20 Negligence: Proximate Cause

In theory, proximate can be summed up simply: “The term “proximate cause” is shorthand for a concept: Injuries have countless causes, and not all should give rise to legal liability.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 692 (2011). In practice, scholars, students and lawyers have found it a challenge: “‘Proximate cause remains a tangle and a jungle, a palace of mirrors and a maze … [It] covers a multitude of sins … [and] is a complex term of highly uncertain meaning under which other rules, doctrines and reasons lie buried.’ ” William L. Prosser, Proximate Cause in California. 38 Cal. L. Rev. 369, 375 (1950).

Without adopting an outlook quite as gloomy as the late Dean Prosser’s, it is fair to say that proximate cause can be a confusing area of tort law. The first complexity is in the interplay with duty as you have seen already in Palsgraf. The second issue is the relationship to causation in fact and the risk of conflating the inquiries as you will see in the first case you read in this section, Camp v. Jiffy Lube. The third challenge of proximate cause is that jurisdictions use diverse formulations or tests and these can vary to some extent. Nonetheless, understanding the main patterns, their interrelationships and their origins in case law proves clarifying. Finally, the last challenge associated with proximate cause is its unpredictability and malleability. Because it is expressly infused with normative decisions and policy assessments, it can seem unruly and difficult to categorize or predict.

Questions or Areas of Focus for the Readings

• What does it mean to formulate a “test” for proximate cause? Who does so, and who applies it?
• What is the significance, in practical terms, of differing tests for proximate cause?
• To the extent that proximate cause exists as a policy determination whose primary effect is to limit liability, when should that determination be a question of fact for the jury? Given that duty exists as a gate-keeping (potentially liability-limiting) doctrine as a matter of law for the judge to determine, when do cases resolve issues as a function of proximate cause instead of duty, and when should they do so, in your view?
• A common way to understand proximate cause cases relative to “garden-variety” (or more ordinary) negligence cases is that the facts usually involve something highly unusual, extraordinary or freakish. The cases select for such fact patterns because one of the issues being litigated, as a question of fact, is the unforeseeability of the nature of the harm, or the extent of it, perhaps, or the unforeseeability of the plaintiff. What do you observe about the kinds of injuries in the cases that follow? What defenses recur and why do you think that is?

Camp v. Jiffy Lube, Superior Court of New Jersey (1998)
(309 N.J. Super. 305)

The principal issue on this appeal is whether the trial court properly charged the jury on proximate cause. We conclude the charge was improper. Accordingly, we reverse and remand for a new trial.

The essential facts giving rise to the appeal began on July 13, 1993, when William Camp (plaintiff) left his 1989 Chevrolet at defendant’s facility for a routine oil change. After servicing the car, defendant’s employees had trouble closing the hood. After *308 several attempts, the employees were able to close the hood. However, when plaintiff picked up the car, no one told him of the difficulty closing the hood. Plaintiff drove about five blocks when the hood suddenly flew open and broke the car’s windshield. Plaintiff, contending he sustained bodily injuries as a result, filed a complaint seeking compensatory damages he alleged were proximately caused by defendant’s employees’ negligence. Plaintiff’s wife also sought damages for loss of consortium.

In a liability-only trial, plaintiff contended defendant was negligent because its employees failed to properly shut the hood or because they should have notified or warned him about the problem experienced with shutting the hood but failed to do so. In light of plaintiff’s contentions, the trial court instructed the jury on proximate cause.

The court stated:

The burden of proof is on the plaintiff to establish his claim by a preponderance of the evidence…. In this case, the plaintiff, Mr. Camp, has the burden of establishing by a preponderance of the evidence all the facts necessary to prove that the defendant either didn’t properly close the hood, or failed to notify him of problems with the hood so he could have taken the proper steps to deal with it.

….

I have indicated to you previously that the term accident in this case does not necessarily mean a multiple or even a one-car collision. The term accident, as used in these jury instructions, means incident. Thus, you are not required to find that an accident occurred, but that an incident occurred. The incident in question is the hood of the plaintiff’s car striking the plaintiff’s windshield. In this case, the plaintiff contends that the defendant was negligent in failing to properly shut or close the front hood of the car, and/or failing to advise the plaintiff of the problem in shutting or closing the hood of the vehicle so that he could take whatever actions … he would deem necessary. ….

