Remote cause is a cause that is remote in efficiency in

reference to injury or cause of loss as to be dismissed

from consideration by the court. It is a speculative
rather than a direct cause of injury, consequently no
basis for the recovery of damages.
The following is an example of a case law on remote
cause:
The legal distinction between what is proximate and
what is remote is not a logical one. A remote cause is
simply one which because of its having ceased to be
actively efficient, or never having become actively
efficient, in the result, is neglected by the court. No
general test of remoteness exists. [Mahoney v.
Beatman, 110 Conn. 184, 192 (Conn. 1929)].

Concurrent causes. Where two separate acts of

negligence combine to cause an injury to a third party, each
actor is liable. For example, aconstruction
worker negligently leaves the cover off a manhole, and a
careless driver negligently clips a pedestrian, forcing the
pedestrian to fall into the open manhole. Both the
construction worker and the careless driver are equally
liable for the injury to the pedestrian. This example obeys
the but for test. The injury could have been avoided by the
elimination of either act of negligence, thus each is a but
for cause of the injury.

Intervening cause[edit]

the Eggshell skull rule is used. For details, see the

article on the Eggshell Skull doctrine.

Proximate Cause
An act from which an injury results as a natural, direct,
uninterrupted consequence and without which the injury would
not have occurred.
Proximate cause is the primary cause of an injury. It is not
necessarily the closest cause in time or space nor the first event
that sets in motion a sequence of events leading to an injury.
Proximate cause produces particular, foreseeable
consequences without the intervention of any independent or
unforeseeable cause. It is also known as legal cause.
To help determine the proximate cause of an injury
in Negligence or other TORT cases, courts have devised the "but
for" or "sine qua non" rule, which considers whether the injury
would not have occurred but for the defendant's negligent act. A
finding that an injury would not have occurred but for a
defendant's act establishes that the particular act or omission is
the proximate cause of the harm, but it does not necessarily
establish liability since a variety of other factors can come into
play in tort actions.
Some jurisdictions apply the "substantial factor" formula to
determine proximate cause. This rule considers whether the
defendant's conduct was a substantial factor in producing the
harm. If the act was a substantial factor in bringing about the
damage, then the defendant will be held liable unless she can
raise a sufficient defense to rebut the claims.
but for rule
n. one of several tests to determine if a defendant is responsible

Imagine the following. A critically injures B. As B is

for a particular happening. In this test, was there any other

wheeled to an ambulance, she is struck by lightning.

cause, or would it have occurred "but for" the defendant's

She would not have been struck if she had not been
injured in the first place. Clearly then, A caused B's
whole injury on the but for or NESS test. However, at

actions? Example: "But for" defendant Drivewild's speeding, the

car would not have gone out of control, and therefore the
defendant is responsible. This is shorthand for whether the
action was the "proximate cause" of the damage.

law, the intervention of a supervening event renders

the defendant not liable for the injury caused by the

remote

lightning. The effect of the principle may be stated

cause noun auxiliary cause, distant basis, distant cause, distant

simply: if the new event, whether through human

reason, far cause, far-off cause, farremoved cause, immaterial c

agency or natural causes, does not break the chain,

ause, indirectcause, insuffiiient legal basis, insufficient legal cau

the original actor is liable for all the consequences

se, insufficient legal factor,insufficient legal genesis, insufficient l

flowing naturally from the initial circumstances. But if

egal induceeent, insufficient legal source, noimediate legal caus

the new act breaks the chain, the liability of the initial

e, nonimmediate legal basis, not immediate cause, notimmeeiat

actor stops at that point, and the new actor, if human,

e legal genesis, removed cause

will be liable for all that flows from his or her

contribution. Note, however, that this does not apply if

Substantial Factor
A substantial factor in causing harm is a factor that a reasonable
person would consider to have contributed to the harm. It must
be more than a remote or trivial factor. It does not have to be the
only cause of the harm.
[Conduct is not a substantial factor in causing harm if the same
harm would have occurred without that conduct.]
New September 2003; Revised October 2004, June 2005,
December 2005, December 2007
Directions for Use
As phrased, this definition of substantial factor subsumes the
but for test of causation, that is, but for the defendants

