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

Witt & Tani, TCPI 6. Causation
[The jury returned a finding of negligence against the barge owner defendant for failure to
equip the barge with life buoys. But on appeal, the Second Circuit concluded that a showing of
negligence was not sufficient to establish liability:]
On . . . whether a life buoy would have saved the decedent from drowning, we think the
jury were left to pure conjecture and speculation. A jury might well conclude that a light near an
open hatch or a rail on the side of a vessel’s deck would have prevented a person’s falling into the
hatch or into the water, in the dark. But there is nothing whatever to show that the decedent was
not drowned because he did not know how to swim, nor anything to show that, if there had been a
life buoy on board, the decedent’s wife would have got it in time, that is, sooner than she got the
small line, or, if she had, that she would have thrown it so that her husband could have seized it,
or, if she did, that he would have seized it, or that, if he did, it would have prevented him from
drowning.
The court erred in denying the defendant’s motion to dismiss the complaint at the end of
the case.
Judgment reversed.
Notes
1. Loss causation. The causation requirement in tort law typically requires that the loss
complained of by the plaintiff be one that would not have happened but for the negligence of the
defendant. But why should we have a causation requirement? Does it advance the lossspreading,
deterrence, or corrective justice goals of the law? If the burden of carrying a life buoy
is less than its expected benefit, why does it matter that Judge Ward is skeptical that Grimstad
would have survived? Note that the loss causation requirement even works to exonerate a
defendant in negligence-per-se cases involving violations of safety statutes. A Massachusetts
plaintiff injured while jumping out of a burning building sued his landlord for failing to provide
statutorily required fire-fighting appliances and moved to have the judge direct a verdict on his
behalf. The Massachusetts Supreme Court found that the plaintiff still needed to prove that he
would not have had to jump out the window if he had been able to access those fire-fighting
appliances. Wainwright v. Jackson, 291 Mass. 100 (1935).
Loss causation is often especially salient in failure to warn cases, where the cost of a
warning is particularly low compared to the possible harms. In Willett v. Baxter Int’l, for
example, the Fifth Circuit found a plaintiff’s decision to proceed with a medical procedure in the
face of a known four percent risk strongly suggested that an additional 0.03 percent risk “would
not have changed his decision.” 929 F.2d 1094, 1099 (5th Cir. 1991).
2. Insurance and causation. The law of insurance deals with loss causation very differently.
For example, before the passage of the Patient Protection and Affordable Care Act, health
insurance companies could and did rescind coverage for failure to disclose a pre-existing
condition that had nothing to do with the source of the current claim. In other words, even if a
policyholder’s failure to disclose did not cause the insurance company to pay out, the insurance
company was still entitled to rescind coverage. Eleanor D. Kinney, For Profit Enterprise in
Health Care: Can It Contribute to Health Reform?, 36 AM. J. L. & MED. 405 (2010). In other
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