Ladies and gentlemen, you have heard me use the term proximate cause…. In order for the plaintiff whose claims you are considering to recover damages, such damages must be proximately caused by the actions or the inactions of the defendant.

By proximate cause is meant that the action or the inaction of the defendant was the efficient cause, the one that naturally set the other causes in motion, and without which the damages claimed or the injuries claimed would not have resulted. The law requires that the damages chargeable to the defendant must be shown to be the natural and probable effects of the actions or the inactions of the defendant. [Emphasis added.] *309

The jury returned a verdict against plaintiff by answering “No” to the verdict sheet question, “Was the Defendant, Jiffy Lube, negligent, which negligence was a proximate cause of the incident?” After the trial court denied a motion for a new trial, plaintiff and his wife appealed the ensuing judgment.

They contend the trial court’s proximate cause charge was not only inappropriate given the fact issues for jury resolution but also because the court, in explaining proximate cause, told the jury it meant they had to determine whether defendant’s action or inaction “was the efficient cause, the one that naturally set the other causes in motion, and without which the damages claimed or the injuries claimed would not have resulted.” [Emphasis added.] We agree the court failed to tailor the proximate cause definition to the facts of the case and compounded that failure by utilizing the definite article “the” in the definition.

Proximate cause is a limitation the common law has placed on an actor’s responsibility for the consequences of the actor’s conduct. It is “a complex term of highly uncertain meaning.” William L. Prosser, Proximate Cause in California, 38 Cal. L. Rev. 369, 375 (1950) [c]. It requires careful definition in jury charges to avoid misleading the jury. [c]

When instructing a jury on proximate cause, trial courts must distinguish between the routine tort cases and cases where concurrent causes of harm are present. In the former, “ ‘the law requires proof that the result complained of probably would not have occurred “but for” the negligent conduct of the defendant.’” [cc] In the latter, the law requires consideration of the “substantial factor” test. The “but for” standard concentrates on one cause that sets the *310 other causes in motion, while the “substantial factor” test recognizes that “ ‘a tortfeasor will be held answerable if its “negligent conduct was a substantial factor in bringing about the injuries,” even where there are “other intervening causes which were foreseeable or were normal incidents of the risk created.”’” [cc] In the latter circumstance, “[a]lthough the law of negligence recognizes that there may be any number of concurrent causes of an injury, ‘[n]evertheless, these acts need not, of themselves, be capable of producing the injury; it is enough if they are a “substantial factor” in bringing it about.’” [cc]

The charge here included no instruction on the “substantial factor” test. Instead, it improvidently focused the jury on the “but for,” or cause that set other causes in action, in an instance where there was evidence of concurrent causes for the harm: the defective hood, the improper shutting of the hood, and the failure to warn about the defective hood. The charge should have been tailored to deal with the concurrent causes projected by the facts in evidence.

The charge compounded the improvident concentration on the need for the jury to concentrate on an exclusive cause that set other causes in motion when it instructed plaintiff was required to establish that defendant’s negligence was the proximate cause of the harm that occurred. Emphasis on the rather than a cause unduly directed the jury’s focus to a “but for” single cause. In Ellis v. Caprice, 96 N.J. Super. 539, 549 (App. Div.), certif. denied, 50 N.J. 409 (1967), we reversed a *311 judgment in favor of defendants when the trial court used the definite article “the” in defining proximate cause for the jury. We conclude the same charge mistake here requires reversal.

Nonetheless, defendant argues the charge read as a whole makes the trial court mistake harmless error. Our rationale for rejecting the same argument in Ellis is applicable here: “regardless of how well intentioned the jury may have been, it had no way of knowing which of the two versions represented the correct rule.” [c]. Only an express statement by the trial court that its original proximate cause charge was incorrect would have salvaged the charge. [c] There was no such express statement.

