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

Witt & Tani, TCPI 9. Liability without Fault?
evidence that Hobart’s failure to place a warning [on the machine] was causally related to his
injury.” Whether or not there had been a warning, Hobart says, Liriano might well have operated
the machine as he did and suffered the injuries that he suffered. Liriano introduced no evidence,
Hobart notes, suggesting either that he would have refused to grind meat had the machine
borne a warning or that a warning would have persuaded Super not to direct its employees to use
the grinder without the safety attachment.
Hobart’s argument about causation follows logically from the notion that its duty to warn in
this case merely required Hobart to inform Liriano that a guard was available and that he should
not use an unguarded grinder. The contention is tightly reasoned, but it rests on a false premise. It
assumes that the burden was on Liriano to introduce additional evidence showing that the failure to
warn was a but-for cause of his injury, even after he had shown that Hobart’s wrong greatly
increased the likelihood of the harm that occurred. But Liriano does not bear that burden. When a
defendant’s negligent act is deemed wrongful precisely because it has a strong propensity to cause
the type of injury that ensued, that very causal tendency is evidence enough to establish a prima
facie case of cause-in-fact. The burden then shifts to the defendant to come forward with evidence
that its negligence was not such a but-for cause. . . .
This shifting of the onus procedendi has long been established in New York. Its classic
statement was made more than seventy years ago, when the Court of Appeals decided a case in
which a car collided with a buggy driving after sundown without lights. See Martin v. Herzog.
The driver of the buggy argued that his negligence in driving without lights had not been shown to
be the cause-in-fact of the accident. Writing for the Court, Judge Cardozo reasoned that the
legislature deemed driving without lights after sundown to be negligent precisely because not
using lights tended to cause accidents of the sort that had occurred in the case. The simple fact of an
accident under those conditions, he said, was enough to support the inference of but-for causal
connection between the negligence and the particular accident. The inference, he noted, could
be rebutted. But it was up to the negligent party to produce the evidence supporting such a
rebuttal.
. . . [T]he fact that Liriano did not introduce detailed evidence of but-for causal connection
between Hobart’s failure to warn and his injury cannot bar his claim. His prima facie case
arose from the strong causal linkage between Hobart’s negligence and the harm that occurred.
See Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr.,
43 U. CHI. L. REV. 69 (1975) (describing the concept of “causal link”). And, since the prima facie
case was not rebutted, it suffices.
. . .
The district court did not err. We affirm its decision in all respects.
NEWMAN, J., concurring.
. . .
Those who believe that every decision in human affairs is a rational one, influenced
logically by the incentives and disincentives that inhere in a given set of circumstances, will think it
perverse that a manufacturer can be liable for failure to warn about the hazard of a meat-grinder
577