TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, February 2, 2012

Appellate Cases Turning on Actual or Proximate Cause?


Samson Vermont (Miami) has asked for your input for his seminar class. Do you know of any pending tort cases that turn on actual cause or proximate cause? He is looking for cases (in any state or federal court) that are on appeal or expected to be on appeal. Or, as another alternative, a case that did not get appealed but could have been appealed on causation grounds.

You are welcome to reply in the comments.


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The Illinois Court of Appeals recently decided an interesting case on proximate cause. I am not sure it has been appealed to the state's supreme court, but just in case... You can read about it in my blog here or copy and paste this address:

Posted by: Prof. Alberto Bernabe | Feb 2, 2012 10:27:15 AM

So far I've found only one interesting case:

Zokhrabov v. Park(Dec. 23, 2011), available at

Posted by: Samson Vermont | Feb 3, 2012 8:00:09 AM

If Prof. Vermont's class is prepared to look north of the (international border) at Canadian law
there's a factual cause case in Clements (Litigation Guardian of) v. Clements, 2011 BCCA 581, reversing 2009 BCSC 112 - the reasons are available at

The appellate reasons are here:

The trial reasons are here:

The Supreme Court of Canada is hearing the appeal later this month. The Attorney-General of British Columbia thinks the case important enough that it sought and obtained intervener status. That's because the core of plaintiff-appellant's argument is that the incmplete state of our knowledge of the dynamics of vehicle accidents - in this case a single vehicle motorcylce capsize - is such plaintiffs should be able to use some version of what US law would call a substantial factor test.

Posted by: David Cheifetz | Feb 10, 2012 2:27:49 AM

Thank you Alberto and David. I included both of those cases. Other interesting causation cases that I included:

-Davis v. United States, 2012 WL 170871 (1st Cir. 2012). The lower court found that the FBI was cause of the murder of two women by FBI informants. First Circuit affirmed. Bulgar and Flemmi were Boston gang members and FBI informants who murdered two women in the early 1980’s. P argued that the FBI caused the women’s deaths through its flagrant negligence in using Flemmi and Bulgar as informants, shielding them from prosecution and “failing to control” them even after becoming aware of their dangerousness. On appeal, the government challenged both the district court's reading of Massachusetts case law on proximate cause as well as its factual findings underlying but-for causation.

-In re September 11 Litigation, 280 F. Supp. 2d. 279 (SDNY 2003). D argued that harm to ground victims was unforeseeable because terrorists had not previously used hijacked planes to destroy buildings. Ps argued that D had duty to construct buildings that could withstand fire without collapsing, and that fire is foreseeable. Trial court denied D’s motion to dismiss.

-Zokhrabov v. Park, Ill. App. (Dec. 23, 2011). D was hit by moving train and a part of his body was thrown into P. Appellate court let P’s case go forward, holding that P was a foreseeable plaintiff to whom D owed a duty of care.

-Johnson v. Jacobs, No. 47A01-1102-CT-3 (Ind. Ct. App. Oct. 22, 2011). Man with student pilot’s license crashed plane into his mother-in-law’s house killing himself and his passenger daughter, a minor. P-mother sued the local aviation board. Trial court and appellate court found that father’s conduct, an apparent murder-suicide, was superseding cause that broke the causal link between any alleged negligence of D and the death of the daughter.

-Georgia-Pacific Corp. v. Bostic (Tex. App. August 26, 2010). Involves toxic tort. Currently on appeal to the Supreme Court of Texas. P died from mesothelioma allegedly as a result of asbestos exposure as a child and teenager while working with his father on construction projects in the 1960s and 1970s. P alleges that Georgia-Pacific joint compound was used on those projects. Jury awarded P $13 million, holding Georgia-Pacific 75% responsible. Texas Court of Appeals reversed, holding that P failed to show that Georgia-Pacific’s conduct was a substantial cause of his disease. P’s expert did not testify that Mr. Bostic’s mesothelioma would not have occurred absent exposure to Georgia-Pacific’s asbestos-containing product. The court rejected as inconsistent with Texas law P’s theory that each and every exposure to asbestos caused or contributed to cause P’s mesothelioma.

Posted by: Samson Vermont | Mar 9, 2012 11:32:12 AM

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