The vocabulary of negligence law: Continuing causation confusion

Louisiana Law Review

Volumn 58, Issue 1, 1997, Pages 1-32

  Robertson, David W ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 26444522658     PISSN: 00246859     EISSN: None     Source Type: Journal    
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References (149)

1. For full treatment see Frank L. Maraist and Thomas C. Galligan, Jr., Burying Caesar: Civil Justice Reform and the Changing Face of Louisiana Tort Law, 71 Tul. L. Rev. 339 (1996).
2. See La. Civ. Code art. 2323(A) (providing that the "fault of all persons causing or contributing to the injury" must be quantified); La. Civ. Code art. 2324(B) (setting out a general rule that a tortfeasor "shall not be solidarity liable with any other person"); La. Code Civ. P. art. 1812(C)(2)(b) (giving an illustrative list of nonparties whose fault must be quantified if any party demands it). Note that under La. Civ. Code art. 2324(A), solidary liability still exists among those who act in concert to commit "intentional or willful" torts.
3. See La. Civ. Code art. 667 (confining "ultrahazardous activity" liability to "pile driving [and] blasting with explosives"); La. Civ. Code art. 2321 (describing liability in negligence for the owners of most animals but providing that "the owner of a dog is strictly liable" in some circumstances); but see La. Civ. Code art. 2695 (lessor's strict liability for premises defects unchanged by '96 legislature).
4. La. Civ. Code art. 2315.4 (providing for exemplary damages for "wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries").
5. David W. Robertson, Allocating Authority Among Institutional Decision Makers in Louisiana State-Court Negligence and Strict Liability Cases, 57 La. L. Rev. 1079 (1997).
6. Thomas C. Galligan, Jr., Revisiting the Patterns of Negligence: Some Ramblings Inspired by Robertson, 57 La. L. Rev. 1119 (1997).
7. Galligan, supra note 6, at 1132.
8. See generally David W. Robertson, The Louisiana Law of Comparative Fault: A Decade of Progress 49-80 (LSU Law Center 1991) [hereinafter "Progress"];
9. David W. Robertson, Solidary Liability in Tort: Understanding Gauthier and Touchard Part I, 41 La. B.J. 227 (1993);
10. and David W. Robertson, Solidary Liability in Tort: Understanding Gauthier and Touchard Part II, 41 La. B.J. 334 (1993).
11. A plausible case might be made for abandoning the negligence system altogether and turning to some other apparatus for handling society's accident problem. But as long as we are committed to the negligence system, we need to work at maintaining its conceptual integrity.
12. See La. Civ. Code art. 2323(A) (providing that the "fault of all persons causing or contributing to the injury" must be quantified); La. Civ. Code art. 2324(B) (setting out a general rule that a tortfeasor "shall not be solidarily liable with any other person"); La. Code Civ. P. art. 1812(C)(2)(b) (giving an illustrative list of nonparties whose fault must be quantified if any party demands it). Note that under La. Civ. Code art. 2324(A), solidary liability still exists among those who act in concert to commit "intentional or willful" torts. Respecting the intertwined issues of solidary liability and whose negligence to quantify, the '96 legislature took the rightmost of three possible paths. Moving from left to right, those paths are: (a) assign fault to anyone culpably involved in the accident and impose solidary liability on defendants. This combination charges the defendant with the fault of persons with whom he or she may have had no relationship whatever; (b) assign fault only to parties to the lawsuit and settling tortfeasors; and impose solidary liability on defendants. (When fault is mistakenly assigned to someone it shouldn't have been, use the ratio approach to set aside the unwanted finding.) (This was the pre-1996 law.); (c) assign fault only to parties to the lawsuit and settling tortfeasors; and do not impose solidary liability on defendants. (Again, use the ratio approach to set aside unwanted findings.) (This would have been a supportable change for the '96 legislature to have made.); and (d) assign fault to anyone culpably involved; and do not impose solidary liability on defendants. This fourth path - the one chosen by the '96 legislature - charges the plaintiff with the fault of persons with whom he or she had no relationship whatsoever.
13. See infra Section VIII-C.
14. There are three functionally equivalent ways of enumerating the five elements. Probably the most common - and to my mind, slightly the clearest - is illustrated by Justice Cole's opinion for the court on rehearing in Roberts v. Benoit, 605 So. 2d 1032, 1051 (La. 1992) (enumerating duty, breach, cause in fact, legal cause, damages). See also Fowler v. Roberts, 556 So. 2d 1, 4-5 (La. 1989). The second is illustrated by Justice Victory's opinion for the court in Pitre v. Louisiana Tech Univ., 673 So. 2d 585, 589-90 (La. 1996) (enumerating duty, breach, cause in fact, scope of protection, damages). A third formulation combines duty and legal cause/scope of protection into a single element with two not-very-clearly separated subparts. This third formulation seems to be going out of style.
