At the Intersection of Proximate Cause and Terrorism: A Contextual Analysis of the (Proposed) Restatement Third of Torts' Approach to Intervening and Superseding Causes
James Allan Gash
Pepperdine University - School of Law
April, 17 2009
Kentucky Law Journal, Vol. 91, No. 3, 2003
This article analyzes the current draft of the proposed proximate cause chapter of the Restatement Third of Torts, applies the proposed Restatement Third approach to the facts of September 11th, and examines the critical issues that will govern the wrongful death lawsuits against American and United Airlines. Part I of the article evaluates the Restatement Third's definition of and approach to proximate cause. Professor Gash notes the similarities between the Restatement Third's approach to proximate causation and Justice Cardozo's duty analysis in the Palsgraf case and explains the utility and application of the B/PL formula, which weighs the utility against the risk of certain conduct, in determining causation. A series of graphs helps the reader conceptualize the analysis as it proceeds. Part II traces the historical evolution of the intervening act doctrine whereby, under certain circumstances, the intervening culpable act of a third party is considered a superseding cause of the injury relieving the defendant from liability. Professor Gash notes three approaches to the issues of intervening acts and superseding causes: (1) the historical approach, whereby an actor who engages in tortious conduct is relieved of liability if a criminal or intentionally tortious act intervenes and is also a factual cause of the harm suffered; (2) the traditional approach, whereby the original tortious actor is relieved of liability only if the intervening criminal or intentionally tortious act is unforeseeable; and (3) the Restatement Third approach, whereby the focus is on whether, at the time of the actor's conduct, the risk of the harm ultimately caused was sufficiently high so as to render the actor's conduct tortious. Part III analyzes the September 11th fact pattern using these approaches and concludes that the outcome of the litigation against American and United Airlines will depend on the approach used and application of that approach.
Number of Pages in PDF File: 91
Keywords: proximate cause, Restatement Third, causation, September 11, Palsgraf, utility, risk Justice Cardozo, intervening act, third party, superseding cause, foreseeability
JEL Classification: K13, K41Accepted Paper Series
Date posted: April 17, 2009
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