Intuition and Technology in Product Design Litigation: An Essay on Proximate Causation
Aaron D. Twerski, James A. Henderson · bepress Legal Repository · 2000
It is one of the axioms of tort law that a defendant may not be held liable unless he caused the injury about which the plaintiff is complaining.This is true even if the defendant is a wrongdoer.Culpability in the air, so to speak, is not the business of tort law, but of public law.The question of causation is, therefore, a critical one for every tort suit.It is not just a mere technicality, but an element that is equal to duty and breach.Of course, the question of causation is really two questions: cause-infact and proximate cause.As Wex Malone noted over forty years ago in his classic article, Ruminations on Cause-in-Fact, proximate cause often gets the lion's share of attention by courts and scholars because it seems so obviously affected by considerations of policy and legal theory.'Malone argued that the attention lavished on proximate cause should not distract us from the important policy decisions that are contained in the judicial decision to allow-or disallow-consideration of cause-in-fact by a jury.The decision to let the jury consider the factual question of cause-in-fact is a peculiar judicial decision, since in theory it reflects nothing more than a judicial evaluation of how a reasonable jury would treat the facts as pled.From that point of view, judicial review of motions to dismiss based on cause-in-fact should themselves involve nothing more than an idealized dress-rehearsal of what the jury will have done in the jury room.Malone rejected this characterization of judicial review of the cause-in-fact issue.On many levels, he argued, the decision whether or not to allow a jury to decide whether the defendant's negligence was a cause-in-fact of the plaintiff's injury depends on various policy goals and assumptions hidden * NewellDeValpine Professor of Law Brookln LawSchooL ** Professor of Law, Brooklyn Law SchooL h e authors would lLe to thank Kim Houghton, BLS 2001,Cecilia Cha; LS 2000, for their research assistance and Professors John Goldberg Throthy Lytton, andBen Zpurskyfor their comments on thIs Artide.1. See Wex S. Malone, Ruminatlons on Cause-In-Fact, 9