§13.2 Cause in Fact vs. Proximate Cause

The Case: Hale v. Ostrow , 166 S.W.3d 713 (Tenn. 2005).

The Basic Facts: Plaintiff was injured when she walked off a bush-obstructed sidewalk into street and tripped over piece of concrete. Plaintiff sued landowner who did not maintain passable sidewalk.

The Bottom Line:

• "As we often recite, a negligence claim requires proof of two types of causation: causation in fact and proximate cause. 'Causation [in fact] and proximate cause are distinct elements of negligence, and both must be proven by the plaintiff by a preponderance of the evidence.' Kilpatrick v. Bryant, [868 S.W.2d 594, 598 (Tenn. 1993)]. Cause in fact and proximate cause are 'ordinarily jury questions, unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome.'Haynes v. Hamilton County, [883 S.W.2d 606, 612 (Tenn. 1994)] (citing McClenahan v. Cooley, [806 S.W.2d 767, 775 (Tenn. 1991)])." Id. at 718.
• "The defendant's conduct is the cause in fact of the plaintiff's injury if, as a factual matter, it directly contributed to the plaintiff's injury. In a case such as this one, we must ask whether the plaintiff's injury would have happened 'but for' the defendants' act. See Wood v. Newman, Hayes & Dixon Ins. Agency, [905 S.W.2d 559, 562 (Tenn. 1995)]. If not, then the defendants' conduct is a cause in fact of the plaintiff's injury. It is not necessary that the defendants' act be the sole cause of the plaintiff's injury, only that it be a cause." Id.
• "Viewing the facts in the light most favorable to Ms. Hale, there is a genuine issue of material fact as to whether the overgrown bushes on the Ostrows' property were a cause in fact of her injury. Ms. Hale stated in her deposition that the bushes had completely overgrown the sidewalk, that she determined that she could not bypass the bushes on the sidewalk, and that she therefore decided to leave the sidewalk and step into the street. As she did so, she looked up to check for traffic and tripped over the broken sidewalk. But for the bushes overgrowing the sidewalk, Ms. Hale would not have looked up to check for traffic, as she would not have needed to step into the street. Might she nevertheless have tripped over the concrete and suffered the same injury? Indeed she might have. Given that the evidence on summary judgment must be viewed in the light most favorable to the plaintiff, however, the issue of causation, as well as the allocation of comparative fault, are determinations of fact to be made by the jury." Id.
• "Once it is determined that the plaintiff's injury would not have happened but for the defendants' breach of duty, the next question is whether the defendants' breach was a proximate cause of the plaintiff's injury, which is very different from a cause in fact of the injury. Proximate cause puts a limit on the causal chain, such that, even though the plaintiff's injury would not have happened but for the defendants' breach, defendants will not be held liable for injuries that were not substantially caused by their conduct or were not reasonably foreseeable results of their conduct. Haynes, 883 S.W.2d at 612. 'Thus, proximate cause, or legal cause, concerns a determination of whether legal liability should be imposed where cause in fact has been established.' Kilpatrick, 868 S.W.2d at 598." Id. at 718-19.
• "Having determined that there exists a genuine issue of material fact as to whether the overgrown bushes on the Ostrows' property were a cause-in-fact of Ms. Hale's injury, we must ask whether there is a genuine issue as to whether they were also a proximate cause. The Court of Appeals held that, in light of Ms. Hale's testimony that she never encountered the bushes or stepped into the street to avoid the bushes, the bushes were not a proximate cause of her injury. We note, however, that the question the Court of Appeals was actually answering was whether the bushes were a cause in fact of her injury, because the appellate court essentially decided that her injury would still have occurred even if not for the bushes. As we have explained, we disagree with the Court of Appeals' conclusion that the bushes were, as a matter of law, not a cause in fact of Ms. Hale's injuries." Id. at 719.
• "Proximate cause is addressed with a three-pronged test:

  (1) the tortfeasor's conduct must have been a "substantial factor" in bringing about the harm being complained of; and (2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the action could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence.

  Haynes, 883 S.W.2d at 612 (quoting McClenahan, 806 S.W.2d at 775)." Id.
• "Viewing the facts in the light most favorable to Ms. Hale, there is a genuine issue of material fact as to whether the bushes were a substantial factor in her fall, and as to whether the harm to her was foreseeable. Even though it might not have been foreseeable that a pedestrian would trip on broken concrete in going around the bushes, the injury was nevertheless of the type to be expected from permitting bushes to overgrow the sidewalk. See, e.g., United Novelty Co. v. Daniels, [42 So.2d 395, 396 (Miss. 1949)]. In this instance, there is no rule or policy that should relieve a landowner from liability for permitting vegetation to overgrow a public sidewalk. To the contrary, there are a number of rules against it, i.e., the Memphis ordinances requiring property owners to keep sidewalks clear and free of overgrowth. Accordingly, the determination of whether the overgrown bushes were a proximate cause of Ms. Hale's injury is a question of fact for the jury." Id.

Other Sources of Note: Mason ex rel Mason v. Metropolitan Government of Nashville and Davidson County , 189 S.W.3d 217 (Tenn. Ct. App. 2005) (extensive discussion of causation in school case where one student injured another).

Recent Cases:  King v. Anderson Co., 419 S.W.3d 232 (Tenn. 2013) (county jail failed to release inmate on time, and inmate was injured in altercation after time he was supposed to be released; Court held that defendant’s actions were not the proximate cause of plaintiff’s injuries, as jails are not insurers of inmate safety as a matter of public policy and defendant had no actual or constructive notice that plaintiff would be injured, and therefore harm was not foreseeable).