Trying to prove causation, 27 plaintiffs who alleged bodily injury from exposure to radiation in Uravan, Colorado, invoked the substantial factor test from the Restatement (Second) of Torts.
To clarify this doctrine, the 10th U.S. Circuit Court of Appeals turned to the “the more precise, and clearer, treatment of multiple possible causes in the Proposed Final Draft of the Restatement (Third) of Torts: Liability for Physical Harm.”
“Roughly speaking,” the 10th Circuit explained – affirming summary judgment for the defendants – “under the Restatements a Plaintiff could recover from Defendants only if either (1) Uravan radiation was a but-for cause of the Plaintiff’s ailments or (2) that radiation (either alone or with other factors) would have caused the ailments.”
Although the American Law Institute approved the proposed final draft on Liability for Physical Harm, publication is being held up by work on other portions of the new Restatement. Yet, the 10th Circuit explained, “the ultimate legal standards in the two Restatements are essentially identical for our purposes.”
“To sum up,” the Court of Appeals recounted – after providing a useful introduction to the new Restatement’s “innovative” notion of “causal sets” – “as we understand the Restatement (Second) and the Restatement (Third), a defendant cannot be liable to the plaintiff unless its conduct is either (a) a but-for cause of the plaintiff’s injury or (b) a necessary component of a causal set that (probably) would have caused the injury in the absence of other causes.” June v. Union Carbide Corp., 577 F.3d 1234 (10th Cir.) (2009).
The plaintiffs alleged that they or their decedents suffered bodily injury from exposure to radiation in Uravan, Colorado.
Named after the metals mined in the area – uranium and vanadium – Uravan was contaminated from the radioactive residue of operations to process uranium ore.
When the radiation hazard was recognized and Uravan was placed on the EPA’s National Priorities List in 1986, the residents were evacuated and the entire town was torn down.
The 27 bodily-injury plaintiffs sued Union Carbide Corporation and Umetco Minerals Corporation in federal court. Eleven of these claimants contend that the exposure to radiation caused nonthyroid cancer, while 16 alleged thyroid disease (including one case of thyroid cancer).
Another group of plaintiffs pursued medical-monitoring claims under a federal law: the Price-Anderson Nuclear Industries Indemnity Act.
Granting defense requests for summary judgment, the district judge ruled that (1) the bodily injury claimants failed to establish causation, and (2) medical-monitoring claims are not permitted under the Price-Anderson Act.
On appeal, the bodily injury claimants argued that they did not have to prove but-for causation. Instead, they maintained, they merely had to prove that exposure to radiation in the tailings left behind after milling uranium ore in Uravan was a substantial factor in causing their cancers and thyroid diseases.
Contending that negligence by the defendants in exposing them to radiation was a “legal cause” of their bodily injuries, the 27 plaintiffs invoked the substantial-factor test from Section 431 of the Restatement (Second) of Torts § 431.
According to Section 431,
“The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.”
The bodily injury plaintiffs also relied on the portion of Comment a that says:
“The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using the word in the popular sense, in which there always lurks the idea of responsibility . . . .”
Here are highlights of the 10th Circuit’s opinion (with omissions not noted in the text):
The term substantial factor appears in the treatment of causation in the Restatement (Second) of Torts (as well as its predecessor, the original Restatement of Torts). It has been abandoned, however, in the Restatement (Third) of Torts because of the misunderstanding that it has engendered. See id. § 26 cmt. j.
Causation under the Restatement (Third) has two components. First, the tortious conduct must be the “factual cause” of the physical harm to the plaintiff. See id. §§ 26, 27.
Ordinarily, a cause is a “factual cause” only if it is a but-for cause, see id. § 26, although there is a potential exception, which we will discuss shortly, when there are multiple causes, see id. § 27.
Second, the harm must be among the “harms that result from the risks that made the actor’s conduct tortious.” Id. § 29.
Traditionally, this second component has been referred to as “proximate cause,” a term that has baffled law students (to say nothing of jurors, lawyers, and judges) for generations; but the Restatement (Third) has wisely redescribed the subject matter as “scope of liability.” See id. Ch. 6, Special Note on Proximate Cause; id. § 29 cmt. b.
