Private Law Theory

ABSTRACT
In part 1 of this article, published in the CTLA Forum Winter 2025 at pages 18-22, 40-45, I discuss the substantial confusion regarding the required elements for tort liability caused by the Connecticut courts’ and the first and second Restatements’ lumping together the actual causation and scope of liability elements under the question-begging and misleading phrases ‘substantial factor’, ‘legal cause’ and ‘proximate cause’. I discuss the initial rejection by the Connecticut courts of the foreseeable consequences (‘harm matches the risk’ = ‘harm risked’) limitation on the scope of liability as being unstable, unjust and inconsistent with the cases and their implicit adoption, instead, of the normatively more attractive and descriptively more comprehensive ‘harm results from the risk’ (‘risk playout’) limitation. I discuss the first and second Restatements’ adoption of the harm-risked limitation as a limitation on duty and their attempt to make it more consistent with the cases by excluding significant aspects of the foreseeable risks, making several significant exceptions, and employing explanations that gut the limitation by using hindsight rather than foresight. I note that many of the comments in the first and second Restatements employ risk playout language rather than harm-risked language, without apparently being aware of the significant difference between these two formulations.

I also discuss the Restatement Third’s correction of many of the defects in the first and second Restatements. It abandons use of the ‘substantial factor’, ‘proximate cause’ and ‘legal cause’ terminology and instead clearly distinguishes the ‘factual causation’ issue from the ‘scope of liability’ issue. It adopts (except for the deficient blackletter in section 27) the proper NESS analysis as the comprehensive test of factual causation. It adopts Andrews’ position in Palsgraf that a duty is owed to everyone to exercise reasonable care when engaging in conduct that creates foreseeable risks to others, subject to categorical principle-or-policy-based limits in specific types of situations. It adopts the risk-playout limitation on the scope of liability in place of the previously adopted harm-risked limitation on duty, although it also does not seem to recognize the significant difference between the two limitations. It properly recognizes, as distinct limitations on the scope of liability, the ‘no worse off’ and ‘trivial contribution’ limitations.

In part 2, forthcoming in the Spring 2025 CTLA Forum, I discuss the arguments in all three Restatements, which are implemented in the Third Restatement, that the superseding cause limitation can and should be absorbed and replaced by the harm-risked limitation, despite the courts’ continued regular use of the former limitation and the Third Restatement’s having replaced the latter limitation with the risk playout limitation. The Restatements fail to note the significant differences in the proper formulation and application of each limitation. The Restatement Third argues that the primary/sole rationale for the superseding cause limitation was mitigation of the inequitable allocation of liability among multiple responsible parties, which supposedly is no longer a concern given the modern practice of using comparative responsibility principles to allocate liability between plaintiffs and defendants and among defendants. Both parts of this argument are defective. First, the superseding cause limitation has never been based on a concern about inequitable apportionment of liability among multiple responsible parties in the absence of modern apportionment rules, but rather a concern that a defendant should not be deemed responsible at all for a harm that occurred only because of some highly unexpected or extraordinary conduct or event for which it would not be just to hold her responsible. Second, elimination of the superseding cause limitation would not change existing apportionment rules, none of which provide for comprehensive pure comparative responsibility and most of which would continue, in the absence of the superseding cause limitation, to impose substantial and even full legal responsibility on an actor for a harm that would not have occurred if not for the intervention of some highly unexpected or extraordinary conduct or event for which he should not justly be held responsible.

Wright, Richard W, Causation and Legal Responsibility (February 9, 2025).