Anat Lior, ‘The “Accident Network”: A Network Theory Analysis of Proximate Causation’

ABSTRACT
In torts, proximate causation, or legal cause, examines whether a harmful negligent conduct is ‘closely enough related’ to the damages ensued. Tort professors often use the metaphor of a stone being thrown into a pond to explain this rather amorphous legal doctrine. The ripples the stone creates surrounding it are the direct result of the act of it being thrown. The stone tossed into the pond, ie, a negligent act, created an effect which perpetuated via ripples to a long distance, forever changing the entire pond, ie, causing close and far damages. Can all of those affected by the negligent act be compensated? Should they? It is up to proximate causation to determine if a ripple is too remote from the thrown stone to be viewed as its ‘direct’ or ‘foreseeable’ result. However, this does not provide the legal system with a lot of guidance. This is where network theory can be helpful.

Network theory holds great value when it comes to analyzing ‘accident networks’ and the proximate nexus between the negligent conduct and the damages ensued. Network theory enables different stakeholders, such as regulators, judges, insurers and policy-makers, to visualize multifaceted legal scenarios in a manner that can assists them to better understand and evaluate the connections (edges) between the different entities (nodes) and their reciprocal relationships. In our case, the existing of a legal nexus between the negligent conduct and the harms that followed.

This Article offers to use network theory to enable the legal system to better justify and explain the results of their proximate causation tests via tangible measurements. Integrating network theory into the evaluation of proximate causation will ensure different stakeholders will better understand and internalize the value and importance of this important doctrine. It will provide a stronger basis for deciding certain damages cannot be traced back to a negligent act as a matter of policy or fact. The core purpose of the proximate causation doctrine is to provide a ‘normative strainer’ to prevent each and every one of us from being constantly liable for actions that perpetuated remotely from us. This Article aims to develop a network theory framework to better evaluate and implement this seminal doctrine.

Lior, Anat, The ‘Accident Network’: A Network Theory Analysis of Proximate Causation (February 1, 2022). 106 Marquette Law Review (forthcoming 2023).

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