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

Witt & Tani, TCPI 7. Proximate Cause
Levmore’s explanation is striking for its disavowal of the significance of doctrine, at least
in the proximate causation area. What matters, Levmore suggests, is not the verbal formulation
adopted (direct, foreseeable, etc.) but the purposes and functions of tort liability in the particular
context at issue. If the formal doctrine is not helpful in resolving cases, then do judges have any
alternative but to rely on functional or practical considerations in making decisions? What should
those functional considerations be? Note that if Levmore is correct, this is an example of a
situation where judges made their decisions based on considerations not openly discussed in their
opinion. Writing when he was a professor, Judge Calabresi suggested in the last chapter that this
was commonplace and not necessarily a bad thing. Was he right?
3. Unexpected types of harm? Some cases involve harm to the plaintiff that was in some
way different than the harm that might have been expected to be caused by the defendant’s
negligence. In Doughty v. Turner Manufacturing Co., an employee was injured when an asbestos
cement cover inadvertently slid into a cauldron of boiling sodium cyanide. The cement cover
sunk into the cauldron, submerged, and then exploded out the cauldron due to an unexpected
chemical reaction, shooting shards of asbestos cement across the room and injuring the plaintiff.
The trial judge ruled for the plaintiff on the grounds that it was negligent for the employer to let
the cement cover fall into the cauldron because it might have splashed the employee and that the
employer was liable for all the consequences of his negligent act (including the unexpected
explosion). The appellate court reversed, holding that splashes are in “quite a different category”
than the unforeseeable explosion. Doughty v. Turner Manufacturing Co., [1964] 1 Q.B. 518.
The courts reached a different conclusion in Hughes v. Lord Advocate. In that case,
workers repairing underground wires left an open manhole unattended. They covered the
manhole with a tent and left lighted lamps around the tent as a warning. A boy entered the tent
and knocked one of the lamps into the hole. The lamp exploded, causing serious burns. The
defendant argued that it should only be held liable for the damage that might have been expected
from the negligent act—burning from the lamps, not an unforeseeable explosion. The court
disagreed, holding that “the distinction drawn between burning and explosion is too fine to
warrant acceptance.” Hughes v. Lord Advocate, [1963] A.C. 837. Should the “type” of harm
matter?
Other cases deal with unexpected harms where the surprise comes not from a new
chemical reaction but rather from an unexpected vulnerability of the plaintiff. In Smith v. Brain
Leech & Co., the plaintiff was injured in a workplace accident when a fleck of molten metal hit
him on the lip. The injury ultimately became cancerous, likely because the plaintiff had worked
in the gas industry for many years and was thus prone to cancer (by the court’s reasoning). The
defendant argued that it should be liable only for the burn, and not the cancer, because it was not
the true cause of the cancer. The court held otherwise:
The test is not whether these employers could reasonably have foreseen that a burn
would cause cancer and that he would die. The question is whether these employers
could reasonably foresee the type of injury he suffered, namely, the burn. What, in
the particular case, is the amount of damage which he suffers as a result of that burn,
depends upon the characteristics and constitution of the victim. . . . Accordingly, I
find that the [full damages of the plaintiff’s death] are damages for which the
defendants are liable.
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