15. The bedrock disagreements - stemming from the lawyers' chosen positions and the judge's value system - will not disappear, but we can save a lot of time by precisely identifying them. Dean Leon Green was fond of saying that the legal vocabulary is useful in a limited sense: It is like a horse that you can ride to the general vicinity of the problem at hand, whereupon you must get down and walk. He was right, of course. But we must not forget that riding is better than walking, and good horses are better than poor ones.
16. Duty can conceivably be confused with the other four (4); breach, with duty plus the other three (3); cause in fact, with the foregoing two plus legal cause and damages (2); legal cause, with the foregoing three plus damages (1). 4+3+2+1 = 10.
17. See David W. Robertson et al., Cases and Materials on Torts 142, 156-57, 160-67, 179-94 (1989);
18. David W. Robertson, An American Perspective [on Negligence Law], in Tort Law 193-227 (3d ed. 1994); Robertson, Progress, supra note 8, at 21-32;
19. David W. Robertson, The Common Sense of Cause in Fact, 75 Tex. L. Rev. 1765 (1997) [hereinafter "Common Sense"]; Robertson, supra note 5;
20. David W. Robertson, Liability in Negligence for Nervous Shock, 57 Mod. L. Rev. 649 (1994);
21. David W. Robertson, Ruminations on Comparative Fault. Duty/Risk Analysis, Affirmative Defenses, and Defensive Doctrines in Negligence and Strict Liability Litigation in Louisiana, 44 La. L. Rev. 1341 (1984) [hereinafter "Ruminations"].
22. In his opinion for the unanimous seventeen-member Fifth Circuit in Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc) (holding that Jones Act plaintiffs owe reasonable care for their own safety, not "slight care" as had been believed), Judge Duhé bundled the breach and cause-in-fact issues together in a surprising way. But I don't think he was confused; coalescing the two issues served a rhetorical purpose. I am working on a paper for possible future publication that analyzes the Gautreaux decision.
23. One assumes the existence of duty arguendo or - as is more frequently the case - sees with clarity that the existence of duty is readily established. I don't agree that the ease with which the duty element is often satisfied makes that concept "meaningless," as Professor Galligan states in Galligan, supra note 6, at 1120. When duty is easily established, this simply means that the law is clear. The law is at its most meaningful when it is clear. Galligan probably used "meaningless" in the sense of "uninteresting."
24. Meany v. Meany, 639 So. 2d 229, 234 (La. 1994); Allien v. Louisiana Power & Light Co., 202 So. 2d 704, 710-12 (La. App. 3d Cir.), writ denied, 204 So. 2d 574 (1967).
25. Asking BPL reflects the general rule imposing the burden of persuasion on the plaintiff.
26. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (L. Hand, J., for the court). "Burden" here is a very broad idea, potentially encompassing inquiry into the purposes of the defendant's activity that produced the injury; what it would have cost the defendant in time, money, and other goods to add accident precautions or otherwise alter the activity sufficiently to cut down on the risk of injury; and how well any suggested precautions would have worked. In an early piece presaging Learned Hand's famed B
27. Carroll Towing Co., 159 F.2d at 173.
28. In general, the hypothetical POP is objectified. But defendant's superior knowledge and skill as well as his physical characteristics (including disadvantages) will be attributed to POP. And if the defendant is a child, POP becomes a fairly subjective construct, taking on the attributes incident to defendant's own age, intelligence, and experience.
29. The application of general norms to particular situations is part of the jury's traditional role. Issues like the breach element in the negligence-law cause of action are sometimes called "mixed questions]" of law and fact David W. Robertson, The Precedent Value of Conclusions of Fact in Civil Cases in England and Louisiana, 29 La. L. Rev. 78, 93 (1968).
30. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
31. Galligan, supra note 6, at 1124 (emphasis in original).
32. See, e.g., Roberts v. State, 396 So. 2d 566 (U. App. 3d Cir.), aff'd on other grounds, 404 So. 2d 1221 (1981) (treating a blind man's aesthetic and spiritual need to move around at times without his cane as a sufficiently weighty "B" to offset the likelihood that he might bump into and injure someone); Kimbar v. Estis, 135 N.E.2d 708 (N.Y. 1956) (weighing campers' aesthetic preferences for darkness against the dangers of darkness). Lately some of the proponents and opponents of the "law & economics" school of academic tort law have been assuming that B
33. For full treatment see Robertson, Common Sense, supra note 15.
34. See Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. L. Rev. 69, 85 (1975) (referring to "the virtual universality" of the but-for test).
