*1 point, In his final Canterbury con cided as by Judge demonstrated Billing’s State, tends that trial court in failing v. concurring erred Love jury instruct 499, (Mo. on conventional man S.W.2d banc Initially, slaughter in accordance with MAI-CR2d this manslaughter Court held that a in- pattern (and 15.18. The instructions ac struction must be submitted when instruct- companying Use) applicable Notes on higher to a on a offense. This became seq., under et tried 565.001 RSMo known as the “automatic submission rule” §§ 1983) (repealed embody the so-called and interpreta- it was based this Court’s submission rule” whereby “automatic tion of the elements of the offenses. After manslaughter instruction conventional these ceased cases to reflect the law in Missouri, must be read whenever any the “automatic submission rule” higher grade of homicide is submitted. See became a misnomer. The elements Supplemental (and 15.00 MAI-CR2d Notes on the presumption malice) offenses capital clarified, Use 3.d. having and Caveat c. The murder inquiry been switched statute in effect at the by time offense to a case case determination of whether was committed and trial held was support 565.- evidence would submission of § 006.1, (as 1983 Supp. RSMo amended L. recognized lesser offense. Once it is 1979, 251) H.B. providing that lesser includ no longer follows State v. this Court in capi Stapleton, given ed are 1975), instructions not to be tal cases supported progenies, murder unless and it both the MAI-CR2d 15.00 express the evidence. Because comments and the statute are consistent command, legislative holding the trial court curiam’s but not with given manslaughter reasoning. not have instruction. failure MAI-CR2d reflect legislation significance.
new is of no prevails Canterbury’s
statute over MAI. point rejected.
final of the trial court is af-
firmed. HIGGINS, C.J., BILLINGS, BLACK- JACKSON, minor, Kimberly By Ann RENDLEN, JJ., HOUSER, MAR and friend, her mother and next Nita A. concur. Judge, Senior JACKSON, Plaintiff-Appellant,
DONNELLY, J., concurs result. RAY COMPA KRUSE CONSTRUCTION J., WELLIVER, separate opin- concurs NY, INC., al., et ion. Defendants-Respondents. ROBERTSON, J., sitting. No. 67385. WELLIVER, Judge, concurring. Missouri, Supreme Court of The final addressed cu- En Banc. a false Both riam raises issue. 565.006.- (now 15, April Cum.Supp. repealed) RSMo provide 15.00 lesser MAI-CR2d May Denied Rehearing included offense shall be submitted when supported justified evidence. inconsistency
There is no between the in- problem
struction and statute.
arises of a line cases that no because existing
longer the law under stat- reflect
utes, perhaps wrongly de- and which were *2 Bronson, Louis, plaintiff-
Mark I. St. for appellant. Louis, Horgan,
John J. St. for defend- ants-respondents.
BLACKMAR,Judge. Jackson, plaintiff, Kimberly The Ann injuries sued on account sustained 2, 1978, collision October parking adjoining apartment on the lot building parents in which she and her lived. years She was old at time. The four opera- the owner defendants were apartment building. petition tor of The charged that the defendants had failed to parking reasonably make lot safe. She $850,000, .recovered a verdict of which us. court challenged before The trial judgment set the verdict aside entered sustained defendants. court also trial, finding alternative motion new error in instruction. directing the verdict grant- Appeals Court of affirmed. We and, taking ed transfer the case as original appeal, now direct the reverse and entry on the verdict. We accept obliged course facts which support most strongly verdict. apartment complex of two consists buildings driveway A of 30 units each. grade percent adjoins with a 12 to 17 complex going person on the west. A pass- southerly down the hill in a direction building, parking successively es the first lot, (in building second lived), plaintiff family and her before reaching parking the lower lot where As cars place. many accident as 40 took might in the lot. parked lower building corner of the second obscures parking view of the lower lot from driveway. apartment the east of the To park, by the complex trailer also owned is a defendants. 5 and
The accident occurred between
father,
plaintiff’s
Michael Jack-
P.M. The
son,
only eyewitness. He was
lot
working
on his car
lower
tell
her to
plaintiff’s
when
mother sent
ready. His attention
him that dinner was
out”
by a shout of “watch
was attracted
and he saw a formation of
bicycles,
three
There
ample
evidence
boys
with one ahead of
the others. The
were wont to
bicycles
drive their
at sub-
“froze” and the leading bicycle
stantial
struck
down the hill
her.
and into the
lot,
Although
lower
Jackson’s
and that
testimony is not
several com-
entire-
plaints had
ly
been made
consistent,
clear and
to the resident
he
man-
stated that the
ager before the
boy
accident. The
impact
whose
was 55 feet east of the
*3
cycle injured plaintiff lived with
family
his
southwest
building,
corner of the
and that
park
path
trailer
to the east. A
had
plaintiff
up
ended
75 feet from the
been
park
worn between the trailer
and the
southwest corner.1 He could not estimate
parking
lower
lot.
speed
of the
because he saw it
only momentarily.
