01-3484 Scottsdale Ins. Co. v. Subscription Plus Inc.

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“[T]wo acts may be negligent to the same degree, but if one causes harm and the other does not, the former may result in a criminal prosecution and the latter merely in the issuance of a traffic ticket. The driver of the Y.E.S.! van was prosecuted because of the lethal consequences of his negligence (six others besides Wild were killed, and several more were injured); but it was still negligence; there was no other culpable cause. ‘Animating the doctrine [of superseding cause] is the idea that it is unreasonable to make a person liable for such improbable consequences of negligent activity as could hardly figure in his deciding how careful he should be.’ Beul v. ASSE Int’l, Inc., 233 F.3d 441, 447 (7th Cir. 2000). There is nothing improbable about negligence.

“But there is a deeper problem with applying the doctrine of superseding causes to this case: there was no other cause to ‘supersede’ the van driver’s negligence, no other candidate, in other words, for a culpable cause. In a loose sense of ’cause,’ it is true, one not freighted with overtones of culpability or any other conception of legal or moral responsibility, Wild’s death had many causes-his presence in the van, for example, or for that matter his birth. But such ’causes’ are irrelevant to liability. A superseding cause is something culpable that intervenes between the defendant’s negligence and the plaintiff’s injury, some action of a third party that makes the plaintiff’s injury an unforeseeable consequence of the defendant’s negligence. ‘Once the defendant’s negligence is established, because injury of some kind was to be anticipated, intervening causes which could not reasonably be foreseen, and which are no normal part of the risk created, may bring about results of an entirely different kind.’ W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44, pp. 311-12 (5th ed. 1984). The van driver’s criminal negligence was not an intervening cause of Wild’s death. (What could it have intervened between?) There was no intervening cause.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Posner, J.