35. Any purposive action implicitly tests a but-for hypothesis: What will happen if I do that? What if I don't?
36. The second circuit's decision on rehearing in Bannerman v. Bishop, 688 So. 2d 570 (La. App. 2d Cir. 1996), writ denied, 685 So. 2d 146 (La. 1997), closely tracks the suggested five-step approach. See Bannerman, 688 So. 2d at 576-77 (Brown, J., dissenting on original hearing and fully spelling out the five-step approach); id. at 579 (Brown, J., writing for the court on rehearing and sketching the five-step approach).
37. Two types of difficulties involved with identifying the injuries in suit are dealt with in Greer v. Lammico, 688 So. 2d 692 (La. App. 2d Cir. 1997). One difficulty the Greer court confronted was evaluating the worth of a reduction in plaintiffs chances of surviving cancer from 75% to something below 50%. See generally Smith v. Department of Health & Hosps., 676 So. 2d 543 (La. 1996). The second was deciding what a health care provider who settles a medical malpractice lawsuit under the Medical Malpractice Act should be deemed to have confessed for purposes of the patient's subsequent lawsuit against the Patients' Compensation Fund. See generally Pendleton v. Barrett, 675 So. 2d 720 (La. 1996); Graham v. Burkett, 690 So. 2d 883 (La. App. 2d Cir. 1997).
38. See Wex S. Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La. L. Rev. 363, 370 (1970): "The determination of cause-in-fact is launched by fixing as precisely as possible the piece of conduct - the exact act or omission - with which the defendant is charged." In his early work Dean Green agreed with the Malone formulation of the cause-in-fact issue.
39. See Leon Green, Judge and Jury 229-30 (1930);
40. Leon Green, Rationale of Proximate Cause passim (1927). But late in his career - and without announcing it as a change of viewpoint - Dean Green began contending that cause in fact is satisfied when a causal connection exists between the injuries and the defendant's entire course of conduct Some of his followers took up this broad view.
41. See, e.g., William L. Crowe, The Anatomy of a Tort-Greenian, as interpreted by Crowe Who Has Been Influenced by Malone - A Primer, 22 Loy. L. Rev. 903, 904-05 (1976);
42. E. Wayne Thode, The Indefensible Use of the Hypothetical Case to Determine Cause in Fact, 46 Tex. L. Rev. 423, 424-25 (1968). But it remains a minority academic position, shared by only a few analysts and having no discernible judicial influence.
43. The Normannia, 62 F. 469 (S.D.N.Y. 1894), is a wonderful illustration of a first-class mistake. Plaintiff booked first-cabin passage from Southampton to New York. A cholera epidemic then broke out in Europe. Wishing to cancel his trip if steerage passengers were to be aboard the ship, plaintiff sought and received assurances from the vessel's agent that no steerage passengers would be carried. But once the ship was under way, plaintiff learned that five hundred steerage passengers were aboard. When the ship reached New York, it had to be quarantined for two weeks. (If no steerage passengers had been aboard, the quarantine period would have been half that) Plaintiff did not come down with cholera, but as a result of the two-week incarceration he suffered minor illness and business losses, for which he sued. In limiting the plaintiff's recovery to the results of the second week of quarantine, the Normannia court fumbled the cause-in-fact analysis. The court correctly identified the wrongful conduct as the agent's misrepresentation. Id. at 471. But when it came time to "correct" that conduct for purposes of asking the but-for question, the court didn't do the obvious thing, which would have been to ask what would have happened if the agent had told the truth. (Answer: the plaintiff would not have made the trip, thereby avoiding all of the injuries in suit) Instead, the court "corrected" the agent's misrepresentation by taking the steerage passengers off the ship. Id. at 482. If there had been no steerage passengers, the plaintiff would have sailed, and the ship would have been quarantined for one week, not two. Therefore, the court concluded that the plaintiff's damages were limited to those stemming from the second week of quarantine. This was wrong. Lest you think it was justifiable as some kind of legal cause limit, note that this was an intentional tort case - fraudulent misrepresentation - as to which the ambit of responsibility has traditionally been regarded as almost as extensive as the reach of factual causation. Normannia wasn't a debatable legal cause case; it was a wrongly decided cause-in-fact case.
