Conundrums of Causation

For five years, Bandleader Emery Deutsch and his wife vainly sought damages from Manhattan's Doctors Hospital for the permanent mental retardation of their son. The Deutsches claimed that hospital nurses delayed Christopher's birth by pressing a towel against his head for twelve minutes--thus allowing the tardy doctor to arrive and collect his fee. As a result, the child allegedly suffered loss of oxygen to the brain. He will never be able to walk or talk or learn.

In one of New York's most unusual negligence cases, the Deutsches won three successive jury verdicts. The first jury awarded the couple $187,000, the second $158,000, the third $282,000--and all three verdicts were tossed out by the Appellate Division of the New York State Supreme Court. Anxious to avoid yet another trial, though conceding no fault whatever, Doctors Hospital has just settled out of court for the round sum of $100,000.

In fact, the hospital had a rather strong case. For, like all negligence plaintiffs, the Deutsches had the difficult job of proving four elusive claims: 1) that the defendant owed the plaintiff a duty of reasonable care; 2) that the defendant failed to perform that duty in the manner of "a reasonably prudent person" who would have foreseen and avoided the consequences; 3) that the defendant's negligence actually as well as legally caused the plaintiff's injury; 4) that the plaintiff suffered real loss or "damage" to be compensated by the defendant.

But for Him. What often troubles cases like the Deutsches' is the key question of "causation in fact"--the same issue that complicates cancer suits against tobacco companies. Clearly, the law cannot accept the fact that every event has causes reaching to the ends of time. The law's causation tests ask, for example, whether the event would have occurred "but for" the defendant's conduct: his conduct is not a cause if the event would have occurred anyway. Though a hotel failed to install proper fire escapes, it is not liable for the death of a guest who succumbs to smoke in his bed.

Unlike the requirement in criminal cases, proof that defendant was the "but for" cause need not be beyond a reasonable doubt; a "preponderance" of credible evidence will do, and common-sense assumptions are permissible. Though a child might have drowned anyway, for instance, the absence of a lifeguard is presumed to be significant in the alleged negligence of a swimming-pool owner.

But the plaintiff cannot win on mere possibilities. Nor can he rely on common-sense assumptions in situations where only experts are competent to judge causation. In the Deutsch case, for example, the jury was not permitted to assume that brain damage resulted from the repressed birth, and medical testimony was essential. All this makes the plaintiff's burden of proof exceedingly hard to carry when the effect appears long after the cause--for example, in radiation sickness or in lung cancer allegedly caused by cigarettes. Things get really complex when there may be two or more possibly equal causes. Example: A dies from the simultaneous effects of a shooting by B and a stabbing by C.

To relieve a plaintiff's intolerable burden of proof in some multiple-cause situations, the courts can hold all of the defendants liable. This may be true even if multiple acts are independent and harmless in themselves--for example, when several defendants deposit in a stream minor impurities that wind up polluting the whole stream. Another possible solution in such cases is to permit the defendants to fight it out among themselves as to what share of the damages each should pay.

Subtle Compromise. Even though causation in fact is essential to liability, it does not determine it. In addition, there must be legal or "proximate" cause, a complex mixture of fact, law and social policy. In Indiana recently, a druggist sold liquor to a teen-age boy who then rendered a child paraplegic as the result of a drunken auto accident. When the child's guardian sued the druggist, he had to establish that the liquor sale was not too remote from the accident to constitute "proximate cause." Fortunately for the plaintiff, the Indiana Supreme Court agreed, choosing not to follow decisions in several other states that rejected such claims.

As if liability were not enough to baffle the wisest judges, the puzzle of apportioning damages is often nearly inscrutable. Question: How much should a negligent motorist pay for blocking a fire engine on its way to a burning house? Answer: Only what the vanishing house was worth at the time the engine would have arrived if it had not been blocked. In New Hampshire, a boy once tumbled off a high bridge and started falling to almost certain death or serious injury far below. On the way, he struck some high-tension wires, and was electrocuted before he hit the ground. After long pondering, the court held the utility company liable for damages--but only for the almost minuscule sum that the boy's life and health were worth when he hit the wires. Of such subtle compromises is negligence law made and ever remade.

This file is automatically generated by a robot program, so reader's discretion is required.