when they address the causation issue, but many have
assumed the overall-conduct approach in their articles on tortious conduct. See Brown, supra
note 59, at 327-29, 333-34 (overall conduct); Calabresi, supra note 9, at 79, 85-86 (tortious
aspect); Calfee & Craswell, Some Effects of Uncertainty on Compliance with Legal
Standards, 70 VA. L. REV. 965, 975, 990 & n.56 (1984) (overall conduct); Grady, supra note 9,
at 804, 814-15, 824-25 (tortious aspect); Landes & Posner, supra note 9, at 111-18 (tortious
aspect); Landes & Posner, The Positive Economic Theory of Tort Law, 15 GA. L. REV. 851,
868-70, 880-82 (1981) (overall conduct); Shavell, supra note 9, at 463-64, 481-82, 489 (tortious
aspect); Shavell, supra note 59, at 10, 11 n.18, 15 (overall conduct).
105. 2 F. HARPER & F. JAMES, supra note 2, § 20.5, at 1138 & n.17 (But cf. id. § 20.2 n.4
comment, at 93-94 (Supp. 1968)); R. KEETON, supra note 104, at viii-ix, 10-16; Cole, supra note 7, at
459-60, 473-75, 482-86 & n.80, 491, 498-507 & n.133; Crowe, The Anatomy of a Tort-Greenian, as
Interpreted by Crowe, Who Has Been Influenced by Malone-A Primer, 22 LoY. L. REV. 903, 904-
05, 920-22 (1976); Epstein, supra note 13, at 152, 168-69, 181; Green, supra note 8, at 544 & n.3,
546-52, 562, 569 n.77, 576; Henderson, A Defense of the Use of the Hypothetical Case to Resolve the
Causation Issue-The Need for an Expanded, Rather than a Contracted, Analysis, 47 TEX. L. REV.
183, 185, 195-98, 200-01, 212-13 (1969); Morris, supra note 3, at 1096-97, 1104; Thode, supra note
100, at 424-25, 428-29; see also Pedrick, supra note 7, at 656-57 & n.41.
Although Robert Keeton claims to be using the tortious-aspect approach, he substitutes the
"harm within the risk" approach to proximate-cause limits for the tortious-aspect approach to
cause-in-fact. See infra text accompanying notes 118-26. Keeton and Thode each report Warren
Seavey's rejection of the tortious-aspect approach. R. KEETON, supra note 104, at 12-13; Thode,
supra note 100, at 429 & n.23. Pedrick cites Prosser as also supporting the overall-conduct
approach, but the cited portion of Prosser's text uses the defendant's negligence (excess speed) rather
than his conduct as a whole (driving) as the basis for the causal inquiry. Pedrick, supra note 7, at
656 n.41 (citing W. PROSSER, supra note 1, § 41, at 237 & n.6).
106. E.g., J. FLEMING, supra note 4, at 170-71; c. MORRIS & C.R. MORRIS, supra note 4, at
154-201; W. PROSSER, supra note 1, § 30, at 143; id. § 41, at 236-43; id. § 42, at 249; id. § 45, at
289; PROSSER & KEETON, supra note 7, §§ 41-45, at 263-321; Smith, Legal Cause in Actions of
Tort (pts. 1-3), 25 HARV. L. REV. 103, 223, 303 (1911-1912).

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results that are consistent with the decisions of the courts. I then elabo
rate the tortious-aspect causation requirement and apply it to a broad
range of cases to demonstrate its importance in determining liability.

1. Green's Duty-Risk Theory

Leon Green and his followers insist that the causal inquiry be
applied to the defendant's conduct as a whole. They vigorously reject
any requirement of a causal relation between the injury and the tortious
aspect of the defendant's conduct. For them, the critical factors in deter
mining liability are the relevant social policies. They claim that the
court should weigh these policies in each case to decide whether the
injury represents the type of risk for which the defendant should be
held responsible (the duty issue). Furthermore, these policies should
also be weighed by the jury, in conjunction with the other contributing
factors and the foreseeability of harm of the sort that occurred, to
decide whether the defendant should compensate the plaintiff (the
negligence, or breach of duty, issue).107
Green offers the following example to demonstrate how his
approach "relieves the causation concept of most of its burdens and con
fusing terminology. "108 A driver X runs into P without trying to use his
brakes. X was going too fast to stop anyway. Moreover, unbeknown to
X the brakes were defective. D, who knew the brakes were defective,
had sold the car to X without disclosing the defective condition of the
brakes. Green notes that, under his approach, there is a clear causal
connection between each of X' s and D's activities and P's injury. "D's
selling the car to X [regardless of D's knowledge of the defective
brakes] contributed to P' s injuries. . . . X 's buying and driving the car
[regard less of his speeding and failure to try to use the brakes]
contributed to P' s injury."109 The liability determination, therefore,
turns on the scope of the duties and the question of whether either D or
X was negligent with respect to P.110
Green states without elaboration that "X owed no duty to anyone to
use the defective brakes, and did not violate any duty to anyone in
failing to use them."111 These assertions are not plausible. In light of the
obvi ous risks, a court would almost certainly decide that X owed a
duty to P and to everyone else on the road not to speed, and that X
also owed a duty to P to try to use the brakes to avoid hitting P. A
jury would

107. E.g., Crowe, supra note 105; Green, supra note 8; Thode, supra note 100; see also L.
GREEN, W. PEDRICK, J. RAHL, E.W. THODE, C. HAWKINS, A. SMITH & J. TREECE, CASES ON
THE LAW OF TORTS (2d ed. 1977) (no discussion of actual causation issue).
108. Green, supra note 8, at 569 n.77.
109. Id.
110. Id.
111. Id.

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undoubtedly conclude that X breached his duties to P by speeding and

failing to try to use his brakes. The implicit assumption in Green's state
ment is that there is no duty and no negligence if performance of the
duty, in hindsight, would not have made any difference, even when the
defendant was unaware that performance would not make a difference.
But this is precisely the causal issue, which has been smuggled into the
duty analysis. 112 The duty and breach of duty are clear. Under the crim
inal law, X would be liable for his speeding and failure to brake whether
or not they contributed to P's injury. The troublesome issue under the
tort law is the causal one: did X 's speeding or failure to try to use his
brakes (the negligent aspects of his conduct) contribute to P's injury,
even though the injury would have occurred anyway given the defective
brakes? 113 This causal issue is hardly clarified by the use of duty lan
guage and duty analysis.
The confusion introduced by trying to resolve causation problems
through duty-risk analysis is further exemplified by Green's analysis of
D' s tort liability. He notes initially that "D was under a duty to P and to
X and other users of the highway to refrain from selling the car to X
knowing it had defective brakes without disclosing that fact to X." But,
he asks,
Was the risk of driving at a speed which would not permit X to avoid
collision with P's car within the scope of D 's duty to X and to P . . .
? Would X have bought and driven the car if D had disclosed to him
that the brakes were defective? Under the evidence this could be a
jury issue. . . . [I]t cannot be presumed that he would have risked his
own safety and that of other users of the highway by driving a car with
defec tive brakes. The risk of driving the car on the highway,
irrespective of the speed with which it was driven, falls within the
scope of D's duty to X and to P with respect to the injuries suffered by
them. 114
Green apparently concludes that D is liable for any injuries inflicted
on others by X 's driving, no matter how negligently X drove, because
presumably X would not have been driving if D had told him about the
defective brakes. This again is a causal ("but for") argument
masquerad ing as a duty issue. Moreover, it is a very weak causal
argument. Assuming that X would not have bought and used the
particular car if he had been told about the defective brakes, he
presumably would have been driving another car: his old car, a
different new car, or a leased or bor rowed car. There is no reason to
believe that the particular car had any thing to do with X 's speeding or
failure to brake. Thus, although D's

112. For another unsuccessful attempt to replace causal analysis with tortious-conduct analysis,
which also relies on causal arguments, see Landes & Posner, supra note 9, at 110-11, 115-16, 119-
22, criticized in Wright, supra note 9, at 452-55.
113. The answer is yes. See infra text accompanying notes 274-76.
114. Green, supra note 8, at 569 n.77.

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failure to disclose was negligent, it was not a cause of P's injury.115

The above discussion reflects Green's final views on causation.
These views, published in 1962, had evolved over several decades as he
led the legal realists' fight to unburden causal analysis of all the critical
policy issues. In his initial writings, he clearly used the negligent aspect
of the defendant's conduct, rather than the defendant's conduct as a
whole, as the starting point for the cause-in-fact inquiry.116 Even in his
1962 article, he continued to focus on the negligent aspect in the cases
involving failure to provide fire escapes, life saving equipment, lighting
for stairways, and so forth. In each of these cases, the failure to provide
the safety precaution is the negligent aspect of the defendant's overall
activity of operating a hotel, boat, store, train station, or whatever.117
These cases, and the example discussed above, demonstrate the impor
tance of focusing the causal inquiry on the tortious aspect of the defend
ant's conduct. Failure to do so burdens the duty analysis with causation
issues that may well be mishandled since they are not explicitly recog
nized as causation issues.

2. Keeton's ''Harm Within the Risk" Theory

Similar problems appear in Robert Keeton's version of the risk the
ory of liability. Keeton employs risk analysis in the proximate-cause
inquiry rather than in the duty-negligence (tortious-conduct) inquiry.
Initially, he recognizes the courts' insistence that the plaintiff's injury
has been caused by the negligent aspect of the defendant's conduct. The
first two formulations of his Risk Rule appear to be successively more
explicit statements of this requirement. 118 However, he eviscerates the
require ment by interpreting "negligent aspect" to mean the type of
risk that

115. See Saunders Sys. Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72 (1928). For an
analysis of this example under the causal test proposed in this Article, see infra text accompanying
notes 274-76.
116. L. GREEN, JUDGE AND JURY 188, 229-30 (1930); L. GREEN, supra note 2, at 3-4, 41,
145- 46, 148-49, 151-52, 164, 166, 181-84 n.60.
117. Green, supra note 8, at 559. But see id. at 560 n.45 (citing Stacy v. Knickerbocker Ice
Co., 84 Wis. 614, 54 N.W. 1091 (1893) (failure to provide warning fence)). Wayne Thode has
applied Green's later views to the cases involving failure to provide a fire escape. He asserts
that furnishing the room to the deceased is sufficient to satisfy the causal requirement, even
when the failure to provide the fire escape did not contribute to the victim's death. Thode, supra
note 100, at 433-34. Thode tries to convince those who disagree with this approach by arguing
that we would surely hold the defendant liable if the deceased stayed in his room because he
knew there was no fire escape, yet "D's conduct has not changed." D's conduct has not
changed, but its causal effects have. The failure to provide the fire escape has provided the
reason for the deceased to stay in his room-a causal connection that is lacking when it is
assumed that the deceased stayed in his room for other reasons. See infra note 212.
118. The first formulation states: "A negligent actor is legally responsible for that harm, and
only that harm, of which his negligence is a cause in fact." R. KEETON, supra note 104, at 4
(emphasis in original). The second formulation replaces "his negligence" with "the negligent
aspect of his conduct." Id. at 9 (emphasis in original).

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made the defendant's conduct negligent, rather than the aspects of the
conduct itself that created that type of risk. 119 He then restates the
requirement in a third formulation that is very similar to Green's
approach:
A negligent actor is legally responsible for the harm, and only the harm,
that not only (1) is caused in fact by his conduct [as a whole] but also (2)
is a result within the scope of the risks by reason of which the actor is
found to be negligent. 120
Under this formulation of the Risk Rule, the only causal require
ment is that the injury have been caused by the defendant's conduct as a
whole. The second part of the formula merely requires that the injury
fit the description of one of the risks that made the defendant's
conduct negligent. It calls for a comparison of the injury with the
relevant risk description (the so-called "negligent aspect" of the
conduct), rather than an inquiry into the causal connection between the
injury and some prior act, omission, or condition. 121
For example, Keeton discusses a hypothetical case in which the
defendant negligently placed an unlabeled can of rat poison next to
food

119. Thus, in his primary example, Keeton describes the negligent aspect as "placing the poison
where it was likely to be mistaken for something intended for human consumption." Id. at 5; see
id. at 8-9. This is a description in terms of the risk created, rather than a description of the
conduct (placing unlabeled poison near food) which created the risk. See also id. at 14-16, 126-27
n.11.
120. Id. at 10. For Keeton's distinction between the conduct as a whole and the negligent
aspect of the conduct, see id. at 4-5.
There are some important differences between Keeton's and Green's respective approaches.
For example, Keeton limits the relevant risks to those that were foreseeable at the time the defendant
acted (or failed to act) and were the basis for characterizing the defendant's conduct as negligent.
That is, his "harm within the risk" proximate-cause analysis builds on the foreseeability analysis
employed in the determination of negligence. Id. at 10-11, 18-22, 51, 56. Green, on the other hand,
would identify the relevant risks as part of a broad social-policy analysis of the duty issue, in which
foreseeability of the risk is not necessary and is only one of many considerations. Foreseeability of
the type of consequence, but not the manner of its occurrence, is an important part of Green's
elaboration of the negligence (breach of duty) issue. The negligence-foreseeability formula,
however, is seen merely as a useful method for presenting the ultimate issue of culpability or
responsibility to the jury, which can and often does impose liability despite Jack of foreseeability of
the injury. Green, supra note 8, at 562-64, 566-68 & n.72, 570-74; Green, Foreseeability in
Negligence Law, 61 COLUM.
L. REV. 1401 (1961).
121. R. KEETON, supra note 104, at 48; see id. at 52-59. This confusion of causal analysis
with "harm within the risk" analysis leads Keeton to assert that "the Risk Rule is indeed a rule
of causation in a cause-in-fact sense" and that the proximate-cause inquiry is therefore a causal
inquiry. Id. at 13; accord, Robinson, supra note 7, at 756 n.143, 757 n.144; see R. KEETON,
supra note 104, at 17-18, 81. Unfortunately, this confusion now pervades the fifth edition of
Prosser's hornbook, of which Keeton is a coeditor. Prosser's longstanding insistence that the actual-
cause inquiry is factual and that the proximate-cause inquiry (as distinct from the preliminary issue
of actual causation) is noncausal and policy-dependent has been systematically replaced by
statements regarding the policy dependent nature of the actual-cause inquiry and the causal nature
of at least part of the proximate cause inquiry. Compare W. PROSSER, supra note 1, § 41, at 237;
id. § 42, at 244, 249-50; id. § 43, at 250-51; id. § 45, at 289, with PROSSER & KEETON, supra
note 7, at xix; id. § 41, at 264-65; id. § 42, at 273, 274, 279-80; id. § 43, at 280-81; id. § 45, at 321.

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on a shelf in the kitchen of his restaurant. The shelf was next to a hot
stove, and the heat from the stove caused the can of poison to explode.
The force of the explosion killed a delivery man. The defendant did not
know, a11d had no reason to know, that the rat poison might explode.
The defendant's conduct as a whole-placing the can on the shelf or,
broader yet, operating the restaurant-was a cause of the injury. How
ever, Keeton states, the defendant is not liable because the description
of the injury ("injury by explosion") does not match the description of
the risk that made the defendant's conduct negligent ("injury by
poisoning").122
But suppose a customer died by poisoning as a result of eating the
rat poison, which was deliberately served to him by someone who knew
it was poisonous. The defendant's negligence did not contribute to
the injury, yet the defendant will be liable under Keeton's Risk Rule
unless the risk is described more precisely, for example, "injury by
accidental poisoning. " Suppose then that a customer is poisoned
accidentally and nonnegligently as a result of being fed some substance
other than the rat poison. The risk must be detailed even further:
"injury by accidental poisoning with the rat poison that the defendant
placed on the shelf." What if a government health inspector
accidentally contaminates the customer's food with the rat poison, after
opening and inspecting the can, which had been properly labeled and
moved away from the food several days earlier? We must add a
qualifier, "as a result of mistaking the poison for food," to the
previous description of the risk. Suppose the government inspector
mistook the poison for food even though it was now away from food
and properly labeled. We must add a further quali fier: "because the rat
poison was unlabeled or near food."
At this point, we have included in the description of the risk a
description of the aspect of the defendant's conduct which made that
conduct negligent: having unlabeled poison around, or having poison
(even if properly labeled) near food. Moreover, we have included in the
description the requirement that the negligent aspect have been a cause
of the victim's injury: "injury . . . because the rat poison was unlabeled
or near food." Unless the description of the risk explicitly or implicitly
includes this tortious-aspect causation requirement, the Risk Rule will
encounter difficulties similar to those described in the previous para
graph. Contrary to the courts' practice, the rule will permit the defend
ant to be held liable even though the tortious aspect of his conduct was
not a cause of the injury. The same problem exists with respect to the
first and second formulations of Keeton's Risk Rule, since Keeton inter
prets the terms "negligence" and "negligent aspect" in them to mean
the

122. R. KEETON, supra note 104, at 3, 10.

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type of risk that made the defendant's conduct negligent, rather than the
aspects of the defendant's conduct which created that type of risk. 123
Keeton occasionally incorporates the tortious-aspect causation
requirement into the description of the risk, in order to avoid liability
that otherwise would exist under the Risk Rule. 124 More often, his dis
cussions of specific cases implicitly assume that the injury not only
must have been within the broadly stated risk, but also must have been
caused by the tortious aspect of the defendant's conduct or activity. 125
In sum, the Risk Rule mandates results that are inconsistent with
those reached by the courts, unless the tortious-aspect causation require
ment is incorporated into the description of the risk. But, as with
Green's duty analysis, this awkward and circuitous method of posing the
causal inquiry creates a substantial danger of misperceiving or mishan
dling the causal element in the liability analysis. Instead, as some
propo nents of the risk theory have recognized, 126 the "harm within
the risk" limitation should be viewed as a (proximate-cause)
supplement to the tortious-aspect causation requirement, rather than as
a substitute for it.

3. The Tortious-Aspect Causation Requirement

As far as I am aware, only two of the many books and articles on
causation in tort law have emphasized the existence and significance of

123. See supra note 119.

124. For example, Keeton discusses the case in which the victim negligently sat on an unsafe
(weak) wall, but was injured when the defendant crashed into the wall with a force that would have
knocked the wall down even if it had been safe. He describes the victim's negligence, in risk
language, as "placing himself where he was likely to be injured by the collapse of the wall, either
without an external impact or under an external impact insufficient to cause the collapse of a safe
wall," and he notes that "[t]his aspect of his conduct was not a sine qua non of the injury he
suffered." R. KEETON, supra note 104, at 127 n.11.
Of course, the victim's placing himself on the wall was a sine qua non of the injury. What
Keeton means is that the risk which made his conduct negligent did not materialize. To reach this
result, Keeton must define the risk more specifically than "injury due to collapse of the wall." His
definition must include the requirement that the collapse be caused by the unsafe condition of the
wall: the tortious-aspect causation requirement. (The description of the tortious aspect of the
defendant's conduct must include the unsafe condition of the wall, but the unsafe condition was not
a sine qua non of the injury. Nevertheless, it may have contributed to the injury. See infra text
accompanying notes 268-73.)
125. See R. KEETON, supra note 104, at 6, 10, 49-78.
126. E.g., Williams, supra note 21, at 62-65, 70-71, 73-75, 79; Williams, The Risk Principle,
77 LAW Q. REV. 179, 179 n.4 (1961); see also Malone, supra note 27, at 370-74. For a
spirited exchange between a proximate-cause risk theorist and a duty-negligence risk theorist,
see Henderson, supra note 105, and Thode, A Reply to the Defense of the Use of the Hypothetical
Case to Resolve the Causation Issue, 47 TEX. L. REV. 1344 (1969). While both Henderson and
Thode insist that the cause-in-fact inquiry is concerned only with the causal effect of the actor's
conduct as a whole, they each correctly accuse the other of relying heavily on the tortious-
aspect causation requirement in his risk analysis, and they note the unnatural and awkward language
that the other is required to use when the causal inquiry is incorporated into the risk analysis.

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the tortious-aspect causation requirement, and in each instance the tor

tious-aspect analysis is applied only to negligence cases.
The first of these is Charles Carpenter's extremely illuminating
arti cle, 127 in which he attempts, "without imposing a preconceived
theory, to restate, in consistent and workable form the principles [of
actual cause and proximate cause] . . . actually found in the
decisions."128 Although in a few places he confuses the "harm within
the risk" issue with the negligent-aspect causation requirement, 129 he
subsequently clearly distin guishes the two issues and demonstrates
the pervasiveness and greater significance of the negligent-aspect
causation requirement. 130 However, he does not explain how one
identifies the negligent aspect of conduct.
The second is Amo Becht and Frank Miller's book on actual-causa
tion analysis in tort law. Becht and Miller suggest that the negligent
aspect of a person's conduct should be identified as the minimum aspect
which would need to be changed to make the conduct nonnegligent. 131
The usefulness of this approach in clarifying the liability analysis is
demonstrated throughout their book. 132 However, their conception of
the negligent aspect of conduct is too broad. They argue that the negli
gent aspect is always an unqualified act or omission. They do not
further specify the negligent aspect by including the circumstances or
conditions which have to be combined with the act or omission in order
to charac terize the conduct as negligent.
For example, Becht and Miller discuss a case in which the plaintiff
negligently sat on an unsafe (weak) wall, but was injured when the
defendant knocked down the wall with his car. They insist that the neg
ligent aspect of the plaintifrs conduct was the act of sitting on the wall.

127. Carpenter, Workable Rulesfor Determining Proximate Cause (pts. 1-3), 20 CALIF. L. REV.
229, 396, 471 (1932).
128. Id. at 257-58.
129. Id. at 231 (loaded gun discussion); id. at 231 n.5 (Butz case); id. at 253-54 (Teis case).
130. Id. at 408-19, 471-539.
131. A. BECHT & F. MILLER, supra note 8, at 34; see also id. at 12-13, 27-28 & n.40, 87-90.
132. E.g., id. at 34-42, 54, 58, 59-61, 85, 90-91, 140, 169-86. The authors' discussion of
Kernan
v. American Dredging Co., 355 U.S. 426 (1958), is particularly interesting. The defendant's act of
carrying a kerosene signal lantern at a height lower than that mandated by statute was deemed
sufficient to hold him liable for the ignition of petroleum vapors on the surface of the water, even
though the purpose of the statute was to prevent collisions between ships, not the ignition of surface
vapors. Becht and Miller, expanding upon a footnote by Justice Harlan, 355 U.S. at 442 n.l, note
that the negligence was the omission of a signal lantern at the required height, not the presence of
one at the lower height (which was not in itself prohibited). If there had been a lantern at the
required height in addition to the one at the lower height, there would have been no negligence
(breach of the statute), yet the vapors would still have been ignited. Thus, the negligent aspect was
not a cause of the injury. A. BECHT & F. MILLER, supra note 8, at 38-41. But see H.L.A. HART
&
T. HONORE, supra note 8, at 289 (failing to note this point). If the defendant's attorney had
correctly identified the negligent aspect and stressed the lack of causal connection between the
negligence and the injury, rather than conceding negligent causation and relying on the "harm
outside the risk" argument, he probably would have won the case.

