BALANCING GENERALITIES AND DETAILS TO ASSESS PROXIMATE CAUSATION

January 30, 2003

By Steven P. Garmisa
Hoey Farina & Downes 
sgarmisa@felahfd.com

When defense attorneys argue a negligence claim is barred by the doctrine of proximate causation, they often:

• Focus, with a high degree of specificity, on the particular facts of the case. 
• Argue the defendant could not have reasonably anticipated harm would result from that specific set of detailed facts.

In a recent Illinois Appellate Court case, for example, a complaint alleged the defendants negligently failed to fix a streetlight, resulting in the death of a pedestrian. It sounds simple.

Yet, as Justice Margaret Stanton McBride, recounted: "[D]efendants suggest that they could not have reasonably foreseen that 'allowing an inoperative streetlight to exist on 79th Street mid-block would likely result in plaintiff's decedent Jan Biel: (1) failing to utilize nearby crosswalks; (2) deciding to cross the street mid-block; (3) at a location where the streetlight was out; (4) wearing dark clothing; (5) being extremely intoxicated; (6) staggering and not able to control his own movement; and (7) standing in the middle of 79th Street in such a condition for at least 10 seconds.' According to defendants, as a matter of law, the independent acts of Jan Biel were not reasonably foreseeable."

Focusing on these specifics, McBride explained, "Defendants moved for summary judgment on the basis that the inoperable streetlight only created a condition and could not have proximately caused the accident as a matter of law." Biel v. City of Bridgeview, 2002 WL 31681319 (Nov. 26).

The motion for summary judgment was granted, based on the Illinois Supreme Court's ruling in First Springfield Bank & Trust v. Galman, 188 Ill.2d 252 (1999).

Reading how McBride and her colleagues handled the new case, and rereading Galman -- along with the scathing dissent by Justice Moses W. Harrison -- I began wondering what commentators thought about Galman. It turns out Galman is cited by the reporters of the proposed Restatement (Third) of the Law of Torts (Tentative Draft No. 2). But instead of being singled out for praise, Galman is cited by the reporters as an example of a case where the court employed defense counsel's old trick of "manipulating the level of detail" when invoking proximate causation to bar a claim.

Trying to be more precise, the proposed Restatement avoids the terms "proximate cause" and "substantial factor."

As the comments explain: "The 'substantial factor' requirement in the First and Second Restatements of Torts has often been understood to address proximate cause, although that was not the intent of those documents." Restatement (Third) of Torts: Liability for Physical Harm, section 29, comment a (Tentative Draft No. 2, 2002). The problem, is that "the term 'proximate cause' is a poor one to describe the limits on the scope of liability." Comment b.

Avoiding these terms, section 29 of the proposed Restatement provides: "An actor is not liable for harm different from the harms whose risks made the actor's conduct tortious."

This formula, of course, won't eliminate problems in figuring out the proper level of detail to use in analyzing the viability of negligence claims. But comment b notes that when lawyers use "excessive detail in characterizing harm to make it appear more unforeseeable," judges usually respond by pointing out the "precise manner of harm is irrelevant." Judges typically rely on the "fact-finders' judgment and common sense in deciding the appropriate specificity with which to decide the scope of liability." Comment i.

According to the reporters, however, "Sometimes courts, in an effort to justify their outcome, engage in the same sort of advocacy by manipulating the level of detail. See, e.g., First Springfield Bank & Trust v. Galman, 720 N.E.2d 1068, 1073 (Ill. 1999) (characterizing the foreseeability inquiry as 'whether it was reasonably foreseeable that violating a "no parking" sign at mid-block would likely result in a pedestrian's ignoring a marked crosswalk at the corner, walking to mid-block, and attempting to cross a designated truck route blindly and in clear violation of the law')."

Despite this criticism of Galman, the reporters acknowledge: "No specific rule can be provided about the appropriate level of generality or specificity to employ in characterizing the harm for purposes of this section. Nevertheless, some guidance can be obtained by careful reference to the risks that made the actor's conduct tortious." Comment i.

In the new Illinois case, the reviewing court wasn't enticed into viewing the risk of harm with the high degree of specificity advocated by the defendants. Instead, the court looked at reasonable inferences that supported a verdict for plaintiff on proximate causation.

"In our view," McBride concluded for a unanimous court, "Galman is distinguishable from the instant case.... [W]e find that factual questions remain as to whether the inoperable streetlight was a cause in fact of Biel's injuries. [O]ne could reasonably infer that defendants' failure to maintain the streetlight at issue was a material and substantial element in Biel's death and that absent defendants' conduct the injury would not have occurred. Further, unlike Galman, we conclude that it was foreseeable that defendants' failure to repair, maintain and replace an inoperable streetlight might result in injury to a pedestrian crossing 79th Street at the relevant location."

The Appellate Court therefore ruled that "the trial court's finding at the summary judgment stage that the inoperable streetlight was merely a condition and not a proximate cause of Biel's injuries was incorrect."

The plaintiff will have a chance to persuade a jury that failure to fix a streetlight was a substantial factor in causing Jan Biel's death.

Back to Trial Notebook Main page