Cal.Rptr.2d 629, 70 P.3d 1046]; Barton v. Owen (1977) 71

Cal.App.3d 484, 503504 [139 Cal.Rptr. 494]; see Rest.2d
Torts, 432(2).) Accordingly, do not include the last sentence in
a case involving concurrent independent causes.
In cases of multiple (concurrent dependent) causes, CACI No.
431, Causation: Multiple Causes, should also be given.
In asbestos-related cancer cases, Rutherford v. Owens-Illinois,
Inc. (1997) 16 Cal.4th 953, 977 [67 Cal.Rptr.2d 16, 941 P.2d
1203] requires a different instruction regarding exposure to a
particular product. Give CACI No. 435, Causation for AsbestosRelated Cancer Claims, and do not give this instruction.
Sources and Authority

The test for joint tort liability is set forth in section 431

conduct, the plaintiffs harm would not have occurred. (Mitchell

of the Restatement of Torts 2d, which provides: The

v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal.Rptr.2d 913,

actors negligent conduct is a legal cause of harm to

819 P.2d 872]; see Rest.2d Torts, 431.) The optional last

another if (a) his conduct is a substantial factor in

sentence makes this explicit, and in some cases it may be error

bringing about the harm, and, (b) there is no rule of law

not to give this sentence. (See Soule v. GM Corp. (1994) 8

relieving the actor from liability because of the manner

Cal.4th 548, 572573 [34 Cal.Rptr.2d 607, 882 P.2d 298];

in which his negligence has resulted in the harm.

Rest.2d Torts, 432(1).)

Section 431 correctly states California law as to the

issue of causation in tort cases. (Wilson v. Blue Cross

Conduct, in this context, refers to the culpable acts or

of So. Cal. (1990) 222 Cal.App.3d 660, 671672 [271

omissions on which a claim of legal fault is based, e.g.,

Cal.Rptr. 876].)

negligence, product defect, breach of contract, or dangerous

condition of public property. This is in contrast to an event that is
not a culpable act but that happens to occur in the chain of
causation, e.g., that the plaintiffs alarm clock failed to go off,
causing her to be at the location of the accident at a time when
she otherwise would not have been there. The reference to
conduct may be changed as appropriate to the facts of the
case.

California has definitively adopted the substantial

factor test of the Restatement Second of Torts for
cause-in-fact determinations. Under that standard, a
cause in fact is something that is a substantial factor in
bringing about the injury. The substantial factor
standard generally produces the same results as does
the but for rule of causation which states that a
defendants conduct is a cause of the injury if the injury

The but for test of the last optional sentence does not apply to

would not have occurred but for that conduct. The

concurrent independent causes, which are multiple forces

substantial factor standard, however, has been

operating at the same time and independently, each of which

embraced as a clearer rule of causationone which

would have been sufficient by itself to bring about the same

subsumes the but for test while reaching beyond it to

harm. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240 [135

satisfactorily address other situations, such as those

involving independent or concurrent causes in fact.

even if the actor had not been negligent. . . .

(Rutherford, supra, 16 Cal.4th at pp. 968969, internal

Subsection (2) states that if two forces are actively

citations omitted.)

operating . . . and each of itself is sufficient to bring

about harm to another, the actors negligence may be

The term substantial factor has not been judicially

found to be a substantial factor in bringing it about.

defined with specificity, and indeed it has been

(Viner, supra, 30 Cal. 4th at p. 1240, original italics.)

observed that it is neither possible nor desirable to

reduce it to any lower terms. This court has suggested

that a force which plays only an infinitesimal or

substantial factor in producing the injury. If the external

theoretical part in bringing about injury, damage, or

force of a vehicle accident was so severe that it would

loss is not a substantial factor. Undue emphasis should

have caused identical injuries notwithstanding an

not be placed on the term substantial. For example,

abstract defect in the vehicles collision safety, the

the substantial factor standard, formulated to aid

defect cannot be considered a substantial factor in

plaintiffs as a broader rule of causality than the but for

bringing them about. [] The general causation

test, has been invoked by defendants whose conduct is

instruction given by the trial court correctly advised that

clearly a but for cause of plaintiffs injury but is

plaintiff could not recover for a design defect unless it

nevertheless urged as an insubstantial contribution to

was a substantial factor in producing plaintiffs

the injury. Misused in this way, the substantial factor

enhanced injuries. However, this instruction dealt only

test undermines the principles of comparative

by negative implication with [defendant]s theory that

negligence, under which a party is responsible for his

any such defect was not a substantial factor in this

or her share of negligence and the harm caused

case because this particular accident would have

thereby. (Rutherford, supra, 16 Cal.4th at pp. 968

broken plaintiffs ankles in any event. As we have seen,

969, internal citations omitted.)

