November 23, 2004

Proximate Cause

Proximate cause is a legal concept that you find in tort cases and in securities fraud. It is a requirement that there be a causal link between the wrong alleged and the damage caused. It is sometimes thought of as the "but for" test. But for the actions of the defendant, plaintiff would not have been damaged. Here is a not very illuminating definition.

In any event, I saw in the New York Law Journal today, a story about proximate cause that really caught my eye. I quote (because I don't know how long that link will be good for):

A piece of grilled shrimp flung playfully by a Japanese hibachi chef toward a tableside diner is being blamed for causing the man's death.

Making a proximate-cause argument, the lawyer for the deceased man's estate has alleged that the man's reflexive response -- to duck away from the flying food -- caused a neck injury that required surgery.

Complications from that first operation necessitated a second procedure. Five months later, Jerry Colaitis of Old Brookville, N.Y., was dead of an illness that his family claims was proximately caused by the injury.

But for the food-flinging incident at the Benihana restaurant in Munsey Park, N.Y., Colaitis would still be alive, attorney Andre Ferenzo asserts.

"They set in motion a sequence of events," he said.

Alleging wrongful death, Colaitis' estate is seeking $10 million in damages. The complaint includes claims for pain and suffering and loss of consortium.

Benihana has denied all of the complaint's material allegations. In other papers filed with the court, defense attorney Andrew B. Kaufman also questioned whether Colaitis was trying to avoid the flying shrimp or catch it in his mouth.

* * *

When the chef flipped a piece of shrimp at Colaitis, he allegedly ducked away, injuring two vertebra in his neck. Doctors reportedly told Colaitis that if he did not have corrective surgery, another injury to the same disks might leave him paralyzed.

The first operation was in June 2001, six months after the Benihana dinner. A second procedure was performed two weeks later.

In succeeding months Colaitis developed a high fever and problems with his breathing and memory. He died in a hospital five months after the second surgery, on Nov. 22, 2001.

A contributing cause of his death, Ferenzo said, was a blood-borne infection. Justice Mahon's decision also listed respiratory failure and renal failure as causes of death.

Neither side has sought to add the doctors or hospital where the surgery occurred, New York University Medical Center, to the case. Colaitis died at St. Francis Hospital in Roslyn.

Arguing for partial summary judgment, defendant's attorney Kaufman challenged the plaintiff's ability to prove proximate cause. In court papers, he said that Benihana cannot be liable for Colaitis' death because of a break in the chain of causation between the first or second procedures and his death five months later.

"Essentially, as the plaintiff's decedent died of an unidentifiable medical condition, the plaintiff will be unable to establish that any alleged negligence by Benihana proximately caused his demise," Kaufman wrote.

In denying defendant's motion, Justice Mahon held that whether the tableside events caused Colaitis' death would best be resolved at trial.

I think that the defendant has a pretty good argument here and I am shocked that no one has brought the hospital in. Unless, of course, he did not die from any malpractice. I don't know about this one. Interesting issue.


Thanks so much for the link from Robert at the Llama Butchers! After you linked, Robert, I went ahead and did a little legal research (2 minutes and 40 seconds, according to Westlaw, actually), and I include below a discussion of the concept of proximate cause from a very recent opinion. So, click on Extended Entry if you want to see what the Hon. Herbert Kramer has to say about the concept in connection with a case involving Philip Morris, cigarettes, and the issue of comparative fault. The case is called, FRANKSON v. PHILIP MORRIS INCORPORATED, 4 Misc.3d 1002(A), 2004 WL 1433008 (Sup. Ct. Kings Co. June 24, 2004).

Proximate Cause

"The concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations ... Depending on the nature of the case, a variety of factors may be relevant in assessing legal cause." Derdiarian v. Felix Constr Co, 51 N.Y.2d 308, 314-315 (1980) Nonetheless, all a plaintiff need show is that the **4 defendant's conduct was a substantial factor in bringing about the injury. Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520(1980)("It is plaintiff's burden to show that defendant's conduct was a substantial causative factor in the sequence of events that led to ... injury.")This showing need not eliminate every other factor that may have contributed to the cause of the injury. Galioto v. Lakeside Hospital, 123 A.D.2d 421, 422 (2d Dept.1986). ("It is well settled law that in order for a plaintiff to recover damages, a defendant's negligence need not be the sole cause of the injury; it need only have been a substantial factor in bringing the injury about.".)

"Proximate cause serves a somewhat different role in products liability cases than in ordinary negligence actions. To establish proximate cause in a products liability case, a plaintiff must show that the defect in the product was a substantial factor in causing the injury. [The] causal connection [is] not automatically severed by ... intervening conduct unless that conduct was, as a matter of law, extraordinary under the circumstances, not foreseeable in the normal course of events or independent of or far removed from [the defendant-manufacturer's ] conduct." Nutting v. Ford Motor Co., 180 A.D.2d 122, 131(3d Dept.1992). In Nutting, the driver continued to knowingly use a car whose engine had stalling problems.. A fatal accident occurred when this car drifted into the path of an oncoming vehicle as the driver was attempting to cope with the stalled engine. Nonetheless, the Court declined to find, as a matter of law, that the driver's failure to correct the problem broke the chain of causation, but rather held that such conduct is relevant to issues of intervening cause and apportionment of fault. Id.

