Remote cause is a cause that is remote in efficiency in

reference to injury or cause of loss as to be dismissed

from consideration by the court. It is a speculative
rather than a direct cause of injury, consequently no
basis for the recovery of damages.
The following is an example of a case law on remote
cause:
The legal distinction between what is proximate and
what is remote is not a logical one. A remote cause is
simply one which because of its having ceased to be
actively efficient, or never having become actively
efficient, in the result, is neglected by the court. No
general test of remoteness exists. [Mahoney v.
Beatman, 110 Conn. 184, 192 (Conn. 1929)].

Concurrent causes. Where two separate acts of

negligence combine to cause an injury to a third party,
each actor is liable. For example, aconstruction

Proximate Cause
An act from which an injury results as a natural, direct,
uninterrupted consequence and without which the injury would
not have occurred.
Proximate cause is the primary cause of an injury. It is not
necessarily the closest cause in time or space nor the first event
that sets in motion a sequence of events leading to an injury.
Proximate cause produces particular, foreseeable
consequences without the intervention of any independent or
unforeseeable cause. It is also known as legal cause.
To help determine the proximate cause of an injury
in Negligence or other TORT cases, courts have devised the "but
for" or "sine qua non" rule, which considers whether the injury
would not have occurred but for the defendant's negligent act. A
finding that an injury would not have occurred but for a
defendant's act establishes that the particular act or omission is
the proximate cause of the harm, but it does not necessarily
establish liability since a variety of other factors can come into
play in tort actions.

worker negligently leaves the cover off a manhole, and a

careless driver negligently clips a pedestrian, forcing the
pedestrian to fall into the open manhole. Both the
construction worker and the careless driver are equally
liable for the injury to the pedestrian. This example obeys
the but for test. The injury could have been avoided by the

Some jurisdictions apply the "substantial factor" formula to

determine proximate cause. This rule considers whether the
defendant's conduct was a substantial factor in producing the
harm. If the act was a substantial factor in bringing about the
damage, then the defendant will be held liable unless she can
raise a sufficient defense to rebut the claims.
but for rule

elimination of either act of negligence, thus each is a but

for cause of the injury.
Intervening cause[edit]

n. one of several tests to determine if a defendant is responsible

for a particular happening. In this test, was there any other
cause, or would it have occurred "but for" the defendant's

Imagine the following. A critically injures B. As B is

actions? Example: "But for" defendant Drivewild's speeding, the

wheeled to an ambulance, she is struck by lightning.

car would not have gone out of control, and therefore the

She would not have been struck if she had not been

defendant is responsible. This is shorthand for whether the

injured in the first place. Clearly then, A caused B's

action was the "proximate cause" of the damage.

whole injury on the but for or NESS test. However, at

remote

law, the intervention of a supervening event renders

cause noun auxiliary cause, distant basis, distant cause, distant

the defendant not liable for the injury caused by the

reason, far cause, far-

lightning. The effect of the principle may be stated

off cause, farremoved cause, immaterial cause, indirectcause, i

simply: if the new event, whether through human

nsuffiiient legal basis, insufficient legal cause, insufficient legal f

agency or natural causes, does not break the chain,

actor,insufficient legal genesis, insufficient legal induceeent, ins

the original actor is liable for all the consequences

ufficient legal source, noimediate legal cause, nonimmediate leg

flowing naturally from the initial circumstances. But if

al basis, not immediate cause, notimmeeiate legal genesis, rem

the new act breaks the chain, the liability of the initial

oved cause

actor stops at that point, and the new actor, if human,

will be liable for all that flows from his or her

Substantial Factor

contribution. Note, however, that this does not apply if

A substantial factor in causing harm is a factor that a reasonable

the Eggshell skull rule is used. For details, see the

person would consider to have contributed to the harm. It must

article on the Eggshell Skull doctrine.

be more than a remote or trivial factor. It does not have to be

In cases of multiple (concurrent dependent) causes, CACI No.

the only cause of the harm.

431, Causation: Multiple Causes, should also be given.

[Conduct is not a substantial factor in causing harm if the same

In asbestos-related cancer cases, Rutherford v. Owens-Illinois,

harm would have occurred without that conduct.]