44. The law's preference for an intellectually conservative "correction" flows from the realization that the but-for test incorporates a counter-factual inquiry - asking what would have happened under a factual scenario that never actually existed - and a felt need to keep that kind of speculation as narrowly confined as possible. Courts often emphasize the necessity of focusing the but-for inquiry in this way. See, e.g., Boyer v. Johnson, 360 So. 2d 1164, 1166-67 (La. 1976); Farley v. M. M. Cattle Co., 529 S.W.2d 751, 755-56 (Tex. 1975).
45. Malone, supra note 32, at 370.
46. At this point, the law sometimes steps in with justice-serving mitigations such as the substantial factor test See generally Robertson, Common Sense, supra note 15.
47. See Fowler v. Roberts, 556 So. 2d 1, 5 & n.5 (La. 1989); cf. W. Page Keeton et al., Prosser & Keeton on Torts § 42, at 273 (5th ed. 1984) [hereinafter "Prosser & Keeton"].
48. Roberts v. Benoit, 605 So. 2d 1032, 1052 (La. 1991) (on rehearing).
49. Mathieu v. Imperial Toy Corp., 646 So. 2d 318, 322 (La. 1994).
50. Weaver v. Valley Elec. Membership Corp., 615 So. 2d 1375, 1381 (La. App. 2d Cir. 1993).
51. Puzzling over Louisiana Code of Civil Procedure articles 1812 and 1813 leaves me suspicious that there may be some subtle distinction between what Article 1813 calls "interrogatories" and Article 1812 calls "special verdicts." I don't want to get involved with any such subtlety if I can help it In this paper I am using the term "interrogatories" to mean particular questions put to juries; this meaning embraces (and indeed specifically focuses upon) the "special verdicts" provided for in Article 1812.
52. In trying to formulate my own suggested jury instructions, I imply no critique of H. Alston Johnson, III, Civil Jury Instructions, in 18 Louisiana Civil Law Treatise (1994). As I appreciate that work's philosophy and intent, it was aimed at reflecting current practice rather than proposing changes. While implying no critique of that work, I do have one passing thought about the portions I have studied - §§ 3.03 (cause in fact), 3.04 and 3.05 (breach), and 3.15 through 3.17 (legal cause). I think these sections may tend to tell the jury more law than it is likely to be able to use effectively. If I were to undertake an ambitious task like Johnson's Volume 19, the result would surely not be better, but it might be shorter.
53. In Robertson, supra note 5, I demonstrate that the oft-stated notion that Louisiana has no negligence per se doctrine is false.
54. 9 Ex. 125, 128 (Court of Exchequer 1874).
55. Potts v. Fidelity Fruit & Produce Co., 301 S.E.2d 903 (Ga. Ct. App. 1983).
56. 242 U. 471, 137 So. 2d 298 (La. 1962).
57. Dixie Drive It Yourself, 242 La. at 488, 137 So. 2d at 304.
58. 260 La. 542, 256 So. 2d 620 (La. 1972).
59. Hill, 260 La. at 549-50, 256 So. 2d at 622-23 (citations omitted).
60. Hill, 260 La. at 549, 256 So. 2d at 622.
61. See, e.g., David W. Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc., 34 La. L. Rev. 1 (1973).
62. See Smolinski v. Taulli, 276 So. 2d 286, 289 (LA. 1973) (Tate, J., for the court, using a proximate cause analysis in a case in which the defendant violated parish and city building codes); Frank v. Pitre, 353 So. 2d 1293, 1294-96 (La. 1977) (Dixon, J., for the court, using a proximate cause analysis in an ordinary negligence case); id. at 1296 (Tate, J., concurring, and offering a translation of "legal cause" as including cause in fact plus a requirement that "the duty violated . . . have included within its purpose the prevention of the risk encountered by the plaintiff").
63. Kessler v. Amica Mut Ins. Co., 573 So. 2d 476, 478 (La. 1991); Wright v. O'Neal, 427 So. 2d 852, 853-54 (La. 1983); Carter v. City-Parish Gov't of East Baton Rouge, 423 So. 2d 1080, 1084 (U. 1982).
64. See, e.g., Mathieu v. Imperial Toy Corp., 646 So. 2d 318, 322 (La. 1994).
65. 744 S.W.2d 595 (Tex. 1987).
66. Id. at 595.
67. 412 So. 2d 726 (La. App. 3d Cir. 1982).