We need not dwell on this topic – the focus of our attention is on factual cause – but an illustration in the Restatement (Third) conveys what is necessary to show that an injury factually caused by the defendant is within the scope of liability:
“Richard, a hunter, finishes his day in the field and stops at a friend’s house while walking home. His friend’s nine-year-old daughter, Kim, greets Richard, who hands his loaded shotgun to her as he enters the house. Kim drops the shotgun, which lands on her toe, breaking it. Although Richard was negligent for giving Kim his shotgun, the risk that made Richard negligent was that Kim might shoot someone with the gun, not that she would drop it and hurt herself (the gun was neither especially heavy nor unwieldy). Kim’s broken toe is outside the scope of Richard’s liability, even though Richard’s tortious conduct was a factual cause of Kim’s harm.” Id. cmt. b, illus. 3.
Returning to the concept of factual cause, § 26 states that “conduct is a factual cause of harm when the harm would not have occurred absent the conduct.”
As comment b to the section states, this standard “is familiarly referred to as the ‘but-for’ test.” That test “requires a counterfactual inquiry” in which the court considers “what would have occurred if the actor had not engaged in the tortious conduct.” Id. cmt. e.
If the harm complained of would have occurred notwithstanding the actor’s conduct, then that conduct is not a but-for cause. See id.
Section 27, however, recognizes that it is sometimes appropriate to impose liability even when the harm would have occurred without the defendant’s act. This exceptional circumstance is narrowly defined to impose liability only “when a tortfeasor’s conduct, while not necessary for the outcome, would have been a factual cause if the other competing cause had not been operating.” Id. § 27 cmt. a.
The black letter of § 27 states: “If multiple acts exist, each of which alone would have been a factual cause under § 26 of the physical harm at the same time, each act is regarded as a factual cause of the harm.” Again, an illustration clarifies the concept:
“Rosaria and Vincenzo were independently camping in a heavily forested campground. Each one had a campfire, and each negligently failed to ensure that the fire was extinguished upon retiring for the night. Due to unusually dry forest conditions and a stiff wind, both campfires escaped their sites and began a forest fire. The two fires, burning out of control, joined together and engulfed Centurion Company’s hunting lodge, destroying it. Either fire alone would have destroyed the lodge. Each of Rosaria’s and Vincenzo’s negligence is a factual cause of the destruction of Centurion’s hunting lodge.” Id. cmt. a, illus. 1.
The formulation of the requirements for causation in the Restatement (Third) employs different nomenclature from that in the Restatement (Second), but it does not impose a stricter requirement for factual causation. We explain.
Section 430 of the Restatement (Second) states that a negligent person is liable for another’s harm only if the negligent conduct was a “legal cause” of the harm.
Section 431 then introduces the notion of “substantial factor,” stating that “negligent conduct is a legal cause of harm to another if ... his conduct is a substantial factor in bringing about the harm” and no rule of law exempts him from liability.
Section 433 sets forth considerations that are “important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another.” Those considerations are:
“(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time.” Restatement (Second) of Torts § 433.
Reading the black letter of §§ 430, 431, and 433, one could easily conclude that courts and juries have substantial leeway to depart from but-for causation in imposing liability. It would appear to be enough if the considerations listed in § 433 suggest that liability is appropriate.
This is how Plaintiffs appear to understand the doctrine. But this conclusion cannot stand once one reads § 432, which imposes a requirement for liability that is at least as stringent as the factual-cause requirement in the Restatement (Third).
Section 432(1) sets forth the general requirement of but-for causation; and § 432(2) recognizes what has become the exception in Restatement (Third) § 27 for “multiple sufficient causes.” Section 432 states:
“(1) Except as stated in Subsection (2), the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.
“(2) If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about the harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about.”
Thus, as we understand the substantial-factor requirement in the Restatement (Second), it adopts essentially the same standard for factual cause as the Restatement (Third). And that standard is different from what Plaintiffs advocate.
