43 Pages Posted: 6 Apr 2004
In commenting on an Article by Professor Stephen Perry, this piece first sets out to clarify the concepts of "harm" and "injury" as used in tort law. Specifically, it suggests that harm should be understood as a special instance of injury, to be contrasted with other forms of injury, including rights-violations and lost expectancies. In its second part, the paper offers a novel analysis of the proximate cause limitation on tort liability. Rejecting standard views that proximate cause serves as a floodgate to prevent "excessive" litigation or liability, I argue that the doctrine instead specifies a requirement of "wronging": In negligence law, it is only if an actor's carelessness causes harm in a "natural" sequence that the victim is "entitled" to claim that she has been mistreated by the defendant. By preventing the attribution of responsibility for certain fortuitously-caused harms, proximate cause doctrine thus limits liability to instances in which there is not merely wrongful conduct on the part of the tortfeasor, but wrongful conduct towards - i.e., a wronging of - the victim. I suggest that this understanding of proximate cause fits well within a "civil recourse" theory of tort law, and helps explain away various puzzles, such as the thin-skull rule, and the greater willingness of intentional tort doctrine to impose liability notwithstanding fortuitous causation.
Keywords: Torts, Negligence, Harm, Injury, Expectancies, Proximate Cause, Wrong, Wronging, Thin Skull Rule, Recourse
Suggested Citation: Suggested Citation
Goldberg, John C. P., Comment: Rethinking Injury and Proximate Cause. San Diego Law Review, Vol. 40, p. 1315, 2003. Available at SSRN: https://ssrn.com/abstract=527203