In sum, the proximate cause charge misled the jury on the term’s essential elements in the factual context of the case. Here, plaintiff was entitled to a charge that the jury should consider whether defendant’s failure to give notice, or failure to properly close the hood, was negligence that was a substantial factor in causing the accident giving rise to the injuries. Instead, the jury received a charge that focused on the cause for the accident. By placing emphasis on the cause, the trial court misdirected the jury’s focus to one that had the potential for placing too much emphasis on the defective latch as the cause and not enough on the failure to give notice or failure to properly close the hood, or both. Consequently, the jury was not sufficiently instructed on the applicable law so that it could perform its function. [c]

Reversed and remanded for a new trial.

Note 1. The court faults the jury instruction for incorrectly using the definite article, “the” rather than the indefinite “a.” In your own words, why does this matter to the outcome in this case?

Note 2. The improper jury instructions also confused the two inquiries of causation. Do you see how?

In re Arbitration Between Polemis and Furness, Withy & Co., Ltd, Court of Appeal (1921)
(3 King’s Bench 560)

BANKES, L.J. By a time charter party dated February 21, 1917, the respondents chartered their vessel to the appellants. * * * The vessel was employed by the charterers to carry a cargo to Casablanca in Morocco. The cargo included a quantity of benzine or petrol in cases. While discharging at Casablanca a heavy plank fell into the hold in which the petrol was stowed, and caused an explosion, which set fire to the vessel and completely destroyed her. The owners claimed the value of the vessel from the charterers, alleging that the loss of the vessel was due to the negligence of the charterers’ servants. The charterers contended * * * that the damages claimed were too remote. The claim was referred to arbitration and the arbitrators stated a special case for the opinion of the Court. Their findings of fact are as follows: The arbitrators found that the ship was lost by fire; that the fire arose from a spark igniting the petrol vapor in the hold; that the spark was caused by the falling board coming into contact with some substance in the hold; and that the causing of the spark could not reasonably have been anticipated from the falling of the board, though some damage to the ship might reasonably have been anticipated, and stated the damages at £196,165 1s. 11d. * * * In the present case the arbitrators have found as a fact that the falling of the plank was due to the negligence of the defendants’ servants.

The fire appears to me to have been directly caused by the falling of the plank. Under these circumstances I consider that it is immaterial that the causing of the spark by the falling of the plank could not have been reasonably anticipated. The appellants’ junior counsel sought to draw a distinction between the anticipation of the extent of damage resulting from a negligent act and the anticipation of the type of damage resulting from such an act. He admitted that it could not lie in the mouth of a person whose negligent act had caused damage to say that he could not reasonably have foreseen the extent of the damage, but he contended that the negligent person was entitled to rely upon the fact that he could not reasonably have anticipated the type of damage which resulted from his negligent act. I do not think that the distinction can be admitted.

Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damage appear to me to be irrelevant. I consider that the damages claimed are not too remote. * *

SCRUTTON, L.J. * * * The second defense is that the damage is too remote from the negligence, as it could not be reasonably foreseen as a consequence. * * * [I]f the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial. * * * In the present case it was negligent in discharging cargo to knock down the planks of the temporary staging, for they might easily cause some damage either to workmen, or cargo, or the ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapor which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.

For these reasons the experienced arbitrators and the judge appealed from came, in my opinion, to a correct decision, and the appeal must be dismissed with costs.

Note 1. Is the following reasoning from Polemis simply restating the causa causans principle in Guille v. Swan, supra, Module 1? “The fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapor which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused.” Polemis notes that a defendant may sometimes bring a defense on the grounds that “the damage is too remote from the negligence, as it could not be reasonably foreseen as a consequence.” Is this a limit on causa causans? What principle is being used to set that limit if so?

Note 2. As you read the pattern jury instruction that follows, keep the reasoning from Polemis in mind. Can you see the connection? Although Polemis is no longer good law in England where it was decided a century ago, its influence has permeated American case law on the issue of proximate cause.

Tests in the Proximate Cause Analysis

Although many formulations exist, the two most common are the directness test and the foreseeability test. The Restatement has tried to popularize a “scope of the risk” test but it has failed to gain practical traction in the case law whether or not it is influential in other domains. In addition, many jurisdictions add language of substantiality requiring that the plaintiff prove that the defendant’s breach was a substantial factor in the plaintiff’s injuries. As you read examples of jury instructions that illustrate the various formulations of the test, keep causation and proximate cause distinct even where the language appears to conflate the two.