Ray Kruse,
representative
a
of the de-
fendants, testified that he was not aware
plaintiff
adduced as
wit-
any complaints
of
bicycles
about
ness
Kelsey,
Boulter
consulting
a
mechani-
parking lot
plaintiff
until after the
was
engineer.
cal
He testified
objection
over
injured. He was aware
speed
of the use of
that,
opinion,
in his
the bicycle which
bumps but asserted
existed for
plaintiff
struck the
traveling
was
at least
purpose
of controlling automobile traf-
second,
per
feet
hour,
or 16.4
per
miles
(The jury
fic.
of course did not have to
at the time of the collision. He reached
accept
conclusion,
and could have ac-
this conclusion on the
“straight
basis of a
cepted Kelsey’s testimony
bump
drag calculation” on
assumption
appropriate
bicycle speed.)
to control
plaintiffs body
feet,
had traveled 20
expressed
Kruse
building per-
doubt that a
weight
said that neither the
body
her
mit
speed
would be issued for
bump
a
but
nor that
cyclist
cycle
or the
had made no effort to find out. He had no
material.2
suggestion
dealing
speeding
that,
bicycles
guard
unless a
Kelsey
posted
testified
were
opinion,
in his
to
cyclists
warn
parking
off the
safety bump
lot. The de-
should have been installed
fendants had
piece
another
of property, of
diagonally across
driveway
as
nature,
very
different
speed
which had a
reached the
entrance to the lower
bump at
they acquired
the time
it.
bump
lot. The
designed
pre-
should be
to
crossing
vent a
from
at a
problem
before us of course
greater
per
than 10 miles
high-
hour. At a
plaintiff
whether the
should be allowed
cycle
er
would “become air-
go
presented.
on the evidence
borne” and could
not turn
the air.
If a We are
Judge
indebted to
Welliver for his
bicycle were slowed to 3 or 4
miles
scholarly writings
research into
about tort
hour it could accelerate to approximately
law. Our courts have followed the tradi
11 miles
hour in the 55 foot distance to
analysis
negligence
tional
cases into the
Kelsey
of the accident.
said that
duty,
duty
elements of
breach
and cau
safety bumps
safety
were standard
devices
sation. Virginia D. v. Madesco Invest
for use in parking
purpose
lots for the
(Mo.
Corp.,
ment
feet was to the evidence up driveway. another further pra. Judge duty A As Welliver’s demon- landlord owes ten- cases, ants, strates, emphasized subject in recent has been strongly causation portions of the leased among legal to make common much subject discussion reasonably premises safe.4 This includes scholars, hypothet- of bizarre often because dangers duty notice of take known persons as the one in which two icals such to institute needed corrective mea- time, fire at the same with each at third driveways extends to sures. inflicting a wound which would been problems lots where there regard to the other shot. An- fatal without vehicles. about the Clifton furnishing person has a other favorite Brown, 253 Ark. S.W.2d he another a car with brakes knows (1972),suggesting a speed bump as least defective, making no with the driver effort possible precaution. one A recent sum- apply brakes. article marizing the views of the several distin-
We of course must take the
*4
guished
parties present
plaintiff
the
it. The
elected
commentators is that of Professor
the
go
jury solely
Wright.
on the claim that
W.
1737
Richard
73 Cal.L.Rev.
negligent in not in
(Dec.1985)
the defendants were
in Tort Law.”
“Causation
speed bump.
stalling
supported
a
She
her
by Pro-
This case would be characterized
testimony
adequately-
of an
the
with
claim
Wright
one of “doubtful” causa-
fessor
as
qualified expert,
expressed
who
the
tion,
involving a
swim-
public
akin to a case
speed bump
as
that a
was indicated
a
ming pool in
a child drowns while the
protection
speeding bicy
against
means of
extremely
is
is
diffi-
lifeguard
absent.
It
He
not cross-examined as to
cles.
was
prove
drowning
the
not
cult to
that
would
possibilities,
the
and
defendants
lifeguard
have occurred if the
had been
suggestions
safety
no additional
made
present,
certainly
but it would
be reason-
measures,
through
principals
their
either
pres-
jury
for a
to conclude that the
able
testimony.
also
defendants
lifeguard
would make the chances
ence of
knowledge
problem
any
disclaimed
likely
than
Profes-
rescue “more
not.”
speeding bicycles. With the
of the
state
Wright argues
sor
no more should
that
be
is,
jury
record as
the
could find that the
required
sup-
and
view
his
has substantial
notice
defendants had
of a condition which
port.5
in this
There are obvious difficulties
required
speed bump
the installation of
setting up
in
counterfactual situa-
failing
negligent
provide
and were
for
it.