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This clearly was a necessary condition for the plaintiWs injury. They
therefore conclude that the negligent-aspect causation requirement is
sat isfied. They refuse to consider, as part of the causal inquiry, whether
the
unsafe condition of the wall contributed to the injury, since the
condition of the wall was not a part of the plaintiWs conduct. 133
But the unsafe condition is a necessary element in the description
of the plaints negligent conduct. The act of "sitting on a wall" is not
in itself negligent. The act of "sitting on an unsafe (weak,
structurally unsound) wall" is negligent, when it is coupled with the
mental element required for negligence (actual or constructive
knowledge of the unsafe condition). The act of sitting and the unsafe
condition are both necessary to make the plaintiWs conduct negligent.
Therefore it must be estab lished that both the act and the condition
contributed to the injury before
it can be said that the plaintiWs negligence contributed to the injury. 134
In general, the tortious aspect of a person's conduct or activity is a
cause of an injury only if each of its necessary elements (act, omission,
condition, or circumstance) contributed to the occurrence of the
injury. 135 If a certain element did not contribute to the injury, but was
necessary to make the conduct or activity tortious, then it cannot be said
that the tortious aspect of the conduct or activity was a cause of the
injury.136
The actor's mental state (intent, or actual or constructive
knowledge of a certain risk), which is required in addition to the
conduct or activity itself in order for the conduct or activity to be
considered tortious, does not enter directly into the causal inquiry.
Instead, the intent or knowl edge is used to determine which acts,
omissions, conditions, and circum stances constitute the tortious
aspect of the conduct or activity. For example, in the explosive rat
poison case, the actor was aware (or should have been aware) of its
poisonous nature, but was not aware (and had no reason to be aware)
of its explosive nature. Therefore, the poisonous nature of the
substance was a constituent of the tortious aspect of the actor's
conduct, but its explosive nature was not.
Becht and Miller's overly broad conception of the tortious aspect
of conduct forces them erroneously to concede negligent causation and
to

133. A. BECHT & F. MILLER, supra note 8, at 183-84; see also J. FLEMING, supra note 4, at 192
& n.43; Malone, supra note 27, at 371.
134. H.L.A. HART & T. HONORE, supra note 8, at 210; see infra text accompanying notes 268-
73.
135. When there is more than one tortious aspect, each must be considered, and the tortious
aspect causation requirement is satisfied if any of them contributed. For example, in the rat poison
case, there were two tortious aspects: (1) having unlabeled poison around and (2) having poison
(even if labeled) near food. If either tortious aspect contributed to the injury, the tortious-aspect
causation requirement is satisfied.
136. See H.L.A. HART & T. HONORE, supra note 8, at 117-20, 208-11; Carpenter, supra note

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rely instead on the "harm outside the risk" rationale to limit liability in
a number of cases. 137 It also leads them to adopt Green's and
Keeton's approach to causation of injury in the strict liability cases.
They assert that, under strict liability, the causal inquiry is applied to
the defendant's conduct as a whole. 138 Presumably, they again would
use the "harm outside the risk" argument to limit liability.
Properly understood, the tortious-aspect causation requirement
applies to all tort actions, not just to negligence actions.
In the traditional strict liability cases, the tortious aspect of an activ
ity includes all the acts, omissions, and conditions necessary to make it
ultrahazardous or abnormally dangerous: for example, the keeping or
use of a highly explosive substance, a poisonous fugitive substance, a
highly radioactive or toxic substance, a vicious or wild animal, a foraging
animal, or a large bulk accumulation of liquid. That tortious aspect
must be a cause of the injury, as the original Restatement of Torts made
clear: "[O]ne who carries on an ultrahazardous activity is liable to
another . . . for harm resulting thereto from that which makes the activ
ity ultrahazardous."139
Unfortunately, however, the academic proponents of the risk
theory succeeded in rewording section 519 in the Restatement (Second)
to make it conform to Keeton's Risk Rule: "(1) One who carries on an
abnor mally dangerous activity is subject to liability for harm to
[another] . . . resulting from the activity . . . . (2) This strict liability
is limited to the kind of harm, the possibility of which makes the
activity abnormally dan gerous."140 This Risk Rule formula will
produce unintended results

137. A. BECHT & F. MILLER, supra note 8, at 61-62 (plaintiff negligently stood on unrailed
portion of icy platform, but was injured by wall falling on that portion of platform rather than by
slipping on ice); id. at 150-51, 199 (accident occurs while plaintiff or defendant is engaged in
secular activity in violation of Sunday blue law). See also their confusing discussion of the license
cases at id. at 141-50, 194-99.
138. Id. at 46, 48, 168.
139. RESTATEMENT OF TORTS § 519 (1938) (emphasis added).
140. RESTATEMENT (SECOND) OF TORTS § 519 (1977) (emphasis added). Among the
Advisers to the Reporter for the Restatement (Second) were such prominent academic proponents
of the risk theory as Eldredge, James, Robert Keeton, Page Keeton, Malone, and Seavey.
The Restatement (Second) also dropped the language in the original Restatement which limited
liability to those whom the actor "should recognize as likely to be harmed" by the miscarriage of
the activity. However, the drafters apparently assumed that this limitation was retained by the
"kind of harm" language in § 519(2). Thus, comment e to § 519(2) refers to risk and injury "to
those in the vicinity" of a possible explosion, and the accompanying illustration 1 rejects liability
when the actor "has no reason to know of the presence of B's mink ranch nearby," even though
"[t]he noise of the blasting frightens the mink and the fright causes them to kill their young."
The mink illustration is based on Madsen v. East Jordan Irrigation Co., 101 Utah 552, 125
P.2d 794 (1942). The result seems inconsistent with RESTATEMENT (SECOND) OF TORTS §
522(b) (liability despite unforeseeable contributing action of animal) and also the Risk Rule itself.
Frightened or startled reactions to the noise of blasting, as well as direct effects of the force of the
blast, are foreseeable and "within the risk," and the peculiar reaction of the mink in such situations

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unless the tortious-aspect causation requirement is read back into it or

into the definition of each particular risk ("kind of harm").141 For exam
ple, suppose a truck transporting dynamite nonnegligently runs over a
detonation device set up by someone else, thereby causing explosives
belonging to that other person, but not those in the truck, to go off and
cause injury in the vicinity of the truck. 142 Unless the tortious-aspect
causation requirement is read in, the owner of the truck will be strictly
liable under section 519. Once again, the "harm within the risk" princi
ple can be at best a supplement to, rather than a substitute for, the tor
tious-aspect causation requirement.
In strict product liability cases, the tortious aspect of the
defendant's conduct or activity is the defect in the particular product,
and it is clear that the defect must be a cause of the injury. 143
In the intentional tort cases, the tortious aspect is all the acts, omis
sions, conditions, and circumstances necessary to create the substantial
certainty of invasion of a protected interest, or the acts or omissions
done for the purpose of causing such an invasion. The substantial-
certainty variety of intentional tort is analogous to negligence, with one
difference. The risk created in the intentional tort action must be
substantially cer tain to be realized but need not be unreasonable, while
the risk created in the negligence action can be much less likely but
must be unreasonable. 144
Finally, in the nuisance cases, liability is based on conduct that is
either negligent, abnormally dangerous, or intentional (usually in the
sense of substantially certain although reasonable). 145 Therefore, the
tor-

is a well-established characteristic. See, e.g., Wildwood Mink Ranch v. United States, 218 F.
Supp. 67 (D. Minn. 1963); Gronn v. Rogers Constr., 221 Or. 226, 350 P.2d 1086 (1960); Summit
View, Inc. v. W.W. Clyde & Co., 17 Utah 2d 26, 403 P.2d 919 (1965); Foster v. Preston Mill Co.,
44 Wash. 2d 440, 268 P.2d 645 (1954); MacGibbon v. Robinson, (1952] 4 D.L.R. 142 (B.C.); R.
KEETON,
supra note 104, at 135 n.100. In the Madsen case, the defendant irrigation company presumably
was familiar with the area and, at any rate, was blasting only 100 yards from the mink ranch. Both
the vibrations and the noise terrified the mother mink, which reacted in a natural way (for mink).
The result is justified only as an application of the principle that a person need not take excessive
care to avoid injury to extrasensitive plaintiffs and, correspondingly, should not be held strictly
liable for "harm (that] would not have resulted but for the abnormally sensitive character of the
plaintitrs activity." RESTATEMENT (SECOND) OF TORTS § 524A (1977).
141. See supra text accompanying notes 122-23.
142. Cf RESTATEMENT (SECOND) OF TORTS § 519 comment e (1977); R. KEETON, supra
note 104, at 105.
143. Greenman v. Yuba Power Prods., 59 Cal. 2d 57, 62-64, 377 P.2d 897, 900-01, 27 Cal.
Rptr. 697, 700-01 (1962); Codling v. Paglia, 32 N.Y.2d 330, 342, 298 N.E.2d 622, 628-29, 345
N.Y.S.2d 461, 469-70 (1973); RESTATEMENT (SECOND) OF TORTS § 402A (1965).
144. Thus, it is not true, as Keeton claims, that "[n]o concept of risk is resorted to in
determining the issue of liability for intentional tort." R. KEETON, supra note 104, at 100-01.
145. Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312
(1970); Morgan v. High Penn Oil Co., 238 N.C. 185, 77 S.E.2d 682 (1953); Jost v. Dairyland
Power

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tious aspect is defined according to the type of tortious conduct involved

in each case.

4. The Power of the Tortious-Aspect Causation Requirement

The tortious-aspect causation requirement resolves many of the
cases that have been prominent in discussions of the proximate-cause
limits on tort liability, especially in the writings of the risk theorists.
There is thus no need to resort to noncausal policies or principles under
the rubrics of proximate cause, duty, recoverable damages, and so forth
in order to deny liability in these cases. In each of the following exam
ples, the italicized condition was a necessary constituent of the tortious
aspect of the defendant's or the plaintiff's conduct, but the condition did
not contribute to the injury, so the tortious aspect was not a cause of the
injury. The defendant handed a loaded gun to a child, who dropped the
gun on his foot.146 The defendant's box of explosives fell on the plaintiff's
foot, or was being transported in a truck that ran into the plaintiff (no
explosion occurred). 147 The plaintiff stood on the icy, unrailed portion of
a platform, where a wall fell on him. 148 The plaintiff stood in an area
where trucks sped through, but was hit by a railroad freight car that came
through the wall.149 The defendant tested an unguarded fan on the floor
where men with loose clothing had to bend over it (creating a risk that the
clothing might get caught in the fan), but the plaintiff stuck his fingers
into the fan.150

Coop., 45 Wis. 2d 164, 172 N.W.2d 647 (1969); REsrATEMENT (SECOND) OF TORTS §§ 822, 825,
826 (1977); see also Renken v. Harvey Aluminum, 226 F. Supp. 169 (D. Or. 1963).
146. RESTATEMENT (SECOND) OF TORTS § 281 illustration 3 (1965); L. ELDREDGE,
MODERN TORT PROBLEMS 18 (1941); J. FLEMING, supra note 4, at 192; 2 F. HARPER &
F.JAMES, supra note 2, § 20.5, at 1136-37; Carpenter, supra note 127, at 231.
147. RESTATEMENT (SECOND) OF TORTS § 519 comment e (1977); Seavey, Mr. Justice
Cardozo and the Law of Torts, 39 COLUM. L. REV. 20, 35, 52 HARV. L. REV. 372, 387, 48 YALE
L.J. 390, 405 (1939); Williams, supra note 21, at 70-71.
148. Smithwick v. Hall & Upson Co., 59 Conn. 261, 21 A. 924 (1890), discussed in A. BECHT &
F. MILLER, supra note 8, at 61-63; L. ELDREDGE, supra note 146, at 21-22; H.L.A. HART & T.
HONORE, supra note 8, at 209.
149. Gray v. Scott, 66 Pa. 345 (1870), discussed in L. ELDREDGE, supra note 146, at 22. Almost
all the cases discussed by Eldredge in his argument on behalf of the risk theory involve a lack of
causation by the tortious aspect of the actor's conduct. In addition to the Gray case, see the
examples cited supra notes 146 & 148 and Falk v. Finkelman, 268 Mass. 524, 168 N.E. 89 (1929)
(car parked overtime was knocked into another car by fire engine); New York, L.E. & W.R. Co. v.
Ball, 53 N.J.L. 283, 21 A. 1052 (1891) (passenger in baggage compartment in violation of rule was
injured in train wreck; injury unaffected by being near baggage); Hudson v. Lehigh Valley R.R., 54
Pa. Super. 107 (1913) (bicyclist who failed to "stop, look and listen" for train was hit by gate
negligently lowered onto him). These cases are all discussed in a section entitled "The Hazard
Problem," in L. ELDREDGE, supra, at 17-24, which also is the title of RESTATEMENT (SECOND) OF
TORTS § 281 comment e, for which Eldredge was an Adviser. See supra note 140.
150. Thurogood v. Van den Berghs & Jurgens Ltd., [1951] 2 K.B. 537 (C.A.), discussed in
Goodhart, The Imaginary Necktie and the Rule in Re Polemis, 68 LAW. Q. REV. 514 (1952);
Williams, supra note 21, at 71-72. Goodhart and Williams assume that the loose-clothing
element

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The tortious-aspect causation requirement similarly resolves many

of the troublesome statutory-violation (negligence per se) cases.
Initially, it should be noted that many statutes are not passed for
safety pur poses 151 or are not meant to lay down rigid rules of
behavior, but rather are meant to be administered flexibly. In such
cases, there is no basis for inferring negligence from violation of the
statute, so the issues of actual cause and proximate cause never arise.
Neither the tortious-aspect cau sation requirement nor the "harm
within the risk" limitation is relevant or needed to deny liability.
However, even if the violation is erroneously treated as tortious
conduct, the tortious-aspect causation requirement rarely will be
satisfied. For example, if an injury occurred while the defendant or
the plaintiff was engaged in an activity on Sunday (in viola tion of a
Sunday blue law), had parked his car at a meter without paying, or was
hunting without a permit, the italicized element in each instance was a
necessary constituent of the statutory violation but did not contrib ute to
the injury. Therefore, the "tortious" aspect of the conduct was not a
cause of the injury. 152 The few cases which nevertheless impose liabil
ity on the defendant or refuse to allow recovery by the plaintiff because
of the statutory violation ignore tort liability principles in order to
further the purposes of the criminal law. These cases, however,
generally have been repudiated. 153
The failure to satisfy the tortious-aspect causation requirement also
explains the denial of liability in many cases where the statute was
passed for safety purposes, but a necessary element of the illegal or
tortious aspect of the defendant's conduct did not contribute to the
injury. For example, Prosser cites cases in which the defendant set out
a poisonous substance, which exploded; or failed to erect a fence next
to a railroad track, and a cow died from eating too much; or sold
explosive materials (fireworks), which a child ate. 154

was necessary to the finding of negligence, but this is not clear. If "unguarded operating fan on
floor near workmen" was sufficient for negligence, the tortious aspect causation requirement was
satisfied and liability seems appropriate, absent contributory negligence. See H.L.A. HART & T.
HONORE, supra note 8, at 118-19.
151. W. PROSSER, supra note 1, § 36, at 192-93, 196.
152. H.L.A. HART & T. HONORE, supra note 8, at 210-11, 293-94; Carpenter, supra note
127, at 409-10, 414-15. Writers who assert that the illegal conduct was a cause of the injury
erroneously apply the causal inquiry to the conduct as a whole rather than to the illegal aspect of
such conduct. E.g., A. BECHT & F. MILLER, supra note 8, at 150-51, 199; L. GREEN, JUDGE
AND JURY 234-35 (1930); W. PROSSER, supra note l, § 36, at 193.
153. 2 F. HARPER & F. JAMES, supra note 2, § 17.6, at 995-97; H.L.A. HART & T.
HONORE, supra note 8, at 210-11; W. PROSSER, supra note 1, § 36, at 193 n.53, 202-03.
But see G. CALABRESJ, supra note 100, at 267-74, 301-08; Cole, supra note 7, at 459-62, 598-
607; Green, supra note 8, at 569 n.77; Morris, supra note 3, at 1096-97; Thode, supra note 126, at
1348-49, 1351-52; Thode, supra note 100, at 430-31. For a cogent critique of Thode's argument,
see Strachan, supra note 7, at 389-91.
154. W. PROSSER, supra note 1, § 36, at 195-96 & n.77.

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In the above cases, it can also be said that the harm was not
"within the risk." The "harm within the risk" theory, however, cannot
account for some other cases. Thus, if an unlicensed driver causes an
automobile accident or an unlicensed medical practitioner causes a
medical mishap, the harm is the sort which the legislature meant to
prevent through its licensing requirements. To describe the risk as
restricted to "injury at the hands of incompetents" 155 is to rely on and
incorporate the tortious aspect causation requirement. The tortious
aspect is "driving or practic ing medicine without a license." Although
the overall conduct of driving or practicing medicine contributed to the
injury,156 the failure to have the required piece of paper (the license)
did not.157
A similar problem exists when the defendant is violating the statu
tory speed limit, but a child darts in front of his car whom he could not
avoid even if he were driving at the legal speed. The injury in such
cases, as even Green admits, 158 is "within the risks" meant to be
avoided by the speed limit. Some argue that the injury is not within the
risks, which are said to be limited to those involving "lack of
control." 159 But the risks meant to be avoided include not only literal
loss of physical control of the car but also inability to swerve or stop in
time to avoid hitting something or someone. The injury is "within" this
latter risk, but there is no liabil ity since the tortious aspect (excess
speed) did not contribute to the injury. Liability can be avoided
under the "harm within the risk" approach only by incorporating the
tortious-aspect causation require ment in the description of the risk. 160
When the tortious-aspect causation requirement is satisfied in a
par ticular case, the courts often hold the defendant liable even though
the injury was unforeseeable or "outside the risk," especially when the
tor-

155. Id. at 196; PROSSER & KEETON, supra note 7, § 36, at 226; see Green, supra note 8, at 547-
48.
156. PROSSER & KEETON, supra note 7, § 36, at 223-24; Williams, supra note 21, at 74-75; see
A. BECHT & F. MILLER, supra note 8, at 141-42.
157. H.L.A. HART & T. HONORE, supra note 8, at 117-20; Carpenter, supra note 127, at 412-13,
414. A legislature or court might decide, however, that the lack oflicense should be treated as
some evidence or even as prima facie evidence that the driver or practitioner was incompetent to
engage in the activity and that the injury was caused by some unspecified instance of that
incompetence (negligence). E.g., N.Y. C1v. PRAC. LAW § 4504(d) (McKinney Supp. 1984); 2
F. HARPER & F. JAMES, supra note 2, § 20.3, at 1120-21; Williams, supra note 21, at 74-75.
But see A. BECHT & F. MILLER, supra note 8, at 143-50.
158. Green, Are There Dependable Rules of Causation? 77 U. PA. L. REV. 601, 619 (1929).
159. E.g., 2 F. HARPER & F. JAMES, supra note 2, § 20.5, at 1138 & n.16, 1148; id. § 20.6, at
1156 n.23.
160. See Cole, supra note 7, at 766-67; Henderson, supra note 105, at 189-92, 195-97; Thode,
supra note 126, at 1345-47; Thode, supra note 100, at 427-28, 430-31. To avoid the argument that
the excess speed did contribute to the injury by bringing the defendant to the precise place where the
child darted out at the precise time that he darted out, Iassume here that the defendant had just
begun speeding. Otherwise, the tortious-aspect causation requirement is satisfied, and the defendant
must rely on noncausal proximate-cause arguments to avoid liability.

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tious conduct was intentional or negligent. 161 Even the risk-theory pro
ponents acknowledge this. 162 In the statutory context, this approach is
reflected in expansive interpretations of the statutory purposes, 163 or
occasionally even by frank imposition of liability for injuries conceded
to be "outside the risk." 164 Thus, the causal inquiry, focused on the
tor tious aspect of the defendant's conduct, plays an extremely
significant role in both establishing and limiting legal responsibility.

II
THE NATURE AND CONTENT OF THE CAUSAL INQUIRY

In Part I of this Article, I analyzed the role that the causal inquiry
occupies in tort-liability analysis. In this Part I examine the nature and
content of the causal inquiry itself. As will be seen, efforts to articulate
a comprehensive, factual test of actual causation have failed
repeatedly. The causal inquiry therefore increasingly has been viewed
by academics as just one more manipulable policy tool that has little
or no inherent substantive content.165
In this Part I attempt to rebut this prevailing view by elaborating a
causal test that incorporates the traditional Humean philosophic account
of the meaning of causation, as modified by John Stuart Mill. This test,
which I call the "NESS" (Necessary Element of a Sufficient Set) test,
was first suggested by Hart and Honore. As elaborated here, the NESS
test states that a particular condition was a cause of a specific
consequence if and only if it was a necessary element of a set of
antecedent actual condi tions that was sufficient for the occurrence of
the consequence. A sub stantial portion of this Part is devoted to
developing this test and applying it to resolve the problematic causation
cases that have resisted solution under all the previously proposed tests.
First, however, the previous tests are examined in order to provide
a basis for comparison with the NESS test, to introduce the various
types of problematic causation cases, and to develop some of the
concepts and

161. E.g., In re Kinsman Transit Co., 338 F.2d 708, 723-25 (2d Cir. 1964), cert. denied, 380
U.S. 944 (1965); H.L.A. HART & T. HONORE, supra note 8, at 176-78, 254-90; W. PROSSER, supra
note 1, §§ 43-44, at 250-80; Smith, supra note 106, at 127-28, 233-52, 321-27. Some proximate-cause
limitations on liability do exist. The primary instances are when the injury would not have occurred
but for unforeseeable tortious conduct by others or independent abnormal events or conditions. See
H.L.A. HART & T. HONORE, supra note 8, passim; Carpenter, supra note 127, at 471-539.
162. See, e.g., L. GREEN, supra note 2, at 177-85; 2 F. HARPER & F. JAMES, supra note 2,
§ 20.5, at 1139-51; id. § 20.6, at 1155-56, 1160-61; R. KEETON, supra note 104, at 28-32, 39, 49-54,
60-78, 96-97, 100-03, 109-10, 117; Green, Foreseeability in Negligence Law, 61 COLUM. L. REV.
1401, 1417-24 (1961); Williams, The Risk Principle, 77 LAW Q. REV. 179, 181-87, 193-203 (1961).
163. 2 F. HARPER & F. JAMES, supra note 2, § 17.6, at 1004-05; PROSSER & KEETON, supra
note 7, § 36, at 226-27.
164. See the discussion of the Kernan case supra note 132.
165. See sources cited supra notes 6, 7 & 9.

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arguments that underlie the NESS test. The first section discusses the
traditional "but for" (necessary condition) test and distinguishes the two
types of overdetermined-causation cases that the test fails to handle prop
erly: the duplicative-causation cases and the preemptive-causation cases.
Subsequent sections discuss modifications of or alternatives to the but-for
test.
Finally, in the last section, the steps involved in applying the NESS
test are analyzed in detail to demonstrate that, contrary to the currently
popular view, the hypothetical inquiry associated with the but-for neces
sary-condition analysis does not undermine the factual nature of the
causal inquiry. The miscellaneous arguments advanced by Malone to
establish the policy-dependent nature of the causal inquiry are also
examined and rejected.