The chain of causal connection is, indeed, sturdy and not readily susceptible to disruption by intervening conduct. In one recent instance, a drunk driver drove his car off an exit ramp at thirty five miles an hour, straight into a utility pole. According to the Court of Appeals, plaintiff's decedent's conduct did not affect the auto manufacturer's duty to "produce a product that does not unreasonably enhance or aggravate a user's injuries." Alami v. Volkswagen of America Inc., 97 N.Y.2d 281, 287(2002). Since Volkswagen did not even contest the expert's findings with respect to the crash worthiness of the vehicle, The Alami Court strongly disagreed with the Appellate Division's determination that intoxication was, as a matter of law, the "sole proximate cause" of the accident and decedent's injuries and reversed. The dissent, vigorously protesting, pointed out that this case falls squarely within the preclusion doctrine of Barker v. Kallash, 63 N.Y.2d (1984) and Manning v. Brown, 91 N.Y.2d 116 (1997), which denies judicial relief to those injured in the course of committing a serious criminal act and does not permit the apportionment of fault between the parties.

*3 As the discussion above demonstrates, where fault on the part of the plaintiff is implicated, the only time that fault is relevant exclusively to proximate cause and not to an assessment of comparative fault is where, as a matter of law, that fault is the sole proximate cause of the harm or where because of a legal impediment, plaintiff's fault cannot be considered unless it is shoe horned into the case by being characterized as the sole proximate cause of the injury. [FN8] As one commentator aptly noted, the sole proximate cause defense does little more than divert the jury's attention from the ultimate issue of the defendant's relative fault." John G. Phillips, The Sole Proximate Cause "Defense"; A Misfit in the World of Contribution and Comparative Negligence, 22 S.Ill. U.L.J. 1, 2(Fall, 1997).

FN8. We see this in cases decided under the Labor Law where defendants are strictly liable and plaintiff's contributory fault cannot be considered in assessing damages. To avoid the unjust result that flows in the wake of this doctrinaire approach, the courts have found negligent plaintiffs to have been the sole proximate cause of the harm. Weininger v. Hagedorn, 91 N.Y.2d 958(1998); Corrado v. Allied Builders, Inc., 186 Misc.2d 780(Sup Court, N.Y. Co., 2000)(reviewing the record on appeal in Weininger observing that Weininger had misused the ladder by standing on its cross bar.)

This Court agrees.

Posted by Random Penseur at November 23, 2004 12:43 PM

I'm just glad he didn't die from a ruptured bowel.


Ah, foo. Another 6 months in purgatory.

Posted by: Jim at November 23, 2004 03:20 PM

Sokay, Jim. I've got a reserved Party Table in Hell. Pack light. The express train is crowded.


Vicarious liability?

I love it when my husband talks "radio talk" to me. Do you and Robert talk tort reform to your significant others? Inquiring minds wanna know.


Posted by: Margi at November 23, 2004 06:19 PM

No, Margi. I stick to "tart reform" with the Lovely Wife. ;)

I think I'm not a fan of proximate cause. In both of the vehicle cases there I would have decided against the driver. If you know the car is broke it is your responsibility not to drive it until it's un-broke. If you do drive it then it's your bad. If you are drunk and drive into a utility pole you are responsible for whatever happens. Period, end of story.

Guess I'd make a lousy judge. Probably a decent magistrate though.

Posted by: Jim at November 24, 2004 09:48 AM

I think you'd hate being a Magistrate, Jim. Mostly, they hear discovery disputes. That is not the height of intellectual excitement. No, I see you more as an appellate judge, telling the trial judge he was wrong!

Margi, I almost never talk law to my wife. She is not a lawyer and she usually doesn't permit that kind of language in the house!

Posted by: rp at November 24, 2004 10:03 AM

I have always said that I would SUCK as an attorney because I can see both sides of an issue.

Case in point: while working for an immigraion attorney, I researched, composed and filed a brief with the INS on behalf of a gay Brazilian citizen. The brief was in support of an Asylum claim. Basically, I was asserting persecution on the basis of sexual orientation.

I sweated that decision more than any other in my (addled) memory. Why? Because anyone with half a brain would argue that if hate crimes against people of alternative lifestyles was persecution, then, by God, we got enough of that right here in the good ol' US of A.

The ONLY thing in my favor? The Immigration Judge we were appearing before was the only judge (at the time) to grant asylum based on sexual orientation.

Did I mention that my client won?! That was one of the best days of my entire life (the birth of my children notwithstanding).

Anyway -- not sure where I was going to go with this but I wanted you all to know that I'm not ALL about the double-entendre. ;o)


Posted by: Margi at November 24, 2004 03:45 PM

We know that you are not always about the double entendre, no matter how good at it you may be.

You ought to be proud of that result. I'd be proud, too.

Posted by: RP at November 26, 2004 04:44 PM
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