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1992 Utah L. Rev. 1335 (1992)
Causation in Fact in Omission Cases

handle is hein.journals/utahlr1992 and id is 1345 raw text is: Causation in Fact in Omission Cases David A. Fischer- I. INTRODUCTION Cause in fact is fundamental to imposing liability in many kinds of civil and criminal actions. The term refers to the causal link between an act or omission and resulting damage or injury. Lawyers, judges, and scholars frequently think of cause in fact as a purely factual question, unaffected by policy issues, that can be resolved adequately under normal burden of proof rules. In contrast, proximate or legal cause rules are explicitly intended to implement policy decisions concerning how far to extend the scope of liability. In routine cases the determination of cause in fact appears to be simple and factual. For example, when a dry leaf ignites after a spark lands on it, most people would readily agree that the spark was a cause of the fire. However, two situations, omissions creating an intractable proof problem and multiple sufficient causes, create extremely difficult cause-in-fact problems.' Courts can solve these problems satisfactorily only by reference to policy; pure factual analysis simply does not provide an adequate answer. The following hypothetical illustrates the first difficult cause-in- fact situation, the proof problem:2 A drunk falls down a stairway. Defendant has negligently failed to light the stairway adequately. Questions of contributory negligence aside, and even though defen- dant's negligence is a given, the drunk would have a difficult time proving her case against defendant. Under traditional standards, the drunk must prove by a preponderance of the evidence that bet- * © 1992 David A. Fischer. ** James Lewis Parks Professor of Law, University of Missouri-Columbia. The author gratefully acknowledges the assistance of the following persons who read early drafts of the manuscript and provided helpful comments: Donald N. Dewees, Michael D. Green, Peter Mueser, David F. Partlett, Philip G. Peters, and William Powers, Jr. Work on this article was supported by a grant from the University of Missouri Law School Foundation. 1. See 4 FoWLER V. HARPER ET AL., THE LAW OF TORTS § 20.2, at 91-98 (2d ed. 1986). 2. This hypothetical is based on Reynolds v. Texas & Pacific Railway, 37 La. Ann. 694 (1885). 1335

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