projects the se-
definitively
tion which
contrary
It
of the
would
course
assumption
quence
the
of events under
law
us
to substitute our
for
bump
place.
been in
safety
that a
had
only
the
jury
that
to whether
a tour de
certainty
Striving for
is
force.
safety precaution suggested was neces
probabili-
deal in terms of
jury must
sary, in the
due
exercise of
care.
ties.
argue vigorously,
The defendants
how-
in
point
gaps
The defendants
ever,
plaintiff
that the
has not established
proof,
the absence of evidence of
such as
the element of causation. The accident
bicycle proceeding down
course,
speed
bicycle
precipitated, of
was
hill, of
of the brakes and
rider,
the condition
doubt
be faulted for
who no
could
mechanism,
of the attentive-
steering
There
excessive
inattention.
argue that
They also
however,
proximate
ness of the rider.
may,
by more than one
Kahn,
that
su-
is no
evidence
accident. Green v.
there
substantial
cause of
Co.,
135,
853,
Kahn,
(Mo.1965);
145 P.2d
v.
Amusement Park
61 Ariz.
Green
pose of precautions. people to take C.J., HIGGINS, opin- separate concurs in liability raises spectre The dissent ion filed. injured to a bicyclist
of the landlord who speed bump. suggestion inter DONNELLY, WELLIVER and ROB- foreign scope jects a issue. ERTSON, JJ., separate dissent in opinions very different land duty is from that filed. Gibson, 287 lord to a tenant. Patterson v. (Mo.1956). Dividers, ties, 5.W.2d 853 *6 lots,
bumpers usual and in HIGGINS, Justice, concurring. Chief presence does their not furnish a basis for finding negligence. Fi Hopkins v. Sefton Blackmar, J., I concur in the of Co., (Mo.App. bre 390 907 Can S.W.2d the judgment which reverses for defend- 1965). notwithstanding plain- ants the verdict for entry judgment tiff and directs the quite made a of judge, properly, trial ruling on for new verdict. the motion conditional causation, 6 INSTRUCTION NO. the "substantial factor" test of
6. On Torts, (1965); (Second) of 431 see Restatement you be- plaintiff if must Your verdict City Kansas Stock Yards Co. Ricketts v. Maine, of lieve: First, 1972); (Mo. S.W.2d 216 banc and 484 at the no control there was Watson, 48, (Mo.1973). 501 S.W.2d 52 Todd v. driveway of hill in the at the bottom the curve Co., Milling Moundridge 351 Giles v. See also driveway not reason- was as a result and 745, 568, (1943); Stumpf v. 173 S.W.2d 750 Mo. safe, ably and 208, Co., Pipeline Mo. Eastern 354 Panhandle knew, Second, using ordi- or defendants 223, (1945); Champieux v. 227 189 S.W.2d known, condi- of this nary care 794, (Mo.1953). Miller, We do 255 S.W.2d tion, and Judge suggestion agree Donnelly’s that with not Third, ordinary care use defendants failed to re- devised to factor test was the substantial safe, reasonably events, driveway make the concurring to Fourth, each spond the riddle directly in- caused injury. failure such either independently cause the sufficient the acts plaintiff substantial would remain. The or combined The riddle test, rather, injury to directly was to demonstrate intended cause factor Shawn Amsden (here precipitating the actions cause that the plaintiff. only legally necessarily cyclist) not sub- meets the cause. A cause which sufficient test is a cause in fact. factor stantial I separate opinion file this distinguish apartment is situated at the base of a steep this from case Virginia D. driveway neighborhood Madesco Inv. which children use Corp., (Mo. 1983), bicycle banc path. expert Plaintiff’s testi- joined I Judge that, Welliver in dissent. assumption fied based Judge Welliver concluded plaintiff that defendant flew 10-15 feet in the air after had breached duty no plaintiff being owed to struck and traveled 20 feet altogeth- “[njothing because previous about inci er from the point impact, the bicycle dents at hotel suggests that defendant plaintiff which struck traveling was a mini- had a reasonable for anticipating basis the mum of 16.4 per miles hour. Plain- plaintiff attack of which complains.” Vir tiff’s further testified that a D., ginia (Welliver, J., at S.W.2d could not have traveled over two strate- dissenting). gically placed speed bumps speeds excess ten miles that, hour so The existence of a out of “arise[s] long as rider traveled over the circumstances and based on ‘foresee- [is] second at no more than three ability’ or anticipation reasonable hour, to four miles he would be unable injury harm or is a result of acts to attain a in excess eleven miles omissions.... The is not whether per hour at the where was particular injury under consideration plaintiff’s struck. It theory at trial anticipated, whether, have been but that defendants negligent failing were occurrence, after the injury ap- such then make lot installing safe peared to have been reasonable and speed bumps. Following jury award for probable