Proximate Cause

Proximate Cause • Cause in fact will be included as a part of proximate cause (Cause in Fact) 1. The but for test: A party’s tortious conduct is a cause in fact of another’s injury if, but for that tortious conduct, the injury would not have occurred. 2. The substantial factor test: A party’s tortious conduct is a cause in fact of another’s injury if it was a substantial factor in producing that injury. Most courts agree this test is identical to the but for test with one exception. The exception: if two causes concur to produce an injury, and either of them, operating alone, would have been sufficient to cause the identical injury • Would Plaintiff's injuries have occurred? More likely than not a cause, it’s not about primary causes, Its about if it was a cause at all.

Two of the most common bases for concluding that the breach was not the Proximate cause of Plaintiff’s injuries are 1. Plaintiff’s injury was unforeseeable 2. There was an unforeseeable intervening force.

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