68. The Charles court raced past the cause-in-fact issue almost as fast as the defendant's truck went through the "Men Working" zone, stating that "there is no question that the accident would not have occurred but for the defendant's] driving his truck across the cable stretched across the road." Charles, 412 So. 2d at 728. But that wasn't the right cause-in-fact question. As is explained supra in Section V-B, the cause-in-fact inquiry addresses whether the plaintiff's injuries would have been avoided had the defendant avoided the wrongful conduct proved against him. The evidence in Charles showed that the truck was going too fast, but it did not show that a reasonably driven truck would have somehow gone around the cable. Hence, the proper cause-in-fact question was whether the truck's excessive speed caused the cable to bounce up and get tangled in the axle: Would the cable have been engaged had the truck been proceeding at a proper speed? The third circuit assumed no - hence it assumed the presence of cause in fact - as shall we for purposes of discussion.
69. Id. at 729-30.
70. See supra note 50 and accompanying text
71. Charles, 412 So. 2d at 731.
72. Galligan, supra note 6, at 1130.
73. Id. Galligan goes on in "[l]ess cynical[]" vein to set forth a more traditional explanation for the presence of the legal cause element But his favorite is evidently the cynical one quoted in the text above.
74. "Nouveau-realpolitik" may not be a precise description - maybe American Legal Realism Revisited, or Goodnatured Critical Legal Studies, or Nondestructive Deconstructionism would be better - but I feel the need to disagree with Professor Galligan in three languages.
75. No greatleap of imagination is entailed. Kernan v. American Dredging Co., 355 U.S. 426, 78 S. Ct. 394 (1958), held that there is no legal cause requirement in seamen's actions against their employers. But the lower courts have refused to follow Kernan - without saying they are refusing - by confining its reasoning in various ways. One recurrent argument for narrowing Kernan looks to Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 117 n.5, 83 S. Ct 659, 665 n.5 (1963): "Kernan . . . was concerned with . . . [a] statutory or regulatory duty [a Coast Guard regulation] and does not control or purport to define the content of nonstatutory or nonregulatory duties amounting to negligence. . . ." But this use of Gallick is illicit, or nearly so; the Gallick footnote addressed the breach issue-the negligence per se aspects of Kernan - and not the legal cause issue. In truth, the Supreme Court has never backed away from Kernan. The lower courts have managed to back away from it without any help from the top.
76. 346 So. 2d 289 (La. App. 4th Cir. 1977).
77. Id. at 291. The child lived with her aunt and uncle.
78. Id. at 292.
79. Id.
80. Roberts v. Benoit, 605 So. 2d 1032, 1052 (La. 1991) (on rehearing). For a fuller expression of the same thought, see Alumni Ass'n v. Sullivan, 535 A.2d 1095, 1098 (Pa. Super. Ct. 1987): "Even where [defendant was guilty of negligent conduct] and that conduct [was a] cause-in-fact of the plaintiffs harm, the law makes a determination that, at some point along the causal chain, liability will be limited. The term 'proximate cause,' or 'legal cause' is applied by courts to those considerations which limit liability, even where the fact of causation can be demonstrated. Because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point, as no longer a 'proximate' or 'legal' consequence naturally flowing from the wrongdoer's misconduct."
81. 412 So. 2d 726 (La. App. 3d Cir. 1982). See supra text accompanying note 57.
82. Overseas Tankship Ltd. v. Morts Dock & Eng'g Co. (Wagon Mound I), 1961 App. Case 388 (appeal taken from New S. Wales). "Suppose an action brought by A for damage caused by the carelessness (a neutral word) of B, for example a fire caused by the careless spillage of oil. It may, of course, become relevant to know what duty B owed to A, but the only liability that is in question is the liability for damage by fire. It is vain to isolate the liability from its context and to say that B is or is not liable and then to ask for what damage he is liable. For his liability is in respect of that damage and no other. If, as admittedly it is, B's liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened - the damage in suit?" This is tight reasoning from a false premise. When the Privy Council said that culpability "admittedly" depends "on the reasonable foreseeability of the "damage in suit," it generated the false premise. In the traditional formulation, culpability (negligence; breach) depends on the reasonable foreseeability of the array of risks shown by the evidence to have been created or exacerbated by the defendant's conduct, not just the damage in suit.
83. Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. (Wagon Mound II), [1967] 1 App. Case 617 (P.C. 1966) (appeal taken from New S. Wales).
84. Post-Wagon Mound cases like Hughes v. Lord Advocate, [1963] A.C. 837, and Smith v. Leech Brain & Co., [1962] 2 Q.B. 405, show that the English courts do not follow any such restrictive formula.