What Plaintiffs would apparently use to determine whether conduct is a substantial factor – the conditions set forth in § 433 – are actually limitations on what conduct can qualify as a substantial factor.
Once conduct satisfies one of the alternative requirements in § 432(1) and (2) – which in the Restatement (Third) §§ 26, 27 are the alternative grounds for being a factual cause – it must still qualify under § 433 if it is to be considered a substantial factor. (The counterpart to § 433 in the Restatement (Third) is § 36, which states that “when an actor’s negligent conduct constitutes only a trivial contribution to a causal set that is a factual cause of physical harm under § 27, the harm is not within the scope of liability.” An actor’s trivial contribution thus would still be a factual cause, but the actor would not be liable because the harm was outside the scope of liability. It should be noted that § 36, unlike Restatement (Second) § 433, applies only to one of multiple sufficient causes, not to a but-for factual cause.)
There are two further nuances regarding factual cause that need to be explained: the notion of causal sets and the meaning of the term sufficient cause.
The notion of a causal set is a helpful innovation in the Restatement (Third). A number of factors (often innocent) generally must coexist for a tortfeasor’s conduct to result in injury to the plaintiff.
Even when the defendant drives his car into the plaintiff’s car, no injury would have resulted if the plaintiff had not entered her car and driven to the accident site. That there are many factors does not mean that the defendant’s conduct was not a cause. As comment c to § 26 of the Restatement (Third) explains:
“A useful model for understanding factual causation is to conceive of a set made up of each of the necessary conditions for plaintiff’s harm. Absent any one of the elements of the set, the plaintiff’s harm would not have occurred. Thus, there will always be multiple (some say, infinite) factual causes of a harm, although most will not be of significance for tort law and many will be unidentified. That there are a large number of causes of an event does not mean that everything is a cause of an event. The vast majority of acts, omissions, and other factors play no role in causing any discrete event.
“This causal-set model does not imply any chronological relationship among the causal elements involved, although all causes must precede the plaintiff’s harm. An actor’s tortious conduct may occur well before the other person suffers harm and require a number of subsequent events to produce the harm. Thus, a gas valve negligently constructed may not fail for many years. Toxic substances may be sold without adequate warnings but not produce harm for decades. Conversely, the tortious conduct may occur after a number of other necessary events have already occurred but close in time to the occurrence of harm. Nor does this model imply any relationship among the causal elements; causal elements may operate independently, as when a property owner neglects a patch of ice on a sidewalk and a careless pedestrian fails to notice the condition, producing a fall.”
When § 27 of the Restatement (Third) speaks of “multiple sufficient causes,” it could more precisely speak of “multiple sufficient causal sets.” See id. § 27 cmt. f.
For example, the evidence at trial may show (1) that conditions A, B, C, D, E, and F were present; (2) that if only A, B, and C had been present, the injury would probably have occurred; and (3) that if only D, E, and F had been present, the injury would probably have occurred.
If F is the defendant’s misconduct, then F was not a but-for cause of the injury; even without F, the injury would have occurred (all it took was A, B, and C). But since D, E, and F would also have caused the injury, F is a component of a second causal set.
F must, of course, be a necessary component of the second causal set to be a factual cause of the injury. See id. That is, F would not be a factual cause if D and E alone would have been enough to cause the injury; F must be a “but for” component of at least one causal set for liability to attach.
Moreover, multiple causal sets may share some components. If A, B, and C would probably have caused the injury (with each of A, B, and C being necessary) and so would have A, B, and D, the tortfeasor who committed D would be liable. The Restatement (Third) provides the following example:
“Able, Baker, and Charlie, acting independently but simultaneously, each negligently lean on Paul’s car, which is parked at a scenic overlook at the edge of a mountain. Their combined force results in the car rolling over the edge of a diminutive curbstone and plummeting down the mountain to its destruction. The force exerted by each of Able, Baker, and Charlie would have been insufficient to propel Paul’s car past the curbstone, but the combined force of any two of them is sufficient. Able, Baker, and Charlie are each a factual cause of the destruction of Paul’s car.” Id. § 26 cmt. f, illus. 3.