consequence of the negligent act plaintiff in $850,000, the amount of Heath, omission.” Gold v. 392 S.W.2d trial court entered for defend- (Mo.1965); see also Hoover’s notwithstanding ants the verdict. Dairy, Inc. v. Dairymen, Mid-America The issue here one of allocation of S.W.2d loss. The evidence in showed that “The injury negli- mere fact that follows plaintiff’s expressed father his concern to gence necessarily does liability. create the apartment manager dangers over the A causal connection must be established bicyclists riding down driveway negligence between the charged or sub- manager that another tenant told the sustained, mitted and the loss or injury bicyclists dangerous. were In each in- injury such would hap- not have stance, manager responded that she pened negligence, but and also that what “do she could” or “check into negligence not only a cause but it.” The evidence also showed that man- *7 a proximate was cause.” Branstetter v. ager in bicy- residence had observed the Gerdeman, 1230, 1237, 364 Mo. 274 S.W.2d riding clists driveway. down the This evi- (1955) (emphasis supplied). The dence demonstrates that defendants had qua for” or “but rule of causa- “sine non” notice of the circumstances may tion be stated as “The de- follows: reasonably anticipated injury that harm or fendant’s is a if conduct cause of event likely to result. The had a defendants the event would not have occurred but for protect to their tenants from this rea- conduct; conversely, that the defendant’s anticipated sonably harm and de- because event, conduct is if the not a cause protect steps safety fendants took no to event would occurred it.” have without tenants, they duty. their breached their (5th ed. Prosser & Keeton Torts 266 DONNELLY, Justice, dissenting. 1984). four-year-old plaintiff walking
The
present
jury
In the
case the
would be
apart-
across
lot behind
required
speculate
her
to
determina-
make a
ment
struck alleged negligence
when
another child on a
tion
defendants’
as
bicycle.
plaintiff’s
lot behind
submitted —the failure to install
bumps
plaintiffs
injury.
legally
cause of
responsible
inju-
for the
—was
support
The evidence does not
ry.”
infer
(5th
Prosser
& Keeton
Torts 273
plaintiff’s injuries
ence that
would not have
1984).
ed.
I recognize
attempts
occurred but
speed bumps.
the lack of
deal
question
with the
terms of
for
causa-
* * *
is
There
no evidence
toas
how much the
tion have “led and can lead
to utter
speed bumps would
had
have
to slow the
majority opines:
confusion.”
Id. The
bicycle in order for the rider to have avoid
“Striving
certainty is
for
a tour de force.
plaintiff’s injuries.
ed
Absent such evi
jury
probabili-
must deal in terms of
* *
dence,
*
not,
principal
could
as the
purpose
ties.
One
of the law of torts
asserts,
“properly
find that a
encourage people
precau-
to take
bump would have
cyclist,
slowed the
mak
tions.”
remains untouched.
it more
that he would have heard
compensation
“It is sometimes
said
warning
or would
seen
for losses
primary
is the
function of tort
in time to avoid the collision.”
Bass v.
Cf.
law
primary
influencing
and the
factor
Development
Bi-State
Agency, 661 S.W.2d
development.
perhaps
It is
more accurate
(Mo.App.1983).
primary
describe the
function as one of
Nor
recovery justified
this case
compensation
determining when
is to be
operation of
the so-called “substantial
required. Courts
a loss
leave
where it is
factor” test of
causation.
“substantial
good
unless
reason
find
to shift it. A
developed
factor” test was
as a framework
recognized
is,
compensation
need for
how-
analysis
relatively infrequent
for
for the
ever,
powerful
influencing
factor
tort
situation in which two causes concur to
factors,
though,
law. Even
like
it is
bring about an event and either one of
decisive,
not alone
it nevertheless lends
them, operating alone, would have been
weight
cogency
argument
to an
plaintiff’s
sufficient
to cause
injury.
liability
supported
that is
also
array
Torts,
(5th
Prosser & Keeton on
ed.
of other
Prosser
factors.”
& Keeton on
1984). Where,
here, the alleged negli-
(5th
1984).
Torts 20
ed.
(in
gence of
failing
the defendant
to install
not,
speed bumps)
alone,
operating
could
It
must be obvious
those who care
plaintiff’s injury,
have caused
causation
that the majority
making
is bent on
may be determined in accordance with the
compensation
need
the overwhelming
traditional rules of
for”
“proxi-
“but
function
torts in Missouri.
law
mate” causation without resort
to “sub-
v.
e.g., Virginia
Madesco
D.
Invest
analysis.
stantial factor”
Id. Even under
(Mo.
Corp.,
ment
648 S.W.2d
banc
analysis
“substantial
factor”
the defend-
1983);
Owens-Illinois, Inc.,
Elmore v.
negligent
ant’s
conduct “is not a substan-
(Mo.
1984);
S.W.2d 434
banc
Fowler v.
bringing
factor in
tial
harm to anoth-
about
(Mo.