[defendant] presented substantial evidence to that

effect. [Defendant] was therefore entitled to its special

The substantial factor standard is a relatively broad

instruction, and the trial courts refusal to give it was

one, requiring only that the contribution of the individual

error. (Soule, supra, 8 Cal.4th at p. 572573, original

cause be more than negligible or theoretical. Thus, a

italics, footnote and internal citations omitted.)

force which plays only an infinitesimal or theoretical

part in bringing about injury, damage, or loss is not a

A tort is a legal cause of injury only when it is a

The first element of legal cause is cause in fact The

substantial factor, but a very minor force that does

but for rule has traditionally been applied to determine

cause harm is a substantial factor. This rule honors the

cause in fact. The Restatement formula uses the

principle of comparative fault. (Bockrath v. Aldrich

term substantial factorto denote the fact that the

Chemical Co. (1999) 21 Cal.4th 71, 79 [86 Cal.Rptr.2d

defendants conduct has such an effect in producing

846, 980 P.2d 398], internal citations omitted.)

the harm as to lead reasonable men to regard it as a

cause. (Mayes v. Bryan (2006) 139 Cal.App.4th 1075,

The text of Restatement Torts second section 432

1095 [44 Cal.Rptr.3d 14], internal citations omitted.)

demonstrates how the substantial factor test

subsumes the traditional but for test of causation.

Whether a defendants conduct actually caused an

Subsection (1) of section 432 provides: Except as

injury is a question of fact . . . that is ordinarily for the

stated in Subsection (2), the actors negligent

jury [C]ausation in fact is ultimately a matter of

conduct is not a substantial factor in bringing about

probability and common sense: [A plaintiff] is not

harm to another if the harm would have been sustained

required to eliminate entirely all possibility that the

defendants conduct was not a cause. It is enough that

he introduces evidence from which reasonable
[persons] may conclude that it is more probable that
the event was caused by the defendant than that it was
not. The fact of causation is incapable of mathematical
proof, since no [person] can say with absolute certainty

Torts Rules of Law

The following contains the Rules of Law you'll need for the Torts
Practice Exam. These rules are presented in outline form only for
purposes of the practice exam.
NOTE: Some rules are stated with elements that must be proven. Other
rules are just stated without being broken into elements. In the latter
case, you should figure out what the elements of the crime are yourself
and incorporate that into your answer.

what would have occurred if the defendant had acted

otherwise. If, as a matter of ordinary experience, a

Negligence

particular act or omission might be expected to

Duty
Breach
Causation
Damages
Defenses to Negligence

produce a particular result, and if that result has in fact

followed, the conclusion may be justified that the
causal relation exists. In drawing that conclusion, the
triers of fact are permitted to draw upon ordinary
human experience as to the probabilities of the case.
. . . A mere possibility of . . . causation is not
enough; and when the matter remains one of pure

Negligence
The prima facie case for negligence requires:

speculation or conjecture, or the probabilities are at

best evenly balanced, it becomes the duty of the court
to direct a verdict for the defendant. (Raven H. v.
Gamette (2007) 157 Cal.App.4th 1017, 10291030

Duty is owed to the plaintiff by the defendant

Breach of the Duty
Causation: The defendant caused the harm to occur.
Damages: The plaintiff suffers harm.

[68 Cal.Rptr.3d 897], internal citations omitted.)

[E]vidence of causation must rise to the level of a

reasonable probability based upon competent
testimony. [Citations.] A possible cause only becomes
probable when, in the absence of other reasonable
causal explanations, it becomes more likely than not

Duty
In order to hold a defendant liable for negligence, the defendant must
owe a duty of reasonable care to the plaintiff. Two issues arise in terms
of duty of reasonable care:
1.

Foreseeability

2.