1. “Directness” Test

Note 1. Washington state’s jury instruction, above, on proximate cause and related comments, reflects how the profession has synthesized prior cases. But it is also somewhat confusing in that in Washington, “proximate cause” appears to subsume causation in fact (“and without which such [injury] [event] would not have happened.”) Recall the emphasis in Camp v. Jiffy Lube, however, differentiating “the cause” from “a cause.” The next line of the model instruction adds the potential to clarify that: “[t]here may be more than one proximate cause of an [injury] [event].” This conclusively differentiates but-for causation and proximate causation.

Note 2. New Jersey also adopts a Polemis-oriented directness test and it similarly links the two kinds of causation:

“By proximate cause, I refer to a cause that in a natural and continuous sequence produces the resulting injuries or losses and without which the resulting injuries or losses would not have occurred. A person who admits liability is held responsible for any injuries or losses that result in the ordinary course of events from the happening of the accident. That means that you must find that the resulting injuries or losses to plaintiffs would not have occurred but for the happening of the accident. If you find that but for the happening of the accident plaintiffs’ injuries and/or losses would not have occurred, then you should find that the accident was a proximate cause of plaintiff’s injuries and losses.” See Model Jury Charge (Civil), 6.10, “Proximate Cause – General Charge” (rev. Nov. 2019), applied in Serra-Wenzel v. Rizkalla, No. A-5009-18T3, 2020 WL 6123085, at *2 (N.J. Super. Ct. App. Div. Oct. 19, 2020) (emphasis supplied).

Note 3. Colorado appears to determine causation based on directness and to require foreseeability for proximate cause: “The requirement of but-for causation is satisfied if the negligent conduct in a natural and continued sequence, unbroken by any efficient, intervening cause, produce[s] the result complained of, and without which that result would not have occurred…. foreseeability is the touchstone of proximate cause.” Deines v. Atlas Energy Servs., LLC, 2021 COA 24, ¶ 12, 13 (internal citations omitted).

Again: cause in fact generally asks if cause can be proven; proximate cause assumes that it can be factually proven at some level and asks whether liability should apply given the circumstances and policy considerations. You can think of proximate cause as an escape valve; it is a doctrine that limits liability even in cases in which duty, breach, cause-in-fact and harm are otherwise met.

2. “Foreseeability” Test

Stewart v. Wild, Supreme Court of Iowa (1923)
(196 Iowa 678)

The alleged negligence of the defendant is charged in the petition in the following terms:

“That on or about the 30th day of May, 1920, the plaintiff, her husband, and two sons, were driving in the plaintiff’s automobile on and along the said White Pole road in an easterly direction. That one of the plaintiff’s said sons was driving and operating the plaintiff’s husband’s said automobile in a cautious and careful manner and at a moderate and lawful rate of speed. That when at a point on said highway adjacent to the land owned and operated by the defendant, some hogs, belonging to defendant, which the said defendant had negligently, carelessly, and unlawfully permitted to stray from (upon) said highway, suddenly jumped out of a depression or sunken road, running at right angles with said highway on the west side of said highway, and ran out upon the traveled part of said highway, directly in the path of the plaintiff’s husband’s said automobile. That plaintiff and the other occupants of the said car were unaware of the presence of said hogs until they, the said hogs, ran out from the said depression or sunken road directly in the path of his said automobile. That, although the driver of said car, the plaintiff’s said son, exerted every effort to avoid a collision with the said hogs, he was unable to do so. That one of defendant’s said hogs ran directly under the left front wheel of plaintiff’s husband’s automobile, causing it, the said automobile, to turn turtle and to throw plaintiff and the other occupants of plaintiff’s husband’s said automobile violently to the ground.

That at the time of the said collision, the defendant was standing in the barnyard of the said farm, east of the said highway. That just as the plaintiff’s husband’s automobile reached the point at, or near, said depression or sunken road, the defendant called the said hogs. That the said hogs jumped up and ran out upon the traveled part of the said highway, in the path of the plaintiff’s husband’s said automobile, in response to the defendant’s said call. That defendant knew full well, or should have known, that the said hogs would jump out of the said depression or sunken road in response to his said call, and run out in the traveled part of the highway directly in the path of the said automobile.

