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"Causation in Tort Law: A Comment on Kelman," 25 Chi. Kent L. Rev. 639 (1987)


Two theories of tort liability influence modern tort law. The corrective justice theory ("CJT") holds that it is actionable to cause harm to another wrongfully; a victim so injured can recover his losses from the injurer. The efficiency theory ("ET") holds that the risk of accidents should be imposed to minimize the sum of accident and accident avoidance costs. This theory implies that a victim can shift his losses to another only if such a shift would increase welfare. Both theories of tort require causal determinations. A court applying the CJT must make two kinds of causal determinations: (1) ascertaining the relation between antecedent actions, inactions, or states of affairs and the particular event at issue; and (2) attributing to one or more of the candidate causal factors the appellation "the cause." As examples of the former, factual inquiry: did the bullet that defendant fired injure the victim? Did the smoke emitted from defendant's plant contribute to the cancer the victim suffered? To understand the latter attribution inquiry, one should realize that events are products of sets of jointly sufficient antecedent conditions. Suppose, as an illustration, that a house burned down because a defective television emitted sparks that ignited a nearby flammable curtain, and the house lacked a smoke detector or sprinkler system. The set of jointly sufficient conditions that produced the event "house burned down" included the television, the curtain, and the homeowner's failure to take precautionary actions. If the owner sues the television manufacturer, the question for a court attempting to apply the CJT is whether the untoward event was caused by the selling of the defective set or the presence of the curtain, etc.; the court must attribute the event at issue to "a cause." This inquiry is necessary because the CJT holds liable only persons who have wrongfully caused harm. The ET collapses the attribution inquiry into the factual inquiry because the pursuit of efficiency requires liability to be assigned so as to minimize accident costs; hence, the ET would impose the risk of loss in the burning house illustration on the manufacturer, homeowner, or both, depending on such factors as each candidate actor's ability to take precautions and his access to information. There is no need, within efficiency theory, to make a singular causal attribution.

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