A real-world example would be a typical asbestosis lawsuit. A person suffering from asbestosis may have been exposed to asbestos from a number of sources (say, four), and the total exposure may have been more than enough to cause asbestosis.
It may well be (1) that asbestosis would probably have arisen even without exposure of the victim to Source A, so Source A is not a but-for cause; and (2) that Source A by itself would not have caused asbestosis. But Source A may be a factual cause if it was a necessary component of a causal set that included, say, two of the other sources and the three together would probably have caused asbestosis.
Finally, we attempt to dispel some confusion that may arise from use of the word sufficient in the provisions of the Restatement (Second) and the Restatement (Third) that provide an alternative to but-for causation in limited circumstances.
Restatement (Second) § 432(2) employs the phrase “forces . . . sufficient to bring about harm to another” and Restatement (Third) § 27 is entitled “Multiple Sufficient Causes.”
The use of the word sufficient in both Restatements does not mean that either of them would impose liability for conduct that is not a but-for cause if only the conduct could have caused the injury. Rather, it is necessary for the plaintiff to show that the conduct (or the causal set of which it is a necessary part) would in fact have caused the injury.
As we all know, in the modern world of many hazardous substances, there may be many possible causes of a particular cancer. Each could be said to be sufficient to cause a specific person’s cancer. But one who suffers that cancer does not have a cause of action based on each such substance to which he was exposed, regardless of how unlikely it is that the cancer resulted from that exposure.
Only a substance that would have actually (that is, probably) caused the cancer can be a factual cause without being a but-for cause. This is clear in the black letter of Restatement (Third) § 27, which states:
“If multiple acts exist, each of which alone would have been a factual cause under § 26 of the physical harm at the same time, each act is regarded as a factual cause of the harm.” Id. (emphasis added).
And the illustrations to the section confirm this reading. We have already quoted the illustrations involving two fires, each of which “alone would have destroyed the lodge,” id. cmt. a, illus. 1, and involving three persons leaning on a car, “the combined force of any two of [whom] is sufficient [to propel the car],” id. cmt. f, illus. 3.
A third illustration, the one most pertinent to the case before us, requires proof that a drug “would have caused” the birth defect that could also have been caused by an unrelated genetic condition. Id. cmt. e, illus. 2. It is not enough that the drug could have caused the defect, as might be inferred from use of the term sufficient cause.
The Restatement (Second) is not as clear as the Restatement (Third) in excluding conduct that merely “could have” caused the injury, but the sole illustration to the point in Restatement (Second) § 432 is essentially the same as the concurrent-fires illustration in Restatement (Third) § 27.
In any event, the very notion of two (or more) causes (or causal sets), neither of which is a but-for cause, necessarily assumes that each of the causes would have caused the injury.
Say there are two such causes, A and B. The reason that A is not a but-for cause is that the injury would probably have occurred even if A had not been present. But that is merely another way of saying that even in the absence of A, B probably would have caused the injury; it would not be enough (to prevent A from being a but-for cause) that B may have caused the injury on its own but probably would not have.
To sum up, as we understand the Restatement (Second) and the Restatement (Third), a defendant cannot be liable to the plaintiff unless its conduct is either (a) a but-for cause of the plaintiff’s injury or (b) a necessary component of a causal set that (probably) would have caused the injury in the absence of other causes.
In particular, conduct was not a “substantial factor”, within the meaning of the term in the Restatement (Second), in bringing about a plaintiff’s injury unless it satisfied (a) or (b), and also was a sufficiently significant factor under the considerations set forth in Restatement (Second) § 433.
Thus, Plaintiffs’ substantial-factor argument misconceives the meaning of substantial factor in the Restatement (Second).
We therefore hold that Defendants would be liable only upon proof of one of the following: (1) that exposure of a Plaintiff to Uravan radiation was a but-for cause of the Plaintiff’s medical condition or (2) that such exposure to Uravan radiation was a necessary component of a causal set that would have caused the medical condition.
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