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Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden

Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden AbstractWrongdoing does not only produce the harm that is the subject of a tort suit. It also necessarily produces uncertainty regarding what would have occurred without the wrongdoing. As a result, in proving causation, plaintiffs must overcome an information deficit that is not of their own making. From case to case, there is variation in the degree of uncertainty about causation, and in the extent to which that uncertainty is fairly attributable to the underlying tort. However, the degree of uncertainty tends to be high in cases where defendants failed to take reasonable precautions, since the plaintiff must construct, almost out of thin air, the counterfactual impact of the untaken precautions. Likewise, where underlying torts involve concealment or the failure to gather or seek information, the directly generate uncertainty. In such cases, where a defendant’s conduct substantially or directly generates uncertainty regarding causation, the burden of proof should be modified so that the uncertainty does not inure to the benefit of the wrongdoer. The impact of burden shifting in such scenarios would not be radical, costly, or harmful to the aims of justice. Causation, properly understood, is intended to be a minimum threshold requirement, wholly distinct from the negligence and scope-of-liability analyses. Relieving a plaintiff from the burden of proving causation would not relieve the plaintiff from proving negligence and proving that the negligence foreseeably gave rise to a risk of the harm that befell the plaintiff. The current allocation of the burden of proof on causation produces results that are intuitively and strikingly unjust. Courts should be more ready to shift the burden of proof to the wrongdoer. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Tort Law de Gruyter

Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden

Peters, Sara M.
Journal of Tort Law , Volume 13 (2): 21 – Nov 18, 2020
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Publisher
de Gruyter
Copyright
© 2020 Walter de Gruyter GmbH, Berlin/Boston
ISSN
1932-9148
eISSN
1932-9148
DOI
10.1515/jtl-2020-2009
Publisher site
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Abstract

AbstractWrongdoing does not only produce the harm that is the subject of a tort suit. It also necessarily produces uncertainty regarding what would have occurred without the wrongdoing. As a result, in proving causation, plaintiffs must overcome an information deficit that is not of their own making. From case to case, there is variation in the degree of uncertainty about causation, and in the extent to which that uncertainty is fairly attributable to the underlying tort. However, the degree of uncertainty tends to be high in cases where defendants failed to take reasonable precautions, since the plaintiff must construct, almost out of thin air, the counterfactual impact of the untaken precautions. Likewise, where underlying torts involve concealment or the failure to gather or seek information, the directly generate uncertainty. In such cases, where a defendant’s conduct substantially or directly generates uncertainty regarding causation, the burden of proof should be modified so that the uncertainty does not inure to the benefit of the wrongdoer. The impact of burden shifting in such scenarios would not be radical, costly, or harmful to the aims of justice. Causation, properly understood, is intended to be a minimum threshold requirement, wholly distinct from the negligence and scope-of-liability analyses. Relieving a plaintiff from the burden of proving causation would not relieve the plaintiff from proving negligence and proving that the negligence foreseeably gave rise to a risk of the harm that befell the plaintiff. The current allocation of the burden of proof on causation produces results that are intuitively and strikingly unjust. Courts should be more ready to shift the burden of proof to the wrongdoer.

Journal

Journal of Tort Law – de Gruyter

Published: Nov 18, 2020

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