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

Witt & Tani, TCPI 7. Proximate Cause
broke the causal connection between the original negligent act of appellant and the
subsequent injury of the plaintiff. It established a new agency, and the possession
of Charlie Copple of the caps or shells was thereafter referable to the permission of
his parents and not to the original taking. Charlie Copple’s parents having permitted
him to retain possession of the caps, his further acts in regard to them must be
attributable to their permission, and were wholly independent of the original
negligence of appellants.
Id. at 649. Some scholars at the time, notably Joseph Henry Beale, embraced the formalism of
discrete causal connections and agencies that could be newly established or cleanly broken by the
parties’ actions. Beale even introduced the quasi-Newtonian language of active force and coming
to rest to explain proximate cause:
If the defendant’s active force has come to rest, but in a dangerous position, creating
a new or increasing an existing risk of loss, and the foreseen danger comes to pass,
operating harmfully on the condition created by defendant and causing the risked
loss, we say that the injury thereby created is a proximate consequence of the
defendant’s act . . . .
On the other hand, where defendant’s active force has come to rest in a position of
apparent safety, the court will follow it no longer; if some new force later combines
with this condition to create harm, the result is remote from the defendant’s act.
Beale, The Proximate Consequences of An Act, 33 HARV. L. REV. 633, 650, 651, 656 (1920).
Objecting that Beale’s approach was a retreat into meaningless abstractions, the legal
realist scholar and later judge Jerome Frank wasted no time in attacking what he pejoratively
termed “Bealism.” The “Bealist,” Frank objected,
dematerializes the fact he purports to describe; the vagueness of his vocabulary aids
him to avoid recognizing contradictions and absurdities which his assertions
involve. Contentless words supply “a stable verbal support for inexact, nebulous
and fluctuating conceptions.” Such dematerialized but sonorous terms as
Uniformity, Continuity, Universality, when applied to law by the legal Absolutist,
have the same capacity for emotional satisfaction that terms like Oneness, Eternity,
or The True, have when applied by the metaphysician to the Absolute.
JEROME FRANK, LAW AND THE MODERN MIND 67 (1930). In Scott v. Shepherd, which we read in
Chapter 3, Blackstone sought to resolve the distinction between proximate and remote damages
with the concepts of directness and indirectness. Does Blackstone’s effort give you confidence
that courts might be able to resolve questions of proximate causation with metaphysical concepts
like the ones Beale offers?
3. All things considered judgments. The dissenter in Brower forcefully protests against
extending the causal chain when an intervening criminal act occurs. The majority, however,
insists that there is no general rule for proximate cause and intervening criminal acts. Instead, in
the majority’s approach, what the field of proximate causation consists of is highly contextual, all-
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