The Intersection of Factual Causation and Damages

60 Pages Posted: 20 Sep 2005

See all articles by Michael D. Green

Michael D. Green

Wake Forest University - School of Law


This article began as an examination of knotty puzzles at the intersection of causation and damages law. Thus, for example, consider a pregnant woman who is injured in a train crash that results in the premature delivery of her baby who is born with several deficits due to prematurity. May the railroad reduce the pain and suffering damages for which it would otherwise be liable to the mother by pointing to the pain and suffering of labor at full term that the mother would have incurred? The question of whether this is a matter of damages law or causation law is not cataclysmic, but is important because of the current Balkanization of the Third Restatement of Torts into several different projects, each with separate jurisdiction.

The article explains the argument that has occurred between the two Reporters for the Physical Harm portion of the Third Restatement and why the author, not surprisingly, believes his view that this is a matter of damages law is the better one. In the process, however, the article confronts an overlapping question - the matter of overdetermined harm. Thus, when two forces, acting independently, are each sufficient to cause the harm, neither is a classic sine qua non cause. Both are treated as causes, however, at least if each is tortious.

But what if one is of innocent origin? The debate over that question has raged in legal circles for a century. Both of the earlier Restatements held that the tortious force was a cause and subject to liability. The article explains why that resolution cannot sit comfortably with the treatment of damages cases that involve duplicated harm such as the early-delivery hypothetical described above. Indeed, the article concludes that the earlier Restatements were right that both the innocent and tortious forces are causes, but as a matter of damages law, the actor responsible for the tortious force should not be liable. This has important implications both for the current Physical Harm Restatement project and for any future project that addresses damages as part of the Third Restatement of Torts.

Keywords: Torts, Factual Causation, Damages

JEL Classification: K13, K41

Suggested Citation

Green, Michael D., The Intersection of Factual Causation and Damages. DePaul Law Review, Forthcoming, Wake Forest Univ. Legal Studies Paper No. 05-18, Available at SSRN:

Michael D. Green (Contact Author)

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States

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