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

Witt & Tani, TCPI 7. Proximate Cause
COLUM. L. REV. 16 (1909). Given the awkwardness of alternative tests such as directness and
foreseeability, many have hoped that harm-within-the-risk might offer a substitute test for
proximate causation. The Third Restatement asks “whether there is an intuitive relationship
between the act(s) alleged and the damages at issue (that is, whether the conduct was wrongful
because that type of damage might result).” RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS.
AND EMOT. HARM, § 29 (2010).
Not everyone is persuaded that the harm within the risk approach is a useful alternative to
other proximate causation tests. For example, does the harm within the risk test solve the problem
of the choice of specificity with which to define the relevant harm and risk? Imagine that
someone attempts to eat the rat poison, but chokes on it and dies of asphyxiation rather than
poisoning. Should we characterize the risk of leaving the unlabeled poison broadly, by calling it a
risk of physical injury or death? Or should we define the risk narrowly, by treating it as a risk of
poisoning? Likewise, we can characterize the harm to the plaintiff broadly as “physical injury” or
narrowly as “choking”?
Another difficulty with the harm within the risk test might be that it has difficulty
explaining some of the cases. Is the eggshell skull plaintiff rule from Benn v. Thomas
reconcilable with the harm within the risk principle? How about the Polemis case? For criticism
of the harm within the risk principle, see Heidi M. Hurd & Michael S. Moore, Negligence in the
Air, 3 THEORETICAL INQ. L. 33 (2002).
C. Unexpected Manner
Injuries sometimes happen in the darndest ways, and when they do, proximate causation
questions often arise. A recurring problem arises when intervening actors contribute to,
aggravate, or are otherwise involved in the harm about which the plaintiff complains. Consider
the following classic example:
Brower v. New York Cent. & H.R.R. Co., 103 A. 166, 168 (N.J. 1918)
This is a case of a grade crossing collision. . . . The complaint avers that the horse was
killed, and the wagon and harness and the cider and barrels with which the wagon was loaded
were destroyed. What happened was that as a result of the collision, aside from the death of the
horse and the destruction of the wagon, the contents of the wagon, consisting of empty barrels and
a keg of cider, were scattered, and probably stolen by people at the scene of the accident. The
driver, who was alone in charge for the plaintiff, was so stunned that one of the railroad detectives
found him immediately after the collision in a fit. There were two railroad detectives on the
freight train to protect the property it was carrying against thieves, but they did nothing to protect
the plaintiff’s property. The controversy on the question of damages is as to the right of the
plaintiff to recover the value of the barrels, cider, and blanket. . . . It is . . . argued that the
defendant’s negligence was not in any event the proximate cause of the loss of this property, since
the act of the thieves intervened. The rule of law exempting the one guilty of the original
negligence from damage due to an intervening cause is well settled. The difficulty lies in the
application. . . .
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