Inc. (1997) 16 Cal.4th 953, 977 [67 Cal.Rptr.2d 16, 941 P.2d
1203] requires a different instruction regarding exposure to a

New September 2003; Revised October 2004, June 2005,

December 2005, December 2007
Directions for Use
As phrased, this definition of substantial factor subsumes the

particular product. Give CACI No. 435, Causation for AsbestosRelated Cancer Claims, and do not give this instruction.
Sources and Authority

but for test of causation, that is, but for the defendants

of the Restatement of Torts 2d, which provides: The

conduct, the plaintiffs harm would not have occurred. (Mitchell

actors negligent conduct is a legal cause of harm to

v. Gonzales (1991) 54 Cal.3d 1041, 1052 [1 Cal.Rptr.2d 913,

another if (a) his conduct is a substantial factor in

819 P.2d 872]; see Rest.2d Torts, 431.) The optional last

bringing about the harm, and, (b) there is no rule of law

sentence makes this explicit, and in some cases it may be error

relieving the actor from liability because of the manner

not to give this sentence. (See Soule v. GM Corp. (1994) 8

in which his negligence has resulted in the harm.

Cal.4th 548, 572573 [34 Cal.Rptr.2d 607, 882 P.2d 298];

Section 431 correctly states California law as to the

Rest.2d Torts, 432(1).)

issue of causation in tort cases. (Wilson v. Blue Cross

of So. Cal. (1990) 222 Cal.App.3d 660, 671672 [271

Conduct, in this context, refers to the culpable acts or

Cal.Rptr. 876].)

omissions on which a claim of legal fault is based, e.g.,

negligence, product defect, breach of contract, or dangerous

The test for joint tort liability is set forth in section 431

California has definitively adopted the substantial

condition of public property. This is in contrast to an event that is

factor test of the Restatement Second of Torts for

not a culpable act but that happens to occur in the chain of

cause-in-fact determinations. Under that standard, a

causation, e.g., that the plaintiffs alarm clock failed to go off,

cause in fact is something that is a substantial factor in

causing her to be at the location of the accident at a time when

bringing about the injury. The substantial factor

she otherwise would not have been there. The reference to

standard generally produces the same results as does

conduct may be changed as appropriate to the facts of the

the but for rule of causation which states that a

case.

defendants conduct is a cause of the injury if the injury

would not have occurred but for that conduct. The

The but for test of the last optional sentence does not apply to

substantial factor standard, however, has been

concurrent independent causes, which are multiple forces

embraced as a clearer rule of causationone which

operating at the same time and independently, each of which

subsumes the but for test while reaching beyond it to

would have been sufficient by itself to bring about the same

satisfactorily address other situations, such as those

harm. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240 [135

involving independent or concurrent causes in fact.

Cal.Rptr.2d 629, 70 P.3d 1046]; Barton v. Owen (1977) 71

(Rutherford, supra, 16 Cal.4th at pp. 968969, internal

Cal.App.3d 484, 503504 [139 Cal.Rptr. 494]; see Rest.2d

citations omitted.)

Torts, 432(2).) Accordingly, do not include the last sentence in

a case involving concurrent independent causes.

The term substantial factor has not been judicially

defined with specificity, and indeed it has been

observed that it is neither possible nor desirable to

found to be a substantial factor in bringing it about.

reduce it to any lower terms. This court has suggested

(Viner, supra, 30 Cal. 4th at p. 1240, original italics.)

that a force which plays only an infinitesimal or

theoretical part in bringing about injury, damage, or

substantial factor in producing the injury. If the external

loss is not a substantial factor. Undue emphasis should

force of a vehicle accident was so severe that it would

not be placed on the term substantial. For example,

have caused identical injuries notwithstanding an

the substantial factor standard, formulated to aid

abstract defect in the vehicles collision safety, the

plaintiffs as a broader rule of causality than the but for

defect cannot be considered a substantial factor in

test, has been invoked by defendants whose conduct

bringing them about. [] The general causation

is clearly a but for cause of plaintiffs injury but is

instruction given by the trial court correctly advised that

nevertheless urged as an insubstantial contribution to

plaintiff could not recover for a design defect unless it

the injury. Misused in this way, the substantial factor

was a substantial factor in producing plaintiffs

test undermines the principles of comparative

enhanced injuries. However, this instruction dealt only

negligence, under which a party is responsible for his

by negative implication with [defendant]s theory that

or her share of negligence and the harm caused

any such defect was not a substantial factor in this

thereby. (Rutherford, supra, 16 Cal.4th at pp. 968

case because this particular accident would have

969, internal citations omitted.)