A. The But-For Test and Its Limits: Duplicative

and Preemptive Causation
The most widely used test of actual causation in tort adjudication
is the but-for test, which states that an act (omission, condition, etc.)
was a cause of an injury if and only if,but for the act, the injury woulq
not have occurred. That is, the act must have been a necessary
condition for the occurrence of the injury. The test reflects a deeply
rooted belief that a condition cannot be a cause of some event unless
it is, in some sense, necessary for the occurrence of the event. This
view is shared by law yers, philosophers, scientists, and the general
public. 166
In the vast majority of cases, the but-for test works quite well as a
test of actual causation. But in certain types of cases, it results in a find
ing of no causation even though it is clear that the act in question con
tributed to the injury. These are cases of overdetermined causation: cases
in which a factor other than the specified act would have been sufficient
to produce the injury in the absence of the specified act, but its effects
either (1) were preempted by the more immediately operative effects of
the specified act or (2) combined with or duplicated those of the specified
act to jointly produce the injury.
I will refer to the first type of situation as a case of preemptive
causa tion. For example, D shoots and kills P just as P was about to
drink a cup of tea that was poisoned by C. D 's shot was a
preemptive cause of P's death; C's poisoning of the tea was not a
cause because its potential effects were preempted. I will refer to
the second type of situation as a case of duplicative causation. For
example, C and D independently start separate fires, each of which
would have been sufficient to destroy P's

166. E.g., T. BEAUCHAMP & A. ROSENBERG, supra note 21, at 94-96, 98, 107-17, 119, 131-37,
139-45, 297; H.L.A. HART & T. HONORE, supra note 8, at 15-16, 69, 110; W. PROSSER, supra note 1,
at 237-39; Mackie, supra note 21, at 16-21, 25-27; Williams, supra note 21, at 63-64.

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house. The fires converge and together bum down the house. Each fire
was a duplicative cause of the destruction of the house. Yet,
application of the but-for test would result in a finding that D 's shot
was not a cause of P' s death in the first example and that neither C's
nor D 's fire was a cause of the destruction of P's house in the second
example.
A different sort of objection to the but-for test focuses on the
hypo thetical or counterfactual nature of the inquiry that the test calls
for. A number of writers have asserted that the hypothetical nature of
the but for inquiry necessarily involves or at least invites introduction
of policy
considerations into a supposedly factual inquiry. 167
While it might be thought that these difficulties could be avoided by
substituting a sufficient condition test for the but-for necessary-condition
test, this substitution would eliminate almost every potential cause, since
few if any acts are sufficient by themselves to produce any particular con
sequence. Thus, in the scientific and philosophic literature on causation,
it is usually stressed that the cause of an event must include all the condi
tions which together are sufficient to produce the consequence. 168 Conse
quently, both lawyers and philosophers often conclude that this scientific
or philosophic concept of causation is of little relevance or use in the
law.169
On the other hand, the sufficient-condition test could be interpreted
to mean any condition that is sufficient in combination with other condi
tions to produce the consequence, even though it is not sufficient by itself.
Under this interpretation, however, anything could be treated as a cause
simply by adding it to an already sufficient set of conditions. 170
Judges and legal writers have responded to the actual and perceived
deficiencies in the but-for test in several different ways. A few writers
have tried to improve the but-for test by modifying the manner in which
it is applied. 171 Most judges and writers, however, have adopted the sub
stantial-factor formula, either as a supplement to or as a substitute for
the but-for test depending on their degree of dissatisfaction with the but
for test. 172 Others have relied on an undefined and irreducible notion of

167. E.g.• J. FLEMING, supra note 4, at 172; Cole, supra note 7; Malone, supra note 6, at 67-68;
see also sources cited infra note 284.
168. E.g., T. BEAUCHAMP & A. ROSENBERG, supra note 21, at 85, 291; H.L.A. HART & T.
HONORE, supra note 8, at 17-18, 21 & n.16; W. PROSSER, supra note 1, § 41, at 237 n.8; Williams,
supra note 21, at 63, 66.
169. E.g., RESTATEMENT (SECOND) OF TORTS § 431 comment a (1965); T. BEAUCHAMP &
A. ROSENBERG, supra note 21, at 283-94; A. BECHT & F. MILLER, supra note 8, at 9, 12; J.
FLEMING, supra note 4, at 171 & n.2, 192 & n.43; H.L.A. HART & T. HONORE, supra note 8, at 2,
9-16, 68-69; Calabresi, supra note 9, at 69-70, 105-06; Epstein, supra note 13, at 160-61; Morris,
supra note 3, nt 1088; Williams, supra note 21, at 66-68, 75-76.
170. Sosa, Introduction, in CAUSATION AND CONDITIONALS 1-3 (E. Sosa ed. 1975).
171. See infra text accompanying notes 176-89.
172. See infra text accompanying notes 190-208.

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directly observable causal contribution. 173

Each of these approaches will be discussed in subsequent sections
of this Part. It will be demonstrated that, under each approach, the
analy sis ultimately must fall back on the but-for test in order to be
useful and coherent. The necessary-condition element, in some form,
indeed seems to be fundamental to the concept of causation. But it
obviously is too restrictive when applied in the usual way to the
overdetermined-causa tion cases. Some writers treat the
overdetermined-causation cases as gen uine instances of causation that
must be admitted as unexplained exceptions to the but-for test.174 A
larger and growing number of writers treat the overdetermined-
causation cases as policy-based exceptions to the actual-causation
requirement, which is equated with the but-for test. 175

B. Efforts to Modify the But-For Test

As mentioned above, the but-for test works well as a test of actual
causation in the vast majority of cases, but produces obviously incorrect
results in the overdetermined-causation cases. A few·writers have tried
to extend the but-for test's range of application by modifying the way in
which it is applied. Rollin Perkins, Arno Becht, and Frank Miller apply
the test to a detailed description of the injury or the manner of its
occur rence. Glanville Williams excludes consideration of hypothetical
facts. And the editors of the fifth edition of Prosser's hornbook on
tort law apply the test to multiple potential causes in the aggregate.
None of these approaches works. Several of them assume the very
answer the test is supposed to provide.

1. Detailing the Manner of Occurrence

Perkins tries to resolve the causal issue in the overdetermined-
causa tion cases by detailing the manner in which the injury occurred:
"When ever that would not have happened when and as it did happen,
had it not

173. See infra text accompanying notes 209-25.

174. E.g., 2 F. HARPER & F. JAMES, supra note 2, § 20.2, at 1110; id. § 20.3, at 1122-23; W.
PROSSER, supra note 1, § 41, at 239-40; see also Carpenter, supra note 127, at 397-98, 402-03, 406-07.
175. E.g., c. MORRIS & C.R. MORRIS, supra note 4, at 187-90; PROSSER & KEETON, supra
note 7, § 41, at 265 & n.8, 268-69; Calabresi, supra note 9, at 86-87; Delgado, supra note 7, at 886-87,
891-
92; Edgerton, supra note 3, at 373; Grady, supra note 9, at 804 & n.21; Malone, supra note 6, at 89-
97; McLaughlin, Proximate Cause, 39 HARV. L. REV. 149, 153-54 (1925); Peaslee, Multiple
Causation and Damage, 47 HARV. L. REV. 1127, 1130-32 (1934); Rosenberg, supra note 7, at 855 &
n.27, 863-64; Strachan, supra note 7, at 389-95; Williams, supra note 21, at 75-76. Some writers,
who rely on tests other than the but-for test, treat only the most difficult overdetermined-causation
cases as policy-based exceptions to the actual-causation requirement. A. BECHT & F. MILLER,
supra note 8, at 95-98, 210-11; J. FLEMING, supra note 4, at 174 n.19; H.L.A. HART & T.
HONORE, supra note 8, at 7-8, 125, 239-41; Pedrick, supra note 7, at 645, 654, 658-59; Weinrib,
supra note 7, at 529-
33.

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been for this, this is an actual cause of that."176 For example, if a victim
is killed instantaneously by a bullet wound while already dying from a
knife wound, he would not have died, as he in fact did, at the earlier
moment and by a bullet wound if not for the firing of the bullet.
Without the bullet wound, he would have died later, from the effects of
the knife wound. This, however, did not in fact happen. Thus, the
bullet wound, but not the knife wound, is a but-for cause of the death
"when and as" it happened.
This form of reasoning is nothing more than proof by tautology.
For example, consider Perkins' treatment of the case in which the victim
is struck simultaneously by two bullets, each of which would have been
instantly fatal by itself: "[He] would not have died when and as he did
die (by two bullets) had only one been fired. 'One might have caused
the result, but in fact both did so.' "177 The factors believed to be
causally relevant (the two bullets) are incorporated into the
description of the manner of occurrence of the injury (death by two
bullets), and they are then demonstrated to be causally relevant
because we cannot construct that precise description without them.
Such an approach could just as easily have included the victim's
knife wound, his silk shirt, or the air temperature in the description of
the manner of occurrence of the injury. If so included, each of these
conditions would also be proven under Perkins' test to be but-for causes
of the harm. We do not include them because we do not believe they
were causally relevant. But that is precisely the issue the test is
supposed to determine. The test "proves" only what has already been
decided. It does not tell us how that decision was made or help us to
make it in hard cases. 178

2. Detailing the Injury

Becht and Miller accept Perkins' reasoning, 179 but they focus more
on the details of the harm itself.-the final result-than on the manner
of its occurrence. 18° For example, in the case of the two fires, one set
by the
defendant and each sufficient to destroy the plaintifrs house, Becht and

176. R. PERKINS, CRIMINAL LAW 689 (2d ed. 1969) (emphasis in original).
177. Id. (emphasis in original) (citation omitted).
178. Hart and Honore, although recognizing that prior causal determinations are hidden in this
method, seem to approve its use. H.L.A. HART & T. HONORE, supra note 8, at xii-xiii, 124-25,
235
& n.56, 252-53; accord J. FLEMING, supra note 4, at 173-74; R. KEETON, supra note 104, at 7;
Rizzo, The Imputation Theory of Proximate Cause: An Economic Framework, IS GA. L. REV.
1007, 1020 (1981).
179. A. BECHT & F. MILLER, supra note 8, at 17; see also id. at 210.
180. One of their examples, discussed in the text, refers to being hit by "different parts of the
car" (manner of occurrence) as well as to "slightly different injuries" (result), but almost all the
other examples refer to different details of the result. However, their suggested approach of using
the but-for test at short intervals throughout the causal process, rather than only once at the time the

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Miller assert that, using the but-for test applied "in minute detail, it
would probably appear that the defendant's fire was a cause, for the
posi tions of the smoke, ashes, and some parts of the ruins might well
have been caused by [i.e., not have existed but for] the defendant's
fire."181
Again, this assertion begs the question. Under this approach, the
defendant's fire was a but-for cause only of the precise "positions of the
smoke, ashes, and some parts of the ruins," not of the destruction of the
house, for which these precise details are irrelevant. The detailed
description will be useful only if the plaintiff wishes to recover for
dam ages that would not have occurred but for the precise position
of the smoke and debris-a most unlikely lawsuit.
Ifbeing a but-for cause of even the most trivial detail of a harm
were sufficient to make the defendant a cause of all the harm, the
detailed but for approach would prove too much. Becht and Miller
discuss an exam ple in which an inattentive driver hits a pedestrian who
suddenly ran into the path of the driver's car. If the driver had been
attentive, he could have swerved a little, but not enough to avoid
impact with serious injury. Nevertheless, a detailed application of the
but-for test shows that the driver's inattentiveness "was a cause of the
injuries actually suffered," since "the injuries would have been at least
slightly different and would have been inflicted by different parts of
the car if the driver had swerved."182 Becht and Miller admit that both
laypersons and lawyers, using the common knowledge of causation
upon which Becht and Miller rely so strongly, 183 would conclude that
the driver's inattentiveness was not a cause in such a case. They
suggest that laypersons and lawyers make this mistake by failing to
pay careful attention to the precise details. 184 But laypersons and
lawyers, even after considering the precise details, would still assert
correctly that the inattentiveness was not a cause of the serious injury,
although it may have been a (but-for) cause of some details associated
with the injury. These details have causal signifi cance only if they
contributed to the seriousness of the injury.
Becht and Miller realize that they, rather than the laypersons and
lawyers, must give way on this issue. They compromise their usual
causal principles by "equating the injuries." They reluctantly disregard

process is completed, is similar to Perkins's detailing of the manner of occurrence. See id. at 15-17,
19.
181. Id. at 18.
182. Id. at 28. Becht and Miller use the phrases "hypothetical inquiry" and "construction of
parallel series," but they acknowledge that their approach is a narrow form of the but-for test. The
test is applied step-by-step and in minute detail, and it excludes consideration of causes that the
actor could not have prevented. Id. at 17-21, 32; see infra text accompanying notes 211 & 219.
183. A. BECHT & F. MILLER, supra note 8, at 9-11; see infra text accompanying notes 209-
11, 217.
184. A. BECHT & F. MILLER, supra note 8, at 28-29.

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minor differences and conclude that the inattentiveness was not a

cause. 185 Although they do not acknowledge it, they thereby destroy
the alleged usefulness of the minute-detail approach. After utilizing the
min ute-detail approach to support a finding of causation, they then
are forced to ignore the details and reject causation by equating the
injuries. The concept of "equating the injuries" introduces an
inconsistency into their theory that undermines their use of the minute-
detail approach to support a finding of causation in the merged-fires
case.

3. Excluding Hypothetical Facts

Glanville Williams also refers to Perkins' approach of detailing the
manner in which the harm occurred, but he proposes a different
approach for the preemptive-causation cases. In such cases, facts that
did not actually occur must not be "invented" and considered, no matter
how likely they were to occur. Thus, the hypothesized but almost
certain fact that P would have been shot by C if he hadn't already been
shot by D cannot be considered. 186 However, on the very next page,
Williams is obliged to depart from this rule to reach the correct causal
conclusion in a case of negligent omission. 187 Moreover, such a rule is
of no help at all in cases where the preempted condition actually has
occurred-for example, when P actually was shot by C after he already
had been shot and killed by D. In this type of preemptive-causation
case, and in the duplicative-causation cases, Williams abandons the
but-for test for actual causation and treats the causal issue as a policy
issue. 188

4. Aggregating Multiple Potential Causes

The editors of the fifth edition of Prosser's hombook on tort law
attempt to resolve the causal issue in the overdetermined-causation
cases by applying the but-for test to the aggregate of potential causes:
When the conduct of two or more actors is so related to an event that
their combined conduct, viewed as a whole, is a but-for cause of the
event, and application of the but-for rule to them individually would
absolve all of them, the conduct of each is a cause in fact of the event. 189
This version of the but-for test, like Perkins's version, works only if the
person applying the test already has correctly determined which factors

185. Id. at 29-31.

186. Williams, supra note 21, at 72.
187. Id. at 73.
188. Id. at 75-77.
189. PROSSER & KEETON, supra note 7, § 41, at 268; see also 2 F. HARPER & F. JAMES, supra
note 2, § 20.2, at 1110; Carpenter, supra note 127, at 406 07; Carpenter, Co11curre111 Causatio11, 83
U. PA. L. REV. 941, 94445, 952 (1935); cf A. BECHT & F. MILLER, supra note 8, at 211
(mentioning the aggregate but·for test); Cole, supra note 7, at 810-11 (defendant liable if
duplicative or preemptive condition has same relation to plaintiff under the compensation rule as
defendant does).

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are sufficiently "related" to the event to be treated as its causes. On its

own, the test cannot distinguish duplicative causes from preempted con
ditions. Moreover, it would treat totally unrelated conditions as causes.
For example, consider the case in which C poisons P's tea and D
shoots P before P drinks the tea. Assume also that B was climbing Mt.
Everest. Clearly, D's shooting P was a preemptive cause of P's death,
and neither C's poisoning the tea nor B 's climbing Mt. Everest was a
cause. The proposed test, however, would treat all three activities as
causes. In the aggregate they were a but-for cause of P's death, while
individually none of them was a but-for cause.

C. The Substantial-Factor Formula

Those theorists and judges who are unwilling to engage in contor
tions such as the ones illustrated above to rescue the but-for test from its
inadequacies usually have turned to the substantial-factor formula,
either as a supplement to the but-for test (to apply to the
overdetermined-causa tion cases) or as a complete substitute for it.
The substantial-factor formula was created originally not as a test
of actual causation but as a guide for resolving proximate-cause issues.
The originator of the formula, Jeremiah Smith, was content with the
but-for
test as a test of cause-in-fact, with the usual exception for the overdeter
mined-causation cases.190 He wanted to devise a practical alternative
to
the probability or foreseeability tests for determining the proximate
cause limitations on liability, because he believed that those tests were
unsound and inconsistent with the results in many cases.191 He proposed
the following formula: "Defendant's tort must have been a substantial
factor in producing the damage complained of."192 The accompanying
explanation and alternative formulations clearly stated that the defend
ant's tort could not be a substantial factor unless it satisfied the but-for
test (with an exception for simultaneous independent sufficient causes);
in addition, it would have to be an appreciable and continously effective
or
efficient factor in producing the harm, up to the time of occurrence of
the harm. 193
Thus, the substantial-factor formula was meant to be used as the
test of legal (proximate) cause, but also incorporated the but-for test
(and its exception) for cause-in-fact. Smith's approach was adopted
essentially

190. Smith, supra note 106, at 108-09 & n.20, 227, 312, 314 n.36, 316-17 n.41. Smith's
exception for overdetermined causation, however, was very narrow. It encompassed only a very
small subset of such cases-those in which there are two independent simultaneous tortious causes,
each by itself sufficient to produce the harm. Id. at 109 n.20, 312, 316-17 n.41.
191. Id. at 105, 115-28, 223-52, 308-09.
192. Id. at 309.
193. Id. at 310-12, 314 n.36.

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intact in the original Restatement of Torts.194 It has persisted in the

Restatement (Second) of Torts' treatment of legal causation and cause-in
fact, despite an attempt by Prosser and others to confine the substantial
factor formula to the question of causation-in-fact. 195
Leon Green first suggested that the substantial-factor formula be
applied to the actual-causation issue. He completely rejected the but-for
test, since it "take[s] the eye off the ball" by asking what would have
happened rather than focusing on what did happen and thereby denies
causation in many cases where causal contribution to the injury is obvi
ous.196 In his view, the substantial-factor formula was the best
available alternative. He argued that it should be used without
elaboration to pose the issue of causal contribution to the jury in every
case, not just in the
overdetermined-causation cases.197 Green's view was accepted by Pros
ser, who passed it on to several generations of law students and lawyers
through the various editions of his hornbook, 198 even after Green
himself became disenchanted with the formula. 199
The problem with the substantial-factor formula as a test of actual
causation (apart from its complete lack of guidance on what constitutes
a "factor") is that the alleged cause must be a substantial factor.
Thus, paradoxically, at the same time that Green was arguing
strenuously and cogently that the issue of causation should be
completely divorced from the policy issues camouflaged in proximate-
cause analysis, he adopted a formula for actual causation that required
the judge or jury to determine not only whether the actor's tortious
conduct had contributed to the injury (been a factor), but whether it
had contributed enough to make the actor resp"onsible-whether, "in the
light of all the other factors, the defendant's conduct played an
appreciable part in the result."200 Green seemed to believe that the
resulting inquiry retained its character as a factual, causal inquiry
because it allegedly relied on quantitative rather than qualitative
measures of relative contribution.201
Even if quantitative measures of relative contribution are used,
how ever, the question of limiting liability due to the extent of
contribution,

194. RESTATEMENT OF TORTS §§ 431-435 (1934).

195. RESTATEMENT (SECOND) OF TORTS §§ 431-433 (1965). Compare w. PROSSER, supra note
I, § 42, at 248 (asserts formula confined to cause-in-fact issue) with A. BECHT & F. MILLER, supra
note 8, at 16, 130-34 (criticizes that assertion).
196. Green, supra note 8, at 556; see also L. GREEN, JUDGE AND JURY 192 (1930); L. GREEN,
supra note 2, at 167-70; Green, supra note 158, at 604-05; Green, supra note 8, at 557-59.
197. L. GREEN, JUDGE AND JURY 190-95 (1930); L. GREEN, supra note 2, at 137, 140, 181-85;
Green, supra note 158, at 603-07.
198. E.g., W. PROSSER, supra note I, § 41, at 239-40; id. § 46, at 321, 323-24 (!st ed. 1941).
199. See infra text accompanying notes 206-08.
200. L. GREEN, supra note 2, at 134 (emphasis in original); see id. at 134-37, 141.
201. Id. at 140-41; see L. GREEN, JUDGE AND JURY 192-93 (1930); L. GREEN, supra note 2, at
84, 122.

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rather than due to the absence of any contribution, is clearly a proxi

mate-cause issue of policy or principle, rather than an issue of actual
causation (contribution to the injury). Moreover, the substantial-factor
formula inherently invites consideration of qualitative measures as well
as quantitative ones.202
Green himself, immediately after emphasizing the quantitative
nature of the inquiry, used qualitative considerations when discussing a
series of cases involving multiple causes. For example, he asserted that
it is "perhaps clear" that the hole poked by D 's tug in P's barge, three
feet above the water line, was not an appreciable factor in the sinking of
the barge when compared with the continued loading of the barge
which brought the hole below the waterline, since those who were
loading the barge were fully conscious of what had occurred but made
no effort to repair the hole. Similarly, he suggested that there would be
little possi bility of a finding that D' s driving over a small fiat box,
which unbe known to him contained a highly explosive substance, was
a substantial factor in producing the resulting explosion. And, when
discussing the cases in which P is negligently or intentionally pushed
by X into a hole negligently maintained by D, Green stated that "what
would be consid ered appreciable in one case might not in another. So,
as compared with X 's negligence, [D 's] conduct might be considered
appreciable, while as compared with X 's intended violence, [D's]
conduct might not be so considered."203
In each of these cases, the defendant's tortious act was a necessary
condition for the occurrence of the injury. When an act (omission, con
dition) was a necessary condition for the occurrence of an injury, it is
unnatural to deny that the act was, as a matter offact, not only a factor
in producing the injury, but also a substantial or appreciable factor. To
state otherwise is to make a noncausal, nonfactual policy judgment
about responsibility for the injury.
Prosser and, eventually, Green seem to have recognized the empti
ness of the undefined substantial-factor formula and the danger of its
being used to introduce proximate-cause issues into the actual-causation
inquiry. Prosser, in the various editions of his hornbook, concluded his
brief discussion of the formula by equating it with the but-for test, with
an exception for the overdetermined-causation cases,204 and in his arti
cles he relied primarily on the but-for test.205

202. A. BECHT & F. MILLER, supra note 8, at 131-34; H.L.A. HART & T. HONORE, supra
note 8, at 97, 293-94; C. MORRIS & C.R. MORRIS, supra note 4, at 174-75; Malone, supra note 6, at
88-97.
203. L. GREEN, supra note 2, at 153-58.
204. E.g., W. PROSSER, supra note 1, § 41, at 240 & n.33. The fifth edition of Prosser's
hornbook, edited by others, recognizes the policy judgments inherent in the substantial-factor
formula. PROSSER & KEETON, supra note 7, § 41, at 266-69.
205. E.g., Prosser, Proximate Cause in California, 38 CALIF. L. REV. 369, 375-78 (1950).