Standard of Care

that the injury was a result of its action. [Citation.] The

defendants conduct is not the cause in fact of harm
where the evidence indicates that there is less than a
probability, i.e., a 5050 possibility or a mere chance,
that the harm would have ensued. (Bowman v.
Wyatt (2010) 186 Cal.App.4th 286, 312 [111
Cal.Rptr.3d 787].)

However the test is phrased, causation in fact is

ultimately a matter of probability and common sense.
(Osborn v. Irwin Memorial Blood Bank (1992) 5
Cal.App.4th 234, 253 [7 Cal.Rptr.2d 101], relying on
Rest.2d Torts, 433B, com. b.)

Foreseeability
The duty of care must be toward a foreseeable plaintiff.
Test for foreseeability: A plaintiff is foreseeable if he was in the zone
of danger created by the defendant.
Standard of Care
The Standard of care that the defendant must exercise towards the
plaintiff is that of a reasonable, ordinary and prudent person in the
same or similar circumstances.
Factors to consider that may or may not modify the circumstances
include:
Physical characteristics
A person who has great physical strength will be judged according to

an ordinary person of great physical strength. Likewise, a weak person

will be judged according to a standard of what an ordinary weak
person would do.
Average Mental Ability
Everyone is judged as being of average mental ability and no
accommodation is made for being extraordinarily intelligent.
Same knowledge as an average member of community
Presumed to have common knowledge about known dangers in the
community.
Professionals
Professionals are judged according to other professionals in same
community.
Children
Children are judged according to children of same age, education,
intelligence and experience.

Breach of the Duty

In order to be held liable for negligence the action by plaintiff must
fall below standard of care.
The primary issue is where to draw the line as to the standard of care.
Factors to consider in drawing the line are:
1.

Custom in the community

2.

Violation of statute (negligence per se)

Violating a statute creates a rebuttable presumption of
negligence. Defendant is presumed to be liable for
negligence if he breaks a law and cause harm to the plaintiff
but he can rebut that presumption by showing that there was
a custom to break the law.

3.

Res Ipsa Loquitur

Latin for "The thing speaks for itself." This doctrine draws
an inference of liability because the thing that caused the
accident was in the exclusive control of the defendant. In
other words, it couldn't be anyone but the defendant who
caused the harm.

Causation
The defendant caused the harm to occur. There are two types of
causation:
1.

Actual Causation

2.

and Proximate Causation.

Actual Causation: Did the defendant actually cause the harm to occur?
There are two different tests you can use.
"But for" Test: Ask yourself the question: "But for the defendant's
actions, would the plaintiff's harm have occurred?"
Substantial Factor Test: If several causes could have caused the harm,
then any cause that was a substantial factor is held to be liable.
Proximate Causation: This sometimes difficult to grasp concept is
actually very simple on most exams. Be sure to check with your
professor but if in doubt, use the following generally accepted test:
Foreseeability Test: If harm is unforeseeable, then defendant is not
held liable by reason that there is no proximate causation.
Famous Proximate Cause Case: Palsgraf v. Long Island RR. Judge
Cardoza. Railroad guard pushes man who drops package. Package
contains hidden fireworks that explode and cause scales to fall
harming plaintiff. Illustrates that harm was not foreseeable by guard as
to plaintiff so no proximate cause.

Damages
The plaintiff must suffer some harm. Two issues arise:
1.

Was there actual harm?

2.

Did plaintiff attempt to mitigate the harm?

Actual harm or injury: Can be shown by the following:

1.

Personal Injury

2.

Property Damage
Plaintiff gets Cost of repair OR fair market value

3.

Punitive Damages
Extra damages beyond actual damage is available if the
defendant's behavior was wanton and willful, reckless or
malicious

Duty to mitigate: Plaintiff must not act in a manner that makes

damages worse - i.e. not going to the doctor to get well. Defendant is
not liable for damages where plaintiff did not mitigate.

Defenses to Negligence
Even if a defendant is found liable for negligence, he can argue to be
relieved of or share liability because of a valid defense. Defenses
include:

Contributory Negligence
In these circumstance, the plaintiff contributed to the negligent act.
The defendant must prove the plaintiff was negligent using the
negligence test above.
Under common law, if both parties are negligent, then the one with
the last clear chance to prevent the accident is liable; otherwise both
plaintiff and defendant share liability.
Assumption of Risk
If plaintiff knew the risk and voluntarily assumed the risk by engaging
in the behavior then the plaintiff will be denied recovery.
Emergency Doctrine
Allows defendant to lower standard of care because an emergency
required them to act rashly in order to avoid a greater harm from
occurring.