broken plaintiffs ankles in any event. As we have

The substantial factor standard is a relatively broad

seen, [defendant] presented substantial evidence to

one, requiring only that the contribution of the

that effect. [Defendant] was therefore entitled to its

individual cause be more than negligible or theoretical.

special instruction, and the trial courts refusal to give it

Thus, a force which plays only an infinitesimal or

was error. (Soule, supra, 8 Cal.4th at p. 572573,

theoretical part in bringing about injury, damage, or

original italics, footnote and internal citations omitted.)

loss is not a substantial factor, but a very minor force

that does cause harm is a substantial factor. This rule

The first element of legal cause is cause in fact The

but for rule has traditionally been applied to determine

honors the principle of comparative fault. (Bockrath v.

cause in fact. The Restatement formula uses the

Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 [86

term substantial factorto denote the fact that the

Cal.Rptr.2d 846, 980 P.2d 398], internal citations

defendants conduct has such an effect in producing

omitted.)

A tort is a legal cause of injury only when it is a

the harm as to lead reasonable men to regard it as a

The text of Restatement Torts second section 432

cause. (Mayes v. Bryan (2006) 139 Cal.App.4th

demonstrates how the substantial factor test

1075, 1095 [44 Cal.Rptr.3d 14], internal citations

subsumes the traditional but for test of causation.

omitted.)

Subsection (1) of section 432 provides: Except as

stated in Subsection (2), the actors negligent

Whether a defendants conduct actually caused an

injury is a question of fact . . . that is ordinarily for the

conduct is not a substantial factor in bringing about

jury [C]ausation in fact is ultimately a matter of

harm to another if the harm would have been sustained

probability and common sense: [A plaintiff] is not

even if the actor had not been negligent. . . .

Subsection (2) states that if two forces are actively
operating . . . and each of itself is sufficient to bring
about harm to another, the actors negligence may be

required to eliminate entirely all possibility that the

defendants conduct was not a cause. It is enough that
he introduces evidence from which reasonable
[persons] may conclude that it is more probable that

the event was caused by the defendant than that it was

not. The fact of causation is incapable of mathematical

NOTE: Some rules are stated with elements that must be proven. Other
rules are just stated without being broken into elements. In the latter
case, you should figure out what the elements of the crime are yourself
and incorporate that into your answer.

proof, since no [person] can say with absolute certainty

what would have occurred if the defendant had acted
otherwise. If, as a matter of ordinary experience, a
particular act or omission might be expected to
produce a particular result, and if that result has in fact

Negligence
Duty
Breach
Causation
Damages
Defenses to Negligence

followed, the conclusion may be justified that the

causal relation exists. In drawing that conclusion, the
triers of fact are permitted to draw upon ordinary

Negligence

human experience as to the probabilities of the case.

. . . A mere possibility of . . . causation is not enough;
and when the matter remains one of pure speculation
or conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a

The prima facie case for negligence requires:

Duty is owed to the plaintiff by the defendant
Breach of the Duty
Causation: The defendant caused the harm to occur.
Damages: The plaintiff suffers harm.

verdict for the defendant. (Raven H. v.

Gamette (2007) 157 Cal.App.4th 1017, 10291030
[68 Cal.Rptr.3d 897], internal citations omitted.)

[E]vidence of causation must rise to the level of a

Duty
In order to hold a defendant liable for negligence, the defendant must
owe a duty of reasonable care to the plaintiff. Two issues arise in
terms of duty of reasonable care:

reasonable probability based upon competent

testimony. [Citations.] A possible cause only becomes
probable when, in the absence of other reasonable
causal explanations, it becomes more likely than not

1.
2.

Foreseeability
Standard of Care

Foreseeability
The duty of care must be toward a foreseeable plaintiff.

that the injury was a result of its action. [Citation.] The

defendants conduct is not the cause in fact of harm

Test for foreseeability: A plaintiff is foreseeable if he was in the zone

of danger created by the defendant.

where the evidence indicates that there is less than a

probability, i.e., a 5050 possibility or a mere chance,
that the harm would have ensued. (Bowman v.

