Also known as: factual causes · factually caused · factual causation · cause in fact · but-for cause · but for causation
Written by attorneys — see sources below.
A causal connection between tortious conduct and harm that exists when the harm would not have occurred absent the conduct. The connection is established under the but-for test and remains an element of liability even when multiple acts contribute to the outcome or when proof of which act produced the harm is impossible.
Forrest Falconer and Finn Fletcher both fired shotguns toward Farah Fox during a hunting trip. One pellet struck Fox and caused permanent injury, but ballistics could not identify which gun fired the pellet. Because both men were negligent and only one caused the harm, the court shifted the burden to each defendant to prove his shot was not the factual cause of the injury.
Francisco Frost carried a short-barreled shotgun across state lines. The government charged him with violating the National Firearms Act. The court examined whether Frost's possession of the weapon was a factual cause of the prohibited interstate movement that the statute targeted.
In 1995 Samuel Mullet purchased land in Jefferson County, Ohio. That land became the Bergholz Amish community in 2001 when a sufficient number of ordained ministers qualified it as a separate Amish church district. The new community appointed Mullet as its bishop. As bishop, Mullet controlled all aspects of life in the Bergholz compound and had the ability to order the shunning of community members who failed to follow the tenets of their Amish faith. In 2006 Mullet excommunicated several church members who questioned Bergholz community practices and his leadership. Included in the group were Lavern and Mattie Troyer, whose son Aden was married to Mullet's daughter Wilma, as well as Melvin and Anna Shrock, whose son Emanuel was married to Mullet's daughter Linda. The excommunications led to family divisions, including a divorce and a custody dispute. Amish bishops from across the country met and voted unanimously to reverse the excommunications. From September 6 to November 9, 2011, several Bergholz community members committed five separate attacks on nine different individuals connected to the community by family or religious ties. The assailants sliced off the men's beards and cut the women's hair. The victims were seen as Amish hypocrites by the assailants. A federal grand jury indicted sixteen members of the Bergholz community for violating and conspiring to violate the Hate Crimes Prevention Act, as well as other charges. At trial, the government presented evidence that the assaults were motivated by the victims' religion, while the defendants presented evidence of personal and family disputes as alternative motives. The jury convicted all sixteen defendants of at least one hate-crime violation. The district court instructed the jury that the victims' religion need only be a significant motivating factor even if other reasons existed. The defendants twice requested a but-for causation instruction, which the court rejected. The defendants appealed their convictions to the United States Court of Appeals for the Sixth Circuit.
View caseA police officer stopped Farid Farahani without reasonable suspicion. During the stop the officer discovered an outstanding warrant and found drugs. The court analyzed whether the illegal stop was a factual cause of the evidence discovery or whether the warrant broke the causal chain.
In December 2006, an anonymous tipster contacted the South Salt Lake City police department's drug-tip line to report narcotics activity at a particular residence, specifying that the activity involved a white male and providing a physical description of the man and his car. Detective Douglas Fackrell was assigned to investigate the tip and conducted intermittent surveillance of the home over the course of about a week. During this period, Fackrell observed visitors who would frequently enter the residence and leave after short periods of time, a pattern consistent with drug dealing in his experience. One of the visitors was Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store's parking lot, Fackrell detained Strieff without reasonable suspicion, identified himself as a police officer, and asked what Strieff was doing at the residence. As part of the stop, Fackrell requested Strieff's identification, and Strieff produced his Utah identification card. Fackrell relayed the information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Fackrell arrested Strieff pursuant to the warrant. When Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia. The State of Utah charged Strieff with unlawful possession of a controlled substance and possession of drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was obtained by exploitation of an unlawful investigatory stop. The trial court denied the motion to suppress. The Utah Court of Appeals affirmed the trial court's denial of the suppression motion. The Utah Supreme Court reversed. The United States Supreme Court granted certiorari.
View caseTwo robbers entered a store and threatened the owner, Forrest Falconer. The owner, who had severe heart disease, suffered a fatal heart attack minutes later. The prosecution had to prove that the robbery was a factual cause of the death even though the victim's preexisting condition contributed to the outcome.
On October 26, 1965, at 10:45 a.m., Jonathan Earl Stamp and Michael John Koory, armed with a gun and a blackjack, entered the rear of the building housing the offices of General Amusement Company. They ordered the employees they found there to go to the front of the premises, where the two secretaries were working. Stamp went into the office of Carl Honeyman, the owner and manager, and Honeyman emerged looking very frightened and pale. The robbery victims were required to lie down on the floor while the robbers took the money and fled out the back door after being on the premises for 10 to 15 minutes. As the robbers were leaving, they told the victims to remain on the floor for five minutes. Honeyman, who had been lying next to the counter, had to use it to steady himself in getting up off the floor. Still pale, he was short of breath, sucking air, and pounding and rubbing his chest. As he walked down the hall in an unsteady manner, he said he was having trouble keeping the pounding down inside and that his heart was pumping too fast for him. A few minutes later, although still looking very upset, he collapsed on the floor, and at 11:25 a.m. he was pronounced dead on arrival at the hospital. The employees noted that during the hours before the robbery Honeyman had appeared to be in normal health and good spirits. The victim was an obese, 60-year-old man with a history of heart disease who was under a great deal of pressure due to the intensely competitive nature of his business. Three doctors testified that although Honeyman had an advanced case of atherosclerosis, there must have been some immediate upset to his system which precipitated the attack, and it was their conclusion that but for the robbery there would have been no fatal seizure at that time. There was opposing expert testimony to the effect that it could not be said with reasonable medical certainty that fright could ever be fatal. Lehman, the driver of the getaway car, was apprehended a few minutes after the robbery when the car was stopped at 11:08 a.m. Several weeks later Stamp was arrested in Ohio and Koory in Nebraska. Each confessed to his part in the crime after having been advised of his right to counsel, to remain silent, and that any statement he might make could be used against him. Following jury verdicts of guilty of robbery and murder, both in the first degree, each defendant was given a life sentence on the murder charge together with the time prescribed by law on the robbery count. The defendants appealed their convictions to the Court of Appeal of California, Second Appellate District. Acting Presiding Justice Cobey authored the opinion in which Justices Schweitzer and Allport concurred. The Supreme Court denied the petitions for hearing on January 28, 1970.