That the defendant above named was guilty of negligence and carelessness in connection with the matter of said hogs being upon said public roadway, in that said defendant did fail to restrain said hogs from running at large and did fail to restrain said hogs from going upon public roads for travel or driving, and in that said defendant did fail to keep the said hogs under his immediate care and efficient control, as provided by section 2314 of the Code of Iowa 1897.

That defendant was guilty of carelessness and negligence, in that, in addition to failing to restrain said hogs from going upon a public roadway, he did commit an affirmative act of negligence and carelessness, in that he did call his hogs from the other side of the roadway from where he was located, at a time when automobiles, and particularly when the automobile in which plaintiff was riding, was passing along said roadway, which fact was known to defendant, or, in the exercise of reasonable care, should have been known to defendant, thus causing said hogs to quickly and suddenly run upon and in front of the automobile in which plaintiff was riding, and causing said automobile to turn turtle as hereinbefore stated.”

*268 The demurrer to the foregoing was predicated upon the three following grounds:

1. It appears from the plaintiff’s petition that no negligence on defendant’s part, of which plaintiff has a right to complain, was the proximate cause of plaintiff’s injury, if any she suffered.

2. Even if the matters and things set forth in plaintiff’s petition were true, the fact that some of defendant’s hogs were on the public highway, if such were a fact, does not render him liable for automobile accidents or make him an insurer of the safety of persons traveling along the public highway, so far as a collision between a pig and an automobile is concerned.

3. The matters and things set out in plaintiff’s petition as negligence or as improper or unlawful acts on the part of defendant are not such matters and things as to enable the plaintiff to base a cause of action thereon against the defendant or to entitle her to recover against him, because the mere escape of hogs from an inclosure is not negligence, and a collision between a hog and an automobile on a public highway is not such a thing as defendant could or would be bound to anticipate, if his hogs should escape from an inclosure on to the public highway.”

The argument of the appellee [hog owner] in support of the foregoing grounds of demurrer is predicated largely upon the twofold assumption:

(1) That the action is one for statutory damages under sections 2313 and 2314 of the Code.
(2) That such statute has no application to the rights of a traveler upon the highway, and that it imposes upon the owner of swine no duty with reference to such highway travel.

The record indicates that such was the controlling reason for the sustaining of the demurrer. We note first, therefore, that this conception of the nature of the action is an erroneous one. The petition discloses an ordinary action at law for damages for negligence. In such an action, it is always incumbent upon the plaintiff to plead and to prove the alleged negligence. Negligence is the breach of some duty, imposed either by common law or by statute upon the offending party. If the duty be imposed, then a breach of it is actionable, if it result proximately in injury to another; and this is equally true whether the duty be imposed by common law or by statute.

The petition charges two negligences:

(1) That the defendant negligently permitted his hogs to run at large upon the highway.
(2) That he was affirmatively negligent in calling his hogs under the circumstances existing at the time of such calling.

For the moment we shall ignore the latter charge, and consider only whether the first was a sufficient allegation of negligence. At common law, it was the duty of the defendant to restrain his hogs from running at large. He had the common right of the public to drive them upon the highway while in charge of a caretaker. He had no right to permit them to run upon the highway without a caretaker. This rule of the common law has not been abridged by our statute. On the contrary, it has been expressly confirmed. Section 2314 expressly prohibits the owner of swine from permitting the same to run at large at any time. It also defines the phrase “running at large” as follows:

“But stock shall not be considered as running at large so long as it is upon unimproved lands and under the immediate care and efficient control of the owner, or upon the public roads for travel or driving thereon under like care and control.”

The necessary effect of this statute is both to recognize and to impose upon the owner of hogs the legal duty to restrain them from running at large, either upon the lands of another, or upon the public highway. [***]

We hold, therefore, at this point that the allegation that the defendant negligently permitted his hogs to run at large upon the highway is a sufficient allegation of negligence for the purpose of a demurrer. Whether it should have been made more specific is a question not involved in a consideration of the demurrer. [***]

It is urged by appellee that the alleged negligence of the defendant was not the proximate cause of the injury suffered, in that the accidental collision of the hog with the plaintiff’s automobile was an accident or event that the owner of the hog could not have anticipated as a probable consequence of his negligence. [***] On the general proposition [***] cited by the appellee, we are unable to give our assent. It is the fundamental law of the highway that it is subject to the use of the traveling public, and that it must be kept free from such obstructions as are not incident to its use for travel. Whatever endangers travel thereon, and which is not incident to the lawful use or care of the highway, becomes ordinarily a nuisance and a public peril.