Standard of Care
The Standard of care that the defendant must exercise towards the
plaintiff is that of a reasonable, ordinary and prudent person in the
same or similar circumstances.

Wyatt (2010) 186 Cal.App.4th 286, 312 [111

Cal.Rptr.3d 787].)

However the test is phrased, causation in fact is

ultimately a matter of probability and common sense.
(Osborn v. Irwin Memorial Blood Bank (1992) 5
Cal.App.4th 234, 253 [7 Cal.Rptr.2d 101], relying on
Rest.2d Torts, 433B, com. b.)

Factors to consider that may or may not modify the circumstances

include:
Physical characteristics
A person who has great physical strength will be judged according to
an ordinary person of great physical strength. Likewise, a weak person
will be judged according to a standard of what an ordinary weak
person would do.

Torts Rules of Law

Average Mental Ability

Everyone is judged as being of average mental ability and no
accommodation is made for being extraordinarily intelligent.

The following contains the Rules of Law you'll need for the Torts
Practice Exam. These rules are presented in outline form only for
purposes of the practice exam.

Same knowledge as an average member of community

Presumed to have common knowledge about known dangers in the
community.

Professionals
Professionals are judged according to other professionals in same
community.
Children
Children are judged according to children of same age, education,
intelligence and experience.

Damages
The plaintiff must suffer some harm. Two issues arise:
1.
2.

Was there actual harm?

Did plaintiff attempt to mitigate the harm?

Actual harm or injury: Can be shown by the following:

Breach of the Duty
In order to be held liable for negligence the action by plaintiff must
fall below standard of care.

1.
2.
3.

The primary issue is where to draw the line as to the standard of care.
Factors to consider in drawing the line are:
1.
2.

3.

Custom in the community

Violation of statute (negligence per se)
Violating a statute creates a rebuttable presumption of
negligence. Defendant is presumed to be liable for
negligence if he breaks a law and cause harm to the plaintiff
but he can rebut that presumption by showing that there was
a custom to break the law.
Res Ipsa Loquitur
Latin for "The thing speaks for itself." This doctrine draws
an inference of liability because the thing that caused the
accident was in the exclusive control of the defendant. In
other words, it couldn't be anyone but the defendant who
caused the harm.

Causation
The defendant caused the harm to occur. There are two types of
causation:
1.
2.

Actual Causation
and Proximate Causation.

Actual Causation: Did the defendant actually cause the harm to occur?
There are two different tests you can use.
"But for" Test: Ask yourself the question: "But for the defendant's
actions, would the plaintiff's harm have occurred?"
Substantial Factor Test: If several causes could have caused the harm,
then any cause that was a substantial factor is held to be liable.
Proximate Causation: This sometimes difficult to grasp concept is
actually very simple on most exams. Be sure to check with your
professor but if in doubt, use the following generally accepted test:
Foreseeability Test: If harm is unforeseeable, then defendant is not
held liable by reason that there is no proximate causation.
Famous Proximate Cause Case: Palsgraf v. Long Island RR. Judge
Cardoza. Railroad guard pushes man who drops package. Package
contains hidden fireworks that explode and cause scales to fall
harming plaintiff. Illustrates that harm was not foreseeable by guard as
to plaintiff so no proximate cause.

Personal Injury
Property Damage
Plaintiff gets Cost of repair OR fair market value
Punitive Damages
Extra damages beyond actual damage is available if the
defendant's behavior was wanton and willful, reckless or
malicious

Duty to mitigate: Plaintiff must not act in a manner that makes

damages worse - i.e. not going to the doctor to get well. Defendant is
not liable for damages where plaintiff did not mitigate.