View caseWorkers at Foster Forge used pneumatic tools that transmitted excessive vibration. Francesca Fiore developed permanent nerve damage in her hands. The court required her to show that the tool design was a factual cause of her injury rather than other workplace factors.
In the mid-1960s through 1987, the plaintiffs worked as grinders at the General Dynamics Corporation Electric Boat facility in Groton, Connecticut, where their duties required them to use pneumatic hand tools manufactured by the defendants Chicago Pneumatic Tool Company, Stanley Works, and Dresser Industries, Inc., to smooth welds and metal surfaces. During this employment the plaintiffs developed permanent vascular and neurological impairment of their hands, manifesting as blanching of the fingers, pain, numbness, tingling, reduction of grip strength, cold intolerance, and clumsiness, symptoms diagnosed as hand arm vibration syndrome. Ronald Guameri, an industrial hygienist at Electric Boat, performed extensive testing of tools used at the shipyard and found that a large number of the defendants' tools violated vibration exposure limits established by the American National Standards Institute and exceeded the threshold limit promulgated by the American Conference of Governmental and Industrial Hygienists. Richard Alexander, a mechanical engineering professor, testified that methods to reduce vibration through isolation, dampening, and balancing had been available to manufacturers for at least thirty-five years. Charles Suggs, a research engineer, testified that he had reduced vibration hazards in chain saws by inserting rubber mounts in the 1960s, reduced vibration by 70 percent in tools without handles in the 1970s by wrapping them with resilient foam rubber and a metal sleeve, and in 1988 reduced vibration levels in the defendants' die grinders by between 35 and 60 percent using similar techniques. After a six-week trial the jury returned verdicts awarding the plaintiffs compensatory damages on their design defect claims, found that the defendants had provided inadequate warnings but awarded no damages on that claim because the plaintiffs failed to prove causation, and declined to award punitive damages. The defendants appealed from the judgment, and the plaintiffs cross-appealed. The Supreme Court of Connecticut transferred the appeal and cross-appeal from the Appellate Court to itself pursuant to Practice Book § 4023 and General Statutes § 51-199(c). Electric Boat followed a regular maintenance program involving daily inspection of tools. It purchased chucks and other replacement parts from outside vendors. It periodically removed certain safety features and used longer burr attachments on the tools.
View caseFrancesca Fiore's mother took DES manufactured by several companies during pregnancy. Fiore later developed cancer linked to the drug. Because she could not identify which manufacturer supplied the particular pills her mother ingested, the court applied market-share liability after confirming each defendant's product was a factual cause of the type of harm.
Judith Sindell and Maureen Rogers filed separate lawsuits in California against several pharmaceutical companies that manufactured diethylstilbestrol, commonly known as DES. The complaints stated that the plaintiffs' mothers had taken DES during pregnancy to prevent miscarriage, and that the plaintiffs later developed cancerous and precancerous conditions as a result. Sindell alleged exposure led to a malignant bladder tumor requiring surgery and ongoing adenosis necessitating frequent monitoring. Rogers' allegations were substantially similar. DES was first developed in 1938 and received FDA approval in 1941 for use in preventing miscarriages. Manufacturers produced the drug in multiple forms and strengths under many trade names, but all followed an identical formula set forth in the United States Pharmacopoeia. In 1971 the FDA ordered companies to stop marketing DES for miscarriage prevention after studies linked it to adenocarcinoma in the daughters of women who had used the drug. Hundreds of companies had manufactured DES between 1941 and 1971. Because of the long latency period between ingestion and the appearance of injuries, and because pharmacists often filled prescriptions with whatever brand was in stock, the plaintiffs could not determine which company had produced the particular DES their mothers received. The trial court sustained demurrers filed by the defendants, including Abbott Laboratories, Eli Lilly and Company, E.R. Squibb & Sons, the Upjohn Company, and Rexall Drug Company, on the basis that the plaintiffs had not identified the manufacturer of the injurious product. The actions were consolidated for appeal to the Supreme Court of California. Sindell sought compensatory damages of one million dollars and punitive damages of ten million dollars on her own behalf, along with class-wide equitable relief requiring the defendants to warn physicians and establish free clinics for screening. The complaints further alleged that the defendants had continued to market DES without adequate testing or warnings even after they knew or should have known of its carcinogenic properties.
View caseCourts apply the but-for test: conduct is a factual cause if the harm would not have occurred absent the conduct. The Restatement (Third) of Torts §26 codifies this standard and treats factual cause as a necessary condition for liability.
Under Restatement (Third) of Torts §27, each act is treated as a factual cause even if either one alone would have produced the identical harm. This rule prevents defendants from escaping liability simply because another sufficient cause was also present.
When two or more defendants acted negligently toward the plaintiff and only one caused the single harm, but the plaintiff cannot identify which one, the burden shifts to each defendant to prove his conduct was not a factual cause. If a defendant cannot meet that burden, he remains liable.
Supporting sources
…112, at 6–8 (Iowa Ct. App. 2009) (table decision) (holding that the State must show that the discriminatory motive was the cause in fact of the offense to establish a hate crime under Iowa law), aff’d in relevant part, 791 N.W.2d 828 (Iowa 2010). The government separately points to a case involving Section 1 of the Hate…