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In his later writings, Green abandoned his earlier substantive inter

pretation of the substantial-factor formula. He treated it as a meaning
less label for the judge to attach to her determination on the actual
causation issue or to use as a hortatory device "to caution a jury to
weigh the evidence carefully.''206 He also criticized the view that the
causal inquiry involves not only the question of contribution to the
injury, but also the question of how significant the contribution was,
without noting that he previously had been the major proponent of this
view.207 How ever, he continued to reject the but-for test and to insist
that the issue of causal contribution be submitted to the jury without
any elaboration or guidance. 208

D. Undefined, Directly Observable Causal Contribution

Lacking any satisfactory test, Green and a few other writers have
treated causation as an undefinable and irreducible factual relation
between events that can be directly perceived or inferred without explic
itly or implicitly resorting to any generalization, definition, or test.209
Most of these writers do not attempt to explain how this concept would
be applied in the various types of causation cases. However, there is
one notable exception: Becht and Miller's book, The Test of Factual
Causation.210
Becht and Miller's book is a comprehensive attempt to demonstrate
how the concept of undefined, directly observable causal contribution is
applied in tort analysis. They argue that we determine whether a causal
relation exists between an act and an injury by breaking down the
sequence of events to the appropriate level of detail to see if we can
"per ceive" a causal connection. If we can, the act is deemed to be a
cause of the injury even if the injury can also be traced back to
another act or event through a different causal sequence as in the
merged-fires case.211 However, when Becht and Miller attempt to
show how this approach would work in the myriad variety of actual-
causation cases, they are forced to rely on the but-for test in an
increasingly wide range of cases. Initially, they are forced to use the
but-for test to handle causal inquiries involving omissions. By
definition an omission is a nonevent something which did not
happen-which only rarely will trigger an

206. Green, supra note 8, at 554.

207. Id. at 555; see id. at 557.
208. Id. at 548, 553-58.
209. A. BECHT & F. MILLER, supra note 8, at 9-10, 163-64; L. GREEN, supra note 2, at
132-33, 135, 137, 139-40, 183-85; Green, supra note 8, at 549, 553 & n.22, 554 n.25, 556, 560;
see Borgo, supra note 11, at 434-38; Epstein, supra note 13, at 161-63, 165-67; cf. Williams, supra
note 21, at 66- 68 (causal generalizations not involved in causal inquiry in the legal context).
210. A. BECHT & F. MILLER, supra note
8. 211. Id. at 9-11, 14-15, 18.

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actual causal sequence that can be directly perceived or traced. Instead,

an omission is almost always a "negative" cause of an injury: it repre
sents a missed opportunity to prevent the injury. That is, an omission is
a cause of an injury only if the omitted act would have been part of
a hypothetical causal sequence that would have prevented, terminated,
or deflected the different causal sequence that actually occurred and
pro duced the injury. Thus, in order to determine whether an omission
was a cause of an injury, it is necessary to conduct a hypothetical
inquiry. The omitted act must be hypothetically supplied, and a
hypothetical causal sequence (which Becht and Miller call a "parallel
series") must be con structed and traced to determine whether it
would have prevented the occurrence of the injury.212
The hypothetical inquiry (but-for test) also must be used whenever
an actual ("positive") causal sequence becomes a negative cause by
blocking or terminating some preventive effort-for example, by block
ing a fire engine or cutting off its supply of water.213 This inquiry also
must be employed to determine whether the excess (negligent) portion
of a certain speed or weight, or the difference between being in a safe
posi tion or an unsafe (negligent) position, contributed to the injury.214
Indeed, as Becht and Miller reluctantly admit, the hypothetical inquiry
must be used whenever the negligent aspect of an act does not
encompass the act as a whole. For example, in the excess-speed case,
the act is driv ing at a certain speed. We observe the car at that speed
hit the child. The negligent aspect of the speeding is the excess speed,
which Becht and Miller note "is not an event but a concept. Like an
omission, it did not happen, and it cannot be a simple [perceived]
cause of events in the world."215
Becht and Miller recognize the possible criticism that they are
implicitly using the hypothetical inquiry with all negligent acts, rather
than just with negligent acts that have a nonnegligent aspect, "but are
unconscious of [doing so] when the [hypothetical inquiry] shows
clearly that the negligent act was a cause of the harm."216 They admit
that they cannot disprove this contention, but they continue to claim
that they are using direct perception of causation in such cases.
However, they have

212. Id. at 21-24. Becht and Miller assert that an omission can only be a negative cause-that it
can only contribute by failing to prevent or block the positive causal sequence that actually produces
the result, rather than by itself triggering the actual causal sequence that produces the result. Id. at
170-71. But an omission can trigger an actual causal sequence. For example, an omission to salute
causes a soldier to be disciplined, or an omission to put money in the parking meter causes the
driver's car to be ticketed. The mental perception of the omission provides the connecting link.
213. Id. at 41-42.
214. Id. at 52-63.
215. Id. at 54; see also id. at 33, 52, 63, 65, 140.
216. Id. at 66.

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some difficulty with a case in which the defendant negligently welds the
roof of a car, leaving a sharp edge, and the driver's head is crushed
against the roof at the weld point when the roof is smashed in during an
accident. They steadfastly assert that the case is one in which direct per
ception or inference, unaided by any hypothetical inquiry, shows a lack
of causation by the sharp weld, just as direct perception or inference
shows that the color of the roof was not a cause of the injury.217
The direct-perception argument relies on the notion that there are
observable and describable causal qualities or forces in objects or events.
Becht and Miller eventually concede that this notion is naive as com
pared with the Humean account, which is based on causal generaliza
tions.218 Even if the direct-perception notion were creditable, it is
difficult to imagine how the lack of causation by the sharp weld could be
perceived in the circumstances given. It is also difficult to understand
what is meant by "direct inference." An inference is based on some con
cept of how things generally happen-that is, on causal generalizations.
Causal generalizations incorporate the belief that the cause is in some
sense necessary for the occurrence of the consequence. The but-for test is
simply the means by which we determine whether this element of neces
sity exists in the particular case.
Becht and Miller argue that, even if it is true that they are explicitly
or implicitly using the but-for test in every case, they are using a less
restrictive version. Unlike the usual version, they compare what hap
pened with what would have happened in as minute detail as possible.
Moreover, in those cases in which there was more than one positive
causal sequence that led to the injury, they only require that the defend
ant's act or omission have been necessary for the continuation of the pos
itive causal sequence with which it was associated, rather than requiring
that it have been necessary for the injury itself.219
The first distinction-their use of minute detail-is nullified by their
tactic of "equating the injuries" to avoid finding but-for causation
when ever there is a slight difference between the actual process or
result and the hypothesized process and result.220
The second distinction, however, is a real one. It enables them to
find that causation exists in many of the overdetermined-causation
cases. For example, in the merged-fires case the defendant's tortious
conduct will be treated as a cause of the destruction of the house ifit
was a but-for cause of one of the fires, even though the house would
have been burnt

217. Id. at 66-67; see also id. at 92, 139.

218. Id. at 163-64; see also infra text accompanying notes 228-31; T. BEAUCHAMP & A.
ROSENBERG, supra note 21, at 80-84, 107-17.
219. A. BECHT & F. MILLER, supra note 8, at 65-67; see also id. at 19, 31, 64-65.
220. E.g., id. at 28-31, 55, 58-59, 62, 64, 70-71, 91; see supra text accompanying notes 179-85.

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down by the other fire anyway. The defendant's tortious conduct was a
but-for cause of one of the duplicative causal sequences, and that is
suffi cient to establish the causal connection to the destruction of the
house.221 Becht and Miller's causal-contribution analysis ends up being
very similar to the "necessary element of a sufficient set" test.222
However, it is not exactly equivalent. Indeed, it produces anomalous
results precisely to the extent that it varies from the latter test.
Becht and Miller's approach requires that the tortious act or omission
have been a necessary condition for one of the positive (actual) causal
sequences that contrib uted to the injury. They are therefore forced
to deny that causation exists when the overdetermined-causation
problem results from duplica tive or preempted conditions that
affect the same positive causal sequence, rather than from the
existence of multiple positive causal
sequences.
For example, they discuss the case in which C negligently fails to
discover and repair defective brakes in a car before renting the car to D,
who, unaware of the defective condition of the brakes, negligently fails
to try to use them to avoid hitting P. P is hit, but he would not have
been hit if the brakes had been working properly and D had used
them. C's omission (the failure to inspect and repair the brakes) was
not a neces sary condition for the occurrence of the positive causal
sequence that produced the injury, since D made no attempt to use the
brakes. Simi larly, given C's omission, D's omission (the failure to
try to use the brakes) was not a necessary condition either. Becht and
Miller unhap pily but firmly conclude that neither omission was a cause
of the injury, but would hold both C and D liable to avoid a "morally
indefensible" and "inexcusable" result. 223
The same problem occurs with acts. Assume that a cable has a
max imum safe load capacity of one ton when it is in good condition. C
negli gently weakens the cable (for example, by cutting a few of its
strands) so

221. A. BECHT & F. MILLER, supra note 8, at 32.

222. Becht and Miller refer to and approve Hart and Honore's "sufficient set" approach to
causation, but they avoid mentioning or discussing the "necessary element" aspect and in fact
erroneously imply that Hart and Honore do not believe that the notion of necessity is relevant to
causation. Id. at 202-04, 222. For a discussion of Hart and Honore's position, see infra text
accompanying notes 228-32, 235-38, 252-60, 282-83.
223. A. BECHT & F. MILLER, supra note 8, at 95-98; see also id. at 82 n.116, 210-11. Prosser
reaches a similar conclusion:
It may be said with some confidence that if any such case is considered, both parties will
be held liable; but the theory ofliability is not so clear. Perhaps the best guess is that each,
by his negligence, has deprived the plaintiff of a cause of action against the other, and
so should be liable.
W. PROSSER, supra note 1, § 41, at 239-40 n.25; accord J. FLEMING, supra note 4, at 174
n.19. Green's treatment of the case is discussed supra text accompanying notes 108-15. For the
resolution of the case under the "necessary element of a sufficient set" test, see infra text
accompanying notes 274-76.

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that it will now break if a one-ton load is applied. D negligently over

loads the cable with a two-ton load, which would cause it to break even
if it were in good condition. The cable breaks at the weakened point,
and the load falls on and injures P. Since the negligent acts of C and
D are both part of the same positive causal sequence that produced the
injury, but neither was a necessary condition for the occurrence of the
sequence, neither is a cause of the injury under Becht and Miller's
approach.224
Becht and Miller's book contains illuminating discussions on many
points-for example, the distinction between acts and omissions and the
need to focus on the tortious aspect of the actor's conduct. Perhaps its
most valuable contribution, however, is an unintended one: the demon
stration of the unavoidability of the but-for (necessary condition) test in
causal analysis. This unavoidability is most clear when the causal
inquiry focuses on omissions or the tortious aspect of acts, but it is
implicit in all causal inquiries.225

E. The NESS (Necessary Element of a Sufficient Set) Test

In this section, I turn at last to a test for causal contribution that is
applicable to the entire spectrum of causation cases. This test incorpo
rates the indispensable notion of necessity, but subordinates it to the
notion of sufficiency. I call this test the NESS (Necessary Element of a
Sufficient Set) test.
The NESS test was first suggested by H.L.A. Hart and Tony
Honore. However, their brief exposition of this test was overshadowed
and distorted by their primary emphasis on proximate-cause issues.226
The test has received very little notice and even less acceptance in the
subsequent legal literature.227 One of the principal purposes of this Arti-

224. A. BECHT & F. MILLER, supra note 8, at 57-58 & n.85. See infra text following notes 245
& 250 for the disposition of the case under the "necessary element of a sufficient set" test.
225. This point, at least with respect to omissions and the tortious aspect of acts, was not
missed by Green, who was a lifelong critic of the but-for test. In his earlier writings, he had
focused the causal inquiry on the negligent aspect of the actor's conduct. After reading Becht and
Miller's book, however, he insisted that the "orthodox analysis" limits the causal relation issue to
the question of whether the actor's conduct as a whole contributed to the injury. Green, supra note
8, at 546, 549-
51. He also claimed that there is no need to distinguish omissions from acts since "omissions to act
are merely incidents in a longer line of affirmative conduct and are easily resolved into it." Id. at
546; see id. at 546-47. We have already seen that this approach produces anomalous results unless
the tortious-aspect causation requirement is smuggled back in as part of the duty or proximate-
cause analysis. This is, in fact, what Green and his followers have done, with mixed success. See
supra text accompanying notes 111-26.
226. H.L.A. HART & A. HONORE, supra note 10, at 105-10, 116-19, 122, 216-29; H.L.A. HART
& T. HONORE, supra note 8, at 111-17, 122-25, 128-29, 235-53.
227. Fleming incorporated much of Hart and Honore's exposition, including its deficient
aspects, into the second edition of his treatise. J. FLEMING, THE LAW OF TORTS 178-81 & n.1
(2d ed. 1961). The exposition has been retained with slight modifications in subsequent editions.
E.g., J. FLEMING, supra note 4, at 170-71, 173-74. Professors Cole, Becht, and Miiler omit the
necessary condition element and treat the test as a "sufficient set" approach. A. BECHT & F.
MILLER, supra

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cle is to draw renewed attention to the NESS test, by demonstrating its

fundamental identity with the basic concept of causation and its utility
in resolving the cases that have proved troublesome for several
generations of tort scholars.

1. The Philosophic Basis of the NESS Test

The NESS test captures the essential meaning of the concept of
cau sation. This meaning was first articulated by the philosopher
David Hume. Hume rejected the earlier notion that we acquire causal
knowl edge through direct sensory perception of causal qualities or
forces inher ent in objects or events. Instead, he insisted that we only
observe certain successions of events, more or less frequently
repeated. From these observations, we inductively derive the belief
that certain antecedent events are not only always conjoined with, but
also are sufficient for the occurrence of, certain subsequent events.
That is, we form a belief in more or less well-grounded causal laws
or generalizations. Causal knowledge or belief also can be based on
reasoning by analogy from such observations or can be acquired
through education, which passes on the causal knowledge of others.
Any singular causal statement about a par ticular occurrence is not a
reporting of direct sensory perception of causal forces, but rather an
assertion of the belief that the occurrence instantiates one or more
causal laws or generalizations. 228
A fully specified causal law or generalization would state an
invaria ble connection between the cause and the consequence: given
the actual existence of the fully specified set of antecedent conditions,
the conse quence must follow. In other words, the fully specified set of
antecedent conditions is sufficient for the occurrence of the consequence.
In the typ ical singular causal statement, the causal assertion includes,
explicitly or implicitly, only a few of the antecedent conditions but
nevertheless asserts that they were part of an incompletely specified
(and incompletely understood or known) set of actual conditions that
was sufficient for the occurrence of the consequence.229

note 8, at 202-04, 222, discussed supra note 222; Cole, supra note 7, at 485, 486 n.80, 488, 495, 505 &
n.133, 769, 770 n.16. Professors Fraser and Howarth also mention the NESS test, but attribute it to
Professor Papineau rather than to Hart and Honore and reject it, after misapplying it, in favor of a
probabilistic increased-risk "causal" test. Fraser & Howarth, More concern for cause, 4 LEGAL
STUD. 131, 133 & n.19, 135-38, 140-42, 145-56 (1984). Similarly, Mario Rizzo converts the INUS
(Insufficient but Necessary element of an Unnecessary but Sufficient set) test, which is similar to the
NESS test and was elaborated by Mackie subsequent to Hart and Honore's book, into a
probabilistic-linkage test. Rizzo, supra note 178, at 1009-16; see infra text accompanying note 234.
228. T. BEAUCHAMP & A. ROSENBERG, supra note 21, at 4-11, 80-81, 87-88, 91-92, 139-43;
H.L.A. HART & T. HONORE, supra note 8, at 10-11, 14-15.
229. T. BEAUCHAMP & A. ROSENBERG, supra note 21, at 23-24, 84-87, 92-97, 114-15, 132, 136-
37, 141; H.L.A. HART & T. HONORE, supra note 8, at 10-11, 44-49; Mackie, supra note 21, at 23-24,
27-32, 35-38.

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Hume was primarily interested in elaborating and defending this

"regularity" account of causation and causal knowledge, which insists
that the meaning of causation is to be found in causal laws or
generaliza tions rather than in some notion of causal qualities or forces.
However, while pursuing this primary objective, he occasionally
noted that one must be careful when constructing a causal law or
generalization to dis tinguish the causally relevant antecedent
conditions from the causally irrelevant antecedent conditions. This
differentiation is necessary to insure that the set of jointly sufficient
antecedent conditions includes only those that are indeed invariably
connected with the consequence. Thus, the antecedent conditions must
be restricted to those that are necessary for the sufficiency of the set.230
Hume also maintained that a certain consequence is always pro
duced by the same cause-that is, that there is a unique sufficient set of
antecedent conditions that always must be present to produce a particu
lar consequence. Hume's successor, John Stuart Mill, disagreed. He
asserted that there may be a plurality of potential causes for any conse
quence. For example, death may be caused by poison on one occasion,
by a bullet wound on another, by fire on yet another, and so forth.
Hume's defenders have argued that such seemingly different causes may
upon further investigation turn out to be overly broad specifications of a
single common cause, or that the seemingly identical consequence may
turn out to be distinct consequences. However, they also admit that
ordinary experience provides strong support for the plurality-of-poten
tial-causes theory. Indeed, the plurality theory has become part of the
dominant "regularity" account of the meaning of causation.231
As Hart and Honore noted in 1959, the "necessary element of a
sufficient set" (NESS) test of causal contribution follows directly from
this dominant "regularity" account of the meaning of causation.232 The
essence of the concept of causation under this philosophic account is
that a parti cular condition was a cause of (condition contributing to) a
specific
consequence if and only if it was a necessary element of a set of
antecedent actual conditions that was sufficient for the occurrence of the
consequence.
(Note that the phrase "a set" permits a plurality of sufficient sets.) This
is the more precise, extended statement of the NESS test.
Surprisingly, however, this notion of a contributing condition
appears only infrequently in the philosophic literature on causation. The
literature continues to be characterized by arguments based on necessary

230. T. BEAUCHAMP & A. ROSENBERG, supra note 21, at 94-96, 114-17.

231. Id. at 23, 88-91; H.L.A. HART & T. HONORE, supra note 8, at 19-20; see id. at xxxix-xlii.
232. H.L.A. HART & T. HONORE, supra note 8, at 111-18. Sosa incorrectly characterizes
Hart and Honore's account as a simple sufficient- condition account. Sosa, supra note 170, at l;
see A. BECHT & F. MILLER, supra note 8, at 202-04, 222, discussed supra note 222.

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conditions, sufficient conditions, or necessary and sufficient

conditions.233 After Hart and Honore's book was published, several
nonlegal philoso phers articulated NESS-like notions of causal
contribution. In each instance, however, they burdened the NESS
test with the additional requirement that the sufficient set be necessary
for the occurrence of the consequence in the particular circumstances.
This requirement converts the NESS test to a necessary and sufficient
condition test, which cannot accomodate the duplicative-causation
cases (for example, the merged fires cases).234
Hart and Honore do not make this mistake, because they recognize
that there may be a plurality of causes in a particular instance.
However, their version of the NESS test is also deficient in several
respects. First, they apparently require that a duplicative or preemptive
cause be inde pendently "sufficient" for the occurrence of the injury.
That is, it must be sufficient in conjunction with the "background"
conditions, but excluding the duplicated or preempted conditions.
Second, they sub merge the critical distinction between duplicative and
preemptive causa tion by constructing an overlapping typology of
overdetermined causation cases. Finally, they confuse the factual issue
of causal contri bution with the issues of policy or principle involved in
determining ulti mate liability in certain types of cases.

2. The Duplicative-Causation Cases

As elaborated, Hart and Honore's NESS test is only slightly less
restrictive than the Restatement 's substantial-factor exception to the but
for test, which only applies when each of two actively operating factors
was sufficient by itself for the occurrence of the injury.235 Hart and
Honore do not require that each of the factors have been actively operat
ing, but they seem to require that each have been sufficient by itself for
the occurrence of the injury.236 For example, in the merged-fires cases,
they assume that each fire would have been sufficient by itself for the
destruction of the plaintiff's house. The NESS test then confirms causal
contribution by each fire. Each fire was necessary for the sufficiency of
a set of actual antecedent conditions that did not include the other
fire.237 The requirement that each factor have been sufficient by itself
(when combined with the background conditions) is too restrictive and
is not a part of the basic concept of causation that is reflected in the
NESS test.

233. Sosa, supra note 170, at 1-3.

234. Mackie, supra note 21, at 16-21, 25-27 (also discussing Marc-Wogau' s and Scriven's
similar accounts); see T. BEAUCHAMP & A. ROSENBERG, supra note 21, at 212-13; Sosa,
supra note 170, at 3-4.
235. REsrATEMENT (SECOND) OF TORTS § 432(2) (1965).
236. H.L.A. HART & T. HONORE, supra note 8, at 123-24, 125, 206-07, 235-39, 245, 249.
237. Id. at 122-23, 206, 235, 237-39.

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Moreover, the independent-sufficiency requirement is not followed by

the courts. For example, in two duplicative-causation cases involving
merged fires and noisy motorcycles, respectively, the courts did not
require the plaintiff to prove the independent sufficiency of each
contrib uting factor, but rather required him to prove only that each
factor con
tributed to the injury.238 Similarly, in the pollution cases, the courts have
allowed the plaintiff to recover from each defendant who contributed to
the pollution that caused the injury, even though none of the defendants'
individual contributions was either necessary or sufficient by itself for
the
occurrence of the injury.239
Malone argues that the courts' departure from the but-for test in the
overdetermined-causation cases is further evidence of the policy-depen
dent nature of the causal inquiry. He contends that the courts are willing
to replace the but-for test with the substantial-factor formula in cases
like the merged-fires cases because of the important policies that
underlie
"the well-established rules that prohibit the setting into motion of a
destructive force."240
But, contrary to Malone's assertion, the policies or principles at
work in these cases are not those underlying the particular rule that was
violated. They are the ones underlying the actual causation requirement
itself. As Malone himself notes, the courts feel impelled to depart from
the but-for test in these overdetermined-causation cases because,
although the but-for test is not satisfied, it is clear that the defendant's
tortious conduct 241 contributed to the injury: "Our senses have told us
that he did participate. . . . In the language of the layman, the defend
ant's fire 'had something to do with' the burning of the plaintiff's prop
erty."242 Just as Newtonian mechanics serves as an adequate substitute
for the more accurate and comprehensive theories of relativity and
quan tum mechanics in ordinary physical situations, the but-for test
serves as an adequate substitute for the NESS test in ordinary causal
situations. In each context, however, the substitute must give way to the
more accurate and comprehensive concept when the situation is more
subtle and complex.
In the pollution cases, the NESS test confirms that each defendant's

238. Corey v. Havener, 182 Mass. 250, 65 N.E. 69 (1902) (noisy motorcycles); Anderson v.
Minneapolis, St. P. & S. Ste. M. Ry., 146 Minn. 430, 179 N.W. 45 (1920) (merged fires). The
cases are discussed in Malone, supra note 6, at 90-91.
239. E.g., Michie v. Great Lakes Steel Div., 495 F.2d 213 (6th Cir.), cert. denied, 419 U.S. 997
(1974); Warren v. Parkhurst, 45 Misc. 466, 92 N.Y.S. 725 (1904), afjd, 105 A.D. 239, 93 N.Y.S.
1009 (1905), afjd, 186 N.Y. 45, 78 N.E. 579 (1906); see J. FLEMING, supra note 4, at 176.
240. Malone, supra note 6, at 89.
241. The term "tortious conduct" should always be interpreted to mean the tortious aspect of
the actor's conduct. See supra text accompanying notes 135-45.
242. Malone, supra note 6, at 89 (emphasis in original).

