Tuesday, April 27, 2010

Cause and fault

In a decision today (Lopez v. McClellan) reversing summary judgment for the defense in a multi-car accident, the Mississippi Court of Appeals waxes indignant:
We perceive that the problem presented in this case is the use and application of the term “apportioned causation” when the trial court considered whether Lopez had established the necessary element of proximate cause. Causation is not apportioned. However, damages may be apportioned based upon a percentage of fault. It is only in the apportionment of damages that the percentages of fault, i.e. percentage of causation, is to be considered.

* * *

Whether the element of proximate cause has been established in a case is like asking
whether you are a little pregnant. Either the plaintiff has established proximate cause or has not; you either are pregnant or you are not. There is no absolutely no consideration of “apportionment” when the court or a jury considers whether the element of proximate cause has been established.
Now, for such emphatic statements, one might have expected to see a citation to authority. But no.

It's not clear to me that the COA is making a distinction with a difference. Proximate causation is a necessary element in proving negligence, and once it's proved, one is on the hook for some part of the damages -- that part depending on how much one caused the accident. Compare City of Jackson v. Spann, 4 So. 3d 1029 (Miss. 2009):
To recover damages in a negligence suit, a plaintiff must establish that the damage was proximately caused by the negligent act of the defendant(s). Glover v. Jackson State Univ., 968 So. 2d 1267, 1277 (Miss. 2007); Miss. Code Ann. § 85-5-7(1), (5) (Rev. 1999) (fault is allocated only to the party(s) which proximately caused the injury to the plaintiff). * * *

We further find that the circuit court did not fail to address the comparative fault of Jenkins, but simply assigned one hundred percent fault to the City. The circuit court did not set forth specific percentages of fault either to the City or to Jenkins, but clearly held that the Officers were “the proximate cause[ ]” of the accident. By finding only one proximate cause, the circuit court implicitly assigned no fault to Jenkins.
I don't find it helpful to say "Causation is not apportioned." Nor, quite frankly, do I find this discussion at all relevant to the COA's holding in this case -- which is simply that a doctor's testimony that two separate collisions each contributed to a plaintiff's injuries, constitutes admissible evidence, even if he cannot say which collision caused which specific injury.


  1. From "Horsefeathers:"

    Secretary: "Jennings is outside, and he's waxing roth!

    Groucho Marx: "Tell Roth to wax Jennings for a change."

  2. Just read the opinion-- the testiness (and it's warranted!) is about Rule 56 more than about the semantical issue over causation. This is a truly weird one! A summary judgment for the defense with no motion, no notice, no nothing except an explicit on the record waiver by the plaintiff of any objection?!?

    And what are we to make of the vote? One judge concurs only in part and two more concur only in the result? With no opinions? You people cut that out!

    Now I'm getting testy.

  3. Yeah, I don't know what kind of tranquilizers the plaintiff's counsel was on, because I would've given birth to a kitty right there in the courtroom.

    But I do think Griffis, or his law clerk, was getting a bit too discursive in the second half of the analysis. Just rule that the plaintiff met the burden to defeat SJ and leave it at that. I never grasped how any issue of "allocation of proximate causation" had anything to do with it.