Corp.,
Park
banc
ifer
the harm would have been sustained
1984); and
Nesselrode
Executive Beech
if the
negligent.”
even
actor had not been
Inc.,
craft,
707 S.W.2d
Torts,
(Second)
432(1)
Restatement
I
again respectfully
must
dissent. “The
tendency
and rule to
principle
conform
short, plaintiff
may
recover under
standards,
is a true
moral
avenue
analyses
the traditional
made
terms of
*8
law,
growth
to
for
is not
be confounded
Nevertheless, the
majority,
causation.
a
suspension
principle
with the
of all
and rule
nonfeasance,
involving alleged
demon-
unreg-
and the
sentiment or
substitution of
minimal,
any,
strates
if
concern for fault
which,
benevolence,
pushed
ulated
to an
concept
neuters the
that it
and
much-used
extreme,
negation
is the
of all law.” B.
duty
of a trial court to direct a
is
Cardozo,
Legal
The
Science
Paradoxes
verdict
the defendant where causation
(1928).
pure
conjec-
a matter of
speculation
is
and
view,
my
persons
“where
contribute
important,
More
renders irrelevant
ture.
it
occurrence,
damage
question
cause an
and
is suf-
“whether
the defendant
Page,
fered,
only reasonably
generally J.
responsibility
safe.1 See
each should bear
Liability,
v.
9.24 at
proportion
to his fault.” Steinman
The Law of Premises
(Mo.
Annot.,
Strobel,
banc
(1976
Cum.Supp.1985-86);
589 S.W.2d
and
1979)
J., dissenting). My broth-
(Donnelly,
Injury or Death
Liability
Landlord’s
disagree: “What
every right
ers
Walks, Drives,
in Outside
Due to Defects
earnestly
to be the
judge
one
most
believes
Tenants,
By
or Grounds Used Common
challenge of
right
is met
method
(1976).
e.g., Barker v.
673 verdict, Malone, directed a and this Court should Ruminations on Dixie Drive It not, meager on presented at Beverage evidence American Yourself Versus Com- trial, substitute its 363, (1970). that of pany, 30 La.L.Rev. 364 trial court and reinstate the verdict. Today, proximate theory sepa- cause in Causation is the central components: necessary into rated two case; rather, inquiry this should focus boundary connection and a based factual scope respondents’ duty on the of upon justice liability which policy within particular plaintiff. “If the other issues Keeton, imposed. can W. Prosser & P. clearly are not great formulated there is a supra, pathbreaking 41 In § danger will become confused with however, analysis, Wex Malone illustrated the cause issue and it in convert a twin- difficulty trying to draw a fine kling into other re- underlying some issue components line and legal between factual Green, sponsibility.” The Relation Causal Malone, of “causation.” Ruminations on Law, In Negligence Issue 60 Mich.L.Rev. Cause-In-Fact, (1956). 60 9 Stan.L.Rev. 543, (1962). 546 The concept of causation Wright, Law, But Causation in Tort 73 cf. controversy has evoked considerable (1985). 1803 philo- Calif.L.Rev. As a among during sixty the scholars the last sophical matter, consequences “the years.3 necessary The “causal” connection go eternity, act forward causes cause, usually proximate referred to as go of an event back the dawn of human art, according term to Prosser and Kee- events, beyond.” W. Prosser P.& ton, upon “nothing which in the entire field Keeton, Yet, 41 supra, at 264. no one § of law ... has called more disagree- forth seriously would contend that Orville ment, upon opinions which in Wright day all modern “caused” aviation such welter of confusion.” W. Prosser & token, By disasters. the same no one Keeton, P. supra, at 263. Another suggest person taught that the who suggested has phrases observor “the Amsden how to a bicycle Shawn ride proximate cause are more little than though “caused” the accident even awas gaudy package ribbons with which the necessary antecedent. liability may be decorated once contents already meaningful develop been fixed the court an effort to stan- through causation, resort some mystique.” dards measure Miller, Cause-in-Fact, Peaslee, generally (1956); 3. See A. Becht & F. The Test 9 Stan.L.Rev. 60 (1961); Green, Factual Causation Multiple L. Rationale Damage, Causation and 47 Harv.L.Rev. (1927); of Proximate Cause H.L.A. Hart T. (1934); & Phillips, 1127 Reflection Factual Honoré, (1959); Causation in the Law R. Kee- Causation, 661; Prosser, Wash.U.L.Q. 1978 The ton, Legal (1963); Cause of Torts Law Cause, Minnesota Court on Proximate 21 Minn. Beale, Act, Consequences The Proximate of an Prosser, (1936); 19 L.Rev. Proximate Cause (1920); Carpenter, 33 Harv.L.Rev. 633 Concur- Rizzo, California, (1950); 38 Calif.L.Rev. 369 Causation, (1935); rent 941 83 U.Pa.L.Rev. Car- Imputation Theory of Proximate Cause: An penter, Determining Workable Rules for Proxi- Framework, Economic 15 Ga.L.Rev. 1007 Cause, 229, 396, (1932); mate Crowe, 20 Calif.L.Rev. 471 Arnold, (1981); Apportionment Rizzo & Causal Greenian, Anatonomy of a Tort— Theory, in the Law of An Torts: Economic Crowe, Interpreted by Who Been has Influenced Thode, (1980); Analy- Tort Colum.L.Rev. 1399 Primer, (1976); Loy Malone—A L.Rev. 903 Duty-Risk sis: v. Proximate Cause and the Ra- Grady, Negli- Proximate Cause and Law of Judge tional Allocation Functions Between Green, gence, (1984); 69 Iowa L.Rev. 363 1; Thode, Jury, 