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pollution contributed to the injury, even though it was neither necessary

nor independently sufficient for the injury. For example, assume that five
units of pollution were necessary and sufficient for the injury and that
each of seven defendants discharged one unit of pollution. Each defend
ant can truthfully say that its one unit was neither necessary nor indepen
dently sufficient for the injury. But each defendant's one unit was
necessary for the sufficiency of a set of actual antecedent conditions that
included only four of the other units, and the sufficiency of this particular
set of actual antecedent conditions was not affected by the existence of
two additional duplicative units.243
A similar causal situation exists even if one defendant discharges
five units of pollution and a second defendant discharges two units. The
two units still mix with the five units to produce the injurious seven units.
More rigorously, the two units were necessary for the sufficiency of a set
of actual antecedent conditions that included only three of the first
defendant's five units, a set whose sufficiency .was not affected by the
existence of two additional duplicative units also provided by the first
defendant.
The analysis of the merged-fires cases is analogous. Thus, if any two
of three fires were sufficient for the injury, but none by itself was suffi
cient, each was a cause of the injury since each was necessary for the
sufficiency of a set of actual antecedent conditions that included only one
of the other fires. The same causal situation exists even ifthere were only
two fires, one of which was independently sufficient and the other of
which was not. The first fire was clearly a cause, since it was indepen
dently sufficient. But the second fire also was a cause. It was necessary
for the sufficiency of a set of actual antecedent conditions which included
another fire (the first) that was "at least large enough to be sufficient for
the injury if it merged with a fire the size of the second fire." The suffi
ciency of this set is not affected by the fact that the first fire was so large
that it would have been sufficient by itself.
The wording of the quoted condition, "at least large enough," is
not a verbal gimmick. The condition is an actual one that existed on
the particular occasion. It describes a certain factual situation, as much
as the condition in the pollution case that referred to only three of the
first defendant's five units of pollution. In the former case, the size of
the first

243. I assume that the injury was not accelerated or aggravated by the extra units of pollution.
Ifit was, causal contribution would be even clearer. I also assume that the units of pollution arrived
simultaneously at the site of the injury. Obviously, if five units arrived before the other two and
produced the injury before the other two arrived, the first five units were causes of the injury and the
last two were not. Their potential effects were preempted by the effects of the first five. See infra
text accompanying notes 247-51.

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fire is broken down into portions; in the latter case, the amount of the
first defendant's pollution is broken down into portions.
The NESS test would attribute causal status to a very small fire that
merged with an overwhelming large fire. The very small fire was a dupli
cative cause of any resulting injury. Whether the person who tortiously
caused the very small fire should be held liable for any or all of the result
ing injury is an issue of policy or principle that comes under the heading
of damages.244
The same analysis applies to the weakened-cable hypothetical. 245
In that example, a cable with a maximum safe load capacity of one ton
was weakened by C, who negligently cut a few of its strands so that it
would break if subjected to a one-ton load. D then negligently put a
two-ton load on the cable, which would have caused it to break even if
the cable were in good condition, and the cable broke at the weakened
point. C's weakening of the cable was necessary for the sufficiency of a
set of actual antecedent conditions which included a load of at least one
ton, and the sufficiency of this set was not affected by the fact that the
load was more than one ton. Indeed, the causal contribution of C's
weakening of the cable is evidenced by the fact that the cable broke
at the weakened point.246 Similarly, D 's overloading of the cable was
necessary for the sufficiency of a set of actual antecedent conditions
that included a cable with a load capacity of at most one ton, and the
sufficiency of this set was not affected by the fact that the cable had a
capacity of less than one ton as a result of the weakening. C's
weakening of the cable and D 's over loading of it are duplicative
causes of the cable's breaking and the result ing injury to the plaintiff.

3. The Preemptive-Causati on Cases

So far, the discussion has concentrated on the duplicative-causation
cases. I tum now to the preemptive-causation cases. Hart and Honore
mention situations in which the defendant asserts that someone else
would have shot the plaintiff or stolen his property if the defendant had
not done so.247 The defendant's argument would succeed under a literal
application of the Restatement, which adheres to the but-for test unless
the alternative factor was "actively operating."248 But, under the NESS
test, the defendant's tortious act clearly was a cause of the injury, since it

244. See infra text accompanying notes 258-73.

245. See supra text accompanying note 224.
246. Of course, if the cable broke at another point, C's weakening of the cable would not be a
necessary element of any sufficient set of actual antecedent conditions. See infra text following note
250.
247. H.L.A. HART & T. HONORE, supra note 8, at 124-25, 249-50.
248. RESTATEMENT (SECOND) OF TORTS § 432(2) (1965); see supra text accompanying note
235.

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was a necessary element of the set of actual antecedent conditions that

was sufficient for the injury. Under this test, moreover, only the
defend ant's actions would be deemed a cause. The potential actions
of others that did not in fact occur could not be a part of any set of
actual antece dent conditions that was sufficient for the injury.
Preemptive causation also is present in many cases where the alter
native factor actually did occur. For example, in my initial illustration
where D shot and killed P just as P was about to drink a cup of tea that
had been poisoned by C,249 D 's shot was necessary for the sufficiency of
a set of actual antecedent conditions that did not include the poisoned
tea. Conversely, C's poisoning of the tea was not a necessary element of
any sufficient set of actual antecedent conditions. A set that included
the poisoned tea but not the shooting would be sufficient only if P
actually drank the tea, but this was not an actual condition. The
shooting pre empted the potential causal effect of the poisoned tea.
Moreover, even if P actually had drunk the poisoned tea, C's
poisoning of the tea still would not be a cause of P's death if the
poison did not work instantaneously but the shot did. The poisoned
tea would be a cause of P's death only if P drank the tea and was
alive when the poison took effect. That is, a set of actual antecedent
conditions sufficient to cause P's death must include poisoning of the
tea, P's drinking of the poisoned tea, and P's being alive when the
poison takes effect. Although the first two conditions actually
existed, the third did not. D 's shooting P prevented it from
occurring. Thus, there is no sufficient set of actual antecedent
conditions that includes C's poisoning of the tea as a neces sary
element. Consequently, C's poisoning of the tea fails the NESS test.
It did not contribute to P's death.250
As the last example illustrates, a necessary condition for the suffi
ciency of any set of actual antecedent conditions is that the injury not
have occurred already as a result of other actual conditions outside the
set. The determination of whether this condition existed, as with all the
other conditions, is an empirical judgment. For example, in the weak
ened-cable hypothetical, C's weakening of the cable was considered to
be a duplicative cause when the cable broke at the weakened point. If
the cable had broken instead at some other point, our empirical
evaluation would be that the potential causal effect of C's weakening
of the cable was preempted by the existence of this other weaker point
in the cable. This other weaker point prevented the cable from staying
together long enough for C's weakened point to have any effect. In
those circum stances, C's weakening of the cable would not be a
necessary element of any sufficient set of actual antecedent conditions.

249. See supra text following note 166.

250. See H.L.A. HART & T. HONORE, supra note 8, at 124.

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The key to the overdetermined-causation cases, therefore, is the

dis tinction between duplicative and preemptive causation. In each
case, an empirical judgment must be made: was the tortious aspect of
the defend ant's conduct a necessary element in a set of actual
antecedent conditions that was sufficient for the occurrence of the
injury, or was it not a neces sary member of any actually sufficient set
because its potential effects were preempted by other actual conditions
outside the set?
In the merged-fires cases or the noisy-motorcycles case, we
believe that each factor duplicates or reinforces the effects of the other
factor, rather than preempting those effects-that is, that there is more
than one sufficient cause. In the shooting case, however, we believe
that there was only one sufficient cause (the shooting), which
preempted the effects of the other potential cause (the poisoning) and
thereby prevented it from being a necessary member of an actually
sufficient set. We would believe otherwise if medical experts testified
that the effects of the poison com bined with the effects of the
shooting to cause the victim's death, although either alone would have
been sufficient.251 The critical issue is whether one factor completely
preempted the potential effects of the other factor, so that there was
only one sufficient (preemptive) cause in the actual circumstances, or
whether each factor was a necessary part of a different (but
overlapping) actually sufficient set, in which case there was more than
one sufficient (duplicative) cause.
Hart and Honore submerge this critical issue in their discussion of
the overdetermined-causation cases. They construct a typology that
first divides the cases into those involving "additional causes" and
those involving "alternative causes." The alternative-cause category is
meant to include those cases in which there was a potential alternative
cause which never occurred. Examples include the cases where the
defendant asserts that someone else would have shot or robbed the
plaintiff if he had not.252 However, Hart and Honore also include a
bridge-delay case in which there was an actual second bridge that
would have delayed the plaintiff's boat even if the first bridge had
not.253 It is misleading to speak of these cases as alternative-cause
cases. As Hart and Honore clearly indicate, the alternative cause was
not a cause. It was a pre empted potential cause, best referred to as a
"preempted condition." The category is a subset of the preemptive-
causation cases.
Their additional-cause category is subdivided into three subcatego-

251. Thus, the court's holding in State v. Scates, 50 N.C. (5 Jones) 420 (1858), that the
defendant could not be held liable, even though medical witnesses testified that his burning of a
child was the "primary cause" of the child's death, if an independent blow by someone else
hastened the death, is clearly erroneous unless the blow was an immediate, preemptive cause of
the death. The case is discussed in H.L.A. HART & T. HONORE, supra note 8, at 242.
252. H.L.A. HART & T. HONORE, supra note 8, at xi, 124-25, 207, 249·50.
253. Id at 250-51.

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ries. The "combinatory" or "reinforcing" cause subcategory, however,

is the only one that actually involves additional (duplicative)
causes.254 The other two subcategories are subsets of the preemptive-
causation cases, where again it is misleading to refer to the preempted
condition as an additional cause. The "neutralizing" cause subcategory
covers situa tions in which the effective cause prevents an alternative
active causal process from being completed. For example, a fire
approaching a house is quenched by a flood which destroys the house,
or a poison victim is killed by a bullet before the poison kills him.255
The "overtaking" cause subcategory originally was limited to situations
in which a subsequent actual injury would have caused the same
damage as the initial injury: for example, two successive injuries, each
of which would have been suffi cient to disable the victim totally.256
However, the subcategory has been expanded in the second edition to
encompass situations in which the effective cause frustrates an active
causal process, so that the subcategory now overlaps the "neutralizing"
cause subcategory. 257
Perhaps as a result of their confusing typology, Hart and Honore
lose sight of the basic concept of causation embodied in the NESS test.
In the double-bridge and successive-injury cases, for example, the
defendant's tortious conduct was a (preemptive) cause of the boat's
delay in the double-bridge case and a (preemptive) cause of the victim's
loss of a limb and resulting total disability in the successive-injury
case. But Hart and Honore claim that the tortious conduct was not a
cause of the victim's economic loss in either case, since the victim
would have suf fered the economic loss anyway as a result of the
second bridge or the second injury, respectively.258
This causal argument, however, is based on the but-for test rather
than the NESS test. In each case, the defendant's tortious conduct was a
necessary element of a set of actual antecedent conditions that did not
include the subsequent condition (the second bridge or the second
injury) and was sufficient for the occurrence of the economic loss. The
existence of the subsequent condition did not prevent this set from being
sufficient to produce the economic loss. On the other hand, neither
the second bridge nor the second injury was a necessary element of any
set of actual antecedent conditions that was sufficient for the
occurrence of the loss. The second bridge will cause a delay only if the
boat reaches it, but the boat did not reach it.259 The second injury will
cause total disability and resulting economic loss only if the victim is
not already totally disabled,

254. Id. at 237-39.

255. Id. at 124, 206-07, 239-45.
256. H.L.A. HART & A. HONORE, supra note 10, at 118, 190, 224-25.
257. H.L.A. HART & T. HONORE, supra note 8, at 245.
258. Id. at 246-48, 250-51.
259. See L. GREEN, supra note 2, at 168-70.

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but this also was not one of the actual conditions. In each instance, the
defendant's tortious act is a preemptive cause of the injury and the
result ing economic loss, and the subsequent preempted condition is not
a cause of the economic loss.260

4. Distinguishing the Damages Issue: The Successive-Injury and

Overwhelming-Force Cases
The successive-injury cases have engendered much debate and con
fusion, particularly in the Commonwealth countries, where the legal
community seems unable to free itself from the but-for concept of
causa tion.261 The causal situation is clear in these cases. The first
injury caused the economic loss; the second did not. The issue is not
causal. It is a proximate-cause issue of policy or principle that is most
appropri ately placed under the heading of damages, and it also arises in
the dupli cative-causation cases. The issue is whether a defendant who
has tortiously caused injury to the plaintiff nevertheless should be
absolved from liability if the injury would have occurred anyway as a
result of independent duplicative or preempted conditions.
Courts generally absolve the defendant from liability if he proves
that the injury would have occurred anyway as a result of independent
nontortious conditions.262 In such a case, the plaintifrs corrective-justice
claim-that he would not have been injured if not for the tortious con
duct of others-fails. On the other hand, if the duplicative or preempted
conditions also resulted from tortious conduct, the plaintiff's corrective
justice claim is intact.263 Nevertheless, it may seem unfair to hold a
defendant liable for the entire injury if his contribution to the injury was
relatively minor compared to the other contributing conditions. But this
proximate-cause problem has been greatly lessened by the recent wide
spread liberalization of the rules governing contribution among defend
ants.264 Therefore, once the plaintiff has established that the tortious
aspect of a certain defendant's conduct contributed to the injury, many

260. In the successive-injury case, the second condition is a cause of the second injury, and of
any additional pain or costs resulting from the second injury.
261. E.g., Jobling v. Associated Dairies, 1982 A.C. 794 (1981); J. FLEMING, supra note 4, at
174-76; Fraser & Howarth, supra note 227, at 136-37, 145-56; McGregor, Successive Causes of
Personal Injury, 33 Moo. L. R.E.v. 378 (1970); Strachan, supra note 7; Williams, supra note 21,
at 75.
79. For similar confusion by American writers, see Henderson, supra note 105, at 201-12; Peaslee,
supra note 175.
262. E.g., Kingston v. Chicago & N.W. Ry., 191 Wis. 610, 211 N.W.913 (1927) (dicta); Cook
v. Minneapolis, St. P. & S. Ste. M. Ry., 98 Wis. 624, 74 N.W. 561 (1898); Jobling v. Associated
Dairies, 1982 A.C. 794 (1981). But see REsrATEMENT (SECOND) OF TORTS § 432(2)
comment d (1965); Carpenter, Concurrent Causation, 83 U. PA. L. R.E.v. 941 (1935).
263. E.g., Kingston v. Chicago & N.W. Ry., 191 Wis. 610, 211 N.W. 913 (1927); Baker v.
Willoughby, 1970 A.C. 467 (1969).
264. E.g., American Motorcycle Ass'n v. Superior Court, 20 Cal. 3d 578, 578 P.2d 899, 146
Cal. Rptr. 182 (1978); Dole v. Dow Chem. Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d
382

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courts shift the burden to the defendant to establish that (1) the injury
would have occurred anyway as a result of independent nontortious
con ditions, (2) he contributed to only a part of the injury, or (3) he is
entitled to contribution from the other defendants based on relative
tortious contribution.265
The causal issue is almost always confused with the policy-laden
damages issue in the overwhelming-force cases involving passive
condi tions. When an overwhelming force combines with an active
condition, the courts are less likely to confuse the two issues. Thus, in
the merged fires cases, the courts generally recognize that the
defendant's smaller fire that combined with a much larger fire
nevertheless contributed to the injury. If the defendant avoids liability,
it is not due to a lack of causal contribution but rather due to
noncausal limitations. For example, the defendant usually can avoid
liability if he proves that the other fire was independently sufficient and
of nontortious origin, or perhaps even if it was also of tortious origin
if it was so overwhelming as to make the defendant's contribution
relatively insignificant.266 On the other hand, the defendant is unlikely
to escape liability even though his contribution was a very small part of
the total cause if it was necessary for the conse quence or, although
unnecessary, was combined with a large number of similarly small
contributions, as in the pollution cases.267
When the overwhelming force combines with a passive condition,
however, most courts and commentators tend to fall back on the but-for
test and erroneously deny causal contribution.268 For example, the
courts deny that the defendant's negligent failure to construct an ade
quate dam or to keep runoff pipes free of debris was a cause of flooding
that would have occurred given a normal storm, if the actual storm was
an extraordinary one that would have caused flooding even if the
defend-

(1972); Landes & Posner, Joint and Multiple Tortfeasors: An Economic Analysis, 9 J. LEGAL
STUD. 517, 550-51 (1980); Robinson, supra note 7, at 716 & n.12.
265. Inaddition to the cases cited supra notes 262-64, see Michie v. Great Lakes Steel Div.,
495 F.2d 213 (6th Cir.), cert. denied, 419 U.S. 997 (1974); Maddux v. Donaldson, 362 Mich. 425,
108 N.W.2d 33 (1961). Some courts have adopted a "comparative causation" allocation formula in
the strict product liability cases, since there is no negligence or fault as is required under the
comparative-negligence (fault) rubric. E.g., General Motors Corp. v. Hopkins, 548 S.W.2d 344
(Tex. 1977). However, from a purely causal standpoint, each necessary (or NESS) condition is
equally a cause. At best, the comparative-causation formula is a camouflage for a "comparative
responsibility" approach (surely a better and more helpful term), in which the types and degrees of
tortious conduct involved and the policies underlying each type of tortious conduct are weighed to
allocate liability. E.g., H.L.A. HART & T. HONORE, supra note 8, at 232-34; see Robinson, supra
note 7, at 758-68. At worst, the comparative-causation formula invites resort to mechanistic,
generally inapplicable calculations of relative energy or force, which have little to do with the basic
principles and goals oftort liability. E.g., Epstein, Defenses, supra note 49, at 179-80; Epstein,
Reply, supra note 49, at 478 n.5.
266. E.g., Kingston v. Chicago & N.W. Ry., 191 Wis. 610, 615-16, 211 N.W. 913, 915 (1927).
267. See cases cited supra note 239.
268. This point is noted in Malone, supra note 6, at 92-94.

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ant had not been negligent.269 Similarly, they have stated that the
defendant's negligent failure to remove a rotten pole is not a cause of
injury when the pole is knocked down by a car that hits it with such
force that it would have been knocked down even if it were not
rotten.270
These are overdetermined-causation cases that are entirely analo
gous to the merged-fires cases and the weakened-cable case.271 Thus, if
the rotten pole broke at its weak point, the weak condition clearly con
tributed to the injury. It was a necessary element of a sufficient set of
actual antecedent conditions that included an impact with at least
enough force to knock down a rotten pole. The sufficiency of the set
was not affected by the fact that the impact had a greater force, unless
the impact knocked the pole over in its entirety rather than breaking it
at its weak point. Similarly, the failure to remove debris from a dam's
runoff pipes or to build it high enough to prevent flooding during a
normal storm is a duplicative cause of flooding that occurs during an
extraordi nary storm. The unremoved debris or inadequate height is a
necessary element ina sufficient set of actual antecedent conditions that
includes an at least normal storm, and the sufficiency of this set is not
affected by the fact that the storm was larger than normal.
A few courts have recognized that the defendant's tortious conduct
contributed to the injury in these passive-condition cases. Indeed, some
courts have held the defendant liable even when the injury would have
occurred anyway as a result of independently sufficient nontortious
con ditions.272 However, if the noncausal policy limitations adopted in
the merged-fires and successive-injury cases are followed, the
defendant should be able to avoid liability in such circumstances.
These policy lim itations, rather than the false denial of causation,
explain the ultimate result in those cases in which liability is denied
because the injury would have occurred anyway due to the
extraordinary force of a storm.
Conversely, given the usual policy limitations, the defendant
should not escape liability when the duplicative or preempted condition
was also of tortious origin-for example, when the defendant's rotten
pole is knocked down by a negligent driver and an innocent third
party is injured. This case is the same as a merged-fires case in which
the defend-

269. E.g., City of Piqua v. Morris, 98 Ohio St. 42, 120 N.E. 300 (1918); RESTATEMENT
(SECOND) OF TORTS § 432(1) illustration 2 (1965); A. BECHT & F. MILLER, supra note 8, at
90-93;
L. GREEN, supra note 2, at 150-51; PROSSER & KEETON, supra note 7, § 41, at 265-66 & n.16.
Contra RESTATEMENT (SECOND) OF TORTS § 450; Malone, supra note 6, at 92-94.
270. E.g., Gibson v. Garcia, 96 Cal. App. 2d 681, 687, 216 P.2d 119, 123 (1950).
271. See supra text following notes 245 & 250.
272. O'Connor v. Chicago, M. & St. P. Ry., 163 Wis. 653, 654, 158 N.W. 343, 344 (1916) (weak
tree blown down by storm that would have blown down sound tree); Nitro-Phosphate & Odam's
Chem. Manure v. London & St. Katherine Docks, 9 Ch. D. 503, 527 (C.A. 1878) (levee built too

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low overflowed by extraordinarily high tide that would have overflowed levee built to proper
height); see Carpenter, supra note 127, at 418-19.

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ant's insufficient fire joins with an independently sufficient fire, also of

tortious origin. In each case, both conditions are tortious duplicative
causes of the injury, and liability should be imposed jointly on both
tortfeasors with a right of contribution.273

5. Theft, Nonuse, or Misuse of Defective or Missing Safety Devices

Some of the most difficult overdetermined-causation cases are the
preemptive-causation cases involving theft, nonuse, or misuse of defec
tive or missing safety devices. A familiar example is the case in which
C negligently failed to discover and repair defective brakes in a car that
he rented to D, and D negligently failed to try to use the brakes to
avoid running into P. It is assumed that the injury to P would have
been avoided if and only if C had repaired the brakes and D had tried
to use them. As we saw above, Green asserts that C's conduct as a
whole and D' s conduct as a whole were each causes of the injury, but
that only C should be held liable.274 Becht, Miller, Prosser, and Fleming
assert that neither C's negligence nor D' s negligence was a cause of the
injury, but that both C and D should be held liable.275
Under the NESS test, it is clear that D' s negligence was a preemp
tive cause of P's injury, and that C's negligence did not contribute to the
injury. D's failure to try to use the brakes was necessary for the suffi
ciency of a set of actual antecedent conditions that did not include C's
failure to repair the brakes, and the sufficiency of this set was not
affected by C's failure to repair the brakes. A failure to try to use
brakes will have a negative causal effect whether or not the brakes are
defective. On the other hand, C's failure to repair the brakes was not a
necessary ele ment of any set of antecedent actual conditions that was
sufficient for the occurrence of the injury. Defective brakes will have
an actual causal effect only if someone tries to use them, but that was
not an actual condi tion here. The potential negative causal effect of C's
failure to repair the brakes was preempted by D's failure to try to use
them. 276
The same analysis applies in every case involving nonuse or
misuse of a missing or defective safety device, unless the actor did not
try to use the device because he knew it was missing or defective.277• For
example, failure to provide a fire escape was not a cause of P's injury if
P could not have gotten to the fire escape anyway or would not have
tried to get to it

273. See supra text accompanying notes 262-67.

274. See supra text accompanying notes 108-15.
275. See supra note 223 and accompanying text.
276. E.g., Saunders Sys. Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72 (1928).
277. In the latter situation, the causal effect of the missing or defective device is a mental rather
than a physical one, which actually exists and is not preempted but rather completed by the actor's
failure to try to use the device. See supra notes 117 & 212.

