Proximate Cause Redefined?
I got an email today from the Texas Bar about an upcoming CLE titled "Proximate Cause Redefined: The Controversy Over Substantial Factor". The TPJC's new definition reads: "'Proximate cause' means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event."
Two things. First, right after it came out we predicted that the Texas Supreme Court's opinion in Transcontinental Insurance Company v. Crump would cause confusion and controversy. See "Substantial Confusion". We worried that by deploying a substantial factor analysis in a worker's comp setting (i.e. no fault / producing cause framework) it meant that the court had somehow gotten the idea that all "but for" causes could be subdivided into really really necessary causes and merely really necessary causes. And that, I think, is what the first sentence of the new definition tries to capture. Too bad no inquiry as to the necessary-ness of a necessary cause can be sensibly maintained.
Maybe the court will use Bostic to put the train back on the rails and continue on with its longstanding and sensible approach to substantial factor. Specifically, that an assessment of whether or not a given "but for" cause was a substantial factor is an inquiry for the court and that the question of whether a substantial factor was of a sort that would have caused an ordinarily prudent person to perceive the risk created is a question for the jury.
Second, I'd be willing to bet that not one of the next 100 juries to consider this new TPJC definition of proximate cause will have any idea as to what concept it's trying to convey.