In the days of the ox-drawn vehicle, it may be conceded that the presence of a hog upon the highway would not present any imminent danger of a collision with the vehicle. In the later day of the swifter moving horsedrawn vehicle, the presence of a hog at large became an increased danger, though more readily avoidable than in the still later day of the motor vehicle. In these days of general travel by motor vehicle, we see no room for saying, as a matter of law, that the presence of a hog at large upon the highway does not suggest danger of collision with traveling vehicles. If it could be said, as a matter of law, that the instincts of a hog stimulate him to an avoidance and escape from an approaching vehicle, there might be some room for debate. But it could as well be said, and doubtless more plausibly, that by the universal verdict of general observation his instincts and natural tendencies are in the other direction, and that he will more likely, if not certainly, pass in front of a moving vehicle at whatever time or place it comes within the short radius of his locomotion. Ordinarily the question of proximate cause is one of fact for the jury, and we are not now dealing with the weight of evidence or with expert opinion as to the habits or tendencies of the hog. The liability of owners for damages for a collision of vehicles with stock, unlawfully running at large upon the highway, has heretofore been recognized by us quite as a matter of course without challenge by the defending litigant. [cc]

In the latter case we said:

“The statute to which this allegation has reference [meaning the allegation of the petition] does not involve the doctrine of common-law negligence, upon which the liability in the instant case must be and is predicated.”

We hold at this point that it cannot be said as a matter of law that a collision between a vehicle and a hog, unlawfully running at large upon the highway, is an event too remote to be deemed as the proximate result of defendant’s negligence, if any.

One of the grounds of the demurrer was that the defendant is not liable for a mere escape of his hogs from the inclosure in which they were confined, and that such escape of the hogs did not constitute negligence on the part of the owner; and this point is pressed in argument here. There is nothing in the allegations of the petition to which this ground of the demurrer is apropos. … Upon trial, it will be incumbent upon the plaintiff to prove the negligence, and it will be open to the defendant to negative the same, both by affirmative as well as negative evidence. Proof that the hogs were running at large would doubtless be presumptive evidence of defendant’s breach of statutory duty, and therefore of negligence. What circumstances might be deemed as sufficient to excuse the defendant and to render him free from fault is a question not involved in the demurrer.

[***] It is our conclusion that the demurrer should have been overruled, and that the *270 learned trial judge erred in ruling otherwise. The judgment below is accordingly reversed, and the cause is remanded accordingly.

Note 1. What exactly is the negligence alleged (and on what basis is it proven)?

Note 2. In your view, is this case one that should be resolved on grounds of duty, or proximate cause? Would it matter to your determination what the jurisdiction looked like, socioculturally or agriculturally?

Note 3. The test for proximate cause is not expressly stated in this case but the defendant’s argument raises a lack of foreseeability argument in vain: “the accidental collision of the hog with the plaintiff’s automobile was an accident or event that the owner of the hog could not have anticipated as a probable consequence of his negligence.”

Note 4. Many states use some version of foreseeability in their proximate cause analysis. Consider this example from Utah:

Under Utah law, “[p]roximate cause is that cause which, in natural and continuous sequence (unbroken by an efficient intervening cause), produces the injury and without which the result would not have occurred. It is the efficient cause—the one that necessarily sets in operation the factors that accomplish the injury …

Under Utah law, “[w]hat is necessary to meet the test of negligence and proximate cause is that it be reasonably foreseeable, not that the particular accident would occur, but only that there is a likelihood of an occurrence of the same general nature.’” [c]. The defendant need not predict the exact injury that flows from its negligence so long as the general nature of the injury is foreseeable.”

Jacobs-Peterson v. United States, 219 F. Supp. 3d 1091, 1096 (D. Utah 2016)

The next case draws more explicitly on the concept of foreseeability and illustrates how it can operate in both duty and proximate cause analysis.