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even if it existed.278 Similarly, failure to provide safety equipment to a

worker is not a cause of his injury if he would not have used it
anyway,279 and failure to pack a parachute properly is not a cause of
death if the deceased never pulled the ripcord to release the parachute.
A somewhat different situation is presented by McLaughlin's hypo
thetical in which D empties P's water keg and refills it with salt before
P is dropped into the middle of a desert. C subsequently steals the
keg, thinking that it contains water, and P dies of thirst.280 This case is
differ ent from the previous cases because it is assumed that P would
have used the water ("safety device") if it had been available. D 's
emptying the keg made the water unavailable and was a preemptive
cause of P' s death. C's theft of the keg was not a cause of P's death.
Its potential effect (making the water unavailable) depended on the
keg's having water in it when it was stolen, but that was not an actual
condition.281
Hart and Honore modify the facts by having D poison the water in
the keg rather than replacing it with salt. They conclude that neither C
nor D was a cause of P's death, but only because they equate causing
death with shortening life and note that P would have died sooner by
poisoning if C had not stolen the keg.282 As Becht and Miller point out,
and as a NESS analysis demonstrates, the lack of water (fluid) caused
the death, and it is irrelevant that P would have died sooner if he had
drunk the poisoned water.283 He in fact did not drink the poisoned
water, because C stole it. C's theft caused P's death and preempted the
poten tial causal effect of D 's poisoning the water.
It should be clear by now that the NESS test not only resolves but
also clarifies and illuminates the causal issues in the problematic causa
tion cases that have plagued tort scholars for generations. It does so
because it is not just a test for causation, but is itself the meaning of
causation. When there is no overdetermined-causation problem-that is,
when there is only one actual or hypothetical sufficient set of conditions
for a particular event-the NESS test collapses into the simple, tradi-

278. E.g., Weeks v. McNulty, 101 Tenn. 495, 48 S.W. 809 (1898). Contra Fraser & Howarth,
supra note 227, at 135-36.
279. E.g., M'Williams v. Sir Williams Arrol Ltd., 1962 Sess. Cas. 70 (H.L.); Qualcast
(Wolverhampton) Ltd. v. Haynes, 1959 A.C. 743; H.L.A. HART & T. HONORE, supra note 8, at
127. Contra Fraser & Howarth, supra note 227, at 135-36.
280. McLaughlin, supra note 175, at 155 n.25.
281. See supra text accompanying notes 250, 258-60. Becht and Miller conclude that neither C
nor D was a cause. A. BECHT & F. MILLER, supra note 8, at 210. This erroneous conclusion
results from their application of the but-for test to two factors that were both in the same causal
sequence. See supra text accompanying notes 222-24.
282. H.L.A. HART & T. HONORE, supra note 8, at 239-40 & n.70.
283. A. BECHT & F. MILLER, supra note 8, at 205-10. Becht and Miller rely on the
tautological "would not have died when and as he did" argument. Id. at 210; see supra text
accompanying notes 176-78. The applicable NESS analysis is discussed supra text accompanying
notes 249-50.

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tional but-for test. But the concept of causation is much more subtle
and complex than the but-for test. Thus, whenever the but-for test is
not satisfied, the factfinder must utilize this more complex notion of
causa tion, with its often subtle distinction between actual sufficiency
and mere apparent (preempted) sufficiency, before the causal inquiry
can be concluded.

F. The Factual Nature of the Causal Inquiry

Now that the content of the causal inquiry has been identified, we
are in a better position to evaluate the frequent claims that the causal
inquiry is dependent on policy considerations. In the first portion of
this section, I argue, contrary to the commonly held view, that the
hypotheti cal inquiry associated with the necessary-condition criterion
does not introduce policy issues into the causal inquiry. In the second
portion, I examine and reject the various arguments made by Wex
Malone, who generally is thought to have proven that the causal inquiry
is pervaded by policy considerations. I conclude that the causal
inquiry is a factual, empirical inquiry that can be-and almost always
is-kept distinct from the policy issues in tort adjudication.

1. The Hypothetical-Inquiry Argument

Many legal writers assert that the counterfactual analysis of neces
sity "takes the eye off the ball" by asking what would have happened,
rather than focusing on what actually happened, and thereby injects pol
icy issues into the causal inquiry. Some writers deplore this alleged
effect of necessity analysis,284 while others embrace it.285
The message of the preceding sections of this Part, however, is that
the notion of necessity is fundamental to the concept of causation,
although it is subsidiary to the notion of sufficiency rather than being
the direct and exclusive criterion of causal contribution as in the but-for
test. Efforts to escape from necessary-condition analysis by applying
the causal inquiry to the actor's conduct as a whole or resorting to
une laborated formulas or paradigm cases are therefore ultimately
futile.286
The causal question is not simply "What happened?" 287 but
rather "How did it happen?" Since Hume, it has generally been
accepted that there is no inherent causal force or quality in objects
which can be directly observed. We observe only certain successions
of events and

284. E.g., Green, supra note 158, at 605; Green, supra note 8, at 556-57, 559; Thode, supra
note 100, at 426-27 & n.15, 431; Note, supra note 27, at 1531-33; see Epstein, supra note 13, at
160-61.
285. E.g., Malone, supra note 6, at 67-68 & n.9; sources cited supra note 7.
286. See supra text accompanying notes 49-99, 107-17 & 190-225.
287. E.g., W. PROSSER, supra note 1, § 41, at 237; Epstein, supra note 13, at 160; Morris, supra
note 3, at 1088-89; Thode, supra note 100, at 431, 433-34.

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conditions, and we infer a causal relation in a particular succession if we

believe it instantiates an accepted causal law or generalization. Causal
generalizations, in turn, incorporate the notion of necessary condi
tions.288 Thus, as legal and nonlegal philosophers have noted, the neces
sary-condition criterion and its implicit counterfactual assertions are part
of the very meaning of causation.289
In tort adjudication, the causal inquiry is focused on the tortious
aspect of the actor's conduct. The trier of fact must determine whether
all the conditions that were necessary to make the defendant's conduct
tortious, including the relevant circumstances as well as the particular
act or omission, contributed to the injury.290 The counterfactual analysis
of necessity serves two purposes in this causal inquiry. First, it reduces
the chance that a tortious condition erroneously will be treated as part
of a causal generalization that is believed to be applicable to the
particular injury. Second, it reduces the chance that preemptive
causes will be overlooked. Thus, the counterfactual analysis of
necessity does not take the eye off the ball. It rather helps to ensure
that the right ball is being used. The objection to counterfactual
analysis of necessity per se is there fore misplaced.
Most objections to the counterfactual analysis of necessity have
focused on the clearly erroneous denials of causation that would be com
pelled by the but-for test if it were applied to the overdetermined-causa
tion cases.291 This problem arises, however, only because the but-for test
makes the necessary-condition criterion the exclusive criterion for causal
contribution. The problem is eliminated under the NESS test, which
subordinates the necessary-condition criterion to the sufficiency criterion.
However, some writers have insisted that the counterfactual analysis
of necessity inherently depends on value judgments. Ironically, most of
these writers believe that causal analysis is a factual analysis. They there
fore reject the counterfactual analysis of necessity because they think that
it introduces policy considerations into the causal analysis.292 They do
not realize that their arguments, if successful, would negate their claims

288. See supra text accompanying notes 228-30.

289. T. BEAUCHAMP & A. ROSENBERG, supra note 21, at 119-20; H.L.A. HART & T. HONORE,
supra note 8, at 14-15, 109-12; Mackie, supra note 21, at 30-31.
290. See supra text accompanying notes 135-45.
291. E.g., EPSTEIN, TORTS, supra note 4, at 271-72; Calabresi, supra note 9, at 86-87,
105·08; Green, supra note 158, at 604-05; Green, supra note 8, at 556-60; Landes & Posner, supra
note 9, at 109-11, 134; Malone, supra note 6, at 67, 88-97; Rosenberg, supra note 7, at 863-64;
Thode, supra note 100, at 431-33; Williams, supra note 21, at 75-79.
292. Cole, supra note 7, at 482-87, 505-06 & n.133, 768-74 & n.16; Epstein, supra note 13, at
160-61, 165-66; Thode, supra note 100, at 424-27, 431. Compare Malone, supra note 6, at 67-69 &
n.9 (welcoming policy considerations into causal inquiry), with id. at 71 & n.25 (causal issue usually
clear on the facts) and Malone, supra note 27, at 370-73 (causal issue always factual).

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that the causal inquiry is factual, since the counterfactual analysis of

necessity is an indispensable element of causal analysis.
The argument against counterfactual analysis is developed most
fully by Robert Cole. Initially, he asserts that the very decision to
employ one form of necessary-condition analysis rather than another is
a policy decision. He claims that there is no independent, policy-
neutral basis for choosing "necessary element of a sufficient set" (the
NESS test), "necessary on the particular occasion" (the but-for test),
"necessary on every occasion," or any other necessity formula.293
But, as we have seen,294 the "necessary element of a sufficient set"
formula is the essence of the concept of causation. The other
formulas do not capture the notion of causal contribution, although
one of them (the but-for test) is an adequate proxy in most cases.
Cole also argues that the courts introduce policy considerations
when they assume, as part of the counterfactual situation, that the
defendant would have behaved reasonably. In particular, he argues
that when the courts analyze what would have happened if the
defendant had not been driving at eighty miles per hour, there is no
neutral basis for them to pick the legal speed limit (or some lower
reasonable speed if the legal speed was unsafe in the particular
circumstances) as the basis for the counterfactual inquiry. They should
instead consider each possible alternative speed that the defendant
might have chosen other than eighty miles per hour and the changes in
behavior (such as greater attentiveness or deference to other drivers)
that might accompany each alternative speed. In order to decide
whether the defendant's eighty miles per hour speed was a necessary
condition for the accident, the court must consider all these alternatives
in as much detail as possible. It must then deter mine whether some
speed other than eighty miles per hour was not only noticeably more
likely than all the other possible alternative speeds but also more likely
to result in the accident. If such an alternative speed exists, the eighty
miles per hour speed was not a necessary condition for the accident.295
Cole then notes that the "pyramiding of conjectural possibilities"
inherent in any such detailed consideration of what might have
happened if the defendant had not been driving at eighty miles per
hour makes it impossible to reach any definite conclusion.296 When the
courts select the legal speed as the counterfactual speed and do not
consider behav ioral changes that might be expected from someone
driving at the legal

293. Cole, supra note 7, at 769-71 & nn. 15 & 16.

294. See supra text accompanying notes 228-32.
295. Cole, supra note 7, at 769-70, 773-76, 783-84; see also Thode, supra note 100, at 426-27 &
n.17.
296. Cole, supra note 7, at 776-77.

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speed rather than at eighty miles per hour, they are using policy consid
erations to drastically reduce the range of conjecture about what would
have happened if the defendant had not been driving at eighty miles per
hour.297
This argument depends on the common but fallacious assumption
that the courts are trying to determine what would or might have hap
pened if the defendant had not been driving at eighty miles per hour.
Insofar as the causal inquiry is concerned, the courts are not interested,
and should not be interested, in that broad inquiry. They are interested
only in determining the causal effect of the tortious aspect of the defen
dant's conduct. For example, in the speeding cases the courts want to
know whether the excess speed (the tortious aspect) was a necessary
ele ment in some set of actual antecedent conditions that was sufficient
for the occurrence of the accident. They therefore change only the
tortious condition when setting up the counterfactual situation. They
remove the speed in excess of the legal speed from the set of actual
antecedent condi tions to determine whether the set would have been
sufficient without it. They want to know whether the tortious aspect
(the excess speed) actu ally contributed to the accident. They do not
want to know, as part of the causal inquiry, whether the defendant
would have driven at the legal speed if he had not driven at eighty miles
per hour, or whether he might have been more attentive or otherwise
more careful if he had been driv ing at the legal speed. The causal issue
is restricted to the narrow ques tion of the actual effect of the excess
speed given the other conditions (attentiveness, etc.) that actually
existed.
Similarly, the courts do not change the actual conduct of the plain
tiff or third parties when they set up the counterfactual situation. They
are not using policy considerations, but rather careful causal methodol
ogy, when they remove only the defendant's excess speed in order to
determine the causal effect of that excess speed in the actual
circumstances.298
Of course, once a court sets up the counterfactual situation by
elimi nating the particular tortious condition, it must then determine the
hypo thetical consequences of that change. As even Malone admits,299
in most cases there is little difficulty, for example, when the change is
removing the explosive character of a substance or the act of firing a
gun. The analysis becomes more complicated when human reactions
to the changed situation must be estimated. Again, however, the
analysis is usually fairly easy and not too speculative. People's
reactions generally will be fairly predictable using causal
generalizations in which there is a

297. Id. at 771, 784-85, 792-97; see also Malone, supra note 6, at 67.
298. Contra Thode, supra note 100, at 426 n.15.
299. Malone, supra note 6, at 71 & n.25.

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high degree of confidence. Indeed, the defendant normally will stipulate

that he would have reacted in the usual manner-for example, by apply
ing his brakes if he would have had time to do so at the legal speed after
seeing the plaintiff in his path. As Cole himself notes, it does not help the
defendant's case to argue that one specific act of negligence did not con
tribute to the injury because he would have caused it anyway by some
other negligent act or omission.300
In any event, the hypothetical inquiry is not policy-driven. Instead,
empirically derived causal generalizations are used to estimate the most
likely consequences of the counterfactual situation. Cole seems to
believe that causal generalizations are not used in the counterfactual
inquiry, or that the hypothetical development of the counterfactual
situation must be specified in such detail as to make its occurrence (in
that precise man ner) improbable.301 As philosophers have noted,
however, counterfac tual assertions are nothing more than "telescoped
arguments" based on more or less well-grounded causal
generalizations. The credibility of a particular counterfactual assertion
depends on the extent of empirical support for the causal
generalizations themselves and the extent to which the conditions that
make up the counterfactual setting correspond to those that are
specified in the causal generalizations.302 These condi tions, as Hart
and Honore have argued, must be specified at a fairly high level of
generality if they are to serve as a broadly applicable causal gen
eralization, rather than as a detailed unique description of a particular
event with no causal explanatory force.303

2. Malone's Arguments
Malone attacks the factual nature of the causal inquiry differently.
He does not challenge the process by which the counterfactual setting
is established, and he recognizes that causal generalizations provide
the foundation for any particular causal judgment. Instead, he presents
an array of arguments to demonstrate that the policies underlying
particular legal rules affect both causal judgments themselves and also
the courts' selection of the degree of confidence that those judgments
must attain in order to sustain liability in a specific case.
Malone notes that causal judgments, like any other evaluation of
raw evidentiary data, involve interpretation and the drawing of infer
ences based on the past experience and "judging personality" of the
per-

300. Cole, supra note 7, at 778-79; accord A. BECHT & F. MILLER, supra note 8, at 175-
76. 301. Cole, supra note 7, at 771-74, 777, 784-91.
302. T. BEAUCHAMP & A. ROSENBERG, supra note 21, at 119-20, 131-37, 145-49; Mackie, supra
note 21, at 24-25, 30-31.
303. H.L.A. HART & T. HONORE, supra note 8, at 45-48; see T. BEAUCHAMP & A.
ROSENBERG, supra note 21, at 141; infra text accompanying notes 366-72. Contra Cole, supra
note 7, at 791-92.

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son making the judgment. He asserts that, particularly with respect to

the causation issue, "the evaluation which [a person] will make of
the new fact data will necessarily be affected by the purpose he is
seeking to serve."304
Malone's principal argument in support of this assertion is the
apparent effect of purpose on a person's selection of one of many
contrib uting conditions as "the" cause. As seen in Part I, this
argument con fuses the tortious-conduct and proximate-cause inquiries
with the causal inquiry. The argument demonstrates only that purpose
affects the tor tious-conduct and proximate-cause inquiries, not that it
affects the causal inquiry.305
Malone also argues, however, that purpose enters into the causal
inquiry itself. He observes that the process of forming and applying
causal generalizations "is basically one of conjecture, for facts almost
never represent themselves in identical patterns."306 Moreover, he notes,
even constant repetition of an identical pattern is not per se sufficient to
support a causal generalization. Something more is needed:
Previous observations by a stargazer may enable him to say with absolute
assurance that when a given constellation rises in the heavens another
constellation will soon come into view over the horizon. Yet, no one in
this modem world would assume that the rising of the first constellation
is a cause of the appearance of the second. The inevitable character of
the sequence as gained from past observations is not enough to establish
the relation of cause and effect. Other portions of our knowledge are too
likely to get in the way of such a conclusion. There must be some accept
able point of affinity between the new event and old experience that is
satisfactory, and this point of satisfaction can be established only in terms
of the purpose toward which the whole process of decision is being
directed.307
Indeed, something more than mere observation of repeated
conjunc tion of the two events is needed. The something more is the
belief, based on all our empirically derived knowledge, that the two
events are linked through one or more causal generalizations as cause
and consequence. Malone acknowledges that, regardless of the purpose
of the inquiry, "no one in this modern world would assume that the
rising of the first con stellation is a cause of the appearance of the
second. . . . Other portions of our knowledge are too likely to get in the
way of such a conclusion." Although our judging and evaluating
faculties are involved here, the inquiry is a factual one in which we
judge or evaluate on the basis of empirically derived causal
generalizations that are independent from and

304. Malone, supra note 6, at 61-62.

305. See supra text accompanying notes 17-27.
306. Malone, supra note 6, at 65.
307. Id. (emphasis in original).

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not affected by the purpose of the particular causal inquiry.308

The second prong of Malone's attack focuses on the problematic
causation cases. He claims that the courts have relaxed the actual-
causa tion requirement in the overdetermined-causation cases and
lowered or raised the burden of proof in the other types of
problematic causation cases depending on their assessment of the
policies underlying the rule that was violated.309
We have already seen that this claim fails with respect to the
overde termined-causation cases that commentators usually address.310
Malone's own discussion of these cases persuasively demonstrates that
the only "relaxation" of the actual-causation requirement that occurs is
the abandonment of the inadequate but-for test in the face of clear evi
dence of causal contribution. 311
Malone also discusses the "doubtful" causation cases, in which
some safety device or precaution has been omitted that may well have
contributed to the victim's injury, but the plaintiff is unable to establish
that but for the defendant's omission the victim would not have been
injured. Examples include cases in which a corpulent person slips and
falls while hurrying down some unlit stairs, a child drowns in a pool
without a lifeguard, a sailor falls overboard and drowns and the would-
be rescuers are stymied by the lack of proper rescue equipment, or a
pedes trian slips on an icy sidewalk with an irregular surface. Malone
quotes language from several of these cases that suggests that the courts
raised, lowered, or shifted the burden of proof on causation. He
asserts that their decision to do so depended on the policies underlying
the rule that was violated by the defendant.312
But these cases are simply less familiar instances of the overdeter
mined-causation problem. A full reading of the cases in which the
courts seem to lessen or shift the burden of proof regarding causation
usually discloses that the court was explicitly or implicitly concerned
that the defendant not escape liability under the governing but-for test
when the jury reasonably could conclude from the evidence that it was
more likely than not (the usual burden of proof in tort cases) that the
defendant's omission of the safety precaution contributed to the
injury.313 Con-

308. Although there are undertones of epistemological skepticism in this portion of Malone's
article, Ido not believe that he is arguing that there are no real facts, or that we cannot perceive or
agree on the existence of any facts because of our subjective filtering of sense data. See T.
BEAUCHAMP & A. ROSENBERG, supra note 21, at 16-17, 33-79, 88, 96-97, 112-15, 131-45,
152-55, 259-60; A. BECHT & F. MILLER, supra note 8, at 2-3, 9, 11.
309. Malone, supra note 6, at 67-72, 84-86, 88-89.
310. See supra text accompanying notes 235-60.
311. Malone, supra note 6, at 88-94; accord Carpenter, supra note 262, at 943, 952; see supra
text accompanying notes 241-42.
312. Malone, supra note 6, at 68-79, 85-88, 94-96.
313. See cases cited infra note 335.

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versely, the cases which seem to raise the burden of proof are generally
either cases in which the court rigidly adheres to the but-for test despite
good evidence of causal contribution, or cases in which the court believes
the evidence is insufficient to support any well-grounded belief (rather
than pure speculation) even on the issue of causal contribution. 314
For example, it usually is difficult to establish that proper lighting
probably would have prevented the victim's falling down the stairs, or
that proper construction or maintenance of a sidewalk to prevent irregu
larities in the surface probably would have prevented the victim from
slipping on it when it was covered with ice. But the plaintiff often may
be able to establish in such cases that the lack of light or the irregular
surface more likely than not satisfied the NESS test and therefore con
tributed to the accident. Thus, the plaintiff may be able to prove that the
lack of light was necessary for the sufficiency of a set of actual antecedent
conditions which included a person of "at least X size" descending the
stairs at a rate of "at least Y steps per minute," and that the sufficiency of
this set was not preempted but rather reinforced by the existence of the
additional conditions of greater size and faster descent. Similarly, the
irregular surface might well have been necessary for the sufficiency of a
set containing a sidewalk of "at least X slipperiness." As Leon Green
clearly recognized, in these cases as well as in the more familiar overde
termined-causation cases, the but-for test distracts attention from the
issue of causal contribution.315
As long as the but-for test is considered to be the applicable test of
causation in these cases, there will be a strong urge to lessen or shift the
burden of proof when the court perceives that causal contribution may
well exist. While that approach was adopted in the original Restatement
of Torts,316 the Restatement (Second) states that the plaintiff bears the
usual (more likely than not) burden of proof in these cases.317 Although
the Restatement (Second) deemphasizes but-for language in favor of sub
stantial-factor language, the but-for language has not been entirely elimi
nated and the substantial-factor language is typically nebulous.
Consequently, the overall discussion is hardly enlightening.318

314. E.g., Taylor v. City of Yonkers, 105 N.Y. 202, 209, 11 N.E. 642, 644 (1887) (rigid
adherence to but-for test); New York Cent. R.R. v. Grimstad, 264 F. 334 (2d Cir. 1920) (pure
speculation on causal contribution).
315. Green, supra note 8, at 556-59. But see id. at 560-61 (ratifying Malone's argument).
316. RESTATEMENT OF TORTS § 432(1) comment c and accompanying illustrations (1934),
cited in Malone, supra note 6, at 73 n.26.
317. RESTATEMENT (SECOND) OF TORTS § 433B(l) comment b and accompanying
illustrations (1965).
318. See A. BECHT & F. MILLER, supra note 8, at 135-37. The story in England is similar.
For a brief period, the practice was to shift the burden to the defendant when a statutory duty had
been breached to show that the precaution would not have averted the injury. Vyner v.
Waldenburg Bros., 1946 K.B. 50 (C.A. 1945). But then the House of Lords declared that the
plaintiff must

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The policies or principles being applied in these cases clearly are

those underlying the actual causation requirement itself, rather than
those underlying the particular rule that was violated. Malone's argu
ments to the contrary are not very persuasive. He argues, for example,
that the shifting of the burden of proof in the hunting-accident cases,
where it is known that one of the negligent defendants shot the plaintiff
but not which one, is based on the very strict attitude toward firearm
accidents, rather than the special causal proof problems in such alterna
tive-causation cases.319 He tries to rationalize defendants' greater
success in the missing fire-escape cases than in the man-overboard
cases by refer ring to the allegedly more restricted reach of the rule in
the fire-escape cases. But his discussion demonstrates that the more
restricted reach occurs not because of any difference in the strength or
strictness of the policies, but because the evidence of actual causation
in the fire-escape cases often shows that the failure to provide the fire
escape did not con tribute to the injury.320
Similarly, he asserts that the burden of proof is not lessened, but
rather increased, in the medical-malpractice cases because of the impor
tant role fulfilled by doctors who apply "the tenets of an ever-changing
and experimental science."321 But again his discussion and, even more
so, a note on which he relies322 show that the burden of proof has not
been raised in these cases. Instead, the special difficulties of proof in
medical-malpractice cases, especially in the older cases,323 frequently
have made it difficult for patients to establish actual causation. Expert
testimony by other doctors normally is necessary, and their reluctance
"to do more than express a conjecture on what would have happened
with proper treatment constantly militates against the plaintiff's inter-

"prove his case by the ordinary standard of proof in civil actions: he must make it appear at least
that on a balance of probabilities the breach of duty caused or materially contributed to his injury."
Bonnington Castings Ltd. v. Wardlaw, 1956 A.C. 613, 620 (emphasis added) (opinion of Lord
Reid). In subsequent cases the House of Lords has reaffirmed that contribution to the injury is
sufficient to establish cause·in-fact, although the commentators continue to be mesmerized by the
but-for tesf and to view the decisions as exceptions to the actual-causation requirement that were
adopted for moral or policy reasons. E.g., M'Ghee v. National Coal Bd., 1973 Sess. Cas. 37
(H.L. 1972), discussed in Fraser & Howarth, supra note 227, at 141-42; Weinrib, supra note 7.
Weinrib takes a broader view of actual causation than most, but still argues that policy factors
were determinative. For an earlier case very similar to McGhee, see Gardiner v. Motherwell
Mach. & Scrap Co., 1961 Sess. Cas. 1 (H.L.). See supra text accompanying note 261.
319. Malone, supra note 6, at 82-85. The alternative-causation cases are discussed infra text
accompanying notes 342-62.
320. Malone, supra note 6, at 78.
321. Id. at 86.
322. Annot., 13 A.L.R.2d 11, 21-24 (1950), cited in Malone, supra note 6, at 88 n.68.
323. Malone does not mention the conspiracy of silence among medical professionals. This
practice was bolstered by the locality rule which limited testimony to doctors from the same locality
and sometimes even the same school of practice. See, e.g., Brune v. Belinkolf, 354 Mass. 102, 235
N.E.2d 793 (1968); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949).

