Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
CHAPTER 6. CAUSATION
“The word ‘cause’ is . . . an altar to an unknown God.”
—William James, The Principles of Psychology (1891)
The cases and materials in this book have so far assumed an important background
constraint on the allocation of losses in tort law. We have limited the allocations to those parties
who might be characterized in some conventional way as having been causes of the injury in
question.
But the causation requirement is famously puzzling. Why do we even have a causation
requirement? If our exclusive goal were compensation, for example, a causation requirement
might be perverse. Why not call on Jeff Bezos or Mark Zuckerberg to provide the compensation,
regardless of any causal connection to the injury in question? Moreover, causal reasoning is
notoriously complex. When we label something a cause of something else, when we reason in
terms of cause and effect, we are doing more than describing an objective state of affairs. We are
telling deeply value-laden stories about the world. To talk in terms of causation is very often to
smuggle normative premises into an inquiry ostensibly designed to help guide us toward
normative conclusions.
A. Causation: An Introduction
What do we mean when we say that someone caused injury to another? Even this simple
formulation turns out not to be so simple after closer examination. A century ago, Justices
McKenna and Holmes found themselves working through some of the intricacies of this
seemingly simple idea:
LeRoy Fibre Co. v. Chicago, M. & S. P. Railway, 232 U.S. 340 (1914)
[Plaintiff LeRoy Fibre Co. was in the business of producing tow from flax straw, a raw
material in textile manufacturing, that it stored in rows of stacks in a lot adjacent to a railroad
right-of-way. The lot’s fence ran parallel to the railroad tracks 50 feet from the center of the
tracks. The first row of flax lay 25 feet from the fence; a second row lay 35 feet from the fence.
On a day in April, 1907, high winds blew sparks from the engine of a passing train into the stacks
of flax, causing a fire and destroying the flax. When LeRoy Fibre sued, a jury returned a verdict
for the defendant railroad on the ground that plaintiff had been contributorily negligent. Plaintiff
appealed on the grounds that it was not contributorily negligent as a matter of law. The Court
certified three questions for its consideration, the first of which was whether it was “a question for
the jury whether the owner was also negligent, without other evidence than that the railroad
company preceded the owner in the establishment of its business, that the property was
inflammable in character, and that it was stored near the railroad right of way and track.”]
MCKENNA, J.
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