1977 Utah L.Rev. The Inde- Cases, Negligence Duty Problem in 28 Colum.L. Hypothetical Use of the Case to deter- fensible Green, Duties, Risks, (1928); Rev. 1014 Causa- Fact, (1968); Cause in mine Tex.L.Rev. Doctrines, Green, (1962); tion 41 Tex.L.Rev. 42 Law, Wright, in Tort 73 Calif.L.Rev. Causation Causation?, Dependable There Are Rules of Zweir, (1985); "Cause Fact” in Tort Henderson, (1929); U.Pa.L.Rev. 601 A Defense Philosophical and Law—A tion, Historical Examina- Hypothetical Use Case to Resolve Comment, (1982); 31 DePaul L.Rev. 769 Expand- the Causation ed, for an Issue—The Need is More A Fact: When Cause-In-Fact Than Contracted, Analysis, Rather than 47 Tex.L. Policy in on the Malone-Green Debate Role Posner, (1969); Rev. 183 Landes & Causation in Law, Determining Tort Factual Causation in Legal Approach, Law: Tort An Economic 12 J. La.L.Rev. 1519 Malone, (1983); Stud. 109 Ruminations *10 courts and commentators established cer- bringing factor in it about and cannot be a tests, tain such as the “but for” and “sub- substantial factor in producing it.” Re- factor” tests. There disagree- .stantial (Second) statement of Torts 432 Com- § ment, however, over whether such tests ment b. very This tells us little and is should be considered “legal” as tests for simply a test of exclusion.4 “factual” causation. Prosser & Keeton decades, For many of leading schol- treat such standards as tests for “factual” ars in urged this area have courts to aban- causation. Keeton, W. Prosser P.& su- don this “orthodox” causation, view of pra, (Second) The Restatement § cases, least in hard and shift the focus of Torts 432 apparently treats such tests inquiry scope of the defendant’s “legal” under the rubric of cause. These duty. of causation should be tests hypothetical are referred to as coun- determining limited to whether the conduct questions designed ter-factual to determine at issue injury. contributed to the what would have occurred without the al- courts leged should decide whether negligent the cause is conduct. The “but for” test, example, one for provides liability imposed. that the conduct should be of the Green, defendant caused the event if the The Causal Negli- Relation Issue in event would not have occurred but for the gence Law, (1962); 60 Mich.L.Rev. 543 Ma- defendant’s conduct. The “substantial lone, Cause-In-Fact, Ruminations on 9 Stan. factor” merely test is adoption (1956); Comment, L.Rev. 60 When Cause- “but for” test when multiple there are Fact, In-Fact Is suf- More Than A 44 La.L.Rev. causes of an event: ficient (1984). Foreseeability alone is not If two forces are actively operating, one sufficient; foreseeability makes the con- because of the negligence, actor’s negligent, duct but other factors policy any not because of misconduct on judgments scope duty. determine the part, his and each of itself is sufficient to bar, In the case at I do not believe that bring another, about harm to the actor’s scope respondents’ duty extended to negligence may be found to be a substan- placement speed bumps prop- on its bringing tial factor in it about. erty. only indicating evidence at trial (Second) 482(2). Restatement of Torts § bumps placed should have been Although these might appropriate tests parking appellant’s lot came from cases, in many woefully inade- witness, who indicated that quate in the hard cases. Aside from the bumps might prevent bicyclists from trav- philisophical question of whether “act” and eling too might fast lot. It “omission” overlap, these tests cannot ex- wall, fence, be said sign security plain the situation where there is an affirm- patrol might have had the same effect. party ative act a third and a failure to Yet, suggests respondents no one (nonfeasance) another, act such as in the have built wall around the case at bar. The attempts Restatement rather, precise question, lot. The is wheth- resolve by suggesting such cases “if respondents’ appellant er owed or someone harm, the same both in character and ex- tent, similarly specific duty alleged situated the would have been sustained even had appellant’s is, required precautions, pleading placing the actor taken the —that his failure to perceptible do so is not even a property on the order —in (1982); 4. “Factual” causation also poses Kaye, theoretical CaIif.L.Rev. 881 The Limits of the problems upon liability. in cases based vicarious Preponderance of the Evidence Standard: Justi- years, following In recent the wake of Summers fiably Causation, Multiple Naked Statistical Evidence and Tice, subject litigation causation has heen a 487; Miller, 1982 A.B.A.Res.J. Mar- liability in alternative situations such Cases, Liability Drug ket Share 41 J.Mo.Bar Co., e.g., Lilly DES cases. See v. Eli Robinson, (1985); Zaft Multiple Causation in (MO. generally, S.W.2d 241 Cases, Tort Law: Reflections on the DES Delgado, Beyond Sindell: Cause- Relaxation of Va.L.Rev. 713 Plaintiffs, in-Fact Rules for Intedeterminate *11 prevent power the accident occur- in judicial any herein from cannot function ring.5 way. It is a problem solely for the jury party the judge play and has no opinion principal