Causation and foreseeability

Abstract

Angeles, School of Law. For their comments I would like to thank the editor of this volume, Jennifer Arlen, as well as six anonymous reviewers.The plaintiff was standing on a platform of the defendant's railroad station after buying a ticket to go to Rockaway Beach. A train stopped, bound for another place. Two men ran forward to catch the train after it had started moving. One reached the platform of the car without mishap. The other, carrying a small package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car reached forward to help him in, and another guard on the station platform pushed him from behind, dislodging the package, which fell upon the rails. The package, covered by newspaper, turned out to contain fireworks, which exploded when the package fell. The explosion knocked down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing the injuries for which she sued. The Court of Appeals of New York, in a famous majority decision by Justice Benjamin Cardozo, held that the plaintiff could not recover because the accident was not "reasonably foreseeable" to the defendant. 1 162 N.E. 99 (N.Y. 1928).

The Role of Engos in Environmental Litigation: A French case study

“…personal injury) is not clear. Causal uncertainty may especially be a problem when there are either multiple victims and/or multiple polluters (Ben‐Shahar, ). Table shows the rate of success of the different types of plaintiff in a situation of causal uncertainty.…”

The Limits of Probabilistic Causality in Law

“…Normative causation generally consists, in common law systems, in the proximate causation criterion, and in civil law systems, in the adequate causation criterion. 13 A large part of the law & economics literature, as it was said, suggests the replacement of this rule by probabilistic causality (Ben-Shahar, 2000). This implies a new way to answer causal questions in law that moves away not only from necessity criteria such as sine qua non but also from all-or-nothing (or deterministic) causality criteria in general.…”

“…The first accounts of economic analysis of tort law considered that causes do not play an important role for efficiency 20 (Ben-Shahar, 2000;Thomson, 1987b), 20 See Coase (1960, Calabresi (1970), Brown (1973), and Landes and Posner (1981). For a different interpretation on Landes and Posner's account on causality, asserting they use ex-post causality, see Wright (1985a).…”

“…1 A large part of law & economics literature suggests the replacement of the rule by probabilistic causality -a criterion originally designed by Shavell (1980) and Rizzo and Arnold (1980) for cases of uncertainty-suggesting the extension of the criterion for all tort cases (King, 1981;Ben-Shahar, 2000;Young, Faure, and Fenn, 2004). This has been seen by legal scholars as a sign of law & economics' lack of explanatory power and as a serious flaw in its methodological approach (Coleman, 1992;Geistfeld, 2006;Stapleton, 2008).…”

Ambiguity and Accident Law

“…The literature has also focused on the issues of causation, and to what extent the actions by the injurer and the victim lead to the damages (Ben‐Shahar ). In this paper, we focus on the efficiency of liability rules and we will relate our results to the literature in the conclusion.…”