Sebok on Damages

Tony Sebok has posted to SSRN his presentation from last year's symposium at Southwestern, Damages:  Symposium Presentation of Anthony Sebok.  The abstract provides:

Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm §27 adopts the "Anderson Rule," stating that a simultaneous sufficient cause does not prevent a tortious actor from being considered a cause-in-fact and thus potentially liable for the harm caused. However, Comment d of §27 reserves the issue of apportioning liability among sufficient tortious causes for a later section.

Restatement of the Law Third, Torts: Remedies §12 addresses this reserved issue, offering the following: (1) When a tortious cause and another tortious cause simultaneously cause harm, both are liable for all or part of the damages. (2) When a tortious cause and a non-tortious cause simultaneously cause harm, the Restatement does not take a position on liability. (3) When a tortious cause precedes a non-tortious cause that would have caused the same harm, the tortious cause is not liable for damages that would have occurred anyway. (4) When a tortious cause precedes another tortious cause that would have caused the same harm, the first tortious cause is liable for the damages.

In this transcript of a Southwestern Law School conference presentation on the Restatement of the Law Third, Torts, I argue that point (2) is inconsistent with points (1) and (4). If a tortious cause can be liable for damages even when harm would have occurred from another tortious cause (1), and is not liable when a subsequent natural cause would have caused the same harm (4), then (2) is contradictory. It doesn’t make sense to exempt a tortious cause from liability just because a prior tortious cause also contributed to the harm. If points (1) and (4) are correct, then point (2) fails to account for the moral responsibility of the tortious cause, regardless of the sequence of events.