suggests that this in determination. its jury, jury is a the question for and that the Green, Rationale of Proximate Cause 12 L. expert’s6 opin- the believed one short, (1927). legal question a this is speed bumps might appropriate ion that be appropriate for the and an matter trial opines to control traffic. It then through a court to decide either directed contrary the be to the course of “i[t] Green, See j.n.o.v. Judge or a L. verdict law for us to substitute our for (1930); Thode, Analysis: Jury Tort I jury.” that that such a believe and the Re- Duty-Risk v. Proximate Cause unwisely delegates view too much discre- Allocation of lational Functions Between the jury tion to the and overlooks one of Jury, 1977 1. Judge and Utah U.L.Rev. At principles most fundamental of tort law— case, appellant’s respondent the close of is, question duty ulti- that that the of is verdict, the moved for a directed trial policy for mately one of the courts. that court indicated it was a close case but any The hazards to which interest is sub- go jury that he would let the case to the jected numerous, are so and the reach of anyway and would reconsider the matter any plaintiff may the rule which invoke verdict, j.n.o.v. After the a court defined, poorly in its vindication is so granted j.n.o.v. guides there are so few to tell a external particular by appro- court whether hazard This action trial court was invoked, range priate. suggests within the of the rule that that Common sense problem may bewildering. respondents’ well prove scope duty of does not extend Nevertheless, placement speed bumps determine of on court must to the case, every speed it in consciously property.7 may or otherwise. While it be that Causation, question virtually negligence King, recognition. generally The initial all Val- uation, plain- Injury cases is whether the owes the defendant and Chance in Personal Torts Here, duty. any general Involving Preexisting tiff there is a Conditions Future premises "reasonably Note, (1981); make the safe.” The next Consequences, 90 Yale LJ. 1353 question bumps speed is whether absence of Risk of Harm: A New Standard for .Increased light property "unreasonably made the safe” in Sufficiency of Evidence in Medical of Causation is, being sought a child Cases, the risk avoid—that (1985); Malpractice Note, 65 B.UX.Rev. 275 being seriously by traveling hurt Malpractice: Right to Medical Recov- Answering lot. second this Survival, er for the Loss a Chance of scope duty. respondents’ defines the (1985). Pepp.L.Rev. 973 however, question, is whether in The crucial expert apparently qualified as an ac- duty encompasses each situation defendant’s reconstructionist, spe- cident and there was no Surely disagree no the risk. one would objection opinion the need for cific pro- lifeguards necessary important for are speed bumps. drowning, tecting it is from but swimmers suggest wholly different matter to opinion principal suggests case is 7. The that this necessary protect- bumps important for drowns in a akin to the situation where a child public might against ing the risk be seri- that children pool lifeguard swimming without a injured by bicyclists. inquiry ously This is not case, only plays duty. In either causation whether could be the same as jury minimal role because both situations being necessary protect people from hit likely it is than not” could conclude that "more cars, speeding case of such as in the Clifton conduct) (the alleged that the omission tortious Brown, It Ark. injury. might be noted contributed to the It equally may bumps well be that principal alters this test that suggesting involving bicy- necessary clists, prevent accidents stan- that the "more than not” flaw in now before this but the the case only increase risk of the accident. dard need establish- evidence Court is the lack sufficient system has over tort This is an issue which the scope speed bumps within the fall and, adequately; yet there is deal with while is re- duty. of what There no evidence emerging concept comparative causation an ordinances, the standards quired under local (or chance), risk as in and valuation of such permits evidence con- building and other such cases, diagnose malpractice failure to medical speed bumps. cerning the use widespread yet concept this has not received bumps are a generally accepted However, safe meth- can be crossed. slowing od for fast-moving noisy traffic in testify, did not and there is no other subdivisions, I grave have doubts about believe, reason to bump would speed bumps being appropriate device prevented bicycles these riding from slowing bicycles cutting proper- across Therefore, down lot. it is a ty. Under theory suggested a tort given fact that under the circumstances of the principal opinion, couldn’t a find case, irrespective whether a *12 speeding that a bicyclist injured after strik- exists, bump paths (expressed lines) the as ing such an just obstruction is as much pertinent of the two actors would have entitled recovery against the landowner crossed. The speed introduction of a bump appellant? would have had either of two different first, consequences: appellant changed it could have failed to her establish case by preponderance the moment in bicycle’s of the evidence time at which the and the granting path trial j.n.o.v. plaintiff, by court’s of the intersected that of the be reducing bicycle’s affirmed. speed the at the location second, speed bump; the it could have
