35.2 Proximate Cause, Damages, Survival & Wrongful Death

35.2 Proximate Cause, Damages, Survival & Wrongful Death

Even when a defendant's negligence was an actual cause of harm, liability ends where the harm falls outside the risks that made the conduct negligent. NCBE's outline addresses these limits under "legal" or "proximate" cause and "superseding" causes, and it tells examinees to assume that survival and wrongful death actions are available where applicable.

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Proximate Cause (Legal Cause)

Even if actual cause is established, Proximate Cause serves as a policy-driven limitation on liability. It cuts off an actor's liability when the causal chain between the breach and the injury becomes too attenuated, bizarre, or unforeseeable. Under the Restatement (Third) of Torts § 29, the fundamental inquiry is whether the harm fell within the foreseeable scope of risk created by the defendant's negligent act.

The Core Test: Foreseeability of Harm

A defendant is liable for harms that are the foreseeable result of the risks that made the conduct negligent. If an actor carelessly hands a loaded pistol to an eight-year-old child and the child drops the gun onto someone's foot, breaking a toe, the harm (blunt trauma from a heavy falling object) is outside the foreseeable scope of risk (accidental discharge), defeating proximate cause.

Intervening vs. Superseding Causes

An intervening force is a new force or act of a third party that occurs after the defendant's negligent act and contributes to the plaintiff's ultimate injury.

• Foreseeable Intervening Causes (Do NOT Break the Chain): The defendant remains fully liable for the ultimate harm. The law deems the following intervening forces foreseeable as a matter of law:

  1. Subsequent Medical Malpractice: When a negligent driver injures a victim, ordinary medical negligence by treating physicians, surgeons, or nurses during subsequent treatment is deemed a foreseeable consequence of the original physical trauma. The original tortfeasor is liable for both the original injury and the aggravated harm caused by medical malpractice (the physician is also liable for their share).
  2. Negligence of Rescuers: Under the doctrine that "danger invites rescue," ordinary negligent acts committed by rescuers during an emergency attempt do not sever the causal chain.
  3. Subsequent Weakened-Condition Injuries: If a plaintiff's broken leg from an initial car accident causes them to fall and break an arm while walking carefully on crutches months later, the original defendant is liable for the arm fracture.
  4. Reaction Forces and Panic: Instinctive, panicked reactions by crowds or animals attempting to escape the peril created by the defendant do not break proximate cause.

• Superseding Causes (BREAK the Chain of Causation): A superseding cause is an intervening force that is so extraordinary, highly unusual, or unforeseeable that it severs the causal chain between the defendant's breach and the injury, cutting off the original defendant's liability for subsequent harm.

  • Unforeseeable Criminal Acts / Intentional Torts: A third party's independent crime or intentional tort may be a superseding cause when it was not among the foreseeable risks of the defendant's conduct.
  • Important Exception: An intentional criminal act will NOT cut off liability if the defendant's original negligence created or increased the foreseeable risk that the specific criminal act would occur (e.g., a commercial landlord who neglects to repair a broken exterior security door in an apartment complex located in a high-crime district is liable when an intruder enters and robs a tenant).
  • Extraordinary Acts of God: Freakish, catastrophic natural phenomena (e.g., an unprecedented earthquake or 500-year tornado) constitute superseding causes.

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Damages in Negligence

Unlike intentional torts, actual physical harm or property damage is a mandatory element of a negligence cause of action.

Critical Rules Governing Negligence Damages

1. No Nominal Damages: A plaintiff cannot recover nominal damages in negligence. If an actor behaves with extreme carelessness but miraculously inflicts zero physical or property harm, no tort action lies.
2. The Economic Loss Rule: A plaintiff cannot recover in negligence for purely economic losses (e.g., lost profits, financial disruption) unaccompanied by personal physical injury or physical damage to tangible property (see Section 35.4 for exceptions).
3. The Eggshell Skull Rule (Thin Skull Rule):
   • A tortfeasor takes the plaintiff as found. Once the plaintiff establishes that the defendant's negligence caused a foreseeable type of physical injury, the defendant is liable for the full extent and severity of the physical injuries, even if pre-existing latent medical vulnerabilities (e.g., hemophilia, an unusually brittle skull, or latent osteopenia) cause the damages to be far more catastrophic than anticipated.
   • Foreseeability applies to the type of injury, not its extent or magnitude.
4. The Collateral Source Rule:
   • Under the traditional common law rule, payments or benefits received by the injured plaintiff from independent collateral sources (such as the plaintiff's health insurance policy, disability coverage, sick pay, or charitable gifts) cannot be deducted from the defendant's tort liability.
   • Evidence of collateral payments is inadmissible at trial to reduce damages. Many states have modified the rule by statute, for example by allowing such evidence or reducing awards by certain benefits.
5. Punitive Damages Barred for Ordinary Negligence: Punitive damages are not recoverable for ordinary negligence. They require proof of reckless, willful, wanton, or malicious misconduct.