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est."324 Usually they will be unable to state that the consequence would
not have occurred but for the defendant doctor's negligent mistreatment
or failure to treat, or even that the mistreatment or failure to treat con
tributed to the consequence. At best, they often may be able to testify
only that the mistreatment or failure to treat reduced the plaintiff's
chance of recovery-for example, from forty percent to twenty percent,
or from eighty percent to seventy percent. 325
The problems presented by these reduced-chance cases, as well as
the similar increased-risk and alternative-cause (for example, hunting
accident) cases, are explored in Part III. For now, it is important to note
that the problems are correctly perceived by courts and commentators as
problems related to proof of causation, which are resolved by turning to
the policies or principles that underlie the actual-causation requirement
itself rather than the policies or principles that underlie the particular
rule that was violated.326 Indeed, the few cases that have allowed recov
ery in the reduced-chance context generally have been medical-malprac
tice cases, despite Malone's contention that the "policy thrust" of the
rules in this area is too "short and timid" to permit such recovery. 327
Finally, it should be noted that shifting, lessening, or raising the
bur den of proof on causation does not make the causal inquiry itself
any less factual. The causal inquiry is still an empirical, factual one that
results in a certain degree of confidence that causation did or did not
exist in a particular situation. The decision as to how high that degree
of confi dence must be, and who bears the burden of producing
evidence to sup port that degree of confidence, is a distinct issue of
policy or principle. In the criminal law, the prosecution bears the
burden of establishing a very high degree of confidence: "beyond a
reasonable doubt." In tort law, the plaintiff generally bears the burden
of establishing a "more likely than not" degree of confidence. But in
each context, the causal inquiry itself is a factual one.
Nevertheless, a demonstration of frequent ad hoc shifting or
lessen ing of the burden of proof on causation would indicate that the
actual causation requirement, rather than being a fundamental criterion
of tort liability, is just one more manipulable doctrine. But no such
ad hoc

324. Malone, supra note 6, at 87; see Annot., supra note 322, at 22·23.
325. Malone, supra note 6, at 86-87.
326. See, e.g., sources cited infra notes 335, 339, 348; Delgado, supra note 7; Robinson, supra
note 7.
327. Malone, supra note 6, at 81, 87. See, e.g., Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177,
357 N.Y.S.2d 508 (1974), aff d mem., 37 N.Y.2d 719, 337 N.E.2d 128, 374 N.Y.S.2d 615 (1975);
Herskovits v. Group Health Coop., 99 Wash. 2d 609, 664 P.2d 474 (1983). For useful reviews of the
medical malpractice cases, see King, Causation, Valuation, and Chance in Personal Injury Torts
Involving Preexisting Conditions and Future Consequences, 90 YALE L.J. 1353, 1365 n.38, 1367
n.45, 1368-69 n.53 (1981); Note, Increased Risk of Harm: A New Standard for Sufficiency of
Evidence of Causation in Medical Malpractice Cases, 65 B.U.L. REV. 275, 281-92 (1985).

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manipulation has been demonstrated. In almost all the cases that

Malone discusses, the courts have been reacting to the inadequacies of
the but-for test as a test of causal contribution. Very rarely have they
allowed recovery when causal contribution to the injury could not be
established under the more-likely-than-not standard.
The few exceptions-the reduced-chance, increased-risk and alter
native-causation cases-are cases in which the courts are reluctant to
allow a defendant to escape liability when his tortious conduct may well
have contributed to the injury but it is impossible, given the nature of
the situation, to produce evidence that he actually did contribute. In
all these cases, as Malone admits, liability is never imposed if it is clear
that the tortious aspect of the defendant's conduct did not contribute
to the injury, no matter how strong the policy underlying the rule that
was vio lated.328 I argue below, in Part Ill, that these cases are best
understood as cases that define new legally protected interests, rather
than as depar
tures from the usual strictures of the actual-causation requirement.329
In sum, the causal inquiry is indeed a factual, policy-neutral
inquiry, and the actual-causation requirement retains a secure position
as a fun
damental criterion of tort liability.330

III
CAUSATION, PROBABILITY, AND RISK: PROBLEMS ON THE
FRONTIERS OF TORT LIABILITY

The most serious challenge to the actual-causation requirement has

come from the increasing number of risk-exposure cases. These are
cases in which one or more defendants tortiously exposed the plaintiff
to the risk of an injury that subsequently occurred, but no proof exists
that any particular defendant actually contributed to the injury. Many
writers have asserted that the courts properly ignore or relax the
actual-causa tion requirement in these risk-exposure cases in order to
hold the defend
ants liable.331 Recently, however, some writers have used the risk
exposure cases to support a much broader attack on the actual-causation
requirement. Legal economists and others have argued that the tradi
tional ex post inquiry into actual contribution to the injury should be
replaced by an ex ante probabilistic assessment of increased risk in all

328. Malone, supra note 6, at 71, 77, 78; accord Carpenter, supra note 262, at 943, 947, 952.
329. See infra text accompanying notes 334-62.
330. Interestingly, Malone himself acknowledges these points in his later, less well-known
writings, where he insists that the causal inquiry is "exclusively a fact inquiry" which "should be
maintained utterly devoid of any policy overtones." Malone, supra note 27, at 371; see Note, supra
note 27, at 1540-41 & nn.88 & 89.
331. See Calabresi, supra note 9; sources cited supra notes 6-8.

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tort cases.332
I have demonstrated elsewhere that the probabilistic increased-risk
concept cannot be substituted for the actual-causation requirement in
the general run of cases without reaching results that are far removed
from the traditional notions of liability that are applied by the
courts.333 I argue here that, even in the risk-exposure cases, more
satisfactory results are reached by adhering to the actual-causation
requirement while recog nizing a new type of injury-risk exposure-in
certain narrowly circum scribed situations. The argument is
developed by first analyzing the more traditional reduced-chance and
increased-risk cases and then exam ining the currently more topical
alternative-causation cases.
Finally, I attempt to clarify the fundamental distinction between ex
ante statements of probability or increased risk and ex post statements
of causal contribution. This distinction helps to clarify the risk-
exposure cases and justify the courts' reluctance to accept naked
statistical evi dence as proof of causation.

A. The Reduced-Chance and Increased-Risk Cases

As was discussed above, although the plaintiff often cannot prove
that the defendant's tortious conduct was a but-for cause of her injury,
she frequently can prove that it more likely than not contributed to her
injury.334 In such cases, the courts have held the defendant liable for the
injury. Examples include cases in which the victim slips and falls on
negligently unlit stairs, is washed overboard and there was a negligent
failure to run lines around the boat to prevent such an occurrence, or is
subjected to a negligent delay in treatment of an illness such as
bronchial pneumonia which normally gets worse the longer it is
untreated. 335 Simi larly, the courts have recognized that carcinogenic
and toxic substances have cumulative, reinforcing effects, so that a
defendant who exposes the victim to a substance which increases the
risk of a certain cancer or ill ness is properly considered to have
contributed to the subsequent occur rence of that cancer or illness,
whether or not it might have occurred anyway.336

332. See Calabresi, supra note 9; Fraser & Howarth, supra note 227; Landes & Posner, supra
note 9; Rizzo, supra note 227; see also G. CHRISTIE, supra note 4, at 246; Shavell, supra note 9.
333. Wright, supra note 9, at 452-55.
334. See supra text accompanying notes 312-27.
335. E.g., Zinnel v. United States Shipping Bd. Emergency Fleet Corp., 10 F.2d 47 (2d Cir.
1925) (missing lifeline); Reynolds v. Texas & Pac. Ry., 37 La. Ann. 694 (1885) (unlit stairway);
Dunham v. Village of Canisteo, 303 N.Y. 498, 104 N.E.2d 872 (1952) (delay in treatment);
RESTATEMENT (SECOND) OF TORTS § 433B(l) comment b and accompanying illustrations (1965);
Green, supra note 8, at 558-59 & n.41.
336. E.g., McAllister v. Workmen's Compensation Appeals Bd., 69 Cal. 2d 408, 445 P.2d 313,
71 Cal. Rptr. 697 (1968); M'Ghee v. National Coal Bd., 1973 Sess. Cas. 37 (H.L. 1972); Clarkson
v. Modem Foundries, [1957] 1 W.L.R. 1210 (Leeds Assizes); see Note, Increased Risk of Cancer
as an

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Inother cases, however, the plaintiff may be unable to prove that

the tortious aspect of the defendant's conduct more likely than not
contrib uted to the injury. He may be able to prove only that the
tortious aspect-for example, failure to provide the proper lifesaving
equipment or to properly diagnose and treat the patient-reduced the
victim's chance of avoiding the injury from, say, forty percent to twenty
percent. In these cases, unlike the carcinogenic-exposure cases, there is
no incre mental, cumulative contribution. The omitted safeguard or
treatment either would or would not have prevented the injury.
One approach to these cases, when the plaintiff cannot establish
that the tortious aspect more likely than not contributed to the injury,
is to reduce the plaintiff s burden of proof to permit recovery even
though the degree of confidence in causal contribution is less than fifty-
one percent. This approach, which has been adopted by a few courts,337
weakens the actual-causation requirement. It does not, however,
make the causal inquiry any less factual.
A second approach is to allow recovery for the reduced chance of
avoiding the injury, rather than for the injury itself. To apply this
approach, the courts would have to recognize the chance of avoiding
injury, in a case where injury actually occurs, as a legally protected
inter est. If the chance interest is deemed to be legally protected, at
least against "significant impairments," 338 a court must then address the
actual causation issue: did the tortious aspect of the defendant's conduct
more likely than not contribute to a (significant) impairment of the
chance interest in this case? Ifnot, the court should not permit the plain
tiff to recover, no matter how strong the policies underlying the rule that
was violated.
The second approach preserves the integrity of the actual-causation
requirement, while also addressing the basic issues in these cases.
Should the defendant completely escape liability when his tortious
conduct reduced the victim's chance of avoiding an injury that has
actually occurred? This is an issue of policy or principle concerning the
types of interests that should be legally protected. It should be faced
and resolved explicitly, not covertly by diluting the actual-causation
requirement.

Actionable Injury, 18 GA. L. REV. 563, 580-81 n.68 (1984). The author of the Note, however,
erroneously assumes that the defendant's contribution was the sole cause if it was independently
sufficient for the occurrence of the cancer. Id.
A defendant who has tortiously contributed to a certain instance of cancer or illness may seek
contribution from other contributing tortfeasors, or from the plaintiff herself if the plaintiff also
contributed (e.g., by smoking). The defendant may even escape liability entirely if he can prove that
the cancer or illness would have occurred anyway as a result of independent nontortious
contributing conditions. See supra text accompanying notes 258-73.
337. See supra note 327.
338. Compare the "significant harm" limitation applicable in private nuisance cases.
RESTATEMENT (SECOND) OF TORTS § 821F (1979).

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When the policy issues are carefully distinguished from the causal issue,
the liability analysis is greatly improved. For example, if it is admitted
that the interest being protected in these cases is the chance interest,
recovery should be limited to the value of the lost chance rather than all
the damages attributable to the injury itself. A practical method of valu
ing the lost chance is to multiply the total damages attributable to the
injury by the amount of reduction in the chance of avoiding it.
The second approach appears to be gaining recognition as the pref
erable one in these cases.339 Under this approach, a plaintiff who is actu
ally injured can recover for the injury itself if he can prove that the
tortious aspect of the defendant's conduct contributed to the injury. If
he cannot prove this, but can prove that the tortious aspect contributed
to a specific reduction in his chance of avoiding the injury, he can
recover for the reduction in the chance.
Some writers have argued that the courts should go even further.
They would allow recovery for risk-imposition even when no
tangible injury has yet resulted from the imposition of the risk.340
Such a dra matic extension of the category of protected interests
would raise serious theoretical and practical problems. 341 In any
event, the issues involved are not causal ones but questions of policy
or principle concerning the types of interests that are to be protected
against invasion. They will be resolved most clearly if they are seen
as such.

B. The Alternative-Causati on Cases

In the alternative-causation cases, several tortfeasors each indepen
dently exposed the victim to the risk of a specific injury that
subsequently occurred. It is clear, however, that only one (or a few) of
the tortfeasors actually contributed to the injury. The plaintiff is
unable to establish which one (or few) actually contributed. For
example, in the leading case of Summers v. Tice, 342 the plaintiff was
struck in the eye by a single

339. See O'Brien v. Stover, 443 F.2d 1013, 1018-19 (8th Cir. 1971); James v. United States, 483
F. Supp. 581, 587 (N.D. Cal. 1980); Herskovits v. Group Health Coop., 99 Wash. 2d 609, 622-36,
664 P.2d 474, 480-87 (1983) (Pearson, Stafford, and Utter, JJ., and Williams, C.J., concurring);
PROSSER & KEETON, supra note 7, § 41, at 272; Green, supra note 8, at 558-59; King, supra
note 327, at 1376-87; Malone, supra note 6, at 80-81.
340. Note, supra note 336; Note, Increased Risk of Disease from Hazardous Waste: A
Proposal for Judicial Relief, 60 WASH. L. REV. 635 (1985).
341. Dworkin, Fear of Disease and Delayed Manifestation of Injuries: A Solution or a
Pandora's Box?, 53 FORDHAM L. REV. 527 (1984). The courts have yet to accept this argument,
even those courts with the most liberal attitudes toward liability. For a recent example, see Collins
v. Eli Lilly Co., 116 Wis. 2d 166, 191 n.10, 342 N.W.2d 37, 49 n.10, cert. denied, 105 S. Ct.
107 (1984), discussed infra text accompanying notes 356-57. It should be noted that tangible
injury includes emotional distress, as in the "cancerphobia" cases. Eg.. Ferrara v. Galluchio, 5
N.Y.2d 16, 152 N.E.2d 249 (1958).
342. 33 Cal. 2d 80, 199 P.2d 1 (1948).

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pellet when the two defendants independently fired their shotguns in his
direction. Obviously, only one of the defendants actually caused the
plaintiff's injury, but there was no way to determine from which gun the
pellet came. The court held the defendants jointly and severally liable
for the injury. It shifted the burden of proof on causation to them, on
the ground that it was better to have the loss fall on the two
negligent defendants than on the innocent plaintiff. 343
Summers represents a significant departure from the usual applica
tion of the actual-causation requirement. Prosser incorrectly states that
the court "merely extended the rule as to the burden of proof on the
issue of apportionment of damages."344 The rule that Prosser cites
shifts the burden to the defendants to allocate the loss among
themselves only after the plaintiff has established that each defendant
contributed to the injury.345 In Summers, however, we know that one
of the defendants is being held liable for an injury to which he did
not contribute. This knowledge also distinguishes Summers from the
reduced-chance cases.
As the number of defendants increases, the departure from the
usual principles of tort liability becomes ever more apparent and
difficult to justify. Thus, if there are N defendants, we know that N - 1
of them are

343. This rationale for joint and several liability was adopted long before Summers in Tidal
Oil Co. v. Pease, 153 Okla. 137, 139-40, 5 P.2d 389, 390-91 (1931) (cattle drank from one or both
of two streams poisoned by different defendants); accord Bowman v. Redding & Co., 449 F.2d 956,
967-68 (D.C. Cir. 1971); Abel v. Eli Lilly & Co., 418 Mich. 311, 325-29, 343 N.W.2d 164, 170-
72, cert.
denied, 105 s. Ct. 123 (1984); Cook v. Lewis, [1952] 1 D.L.R. 1 (Can. 1951); RESTATEMENT
(SECOND) OF TORTS § 433B(3) (1965).
Although the Summers court noted that ordinarily defendants have better access to evidence on
causation, this was not true in the particular case, and thus was not the basis for the court's decision.
Sindell v. Abbott Labs., 26 Cal. 3d 588, 601-03, 607 P.2d 924, 929-30, 163 Cal. Rptr. 132, 137-38,
cert. denied, 449 U.S. 912 (1980).
Some writers have tried to justify the imposition of liability in the alternative-causation cases
by arguing that the act of each defendant, in conjunction with the other's act, deprived the plaintiff
of a chance of establishing who caused the injury. E.g., A. BECHT & F. MILLER, supra note 8, at
105
n.155; Weinrib, supra note 7, at 525-26. But this argument proves too much. It could be applied
to any case in which there are alternative potential causes, including those attributable to the
plaintiff, innocent third parties, or natural conditions or events. Acceptance of the argument means
that the defendant is being held liable because he prevented the plaintiff from being consoled
by the knowledge that the defendant was not a cause of his injury. The argument has little
merit and distracts attention from the real issues.
For example, in Haft v. Lone Palm Hotel, 3 Cal. 3d 756, 478 P.2d 465, 91 Cal. Rptr. 745
(1970), the argument is entirely gratuitous. The absence of a lifeguard almost surely contributed to
the drownings, and the court properly insisted that the duty to have a lifeguard remained in effect in
the absence of the statutorily specified warning. The warning, if provided, would simply have
reinstated the assumption-of-risk defense that ordinarily could not be invoked by someone who
failed to comply with the statutory lifeguard requirement. See Osborne v. Salvation Army, 107
F.2d 929, 931-32 (2d Cir. 1939) (no assumption of risk if victim was member of class that statute
was meant to protect); Rovegno v. San Jose Knights of Columbus Hall Ass'n, 108 Cal. App. 591,
291 P. 848 (1930) (absence of lifeguard contributed to drowning).
344. W. PROSSER, supra note l, § 41, at 243 n.56.
345. See sources cited supra note 264.

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being held liable even though they did not contribute to the injury. As
N increases, the probability that any particular defendant is the one
who caused the injury becomes increasingly small. The argument that
the negligent defendants, rather than the innocent plaintiff, should pay
for the injury becomes more a penal argument than a tort argument.
As Professors Harper and James note, "the only fault which should be
rele vant to the question of civil liability is fault which has caused (or
contrib uted to causing) the harm."346 The argument even runs counter to
a basic tenet of the criminal law. In effect, the argument asserts that it
is better that N - 1 defendants who did not contribute to the injury
should pay for it than that the one who did cause it should go free.
Moreover, the one who did cause it still may pay for little or none of
the damages, due to contribution or insolvency.
The Summers rule disadvantages plaintiffs as well as defendants.
The underlying rationale of Summers requires that all the alternative
causes of the injury have been tortious and that all the tortfeasors be
joined as defendants. These requirements ensure that the injury was tor
tiously caused and that the person who actually caused the injury is
before the court. Thus, in a case in which forty persons were firing, but
only seven of them were negligent, the Summers rationale was held
inap plicable and the plaintiff obtained no compensation.347
These problems with the alternative-liability rationale of Summers
have had to be confronted in the recent DES cases. In these cases, the
plaintiff alleges that she contracted cancer as a result of her mother's
ingesting the drug DES while pregnant with her. Typically, the plaintiff
is unable to identify the particular firm or firms who supplied the DES
that her mother ingested twenty or so years earlier. Because there are
hundreds of firms that supplied DES, many of which no longer exist,
most courts recognize that the Summers rationale and requirements
break down in these cases.348
In Sindel/ v. Abbott Laboratories,349 the California Supreme Court
modified the Summers approach to accomodate the most obvious proce
dural and fairness problems. It stated that the plaintiff need not identify

346. 2 F. HARPER & F. JAMES, supra note 2, § 20.2 n.24 comment, at 95 (Supp.
1968). 347. Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974), cert. denied, 420 U.S. 964
(1975).
348. E.g., Sindell v. Abbott Labs., 26 Cal. 3d 588, 603-04, 607 P.2d 924, 930-31, 163 Cal. Rptr.
132, 138-39, cert. denied, 449 U.S. 912 (1980); Martin v. Abbott Labs., 102 Wash. 2d 581, 591·95,
689 P.2d 368, 375-77 (1984); Collins v. Eli Lilly Co., 116 Wis. 2d 166, 183-84, 342 N.W.2d 37, 45-
46, cert. denied, 105 S. Ct. 107 (1984). But see Abel v. Eli Lilly & Co., 418 Mich. 311, 329-35,
343 N.W.2d 164, 172-75 (approving use of the Summers approach in the DES context), cert.
denied, 105
S. Ct. 123 (1984). However, the court, referring to some of the procedural and fairness problems,
reserved judgment on whether modifications should be made to the approach and on the "validity of
any verdict that may result." Abel, 418 Mich. at 331 n.14, 339-40, 343 N.W.2d at 173 n.14, 177
(emphasis in original).
349. 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert. denied, 449 U.S. 912 (1980).

