On Confirmation Of Tests For Causation In American Tort Law

The paper makes a preliminary research on confirmatory tests forcausation of American tort. The whole paper is divided into four chapters.Chapter One introduces the causation theory of American tort in brief.Among the continental countries, France holds that liability of negligence hasthree elements: damage, causation and fault; however, German holds thatliability of negligence has four elements: damage, breach of law and causationand fault. In Anglo-America tort laws, the cause of action for negligence isalso described as having four elements: duty, breach, causation and damage.Although there is always much controversy about the elements of tort liability,it is agreed that causation is indispensable one of the elements for tort liability.Causation is the most basic element of tort, which is some causal connectionbetween tortfeasor's action and victim's injury. The justice often requires thatone should not automatically be held liable for all of the consequences of one'sactions, particularly if the results are unexpected. On the premise, thecausation of American torts is divided into two stages: factual causation (orcause in fact) and proximate causation (or legal cause). The former focuses onwhat fact is on earth and whether the defendant's negligence conduct hasfactual damage on the plaintiff's harm. By comparison, the latter is provedunder the direct causation view and the foreseeability view. It is mainly apolicy determination on the issue of how far liability should extend for harmfactually caused by tort conduct. It is the tool for limiting liability that thedefendant was responsible for. Only the requirements of factual causation aremade, it's the turn to talk to proximate causation. Only when bothrequirements are made, tort liability is established. So, the theories of manycountries adopt a bifurcated approach to problems of causation.The firstaspect decides whether the defendant's action brings function to the plaintiff'sdamage and focuses on finding what the fact is on earth. The discussion aboutthe aspect is often entitled to cause in fact and scientific cause.The secondaspect aims to limit the scope of liability on the basis that not all conditionscan (or should) be regarded as the cause of damage.Chapter Two introduces the definition of factual causation and its tests forproof. Factual causation focuses on whether the defendant's negligence'saction actually causes the damage to the plaintiff, and mainly reflects a naturalcausation. It has two basic tests: but-for rule( or sina qua non rule) andsubstantial factor test(material element test).The former holds when thedamage would not have occurred without the defendant's negligence's action,the action is factual causation; on the contrary, when the damage would nothave occurred if not the defendant's negligence's action, the action is notfactual causation. The latter holds when the action is a substantial factor, thedefendant should be responsible for his own action. The substantial factor testis supplement for the but-for rule and is considered in use within theparticularly limited circumstances. On the basis of the substantial factor test,the reduced chance doctrine and the collective liability rule have beenproduced. The reduced chance doctrine that mainly has been used inmalpractice treatment holds the tort action need not cause actual injury, onlywhen the victim has lost or reduced chance of recovery, the tortfeasor can beresponsible. The collective liability rule exists in the condition when there isno particular tortfeasor,the court infers some kind of person as the defendant.The collective liability rule is divided into alternative liability, enterpriseliability, market-share liability and concerted-action liability. The burden ofproof for the victim is eased and once the person inferred by the court cannotput forward the disproof, he should bear the responsibility.Chapter Three emphatically discusses proximate causation and the rulesfor proof. Proximate causation is actually a concept that cuts off liability, butmainly is determined by the policy controlled by the court, except theforeseeability factor. It is the turn for proximate causation only when factualcausation has been established. The paper discusses proximate causation fromtwo aspects of foreseeable consequences and intervening causes. Firstly, fromthe foreseeable consequences'angel, proximate causation has two differenttests for proof. The traditional rule adopts direct causation view, no matterwhether the tortfeasor can have the ability to foresee. The modern rule adoptsthe foreseeability rule, which Cardozo analyzed in the Palsgraf case in details.But Cardozo judge didn't provide a definite formula, so it is necessary to drawsupport from policy. Many states adopt modification of and exceptions to theforeseeability rule and the general principle about policy must keepproportional between action and liability. Secondly, on the circumstances ofintervening causes existing, the court adopts some exceptions to theforeseeability rule to protect the third person and the victim considering thepolicy, eg.the third person's rescue, and the victim's action out ofirresistible-impulse.Chapter Four analyzes the enlightenment from tests for causation inAmerican tort to improve tests for causation of our country. Firstly, the authoranalyses and comments on tests for causation in American tort. Secondly, theauthor analyzes theoretical conditions and judicial practice of tests forcausation in our country's civil law. The research to causation far lags behindone to other problems so that varies of theories haves come out. The mostbasic causation theories have three categories, among which the positivecausation theory is commonly used. The paper emphatically discusses it andthinks that it is the typical objective theory to impose the liability for thedefendant. The theory holds that causation is objective, positive and directrelationship. Although the theory is dominant in the judicial field, somescholars have show doubt about it and some courts have adopted theequivalence causation theory in substitute for it. Thirdly, the author discussessome problems and the rules for proof existing in causation of American tortused for reference by causation theory and judicial practice of China.Proximate causation has no precise definition and there is no clear limitationbetween factual causation and proximate causation. Considering this, thelegislation should use the tests for factual causation whose basis is the but-fortheory and substantial factor for reference. In judicial practice, it is worthdrawing lessons from the direct consequence view and reasonableforeseeability view. The direct consequence should be adopted in intentionaltort and the foreseeability rule should be adopted in negligent tort. The publicpolicy controlled by the court has influence on whether proximate causation isestablished or not in a particular case. The public policy that has not solidscope and the uniform tests will acquire new meaning with social developmentso that it is difficult to understand in practice. But in substance the court hasthe discretion according to the legal theory of fairness and justice and public...