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Survival and Wrongful Death Actions

At early common law, personal injury tort claims died with either the plaintiff or the defendant (actio personalis moritur cum persona). Today, this harsh rule has been abrogated by two complementary statutory actions:

┌────────────────────────────────────────────────────────────────────────────┐
│                     SURVIVAL ACTS vs. WRONGFUL DEATH ACTS                  │
├────────────────────────────────────────────────────────────────────────────┤
│  SURVIVAL STATUTES (The Decedent's Own Claim)                              │
│  - Cause of action that the decedent could have brought had they lived.    │
│  - Brought by: The Decedent's Estate (Personal Representative).            │
│  - Recovers: Pre-death pain & suffering, medical expenses, lost wages      │
│    accruing BETWEEN the tortious injury and the moment of death.           │
│                                                                            │
│  WRONGFUL DEATH STATUTES (The Beneficiaries' New Claim)                    │
│  - Entirely NEW statutory cause of action created for family survivors.   │
│  - Brought by: Surviving statutory beneficiaries (spouse, children).       │
│  - Recovers: Economic losses suffered BY THE SURVIVORS (loss of financial  │
│    support, loss of prospective inheritance, loss of consortium/funeral).  │
└────────────────────────────────────────────────────────────────────────────┘

1. Survival Statutes

• Nature: Preserves the deceased victim's existing personal injury claim from extinguishing upon death.
• Brought By: The decedent's personal representative (executor or administrator) on behalf of the decedent's estate.
• Damages Recoverable: The damages the decedent suffered prior to death:
  • Pre-death physical pain and mental suffering;
  • Medical expenses incurred between injury and death;
  • Lost wages earned between injury and death.
• Defenses: Any defense good against the decedent (e.g., statute of limitations, release, or comparative fault) bars or reduces the survival action.

2. Wrongful Death Statutes

• Nature: Creates an independent, brand-new statutory cause of action for the death itself.
• Brought By / For: Brought by or for the benefit of designated surviving statutory beneficiaries (typically the surviving spouse, children, and parents).
• Damages Recoverable: Compensates the survivors for their own pecuniary losses resulting from the decedent's death:
  • Loss of financial support and income the decedent would have provided;
  • Loss of consortium, companionship, and parental guidance;
  • Funeral and burial expenses.
• Defenses: The decedent's own comparative negligence applies to reduce or bar the survivors' wrongful death recovery.

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More on Proximate Cause

Type of Harm vs. Manner of Harm

• Direct consequences: The older English case In re Polemis (1921) held a negligent defendant liable for all direct consequences of the negligence, even unforeseeable ones.
• Foreseeable type of harm: The Wagon Mound (No. 1) (Privy Council 1961) rejected that approach and limited liability to the foreseeable type of harm, so a ship operator that negligently spilled oil was not liable for an unforeseeable fire.
• Manner need not be foreseeable: In Hughes v. Lord Advocate (House of Lords 1963), burns were a foreseeable type of harm from leaving paraffin lamps near an open manhole, so the defendant was liable even though the burns resulted from an unusual explosion.
• American approach: American courts generally ask whether the harm was within the scope of the risks that made the conduct negligent, the approach of the Restatement (Third) of Torts.

Common Intervening Events

More on Damages

• Compensatory damages: Recoverable damages include economic losses, such as past and future medical expenses and lost earnings or earning capacity, and noneconomic losses, such as pain and suffering, emotional distress, and loss of enjoyment of life. Awards for future lost earnings are reduced to present value.
• Property damage: Damages for harm to property are usually measured by the cost of repair or the reduction in value, plus the loss of use.
• Avoidable consequences: A plaintiff cannot recover damages that reasonable care after the injury would have avoided, such as harm from unreasonably refusing medical treatment. States differ on whether failing to wear a seat belt reduces damages.
• Statutory caps: Many states cap noneconomic damages, especially in medical malpractice cases, and some state courts have struck down caps under their state constitutions.
• Loss of consortium: A spouse, and in many states a child or parent, may recover for the loss of the injured person's companionship, services, and affection. The claim is derivative, so the injured person's comparative fault reduces it.
• Punitive damages: Punitive damages require malicious, willful, wanton, or reckless conduct. The Due Process Clause bars grossly excessive awards, and courts consider the reprehensibility of the conduct, the ratio of punitive to compensatory damages, and comparable civil penalties (BMW of North America, Inc. v. Gore, 1996). Few awards exceeding a single-digit ratio will satisfy due process (State Farm Mutual Automobile Insurance Co. v. Campbell, 2003), and a jury may not punish a defendant for harm to nonparties (Philip Morris USA v. Williams, 2007).

More on Survival and Wrongful Death

• Recovery outside the estate: Wrongful death damages belong to the statutory beneficiaries, not to the decedent's estate, so they generally are not available to the estate's creditors.
• Avoiding double recovery: States divide lost future earnings between the two actions differently, but courts prevent the same loss from being recovered twice.
• Claims that do not survive: Some survival statutes exclude certain personal claims, such as defamation.
• Claims against a deceased tortfeasor: Tort claims generally survive the death of the defendant and may be brought against the defendant's estate.