Proximate cause is defined as any cause that produces

injury in a natural and continuous sequence, unbroken
by any efficient intervening cause, such that the result
would not have occurred
otherwise. Proximate cause is determined from the facts
of each case, upon a combined consideration of logic,
common sense, policy, and precedent.
CONTRIBUTORY NEGLIGENCE
The underlying precept on contributory negligence is
that a plaintiff who is partly responsible for his own
injury should not be entitled to recover damages in full
but must bear the consequences of his own negligence.
If indeed there was contributory negligence on the part
of the victim, then it is proper to reduce the award for
damages.
Contributory negligence is a mitigating factor in
awarding damages.
FORTUITOUS EVENT

Custom
Custom can be used to show that behavior was in line with the
behavior of everyone else, thus resulting in no breach. E.g. Everyone
drives at 50 MPH on that particular stretch of the highway even though
it is posted at 30 MPH.
The doctrine of proximate cause is applicable only
in actions for QD, not in actions involving breach
of contract. The doctrine is a device for imputing
liability to a person where there is no relation between
him and another party. In such a case, the obligation is
created by law itself. But where there is a pre-existing
contractual relation between the parties, it is the parties
themselves who create the obligation, and the function
of the law is merely to regulate the relation thus
created.
NOTES:
Definition #1 of proximate cause according to
Bataclan v. Medina:
Proximate cause is that cause which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without
which the result would not
have occurred.
Definition #2 of proximate cause according to
Bataclan vs. Medina:
More comprehensively, the proximate legal cause is
that acting first and producing the injury either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of events,
each having a close causal connection with its
immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and
probable result of the cause which first acted, under
such circumstances that the person responsible for the
first event should, as an ordinarily prudent and
intelligent person, have reasonable ground to expect at
the moment of his act or default that an in jury to some
person might probably result therefrom.
SIR: being burned is not part of the foreseeable
consequences of riding a bus

CHARACTERISTICS OF CASO FORTUITO:

1. Cause of the unforeseen and unexpected occurrence,
or of the failure of the debtor to comply with his
obligation must be independent of human will.
2. It must be impossible to foresee the event which
constitutes the caso fortuito, or if it can be foreseen, it is
impossible to avoid.
3. The occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a
normal manner
4. Obligor must be free from participation in the
aggravation of the injury resulting to the creditor.
CASO FORTUITO event which takes place by
accident and could not have been reasonably
foreseen, it is an unexpected event or act of God
which could neither be foreseen nor resisted.
2 GENERAL CAUSES:
1. By nature- earthquakes, storms, floods, etc.
2. By the act of man- armed invasion, attack by bandits,
governmental prohibition, etc.
ASSUMPTION OF RISK
Art. 1174, NCC
Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when
the nature of the obligation requires the
assumption of risk, no person shall be responsible for
those events which could not be foreseen, or which,
though foreseen, were inevitable.
NOTES:
Exemption to Violenti Non Fit Injuria: A person is
excused from the force of the assumption of risk rule,
that when he voluntarily assents to a known danger he
must abide by the consequences:
o if an emergency is found to exist
o if the life or property of another is in peril
o when he seeks to rescue his endangered
property.
To which a person ascends to be injured, he
cannot recover damages
VIOLENTI NON FIT INJURIA: applies to noncontractual relations;
3 requisites:
(1) plaintiff had actual knowledge of the damage;

(2) he understood an appreciated the risk from danger;

(3) he voluntarily exposed himself to such risk.
3. Efficient Intervening cause
NOTES:
The efficient intervening cause destroys the link
between the negligent act and injury. It should occur
after the purported proximate cause because it would
then be a condition.
Negligence of the defendant if pre-empted by the
negligence of the plaintiff.

The efficient intervening cause is actually a

proximate cause.
Although there is still lack of a definite ruling by the
Court, any violation of administrative ordinances and
the like would either be seen as 1) negligence per se or
2) prima facie evidence of negligence.
It is not an efficient intervening cause when it is
already in existence during the happening of the
proximate cause.