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

Witt & Tani, TCPI 7. Proximate Cause
recommended to his colleagues that insurance should play a role in the case’s resolution. “If there
were any way in which the doctrine could be manipulated so as to correspond with probable
insurance that would be fine,” he wrote, “and in our case one may guess there to be more
likelihood that the property owners were insured against flood damages than that Continental’s
liability insurance would be equal to the strain.” DAVID M. DORSEN, HENRY FRIENDLY: GREATEST
JUDGE OF HIS ERA 309 (2012). Did Judge Friendly’s decision succeed in placing losses with the
better insured parties?
F. Proximate Cause Beyond Torts
1. Proximate Cause and Criminal Law
Proximate causation is an issue that courts wrestle with in contexts outside of torts. For
example, the “exclusionary rule” in criminal law generally holds that evidence obtained in
violation of the Fourth Amendment is inadmissible. For example, in Hudson v. Michigan, 547
U.S. 586 (2006), a criminal defendant was convicted based on a search of his house that revealed
large quantities of guns and firearms. However, the police violated the “knock and announce”
rule for executing the search warrant. The Supreme Court ruled that evidence obtained in
violation of that rule was still admissible because the Fourth Amendment violation was not
sufficiently related to the evidence obtained in the search to have the “taint” of illegality. Justice
Scalia, writing for the Court, explained that “but-for causality is only a necessary, not sufficient,
condition for suppression . . . [because it] can be too attenuated to justify exclusion.” He dictated
a balancing test to determine whether the exclusion’s “deterrence benefits outweigh its substantial
social costs” of potentially letting guilty defendants avoid conviction to limit excessive exclusion.
There are similar proximate cause devices in statutory regimes, including limiting damages in
RICO (Racketeer Influenced and Corrupt Organizations Act) cases, Holmes v. Sec. Investor Prot.
Corp., 503 U.S. 258 (1992), and antitrust cases, Associated General Contractors v. Cal. State
Council of Carpenters, 459 U.S. 519 (1983). For a broader discussion of proximate cause in other
contexts, see Sandra Sperino, Statutory Proximate Cause, 88 NOTRE DAME L. REV. 1199 (2013).
2. Proximate Cause and Consequential Damages
The famous contracts case, Hadley v. Baxendale, is commonly cited for the proposition
that a breaching party in a contract is only liable for those damages that arise naturally from the
breach, or which might “reasonably be supposed to have been in the contemplation of both
parties, at the time they made the contract, as the probable result of the breach of it.” These
formulations (“arising naturally,” “reasonably . . . in the contemplation,” and “probable result”)
sound quite similar to cases on proximate cause that used language like ordinary and natural,
direct consequences, foreseeability, etc. The conventional wisdom, however, is that the concept
of proximate cause in torts is much more expansive than consequential damages in contract.
There is, for example, widespread agreement that damages are recoverable in tort under an
eggshell skull theory that would not be recoverable under Hadley v. Baxendale. See Banks
McDowell, Foreseeability in Contract and Tort: The Problems of Responsibility and Remoteness,
26 CASE W. RES. L. REV. 286 (1985).
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