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1985] CAUSATION IN TORT LAW 1819

and join all the firms that were operating in the relevant market at the
time that her mother took the DES, but only enough firms to account for
a "substantial percentage" (undefined but apparently between fifty and
seventy-five percent) of that market. In addition, it replaced the defend
ants' joint and several liability, which holds each defendant responsible
for the entire injury, with several (separate) liability based on each
defendant's proportionate share of the market.
The substantial-percentage requirement apparently is intended to
ensure that there is a substantial probability that the firm which actually
caused the particular plaintiff's injury is before the court. The limitation
of each defendant's liability to a proportion of the damages equivalent to
its share of the market is intended to ensure that, over a large number of
cases, the defendant is in effect being held liable for the injuries that it
actually caused. That is, the two modifications of the Summers
approach are intended to replicate the actual-causation requirement as
applied to DES injuries in the aggregate, so that each individual
plaintiff recovers for her injury and each defendant firm is held liable,
in the aggregate, only for the injuries that it caused.350
However, two aspects of the Sindel! approach undermine its ability
to replicate the actual-causation requirement in the aggregate. First, the
Sindel! court apparently would allocate one hundred percent of the dam
ages for each injury among the joined defendants based on their relative
market shares, even though the joined defendants usually would repre
sent less than one-hundred percent of the market.351 Thus, the joined
defendants (usually the largest firms) will be held liable for more than
their expected share of the total DES damages. Second, unless the total
number of DES injuries is very large, there will be only a very rough
correlation between the injuries actually caused in the aggregate by a
particular firm and those for which it is held liable under the probabilis
tic market-share approach. If there is only a relatively small number of
injuries in the aggregate, the extent to which the actual distribution of
injuries among firms varies from the predicted distribution, based on
market share, may be quite substantial.352
The Sindel! result is much more plausible theoretically if it is
viewed as liability for having tortiously exposed the plaintiff to a
certain type of risk, rather than liability for having caused a certain
proportion of the actual injuries themselves. In effect, the Sindel! court
recognized a new

350. Id. at 613, 607 P.2d at 938, 163 Cal. Rptr. at 146; see Rosenberg, supra note 7, at 873, 881-
83.
351. 26 Cal. 3d at 612-13, 617, 607 P.2d at 937, 940, 163 Cal. Rptr. at 145, 148.
352. For example, although there is an equal probability of a "heads" or "tails" on each toss of
a coin, the fewer times the coin is tossed, the less likely it is that the actual result of the series of
tosses will be approximately equal numbers of "heads" and "tails." See, e.g., H. BRUNK, AN
INTRODUCTION TO MATHEMATICAL STATISTICS 153 (3d ed. 1975).

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legal injury: tortious exposure to a risk that possibly led to a subsequent

injury.353 A firm's market share of sales of an identical generic product
such as DES precisely reflects its contribution to the aggregate risk to
which the plaintiff and all others in the relevant market were tortiously
exposed.354 If the plaintiff is injured as a result of her exposure to that
aggregate risk, she has a cause of action against each firm which tor
tiously contributed to the risk.
As in the reduced-chance cases, the damages attributable to such
risk-exposure can be calculated by multiplying the injury damages by
the firm's proportionate contribution to the aggregate risk. Again, if
the plaintiff can prove that a certain firm actually caused her injury by
specif ically identifying it as the source of the DES that her mother
ingested, she should be able to recover her full damages from that
firm. Con versely, if a certain firm can prove that it did not provide any
of the DES that her mother ingested, it cannot be held liable for her
injury or for having exposed her to a risk that possibly led to the
injury.
Under this risk-contribution approach, it is no longer necessary to
join enough defendants to account for a substantial percentage of the
market, since the focus is on contribution to the risk rather than contri
bution to the DES injury. For the same reason, the approach avoids the
dissenting judges' concern in Sindel! that the defendants are being held
liable without proof of actual causation.355 In each case, a defendant
firm is held liable only if the plaintiff proves that the firm tortiously
con tributed to the aggregate risk that possibly led to the injury.
The risk-contribution approach to the DES cases has been adopted
explicitly by the Wisconsin Supreme Court and implicitly by the Wash
ington Supreme Court.356 Neither the Wisconsin court nor the Washing
ton court requires that the joined defendants constitute a substantial
percentage of the DES market. However, the Wisconsin court, like
Sindel!, holds the joined defendants liable for all the plaintiff's damages.
It apparently allocates the liability severally among the joined
defendants using comparative negligence principles as well as relative
market shares.357 The Washington court initially holds the joined
defendants severally liable for all the damages on a pro rata (equal
share) basis.

353. Viewed in this way, the Sindel/ result is an extension of the risk-exposure approach to the
reduced-chance cases. See supra text accompanying notes 338-39.
354. If there are risk-creating characteristics that vary among the products of different firms,
they should be taken into account. See Rosenberg, supra note 7, at 867 & n.68.
355. Sindel/, 26 Cal. 3d at 617, 607 P.2d at 940, 163 Cal. Rptr. at 148 (Richardson, Clark, and
Manuel, JJ., dissenting).
356. Martin v. Abbott Labs., 102 Wash. 2d 581, 594-95, 603-04, 689 P.2d 368, 377, 381-82
(1984); Collins v. Eli Lilly Co., 116 Wis. 2d 166, 191 & n.10, 342 N.W.2d 37, 49 & n.10, cert. denied,
105 S. Ct. 107 (1984).
357. Collins, 116 Wis. 2d at 193-200, 342 N.W.2d at 50-53.

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However, it allows each defendant that proves its absolute share of the
total market to reduce its liability in accordance with that absolute mar
ket share. The remaining defendants split the remaining damages.358
One other group of alternative-causation cases remains to be dis
cussed. The leading case is Ybarra v. Spangard, 359 in which an uncon
scious patient's shoulder was injured during or immediately after an
appendicitis operation. The California Supreme Court held that the
patient could use the doctrine of res ipsa loquitur against all the doctors
and nurses who had anything to do with him while he was unconscious,
in order to raise an inference of negligent causation against the doctors
and nurses as a group. Each would then be held jointly and severally
liable if he or she failed to come forward with an absolving explana
tion.360 The court was clearly determined that a conspiracy of silence
should not deprive the patient of his remedy.
Ybarra seems to go even further than Summers. It is not only
unlikely that all the defendants in Ybarra contributed to the injury, but
also unlikely that they all were negligent. However, the decision can be
reconciled with the tortious-aspect causation requirement if it is viewed
as imposing a form of enterprise liability. The court itself mentioned that
all the defendants could be treated as permanent or temporary employees
of the supervising surgeon or the hospital. 361 When all the defendants
are connected through contractual or commercial relationships into a
common enterprise and can adjust the risks and liabilities among them
selves, and persons injured by that enterprise ordinarily will have a diffi
cult time pinpointing the tortious source of the injury, it may be
appropriate to treat the defendants as a group entity-an enterprise
which tortiously caused the injury, and to let the members of the enter
prise allocate the liability among themselves or absolve themselves, as
they see fit. The other situations to which the Ybarra rationale has been
applied all fit this analysis.362

C. Distinguishing Probability Statements from Causal Attribution

The reduced-chance, increased-risk, and alternative-causation cases

all raise questions about the connection that exists between various
types of probability statements and the actual-causation requirement.
These questions are part of an ongoing debate about the proper role of
probabil-

358. Martin, 102 Wash. 2d at 604-06, 689 P.2d at 382-83.

359. 25 Cal. 2d 486, 154 P.2d 687 (1944).
360. Id. at 494, 154 P.2d at 691.
361. Id. at 492, 154 P.2d at 690. This seems to be the preferable approach, since the hospital
and supervising surgeon can control and adjust the risks beforehand and obtain information
afterward more easily than the nurses or orderlies can.
362. See cases cited in PROSSER & KEETON, supra note 7, § 39, at 253 nn. 22, 24 & 25.

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istic data and arguments in legal adjudication in general. 363

Due in large part to the lack of an adequate account of causation,
the concept of causal explanation or attribution increasingly has been
confused with predictive statements based either on causal generaliza
tions or on mere statistical frequency. Some writers have asserted that
the causation requirement itself should be interpreted in probabilistic
terms. Under this notion of "causal linkage" or "probabilistic causa
tion," the defendant's conduct is considered to have been a cause of the
injury if it increased the risk of occurrence of the injury.364 Other writers
have not gone so far, but have challenged the courts' reluctance to
accept purely statistical data as evidence of causation or identification.
These writers argue that all evidence, whether it is "particularistic"
empirical data or pure statistics, is ultimately probabilistic, so that the
courts' atti tude that particularistic data is somehow qualitatively
different, more reliable, or more trustworthy than statistical data is
unsupportable. 365
'
These arguments ignore some fundamental distinctions among
causal explanations, causal predictions, and mere statistical reports or
bets. They erroneously assume that because probability judgments
underlie each of these types of statements, that is all that is meant by
any of them. As will be seen, only causal explanations supply the
attributive element that is essential for systems of liability based on
individual responsibility. Mere statements of increased probability,
even when based on causal generalizations, are by themselves
insufficient to establish that attributive element. Probabilities based on
causal generalizations, however, may help to distinguish suggested rival
explanations. Pure sta-

363. E.g., L. COHEN, THE PROBABLE AND THE PROVABLE (1977); M. FINKELSTEIN,
QUANTITATIVE METHODS IN LAW (1978); Jaffee, Of Probativity and Probability: Statistics,
Scie111ific Evidence, and the Calculus of Chance at Trial, 46 U. PITT. L. REV. 925 (1985); Kaye,
The Laws of Probability and the Law of the Land, 47 U.CHI. L. REV. 34 (1979); Kaye, The
Paradox of the Gatecrasher and Other Stories, 1979 ARIZ. ST. L.J. IOI; Nesson, The Evidence or
the fa ·ent? On Judicial Proof and the Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1377-90
(1985); Rosenberg, supra note 7, at 855-59, 869-74; Saks & Kidd, Human Information Processing
and Adjudication: Trial by Heuristics, 15 LAW & Soc'Y REV. 123 (1981); Tribe, Trial by
Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329 (1971); Williams,
The Mathematics of Proof (pt. I), 1979 CRIM. L. REV. 297; Brilmayer & Kornhauser, Quantitative
Methods and Legal Decisions (Book Review), 46 U. CHI. L. REV. 116 (1978).
364. E.g., Calabresi, supra note 9, at 71-72; Fraser & Howarth, supra note 227, at 137-41;
Landes & Posner, supra note 9, at 111-16, 134; Rizzo, supra note 178, at 1009-16, 1037-38; Shavell,
supra note 9, at 468-69; see G. CHRISTIE, supra note 4, at 246; Robinson, supra note 7, at 758-60,
764-65. For my criticism of the views of Calabresi, Landes, Posner, and Shavell, see Wright, supra
note 9.
365. E.g., Kaye, The Laws of Probability and the Law of the Land, 47 U. CHI. L. REV. 34
(1979); Kaye, The Limits of the Preponderance of the Evidence Standard: Justifiably Naked
Statistical Evidence and Multiple Causation, 1982 AM. B. FOUND. RESEARCH J. 487, 488-89, 492
n.22, 514; Rosenberg, supra note 7, at 870-73; Saks & Kidd, supra note 363, at 149-54; Tribe, supra
note 363, at 1344-50, 1361 n.102.

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1985] CAUSATION IN TORT LAW 1823

tistical data generally cannot perform even this function and therefore
properly are rejected as evidence of causation or identification.
Causal explanations and causal predictions are applications of
causal generalizations to empirical data. The causal generalizations
themselves are derived inductively from empirical observations of
repeated successions of conditions and events. A causal generalization,
however, is not just a statement of observed statistical correlation. The
essence of a causal generalization is the belief that we attach to the
gener alization: the belief in its causal or lawlike character. A causal
general ization asserts that the antecedent conditions produce or cause
the subsequent event-that they are necessary elements of a set of
conditions that is sufficient for the occurrence of the event. It is
precisely this qual ity of causal generalizations that distinguishes them
from mere statistical reports and gives them explanatory and predictive
power.366
When we seek to understand and explain the occurrence of an
event, we compare the observed sequence of actual events (the
"particularistic" empirical data) with the antecedent conditions and the
associated conse quence that are specified in the causal generalization.
Usually, very few of the necessary antecedent conditions must be
observed in addition to the consequence to induce us to believe that the
causal generalization is applicable in the particular circumstances. This
is true even when the ex ante probability of the consequence given these
circumstances was very low-for example, A, a very poor marksman,
shoots B from a great dis tance with a crooked gun in a high wind
under conditions of poor visibil ity.367 The empirical observation of the
consequence itself is a "vital part of the evidence which supports an
explanation of that event."368
Indeed, as Hart and Honore have stated, the force of a particular
causal explanation usually depends on its referring to only a few of the
antecedent conditions and its relying, explicitly or implicitly, on causal
generalizations that are framed in broad or even platitudinous terms. It
is unnecessary, even if it were possible, to explain a particular
occurrence by detailing all the antecedent conditions so that we finally
arrive at a universally true statement of invariable and unconditional
causal connec tion. As the precision and detail of the description of all
the antecedent conditions increases, our ability to predict the effect
improves. Beyond a certain point, however, the explanatory force of the
description does not improve, but rather lessens as it increasingly
becomes a description of a unique event rather than an instance of some
broad generalization appli-

366. T. BEAUCHAMP & A. ROSENBERG, supra note 21, at 131-45.

367. See H.L.A. HART & T. HONORE, supra note 8, at 31-32, 44-48, 487.
368. Mackie, supra note 21, at 36-37.

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cable to a multiplicity of different occurrences. 369

On the other hand, when we use causal generalizations for predic
tive purposes, we obviously cannot rely on observation of the conse
quence that is being predicted. We must engage in a much more
detailed investigation and explicit description of the actual antecedent
conditions in order to have any substantial degree of confidence in our
prediction. 370 We are not able, as when explaining an event that has
already occurred, to ignore all the possibilities concerning what might
happen in the light of the existing conditions and possible future
conditions.
It is important to distinguish causal prediction from causal explana
tion. When we are trying to explain a particular occurrence, the state
ment that A usually or almost always causes B is a predictive statement,
which is not per se sufficient to persuade us that A caused B in this spe
cific instance. After all, the "usually" or "almost always" qualifier
admits that there are instances in which A does not cause B, and this
occurrence may well be one of the exception cases. In order to be satis
fied that the causal generalization "A causes B " is applicable in this
spe cific instance, we must first distinguish any rival explanations that
are suggested by the known or assumed (normal) circumstances.371
It is at this point that the counterfactual analysis of necessity often
enters into the causal inquiry. Usually the speculative element of the
counterfactual analysis is minimal since only a single antecedent condi
tion--one of the conditions that constituted the tortious aspect of the
actor's conduct or activity-is changed in setting up the counterfactual
situation, and the alternative explanations, if any, suggested by the
counterfactual situation are generally few and have very different
probabilities. However, when the changed condition generates a number
of possible explanations that have similar probabilities, the speculative,
predictive element becomes dominant and there will be little or no
confi dence in any particular explanation. 372
Thus, in the doubtful-causation cases (man overboard, unlit steps,
and so forth) the plaintiff establishes that the tortious condition was a
cause of the victim's injury only if he can convince the trier of fact that
his suggested causal explanation is more pla:usible than any suggested
alternative causal explanations. If he is only able to prove that the tor
tious condition reduced the chance of avoiding the injury (increased the
risk of its occurrence) but cannot sufficiently distinguish possible
alterna-

369. H.L.A. HART & T. HONORE, supra note 8, at 44-47; see T. BEAUCHAMP & A.
ROSENBERG, supra note 21, at 141, 295-99, 301-02.
370. H.L.A. HART & T. HONORE, supra note 8, at 47; Mackie, supra note 21, at 37.
371. H.L.A. HART & T. HONORE, supra note 8, at 31-32, 48-49. See generally L. COHEN, supra
note 363.
372. See supra text accompanying notes 296-303.

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tive explanations of how it actually occurred, he has established only

that the tortious condition contributed to the risk, not to the actual
occur rence of the injury. He therefore should be able to recover
from the defendant only if exposure to the risk is itself considered to
be a legal injury, and his damages should be measured accordingly.373
In the alternative-causation cases, the problem is significantly
differ ent. The Summers problem does not arise simply because each
defendant is equally likely (or unlikely) to have been the one that fired
the shot that wounded the plaintiff. It arises because we are trying to
use pure or "naked" statistical probabilities, not based on any causal
generalization, to determine what actually happened. Thus, the
problem exists in the DES cases even though one defendant may have
controlled more than fifty percent of the market and is therefore most
likely, from a statistical standpoint, to be the defendant who caused
any particular injury.374 Naked statistical data generates very little
confidence in deciding who actually caused the injury. For example,
few people would be willing to say that Joe caused Sue's death simply
because Joe fired seven bullets in her direction while Mike only fired
three. No one would treat Joe as the cause, no matter how many more
bullets he fired than Mike, if the bullet that killed her were identified
by its markings as one that came from Mike's gun.
As evidence fitting a certain causal generalization builds up, it gen
erates an increasingly strong belief in the existence of the asserted
causal connection. 375 The markings on the bullet are "particularistic"
empirical data that fit into a causal generalization and therefore have
explanatory force. On the other hand, naked statistical reports of who
fired the most shots in Sue's direction do not fit into any causal
generalization and thus do not generate any such belief.376 They are
useful for placing a bet on

373. See supra text accompanying notes 312-29 & 334-41.

374. Eli Lilly & Co. may well have been in this position. Levine, Gilding the Lilly, TRIAL,
Dec. 1984, at 19-20. The Sindel/ court carefully noted that an inference of causation by any one
DES manufacturer based on probability would have failed "if we measure[d] the chance that any
one of
the defendants supplied the injury-causing drug by the number of possible tortfeasors." Sindel/, 26
Cal. 3d at 603, 607 P.2d at 931, 163 Cal. Rptr. at 139 (emphasis added); see also id. at 611-12, 607
P.2d at 936-37, 163 Cal. Rptr. at 144-45. Implicitly, a probabilistic "more likely than not" inference
would have been possible against Eli Lilly & Co. if the chance were measured by market shares
rather than by the number of defendants, but, contrary to David Kaye's suggestion, this was not
what the court was after. See Kaye, The Limits of the Preponderance of the Evidence Standard:
Justifiably Naked Statisti'cal Evidence and Multiple Causation, 1982 AM. B. FOUND. RESEARCH
J. 487, 508, 514. Rather, the court was unwilling to hold a defendant liable for the entire
damage based simply on naked statistical inference. Kaye's article misses a critical element when
it treats proof as a simple matter of probabilities and ignores the need to induce the belief that
a causal relationship actually existed.
375. L.J. COHEN, supra note 363, passim.
376. It is this distinction that explains the difference between Judith Jarvis Thomson's
"external" evidence (naked statistical report) and her "internal" evidence (particularistic evidence
that fits into a causal generalization). Thomson, Remarks 011 Causation and Liability, 13 PHIL. &

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who caused Sue's death, but they do not help us to determine whether
Joe or Mike actually was the cause. 377 At most, they tell us the relative
amounts of ex ante risk that Joe and Mike imposed on Sue, when they
are combined with the causal generalization that links firing a gun in
someone's direction with killing that person. Thus, they can be used to
allocate liability that is based on exposing someone to the risk that was
realized. Nevertheless, they are of little use in establishing who actually
caused Sue's death.
The courts generally have perceived the critical distinction between
naked statistical evidence and causally relevant particularistic evidence.
For example, in Smith v. Rapid Transit, Inc.,378 the court refused to
allow the jury to infer that one of the defendant's buses caused a particu
lar accident when the evidence merely showed that the defendant's
buses were the most frequent users of the route on which the
accident occurred. Unless the statistical evidence is so compelling
that it pre cludes any possible alternative explanation, it will be
insufficient by itself to induce the belief that the asserted causal
connection actually existed. In sum, so long as tort liability continues to
be based on individual responsibility, liability will be imposed on a
defendant only if it is believed that the tortious aspect of his conduct
actually contributed to the specified legal injury. This belief is the
essence of a causal explana tion, as distinguished from mere
probabilistic statements of increased risk. The belief will arise in a
particular case only if there is sufficient evidence that not only supports
the suggested causal explanation involv ing the defendant's tortious
conduct, but also makes it the most plausible suggested explanation.
Ordinarily, only particularistic evidence fitting
the relevant causal generalizations can accomplish this task.

CONCLUSION

Although causation intuitively seems to be a rather simple concept,

it is in fact a complex and subtle one that long has resisted efforts to
articulate a precise definition. The repeated failure of such efforts
during

PUB. AFF. 101, 127-33 (1984); see also Nesson, supra note 363, at 1377-79, 1383-85 (acceptable
stories theory).
377. Many writers have confused the betting odds that a person is willing to accept on the
existence of a certain fact with the belief that the person actually has in the existence of that fact.
E.g., Kaye, The Paradox of the Gatecrasher and Other Stories, 1979 ARIZ. ST. L.J. 101, 105;
Tribe, supra note 363, at 1346-48; Wagner, Book Review, 1979 DUKE L.J. 1071, 1072-73 & n.6.
As the text indicates, a willingness to accept betting odds does not necessarily imply any belief in
the actual existence of the fact in question. Jonathan Cohen has written extensively and
persuasively on the inductive nature of causal belief and the inapplicability of mathematical
probability theorems to such belief. L. COHEN, supra note 363, summarized in Schum, A Review
of a Case Against Blaise Pascal and His Heirs, 77 MICH. L. REV. 446 (1979); see T.
BEAUCHAMP & A. ROSENBERG, supra note 21, at 312-14; Nesson, supra note 363, at 1385-90.
378. 317 Mass. 469, 58 N.E.2d 754 (1945).

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this century has led to frequent confusion of the causal and noncausal
issues in tort scholarship. More recently, it has led to a general denigra
tion of the significance and even of the meaning of the concept of
causa tion in tort law.
In this Article, I have argued that the concept of causation has a
definite substantive content that was first elaborated by the philosophers
David Hume and John Stuart Mill. I have tried to demonstrate the ana
lytical clarity and power that results from a proper understanding of the
concept of causation and its connection, through the tortious-aspect cau
sation requirement, to the concept of legal responsibility. A voluminous
literature that confuses the two concepts can be sorted out and inte
grated. Problematic cases can be solved. Restrictions on naked statisti
cal evidence can be explained and justified. The policy issues posed by
recent cases on the frontiers of tort liability can be correctly identified.
I have concentrated on these descriptive issues and problems.
How ever, this Article also has important normative implications. The
deni gration of the concept of causation during this century has
seriously eroded the traditional view of tort liability as a system of
corrective jus tice, which protects individual autonomy by redressing
injuries if and only if they were caused by the tortious aspect of the
defendant's con duct. Tort scholarship instead has been dominated by
books and articles that view tort liability as a (poor) system for
providing general compen sation for losses379 or as a (poor or great)
system for maximizing social wealth.380
But the concept of corrective justice embodied in the tortious-
aspect causation requirement clearly continues to control the decision of
actual tort cases. Despite more than a half-century of academic assaults
on the causation requirement, the courts almost invariably reach results
that are consistent with it. The requirement and the underlying concept
of cor rective justice exert a very strong normative pull, even when
judges do not articulate that pull but rather couch their decisions in
the currently fashionable language of loss-spreading and wealth-
maximization.
As I have noted elsewhere,381 the concept of corrective justice has
fallen on hard times in recent years because of difficulties encountered
in defining its two principal elements, causation and rights, rather
than from any normative or descriptive weakness in the concept itself,
which continues to be both more normatively appealing and more
descriptively

379. E.g., R. KEETON & J. O'CONNELL, BASIC PROTECTION FOR THE TRAFFIC VICTIM 1-3,
11- 75, 249-50, 261-65 (1965); Englard, supra note 11, at 28-29, 62, 67-69. See generally
Symposium: Alternative Compensation Schemes and Tort Theory, 13 CALIF. L. REV. 548
(1985).
380. E.g., G. CALABRESI, supra note 100, at 239-87 (poor system); Landes & Posner, The
Positive Economic Theory of Tort Law, 15 GA. L. REV. 851 (1981) (great system).
381. Wright, supra note 9, at 435-36, 455-56.

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accurate than any alternative theory of liability. This Article has

defined and elaborated the causal element in the concept of corrective
justice. In another article, now in progress, I address the rights element
by elaborat ing a principled theory of tortious conduct. I hope,
through both arti cles, to make explicit the principles that have
provided the foundation for tort liability over the centuries, but which
require more detailed elabora tion in these skeptical times.

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