Putting Meaning Back Into 'Causation'

As we have seen, since the 1944 decision in Escola v. Coca-Cola, the courts have been steadily removing the link between causation and compensation. This has shattered the ability of insurers and their clients to predict risk, since accidents with only the most tenuous links to, the manufacturer’s actions or products become a source of liability. A desk underwriter simply cannot imagine every possible connection, however remote, between the product and accidents, and thus cannot guard against them. This judicial bias aimed at reaching the "deep pocket" is void of justice and fails to consider the broader effect of such decisions on the public and the market.

Yet in fairness to the legal scholars and judges of this century, they are not the first to tinker with the idea of causation in an attempt to support their notion of redistributive justice.

Early tort law found liability on the basis of causation – not only was the defendant’s motive of secondary concern, but so too was the care he took to avoid harm. In the absence of a contractual agreement to distribute risk, causation and liability were tied together. This was called "strict liability."

Negligence replaced strict liability as the legal norm in this country over the course of the 19th century. At the time, a negligence standard was viewed as necessary to support economic growth – it was a subsidy to industry. [84] The negligence standard allowed industry to avoid paying for harms caused by its activities if it had not acted "negligently."

This system is fundamentally at odds with a system of justice based on individual rights and responsibilities. When an individual’s rights are violated, he should receive restitution from the party responsible, regardless of the reason for that violation of his rights.

A negligence standard denies that a person has absolute rights. It says, instead, that restitution for harm suffered does not depend on whether rights were violated, but whether the defendant acted negligently. In shifting to negligence, the courts abandoned the idea that causation creates liability, instead hanging their hats on the still more inchoate concepts of duty and foreseeability.

Having determined that liability is a matter of social policy, there is no reason to construe the concepts of duty or foreseeability narrowly if the judiciary’s view of social policy dictates otherwise. If it is instead decided that it would be a wise social policy, for example, to require manufacturers to compensate accident victims regardless of causation, why not do so? Once the link between causation and liability has been severed, liability can be expanded as well as limited. Thus, in addition to ignoring individual rights, a negligence system is far less predictable than one based on causation and rights – a system of strict liability.

The words "strict liability" send shivers up the spines of many business people, who pine instead for the days when non-negligent often was synonymous with pro-industry. They forget that every Michigan case discussed in this paper was decided on a theory of implied warranty or negligence, as "strict liability" has been firmly rejected by Michigan courts.

The endless expansion of the legal meaning of "causation" to include actions far beyond the word’s meaning in normal conversation is primarily the responsibility of the courts. They created the mess, and they must bear the brunt of the burden in cleaning it up.

An ultimate solution to the causation problem will probably have to include a return to a system of strict liability. Such a system removes judicial notions of appropriate social policy – an area constitutionally ascribed to the legislature – from the equation, allowing the courts to return to their mission of determining where rights lie. Though the term "causation" will remain a pliable concept in the hands of judges, several other equally elastic concepts will be largely removed from tort law, including "negligence", "duty", and "foreseeable", thus eliminating at least a few possibilities for judicial mischief.

A strict liability system does not, of course, mean that manufacturers and others will face absolute liability for all their products. For a proper strict liability not only requires a meaningful definition of causation, but it allows for parties to limit, increase, and otherwise specify their own risk allocation through contract.