Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 7. Proximate Cause
makes the actor negligent, such an act whether innocent, negligent, intentionally
tortious, or criminal does not prevent the actor from being liable for harm caused
thereby.” . . . Texas courts have applied this theory of liability in previous cases. .
. .
Lane v. Halliburton, 529 F.3d 548 (5th Cir. 2008).
The Lane litigation was one of several suits arising out of the same accident. After the
plaintiffs survived Halliburton / KBR’s motion to dismiss at the Fifth Circuit in 2008, the
defendants filed a separate motion for summary judgment. The defendants successfully argued
that the plaintiffs’ claim was precluded by the Defense Base Act, a federal law that includes a
workers’ compensation program applicable to civilian employees of American contractors
working on or around overseas military bases. Fisher v. Halliburton, 667 F.3d 602 (5th Cir.
2012). The Lane plaintiffs had already settled before the 2012 decision of the Fifth Circuit, but
the Fisher plaintiffs had refused to settle and found themselves out of luck.
Another example of proximate causation at work in Iraq arises out of the Foreign Claims
Act, 10 U.S.C. § 2734, which authorizes the United States military to offer compensation to
overseas civilian victims of injury suffered because of U.S. military operations so long as the
injury in question did not arise out of combat. In an effort to preserve good will and win hearts
and minds, U.S. judge advocates at the Bagram Air Force Base in Kabul compensated a number
of civilian Afghan victims after a firefight in Kabul itself between coalition forces and the
Taliban. How did the judge advocates circumvent the statutory prohibition on compensating
victims injured in combat? They went further back the causal chain to a “skidding, out-of-control,
no-brakes descent” of a U.S. armored truck down the mountain road into Kabul that had preceded
the firefight.
The difficulty here (as any torts lawyer worth her boots will observe) is that the
decision to make the Kabul claims into motor vehicle claims stretches the chain of
causation dangerously close to its breaking point. Tort principles generally require
that the injuries complained of be the proximate or reasonably foreseeable outcome
of the negligent act in question. In the Kabul case, this required the claims
commissioners to conclude that the shooting deaths of the Afghan claimants in
Kabul were the reasonably foreseeable result of something like negligent brake
maintenance at the Bagram Air Force base.
John Fabian Witt, Form and Substance in the Law of Counterinsurgency Damages, 41 LOYOLA
L.A. L. REV. 1455, 1479 (2008).
A Proximate Cause Case Study: Subsequent Negligent Medical Care
For the most part, the law deals with unexpected intervening causes in an ad hoc, allthings-considered
style. But now and then, a particular type of fact sequence recurs with
sufficient frequency that the law crystalizes its contextual standards (“foreseeability” or
“directness,” for example) into hard-edged rules. The eggshell skull plaintiff rule is one such
doctrine. The effort of the New York Court of Appeals in McLaughlin to establish a hard rule
against liability in instances of intervening gross negligence might be another failed attempt at
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