Defenses to Negligence
Even if a defendant is found liable for negligence, he can argue to be
relieved of or share liability because of a valid defense. Defenses
include:
Contributory Negligence
In these circumstance, the plaintiff contributed to the negligent act.
The defendant must prove the plaintiff was negligent using the
negligence test above.
Under common law, if both parties are negligent, then the one with
the last clear chance to prevent the accident is liable; otherwise both
plaintiff and defendant share liability.
Assumption of Risk
If plaintiff knew the risk and voluntarily assumed the risk by engaging
in the behavior then the plaintiff will be denied recovery.
Emergency Doctrine
Allows defendant to lower standard of care because an emergency
required them to act rashly in order to avoid a greater harm from
occurring.
Custom
Custom can be used to show that behavior was in line with the
behavior of everyone else, thus resulting in no breach. E.g. Everyone
drives at 50 MPH on that particular stretch of the highway even though
it is posted at 30 MPH.
The doctrine of proximate cause is applicable only in
actions for QD, not in actions involving breach of
contract. The doctrine is a device for imputing
liability to a person where there is no relation between
him and another party. In such a case, the obligation is
created by law itself. But where there is a pre-existing
contractual relation between the parties, it is the

parties themselves who create the obligation, and the

function of the law is merely to regulate the relation
thus created.

3. The occurrence must be such as to render it impossible

for the debtor to fulfill his obligation in a normal
manner
4. Obligor must be free from participation in the
aggravation of the injury resulting to the creditor.

NOTES:
Definition #1 of proximate cause according to Bataclan
v. Medina:
Proximate cause is that cause which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which
the result would not
have occurred.
Definition #2 of proximate cause according to Bataclan
vs. Medina:
More comprehensively, the proximate legal cause is that
acting first and producing the injury either immediately
or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a
close causal connection with its immediate predecessor,
the final event in the chain immediately effecting the
injury as a natural and probable result of the cause
which first acted, under such circumstances that the
person responsible for the first event should, as an
ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or
default that an in jury to some person might probably
result therefrom.
SIR: being burned is not part of the foreseeable
consequences of riding a bus
Proximate cause is defined as any cause that produces
injury in a natural and continuous sequence, unbroken by
any efficient intervening cause, such that the result
would not have occurred
otherwise. Proximate cause is determined from the facts
of each case, upon a combined consideration of logic,
common sense, policy, and precedent.
CONTRIBUTORY NEGLIGENCE
The underlying precept on contributory negligence is that
a plaintiff who is partly responsible for his own injury
should not be entitled to recover damages in full but
must bear the consequences of his own negligence. If
indeed there was contributory negligence on the part of
the victim, then it is proper to reduce the award for
damages.
Contributory negligence is a mitigating factor in
awarding damages.
FORTUITOUS EVENT
CHARACTERISTICS OF CASO FORTUITO:
1. Cause of the unforeseen and unexpected occurrence, or
of the failure of the debtor to comply with his
obligation must be independent of human will.
2. It must be impossible to foresee the event which
constitutes the caso fortuito, or if it can be foreseen,
it is impossible to avoid.

CASO FORTUITO event which takes place by accident and

could not have been reasonably foreseen, it is an
unexpected event or act of God which could neither be
foreseen nor resisted.
2 GENERAL CAUSES:
1. By nature- earthquakes, storms, floods, etc.
2. By the act of man- armed invasion, attack by bandits,
governmental prohibition, etc.
ASSUMPTION OF RISK
Art. 1174, NCC
Except in cases expressly specified by the law, or when
it is otherwise declared by stipulation, or when the
nature of the obligation requires the assumption of
risk, no person shall be responsible for those events
which could not be foreseen, or which, though foreseen,
were inevitable.
NOTES:
Exemption to Violenti Non Fit Injuria: A person is
excused from the force of the assumption of risk rule,
that when he voluntarily assents to a known danger he
must abide by the consequences:
o if an emergency is found to exist
o if the life or property of another is in peril
o when he seeks to rescue his endangered
property.
To which a person ascends to be injured, he cannot
recover damages
VIOLENTI NON FIT INJURIA: applies to non-contractual
relations;
3 requisites:
(1) plaintiff had actual knowledge of the damage;
(2) he understood an appreciated the risk from danger;
(3) he voluntarily exposed himself to such risk.
3. Efficient Intervening cause
NOTES:
The efficient intervening cause destroys the link
between the negligent act and injury. It should occur
after the purported proximate cause because it would then
be a condition.
Negligence of the defendant if pre-empted by the
negligence of the plaintiff.
The efficient intervening cause is actually a
proximate cause.
Although there is still lack of a definite ruling by
the Court, any violation of administrative ordinances and
the like would either be seen as 1) negligence per se or
2) prima facie evidence of negligence.
It is not an efficient intervening cause when it is
already in existence during the happening of the
proximate cause.