Negligence poses special challenges for legal scholars and practitioners. The broad sweep of the cause of action is made possible by reliance on concepts that operate at a high level of abstraction. This explains why negligence is so adaptable, and hence so adept at responding to new social problems. But the use of abstract concepts also poses problems of understanding, and produces high levels of doctrinal instability. Few areas of negligence law illustrate the difficulties more graphically than the issue generally referred to in the US as ‘proximate cause’, and in the Commonwealth as ‘remoteness’ or ‘scope of liability’.
When faced with the difficulties that beset proximate cause, it is tempting for the torts scholar to throw up her hands in despair, or to dismiss the need for conceptual analysis, on the ground that ‘It’s all policy anyway’. But Mark Geistfeld is having none of it, and in this article, Proximate Cause Untangled, he sets himself the tough task of ‘untangling’ the doctrine. His analysis is illuminating and thought-provoking, and provides a plausible explanation for key features, not only of American law, but of the law of many Commonwealth jurisdictions. And while his core thesis is straightforward, his argument is so richly layered that even readers who are not persuaded by that thesis are bound to find much of value in his contribution.
As Geistfeld points out, the role of proximate cause is less extensive now than in the past, because issues like recovery of stand-alone mental harm and pure economic loss were long ago hived off into duty. But in his view the slimmed down modern doctrine still has its problems, most obviously a seemingly intractable tension between a forward-looking enquiry into ‘the risks foreseeably created by the defendant at the time of the tortious conduct’ and a backward-looking enquiry into ‘whether the plaintiff’s injury can be directly traced back’ to that conduct. (P. 422.) The key to resolving this tension, he believes, lies in recognizing that the doctrine serves two different purposes, and that the foreseeability and directness tests each have a distinctive role that can be seen when the question of proximate cause in the prima facie case (or liability stage) is ‘untangled’ from its role at the damages stage.
When it comes to the prima facie case, Geistfeld favours the use of a foreseeability test, thereby endorsing a version of the ‘risk principle’, according to which ‘a negligence defendant’s liability should be limited to those foreseeable harms caused by the risks that rendered the conduct unreasonably dangerous’ (p. 431; see also at pp. 440–1). According to Geistfeld, the rationale for the foreseeability rule lies in the fact that the duty to exercise reasonable care is limited to the risks of foreseeable harm. Such a duty ‘necessarily absolves a defendant from responsibility—and thus liability—for any harm that is entirely unforeseeable’. (P. 436.)
I was not convinced by this move, however, as it rests on a contestable view of duty as necessarily encompassing foreseeability issues. And it seems unlikely that we need to explain the foreseeability/risk rule by reference to duty, since civilian systems that do without duty adopt versions of the rule as well. Perhaps we might instead find the explanation in breach. If my conduct was negligent because it exposed you to risks x and y, and not because it exposed you to risk z, does it not seem logical that my liability is limited accordingly?
Whatever its rationale, the foreseeability/risk rule provides a relatively simple and intuitively appealing solution to the issue of proximate cause at the liability stage. But what of the criticism that the outcome of applying this approach rests on how the risk is characterized? Frame the risk in more general terms and the plaintiff will likely win; frame it in more specific terms and the reverse is true. In a passage of the article that I found particularly helpful, Geistfeld challenges this indeterminacy objection, arguing that similar issues arise at the breach stage, and that the answer to the objection lies in a ‘behavioral conception’ of foreseeability. When people think about risks, he contends, they lump them into categories at a high level of generality, and this is echoed in the proximate cause analysis. The connection to ordinary perceptions of risk is preserved in the US by assigning determinations of proximate cause to the jury, and while of course the jury still needs to make a judgment call, there is nothing particularly unusual or troublesome about that.
Turning to the damages stage, Geistfeld argues that foreseeability is no longer determinative, as shown by the ‘eggshell-plaintiff’ rule, which he considers to be of general application. (Here his analysis seems to depart from the positive law, at least in England, where the rule is generally thought to be limited to personal injury: see, e.g., Nicholas J. McBride and Roderick Bagshaw, Tort Law (6th ed. 2018) 318.) Instead, damages are limited by the retrospective ‘directness’ test, which asks whether an intervening force ‘broke the causal chain’ between the defendant’s negligence and the harm in respect of which the plaintiff seeks compensation. Geistfeld gives a simple yet ingenious explanation for this switch to directness, which he thinks ‘resolves a normative problem that is distinctive to the damages phase of a tort case’. (P. 453.) The problem is that compensatory damages are limited to the harm actually suffered, even if this was unforeseeably low (think of an unusually thick skull rather than an unusually thin one). Hence using a foreseeability test at the damages stage creates an imbalance: where the harm occurred but was unforeseeable the defendant is off the hook, and yet where the harm was foreseeable but did not occur no damages are payable. By contrast, directness is fairer, as it ‘does not confer a one-sided advantage on either party’. (P. 454.)
This struck me as an important insight, though I would have welcomed some more unpacking of the argument, and in particular why it was distinctive to the damages stage. I also wondered whether Geistfeld might have been able to marshal some additional reasons for switching to directness when it came to damages, such as the difficulty of applying the risk principle to secondary effects of the initial injury. He might also have emphasized another reason why he would differentiate using the directness test at the liability stage and at the damages stage. Geistfeld rejects the directness test at the liability stage in part because this produces a troubling distinction between causative events prior to the defendant’s breach (which by definition are incapable of breaking the causal chain) and subsequent causative events (which are capable of doing this). That objection no longer applies at the damages stage.
Geistfeld’s article contains many insights, to which it is impossible to do justice in the space of a short review. (For example, he also considers the implications of his analysis for the intentional torts and recklessness). But I hope that enough has been said to persuade torts scholars to take a careful look at this recent addition to the voluminous literature on proximate cause. It is doubtless too much to expect a single article to dispel all the confusion surrounding that troublesome doctrine, but after reading Geistfeld’s analysis, I felt that at least some of my own mental fog had lifted.