ROBERTSON, Judge, dissenting. changed plain- the location at which the bicycle’s intersected, tiff’s and the paths I respectfully dissent. requiring the to alter angle This case takes us to the outer bound- approach path to the dirt top from the aries of compel- causation. The facts are the drive. ling; injury compensation. the cries out for however, instance, question, The critical In the speed bump is whether first the these speed provides time, defendants’ failure to install a no more than a wrinkle in bump in the causing lot is a sufficient to arrive at the inev- injuries cause of the sustained Kimberly Kimberly’s path itable intersection with at require Ann Jackson to defendants to com- slightly may later time. It inferred pensate her. I Because do not believe that delay significant enough, that if this were necessary has shown the causal Kimberly passed beyond would have connection between absence of the during the intersection this added moment. sustained, speed bump injuries and the I However, scenario, under such a the ab- dissent. speed bump sence of a is no more a “cause” the collision than is the failure critical element the trial of this moment, boys, delay of the even for a plaintiff’s testimony was the ex- hill, departure top their from the pert, consulting engineer. mechanical Kimberly’s sending the act of mother in expert testified that the get particular her to her father at the in- bicycles impact at the time of was 16.4 Any stant she did. such factor with per Although miles hour. there was no capacity momentary change to cause a speed bump evidence as to much a how sequence equivalent poten- time has an bicycles, would have he testified slowed accident, prevent tial to is there- properly designed speed bump equally fore “causative.” The of a absence bicycles have caused the to “become air- speed bump simply combined with a wide speeds greater borne” than 10 miles at (both hap- universe of events those which that, per assuming hour. testified He also have, pened and those did which could but bicycles speed bump had crossed not) the forces in motion to allow set hour, 3 to 4 miles boys Kimberly’s merge mother to into approximately 11 miles accelerated to tragedy. reaching plaintiff’s path. I hour before expert’s testi-
have no reason to doubt the significance of Conversely, the causative mony. bump must be viewed which, those factors assum- purpose of a context all testified that speed bump place, were in could speed bump is to control the at which caused, operated delay to offset the placing both actors back on the same colli- WHEELER, Sandra Sue actually sion course which occurred in the Plaintiff-Appellant, effect, present offsetting case—in wrin- Therefore, agree kle in I time. cannot EVANS, Ralph P. the absence of was a “cause” Defendant-Respondent. of this accident under the first scenario. 36717. No. WD instance, speed bump
In the second Kimberly’s path alters the intersection of Appeals, Missouri Court of however, bicycle’s. Again, and that of the Western District. happens happen
the accident or fails to Feb. depending not on whether the Rehearing Motion for and/or Transfer to place, upon Kimberly is in but when leaves Supreme Court Overruled and Denied walks, apartment, quickly how she March hill, boys depart when the *13 Application to Transfer Denied angle of the descent. The mere 13, May may fact accident have been change timing avoided does not
provide necessary predicate for defend- responsibility
ants’ causal in this accident.1 determining causation, is in “[t]here guide
truth little to us other than common Palsgraf v. Long
sense.” Island Railroad
Co., (1928) 248 N.Y. 162 N.E.
(Andrews, Here, dissenting). J. effect,
bump provide enough does not preventing boys’ negligence,
terms legally
to render its absence a sufficient
cause of the collision. Such a “cause” is attenuated, remote, impose
too too liabil
ity on these defendants.2 case, appropriate
In an I would consider adoption factor” “substantial However,
standard for causation. such an
opportunity present does not in the arise
case, putative as the conduct of each alone,
wrongdoer, acting would not sufficient to cause the accident.
been Torts, (5th
Prosser & Keeton on ed. stated,
For the reasons I would affirm n.o.v. entered in favor of
defendants the trial court. placed driveway, plaintiff produce could a com- had been 1. Even were alteration, place negligent argued in all bined time and that defendants were well have case, produced, argument likelihood it would have the fact re- respect. In such a in this paths of these actors would have mains that bump encouraged that the would be crossed. experi- boys to race in order across being the air lofted into ence the exhilaration regard, As an additional in this were bicycles. on their bump actually so that a situation inverted