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

Witt & Tani, TCPI 6. Causation
in terms of human agency; and of course we speak of the poisoner’s action as the
cause of the death; though we do not withdraw the title of cause from the presence
of arsenic in the body—this is now thought of as an ancillary, the ‘mere way’ in
which the poisoner produced the effect. Once we have reached this point, however,
we have something which has a special finality at the level of common sense . . . .
Id. at 39-40 (emphasis added).
In clarifying their understanding of liability-defeating coincidence, Hart and Honoré insist
that we can usefully rely on standards of “common knowledge”:
Id. at 154.
Reference to ‘ordinary knowledge’, what is ‘commonly known’, and the ‘ordinary
person’ is vague. It will permit any tribunal a certain leeway in applying such
notions; yet the principles are determinate enough not to be a simple verbal cloak
for a court’s uncontrolled discretion or policy. They will certainly serve to
distinguish from the case of the falling tree the case (not a coincidence) where after
a fire is negligently lit the evening breeze drives the flames towards the house which
they destroy.
B. Causation-in-Fact
In making a negligence claim, it is not enough to show that there is a precaution that the
defendant could have taken. The plaintiff typically must also show that if the defendant had taken
the precaution, the harm complained of would not have occurred.
New York Central R.R. Co. v. Grimstad, 264 F. 334 (2d Cir. 1920)
WARD, J.
This is an action . . . to recover damages for the death of Angell Grimstad, captain of the
covered barge Grayton, owned by the defendant railroad company. The charge of negligence is
failure to equip the barge with proper life-preservers and other necessary and proper appliances,
for want of which the decedent, having fallen into the water, was drowned.
The barge was lying on the port side of the steamer Santa Clara, on the north side of Pier
2, Erie Basin, Brooklyn, loaded with sugar in transit from Havana to St. John, N. B. The tug
Mary M, entering the slip between Piers 1 and 2, bumped against the barge. The decedent’s wife,
feeling the shock, came out from the cabin, looked on one side of the barge, and saw nothing, and
then went across the deck to the other side, and discovered her husband in the water about 100
feet from the barge holding up his hands out of the water. He did not know how to swim. She
immediately ran back into the cabin for a small line, and when she returned with it he had
disappeared . . .
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