85. See cases cited in supra note 70.
86. What normal English speakers mean by "negligence" is centrally important to the law's purposes. Juries are used to decide the negligence (breach) issue because the law seeks the community's assessment of blameworthiness - in a free society we don't look to officials, bureaucrats, or experts to tell us how we should act Thus I think Professor Galligan may be on the wrong track in supposing that we use juries to determine the breach issue merely because we are "ashamed" at our inability to define negligence and consequently "pretend" that negligence determinations are "Law" in order to "save[] face." Galligan, supra note 6, at 1123. Why denigrate the community assessment of blame that is at the heart of the negligence-law system?
87. 162 N.E. 99, 102 (N.Y. 1928) (Andrews, J., dissenting): "Should we drive down Broadway at a reckless speed, we are negligent whether we strike an approaching car or miss it by an inch."
88. See Kenney v. Cox, 652 So. 2d 992, 992 (La. 1995) (Dennis, J., concurring): "[O]ur jurisprudence has not clarified the distinction between the existence of a general duty of care (a legal question) and the 'legal cause' or 'duty/risk' question of the particular duty owed in a particular factual context (a mixed question of law and fact). . . ."
89. See Freeman v. Julia Place Ltd. Partners, 663 So. 2d 515, 517 (La. App. 4th Cir. 1995), writ denied, 666 So. 2d 680 (1996) (documenting the uncertainty).
90. Section VIII infra treats a number of recent cases in which "legal cause" interrogatories were put to juries.
91. La. Code Civ. P. art. 1812(C): "In cases to recover damages for injury, death, or loss, the court at the request of any party shall submit to the jury special written questions inquiring as to: (1) Whether a party from whom damages are claimed, or the person for whom such party is legally responsible, was at fault, and, if so: (a) Whether such fault was a legal cause of the damages, and, if so: (b) The degree of such fault, expressed in percentage." Subsections (2) and (3) go on to make the same provision respecting the fault of nonparty tortfeasors and of plaintiffs. See supra note 2 and accompanying text
92. Galligan, supra note 6, at 1130-31.
93. Thomas C. Galligan, Jr., Hill v. Lundin & Associates Revisited: Duty Risked to Death? 14 (LSU Law Center 1993).
94. See supra text accompanying note 49.
95. "Interrogatories" means specific questions put to juries. See supra note 41. "Instructions" means explanations of the law provided to juries to assist them in answering the interrogatories.
96. Writing for the second circuit in Chambers v. Grabiel, 639 So. 2d 361, 366 (La. App. 2d Cir.), writ denied, 644 So. 2d 377 (1994), Judge Norris - whose work is almost always wise and good, in my experience - makes the surprising suggestion that separating the cause-in-fact and legal cause/scope-of-protection interrogatories should be avoided because it would force the jury to "probe the difficult distinction between 'cause in fact' and 'legal cause' of an accident" I do not think that is right I think it would force the trial judge and lawyers to probe that distinction, a little bit, but that it would serve to free juries of any such task. Here it seems to me Norris nodded.
97. See supra note 42.
98. In concocting my proposed interrogatories and instructions, I have borrowed freely from Johnson, supra note 42, from reported decisions, and from the Texas Pattern Jury Charges.
99. The principal hypothetical feature of our case is the use of a jury. Charles v. Lavergne, 412 So. 2d 726 (La. App. 3d Cir. 1982), itself, was a bench trial in which Judge G. Bradford Ware's exoneration of the trucker was affirmed by the third circuit (Swift and Laborde, JJ. with Domengeaux, J., dissenting).
100. The jury should get the interrogatories and instructions in writing. In criminal cases. Official Revision Comment (d) to La. Code Crim. P. art. 801 has been interpreted to preclude written instructions. State v. Strickland, 683 So. 2d 218, 226 (La. 1996). I can find no similar prohibition in La. Code Civ. P. arts. 1792-96.
101. The immediate focus of this portion of this article is how juries should determine the two causation issues. This breach interrogatory - accompanied by instructions - is necessary background.
102. I think "cause" means "cause-in-fact" to laymen. If I am right about that, then adding the words "in fact" to the interrogatory might imply that we are asking about something arcane, whereas what we are trying to do is precisely the opposite. See infra note 95.
103. In Robertson, Common Sense, supra note 15, I set forth a relatively small range of situations in which courts are justified in shifting from the but-for test of cause-in-fact to the less rigorous substantial factor test In the relatively rare situations in which that shift is justified, the cause-in-fact interrogatory would not be altered, but the accompanying instructions would change. In those situations, the instructions would state: "'Cause' means a substantial contributing factor. The law recognizes that each event and each injury has many causes. If you believe that the defendant's negligence was a substantial factor in bringing about the plaintiff's injuries, then you should answer this question yes. If you believe that the defendant's negligence played no appreciable part in bringing about or contributing to the plaintiff's injuries, then you should answer this question no."
