Proximate Cause

11/1/2000 - Clifford's Notes, Chicago Lawyer
By Robert Clifford

A tanker truck was parked in a no-parking zone near a busy intersection at a school around dismissal time. An exchange student from France crossed the street mid-block in front of the tanker, apparently because her view was obstructed at the crosswalk, when she was struck and killed by a car.

On appeal, the court denied the defendant’s judgement notwithstanding the verdict. But the Illinois Supreme Court reversed, stating that the defendant’s actions were not the proximate cause of the decedent’s injuries. First Springfield Bank & Trust v. Galman,188 Ill 2d 252, 720 N.E. 2d 1068 (1999).

The court made the distinction that although the illegally parked truck was the cause in fact of the injury, it was not the legal cause, thereby determining the issue of proximate cause as a matter of law rather than as a question of fact for the jury.

Cause in fact is established when there is a reasonable certainty that a defendant’s acts caused the injury or damage. Legal cause is essentially a question of foreseeability: Would a reasonable person see that the injury would occur as a likely result of his conduct?

In a scathing dissent, Justice Moses Harrison admonished the majority for disregarding the jury’s verdict and answering the cause-in-fact question when the truck driver admitted he saw and read the no-parking sign but park there nonetheless for convenience of going to his home nearby to shower. He wrote, " I do not believe that corporate enterprise must be given precedence over human welfare in order to flourish." Id., at 265.

Illinois courts apparently still adhere to what is considered an antiquated concept whereby a defendant is relieved of responsibility when its negligence is constructed to merely furnish a "condition" for the ensuing injuries and is not considered the "proximate case" of the harm.

This rule of law, which has been abandoned over the years in many states, is commonly referred to as "condition versus cause" doctrine. Illinois courts, in still embracing this theory at times, struggle with making a distinction between "passive" and "active" negligence.

The more modern approach, and one that the Illinois Supreme Court touched upon in First Springfield, is to examine the foreseeability of interviewing a superseding causes to see if that cuts off the causal connection between the original negligence and the injury.

Illinois court generally adhere to the well-established rule that an intervening act of negligence will not supersede the original negligence and resulting injury if the intervening negligence was "reasonably foreseeable" and the "natural and probably" result of the original wrong. Illinois Central Railroad v Oswald, 228 Ill. 270, 170 N.E. 247 ( 1930).

But in applying the "condition versus cause" analysis, some noted legal analysts and jurist have pointed out the difficulties and ensuing inequities in applying it.

Take for instance, Harper, James & Gary in their respected treatise " The Law of Torts." It recognized that the concept is rarely used except for a "handful of state courts [that] still pay lip service to the useless rubric. Section 20.6 p. 173 (2d e. 1986). The authors go on to say that, "[A]s an aid in reaching decisions in particular cases, the dichotomy is worse than useless," Id. [Emphasis in original.]

Even Prosser & Keeton, noted tort scholars who wrote the book from which of us learned, criticized the doctrine and found that "the distinction is now almost entirely discredited." William L. Prosser & W. Page Keeton, " The Law of Torts," section 42 @ 278 (5^th ed. 1984). The authors go on to say that, "So far as it has any validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction between ‘cause’ and ‘ condition’ which is important, but the nature of the risk and the character of the intervening cause." ID.

Furthermore, the strained dichotomy of the test does not even offer a valid indication of the proximate cause question. For example, although an unsafe condition may have existed long because the incident causing the injury, some courts may be hesitant to find liability because of the "passive" nature of the condition.

The court in Prochnow v. El Paso Golf Club,  253 Ill. App. 3d 387, 625 N.E. 2d 769 (4^th dist. 1993), pointed this out. There the defendant was held liable for a golf patron’s being struck by an errant golf ball while on the rear deck of the clubhouse. Although the defendant argued the course merely created a condition to make the injury possible, the court wisely recognized, "It is the failure to protect plaintiff against danger arising from a condition of the premises which the jury found to be the negligence of defendant in this case. If the failure to protect an invitee from an unreasonably dangerous condition on the premises only creates a condition, property owners would rarely be liable." Id. at 399.

Furthermore, with the advent of comparative negligence in Illinois, the casual negligence of all parties is examined and weighted, thereby obviating the concern that defendants who are minimally culpable will be held liable. The court in Michalak v County of LaSalle, 121 Ill. App 3d 574, 459 N.E. 2d 1131 (3d Dist. 1984), pointed this out and found that " the need is diminished for a policy which protects the remotely negligent defendant from liability for the full measure of damages or for a policy that ameliorates the harsh effects of contributory negligence on the plaintiff." Id., at 578. Justice Harrison in his dissent in First Springfield noted that the jury apparently weighed the plaintiff teenager’s fault in the jaywalking by assessing her 45 percent fault.

But, apparently it was this very issue that led the court to its conclusion. And, again, in Thompson v County of Cook, 154 Ill. 2d 374, 609 N.E. 2d 290 (1993), the Supreme Court also invoked this argument in affirming the appellate court’s reversal of a verdict for plaintiff when he was found to be 23 percent at fault in a one- car automobile accident involving an intoxicated driver blaming the curve in the road.

For the practitioner who is trying to discern when the "condition versus cause" doctrine will become an issue, it appears that one must take a hard look at the plaintiff’s conduct or s/he just may find the case thrown out of court based on a proximate cause analysis.