Book contents
- Frontmatter
- Contents
- Preface
- Acknowledgments
- PART I OTHER-REGARDING BEHAVIOR
- PART II THE NORMATIVE JUSTIFICATION
- PART III THE THEORY APPLIED
- 6 Social Cohesion and Autonomy: The Justificational Boundary of Duty
- 7 Social Cohesion and Moral Agency: The Justification for Proximate Cause
- 8 Social Cohesion and Strict Liability
- 9 Using Another's Property
- 10 Product Liability: Social Cohesion and Agency Relationships
- 11 Customer-Centered Enterprise Liability
- 12 Social Cohesion and Knowledge: The Intentional Torts
- PART IV SUMMARY AND IMPLICATIONS
- Index
7 - Social Cohesion and Moral Agency: The Justification for Proximate Cause
Published online by Cambridge University Press: 04 August 2010
- Frontmatter
- Contents
- Preface
- Acknowledgments
- PART I OTHER-REGARDING BEHAVIOR
- PART II THE NORMATIVE JUSTIFICATION
- PART III THE THEORY APPLIED
- 6 Social Cohesion and Autonomy: The Justificational Boundary of Duty
- 7 Social Cohesion and Moral Agency: The Justification for Proximate Cause
- 8 Social Cohesion and Strict Liability
- 9 Using Another's Property
- 10 Product Liability: Social Cohesion and Agency Relationships
- 11 Customer-Centered Enterprise Liability
- 12 Social Cohesion and Knowledge: The Intentional Torts
- PART IV SUMMARY AND IMPLICATIONS
- Index
Summary
If an actor has dominion over a risk (as understood in the last chapter) and acts unreasonably, why would the actor not be responsible for the harm that results? The law's response is that the actor is legally responsible only if the actor is the “proximate cause” of the other's harm. But what, exactly, does proximate cause mean and what is the justification for this restricted scope of responsibility?
NONJUSTIFICATIONAL APPROACHES
Conventional approaches to proximate cause center on rules, principles, or tests. None are sufficiently justificational.
As a rule-based approach, the Restatement Third has narrowed the range of rules to eight: a general rule (limiting an actor's liability to “physical harms that result from risks that made the actor's conduct tortious”), and then special rules for the speeding trolley case (no liability), the thin-skull cases (liability), liability to rescuers, intentional and reckless tortfeasors, intervening acts and superseding causes, enhanced harm from medical aid to the victim, and, finally, trivial contributions to multiple sufficient causes. Substantial incoherence remains.
What, for example, is the relationship between the general rule and the thin-skull rule? If the thin-skull rule is only an application of the general rule, what theory explains why a preexisting condition is the kind of harm that makes the actor's conduct tortious, and why do we need a special rule if we understand that explanatory theory?
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- Chapter
- Information
- Tort Law and Social Morality , pp. 127 - 149Publisher: Cambridge University PressPrint publication year: 2010