104. See supra Section V-A and note 76.
105. See William L. Prosser, Law of Torts § 41, at 237 (4th ed. 1971): "[Cause-in-fact] is a question of fact. It is, furthermore, a fact upon which all the learning, literature and lore of the law are largely lost. It is a matter upon which any layman is quite as competent to sit in judgment as the most experienced court. For that reason, in the ordinary case, it is peculiarly a question for the jury."
106. See supra Section V-C.
107. 693 So. 2d 238 (La. App. 4th Cir. 1997).
108. Id. at 241.
109. 634 So. 2d 412, 430-31 (La. App. 4th Cir.), writ denied, 637 So. 2d 478 (1994).
110. 639 So. 2d 361 (La. App. 2d Cir. 1994), writ denied, 672 So. 2d 907 (1996).
111. 615 So. 2d 1375 (La. App. 2d Cir. 1993).
112. See Bannerman v. Bishop, 688 So. 2d 570, 572 (La. App. 2d Cir. 1996), writ denied, 685 So. 2d 146 (1997) (quoting interrogatories asking the jury (a) whether the defendant was "guilty of any fault or negligence" and (b) whether "the negligence or fault of [defendant was] a proximate cause" of the injuries in the suit); Johnson v. Terrebonne Parish Sheriff's Office, 669 So. 2d 577, 581 (La. App. 1st Cir.), writ denied, 672 So. 2d 907 (1996); Norris v. Guthrie, 641 So. 2d 978, 979 (La. App. 5th Cir.), writ denied, 646 So. 2d 382 (1994); Rabito v. Otis Elevator Co., 633 So. 2d 368, 371 n.1 (La. App. 4th Cir.), writ granted and case remanded, 638 So. 2d 1075 (1994); Magee v. Coats, 598 So. 2d 531, 535 (La. App. 1st Cir. 1992).
113. Chambers, 639 So. 2d at 368.
114. See Weaver, 615 So. 2d at 1378: "[T]he jury's answers to interrogatories . . . first declared that the defendant power company, VEMCO, was negligent, but secondly and on the other hand, that VEMCO's negligence was not a 'legal cause' of the accident." Id. at 1379: "Negligence, by definition, is conduct which breaches a legal duty owed by a defendant to a plaintiff and causes in fact injury to plaintiff." (emphasis in original; citation omitted). Id. at 1382: "Here we have no difficulty with the factual inquiry and conclusion of the jury [that] VEMCO's [conduct] was a cause-in-fact of the harm that befell Weaver." (emphasis in original).
115. 688 So. 2d 570, 572 (La. App. 2d Cir. 1996), writ denied, 685 So. 2d 146 (1997).
116. Bannerman, 688 So. 2d at 579.
117. Id. at 580.
118. Judges Sexton and Hightower dissented on rehearing, believing the jury's cause-in-fact resolution to be adequately supported by the record.
119. On how to separate cause in fact from legal cause, I note a number of cases staring: "The cause in fact test requires that but for the defendant's conduct, the injuries would not have been sustained. The legal causation test requires that there be a substantial relationship between the conduct complained of and the harm incurred." Fowler v. State Farm Fire & Cas. Ins. Co., 485 So. 2d 168, 170 (La. App. 2d Cir.), writ denied, 487 So. 2d 441 (1986) (citing Sinitiere v. Lavergne, 391 So. 2d 821 (La. 1980)); Mack v. City of Monroe, 595 So. 2d 353, 355-56 (La. App. 2d Cir.), writ denied, 599 So. 2d 314 (1992) (quoting Nichols v. Nichols, 556 So. 2d 876, 879 (La. App. 2d Cir.), writ not considered, 561 So. 2d 92 (La. 1990)). This use of the but-for test for cause in fact and a "substantial relationship" test for legal cause nicely captures the distinction between the two elements, and does so in an economical and evocative way. My only concern is that the term "substantial" is busy doing other work - in the "substantial factor" test for cause in fact, an alternative to the but-for test that is appropriate in a limited but recurrent range of situations - and any time we try to use the same term for different purposes, we end up confusing ourselves sooner or later. See generally Robertson, Common Sense, supra note 15.
120. See supra text accompanying note 64.
121. Daigrepont v. State Racing Comm'n, 688 So. 2d 1290, 1290 (La. App. 4th Cir. 1997).
122. Id. at 1293.
123. Cause-in-fact considerations don't explain it. If the stewards had removed Vilchis, the replacement jockey would not have ridden the race the same way Vilchis did, and the odds are that the particular encounter that hurt Daigrepont would not have come about.
124. Norris v. Guthrie, 641 So. 2d 978, 978 (La. App. 5th Cir.), writ denied, 646 So. 2d 381 (1994).
125. Id. at 981.
126. It is unclear whether Norris has an alternative cause-in-fact justification. We don't know what the 17-year-old would have done if he had been sober when he rode past and saw the plaintiff with his old girlfriend.
127. See supra notes 72-77 and accompanying text.
128. 637 So. 2d 1177, 1181 (La. App. 4th Cir. 1994).
129. Id. at 1183.
130. Id. at 1184.
131. The two prevalent "modified" versions cut the plaintiff off at 50% (see. e.g., Ark. Code Ann. § 16-64-122 (Michie Supp. 1995)) or at 51% (see. e.g., Mont. Rev. Code Ann. § 27-1-702 (Smith 1995)). But there is nothing magic about those numbers.
132. Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1136 (La. 1988). See also Justice v. CSX Transp., Inc., 908 F.2d 119, 124 (7th Cir. 1990) (labeling a defensive argument "a transparent effort to circumvent Indiana's comparative negligence statute by relabeling negligence as proximate cause"). 123. See H. Alston Johnson, Comparative Negligence and the Duty/Risk Analysis, 40 La. L. Rev. 319 (1980); and Robertson, Ruminations, supra note 15. In Maraist and Galligan, supra note 1, at 374-76, Maraist and Galligan summarize the Johnson-Robertson debate and report that the courts have not definitively resolved it.
133. In its pre-1996 version, Louisiana Civil Code article 2323 began with the phrase "[w]hen contributory negligence is applicable," allowing Johnson to argue for judicial flexibility in treating victim fault See Maraist and Galligan, supra note 1, at 374. That phrase is now gone. Article 2323 by its terms now covers "any action for damages where a person suffers injury, death, or loss."
134. Weaver v. Ward, 615 So. 2d 1375 (La. App. 2d Cir. 1993) and Ventress v. Union Pacific R.R. Co., 666 So. 2d 1210 (La. App. 4th Cir. 1995).
135. 615 So. 2d 1375, 1384 (La. App. 2d Cir. 1993) (emphasis in original).
136. Ventress v. Union Pacific R.R. Co., 666 So. 2d 1210, 1214 (La. App. 4th Cir. 1995), mod. on other grounds, 672 So. 2d 668 (1996) (quoting the trial judge's reasons for granting JNOV).
137. Ventress, 666 So. 2d at 1214.
138. Id. at 1215.
139. In addition to the Freeman and Fowler cases discussed in the text, see Mack v. City of Monroe, 595 So. 2d 353, 357-58 (La. App. 2d Cir.), writ denied, 599 So. 2d 314 (1992) (holding that the city's lack of alacrity in arresting the plaintiff's violent ex-boyfriend was not a legal cause of injuries that the court felt she had brought upon herself by not avoiding him more assiduously). Cases like Mallery v. International Harvester Co., 690 So. 2d 765, 768 (La. App. 3d Cir. 1996) (holding that a "sophisticated user" of a product is not entitled to a warning of defects of which he should be aware), may be instances of the success of the Johnson heresy but are also possibly explained as no-breach cases. The no-breach explanation would be roughly as follows: Products like the one at stake in Mallery threaten only sophisticated users. Respecting the B side of the B PL; we don't want manufacturers to incur the cost of such limited-utility warnings.
140. 663 So. 2d 515, 517 (La. App. 4th Cir. 1995), writ denied, 616 So. 2d 680 (1996).
141. A red flag goes up in my mind whenever I see the phrase "the cause." On both the cause-in-fact and legal cause fronts, the plaintiff satisfies his burden by showing that the defendant's negligent conduct was a cause. The "the cause" locution almost always encodes unstated reasons for denying recovery; I would prefer to see the reasons spelled out
142. Freeman, 663 So. 2d at 519.
143. 485 So. 2d 168, 169 (La. App. 2d Cir.), writ denied, 487 So. 2d 441 (1986).
144. See supra note 132.
145. Fowler, 485 So. 2d at 170.
146. La. R.S. 9:2800.56 (1991).
147. 689 So. 2d 554, 560 (La. App. 3d Cir. 1997).
148. Id.
149. Wilson v. Hobart Corp., No. 95-2279, 1996 WL 117502, at * 3 (E.D. La. March 15, 1996) (quoting John Kennedy, A Primer on the Louisiana Products Liability Act, 49 La. L. Rev. 565, 597 (1989)).