McAuley v. Wills

Weltner, Justice,

dissenting.

1. This case provides an opportunity to review the legal implications of causation, which is always a question of fact and never a principle of law. Those implications abound in bewildering profusion, as so many avatars of the Hindu pantheon. We have striven mightily to define and delineate these concepts: proximate cause, comparative negligence, contributory negligence, equal negligence, last clear chance, assumption of risk, duty of avoidance, concurrent negligence, remoteness, contingency, foreseeability, duty to exercise care for one’s own safety, mitigation of damages, probable consequences, intervening act, accident, dangerous instrument-alities, imputed negligence, res ipsa loquitur, existence and extent of duty.

*8All of these (and doubtless more) are but differing aspects of the same inquiry — causation — so that their expositors seem uncomfortably akin to the fabled blind men describing in varying terms the same elephant.

Perhaps by resorting to another discipline we can more clearly see the factum from which all of our theories pend. Newtonian physics contains a definition of inertia, as follows: “The property of matter by which it will remain at rest, or in uniform motion in the same straight line or direction unless acted upon by some external force.” Webster’s New International Dictionary, 2nd Ed., Unabridged, loc. cit.

Transposing this definition into the realm of law, and to this case, “external force” is causation, and “at rest” is status quo ante. When an external force acts upon an object (whether real or incorporeal) so as in any way to alter any of its qualities, that external force is the causation of the resultant alteration. An example of immediate causation is the external force of fist striking cheek, and the resultant alteration of tissue into a black eye. An example of less immediate causation is the discharge of firecrackers, upsetting a scale which strikes poor Mrs. Palsgraf.

Another example of less than immediate causation is this very case.

There is, therefore, little difficulty in determining as a matter of fact that the conduct of Wills was causative to some extent of the death of the child, and hence of the damages to the mother under our wrongful death statute. But for the action of Wills (“external force”) the mother’s physical ability to give birth without section would have remained unchanged (“at rest”) and the birth injuries to the child occasioned by the diminution of that ability (“resultant alteration”) would not have caused the death of the child, and the mother would not have been damaged thereby.

The recognition which emerges from this analysis is that we (the authors of appellate opinions) have confused causation in fact with that causation for which the law will countenance a remedy. An example is the doctrine of equal negligence. Where a plaintiffs negligence is equal to or greater than that of the defendant, the plaintiff is barred from recovery. This result pertains not because the defendant’s negligence is not causative to some extent of the injury to the plaintiff, but as a matter of policy. Similarly, the doctrine of last clear chance, where the plaintiffs own negligence is unquestionably causative to some extent of his own injury, but for policy considerations he is not debarred from recovery. Similarly, the doctrine of assumption of the risk, which is at its very base but an alternate statement of the rule of equal negligence.

*9In like manner, we have confused principles of foreseeability and remoteness — which are matters of policy — with the fact of causality, in effect saying that we will not approve recovery for injuries which are caused by a defendant when they are “remote,” and not “reasonably foreseeable.”

Translated, this means that those injuries which the law decides should be compensable are “reasonably foreseeable,” and that those injuries which the law decides should not be compensable are “remote.” These terms are, therefore, not standards of measurement, but conclusions derived from policy considerations.

I believe Professor Prosser would agree with this analysis. “Once it is established that the defendant’s conduct has in fact been one of the causes of the plaintiffs injury, there remains the question whether the defendant should be legally responsible for what he has caused. Unlike the fact of causation, with which it [proximate cause] is often hopelessly confused, this is essentially a problem of law. It is sometimes said to be a question of whether the conduct has been so significant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that this becomes essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Prosser, Law of Torts, 4th Ed., at p. 244.

The final two paragraphs of the majority opinion recognize these precepts, as does Judge Deen’s concurring opinion in the Court of Appeals, McAuley v. Wills, 164 Ga. App. 812 (298 SE2d 594) (1983), which includes this pertinent observation by Professor Street: “The terms ‘proximate’ and ‘remote’ are thus respectively applied to recoverable and non-recoverable damage... It is unfortunate that no definite principle can be laid down by which to determine this question. It is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent. . . . The best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other.” Foundations of Legal Liability, Vol. 1, p. 110 (1906).

To speak in terms of the existence velnon of a “duty” (as Prosser does, supra, p. 244) is of little help, as the declaration of a “duty” is nothing more than the determination that in a given case (causality being established in fact) recovery, as a matter of policy, should be permitted in law. Along the same lines relative to “right” (the reciprocal of “duty”) see my special concurrence in Martin Luther King, Jr. Center v. American Heritage Prods., 250 Ga. 135,149 (296 *10SE2d 697) (1982).1

2. The majority’s Division 4 contains an analysis of cases which have permitted the maintenance of injuries stemming from conduct prior to the conception of the person adversely affected. In each case, a court has recognized the causality of a defendant’s conduct and has decided, as a matter of policy, that recovery will not be barred because the ultimate impact of that conduct fell upon one who was not conceived at the time of that conduct.

I see but two possible differences in the case before us and those outlined by the majority — both immaterial. The first is that there is no apparent question of concurrent negligence of third parties, as there may be in this case, and the second is that the cause of the action is primary rather than, as here, derivative. Neither of those considerations is a ground for barring this plaintiffs action, as our law encompasses concurring negligence, and a plaintiff is damaged all the while, whether the cause of action be direct or derived.

Thus, we are faced with the question of whether or not this state has a policy which would prohibit recovery. I suggest that no such policy exists independent of statutes of limitation or repose. I know of no statute of repose which would apply here, and the statute of limitations is that relating to wrongful death, as applied in Clark v. Singer, 250 Ga. 470 (298 SE2d 484) (1983). The action for wrongful death being filed within two years from the date of the death of the child, it is timely.

3. The suggestions I have outlined above are in disagreement, to some extent, with all of the other opinions written in this case, both that of the majority of our Court, and the three opinions in the Court of Appeals. Because the object of this dissent is, hopefully, to develop some clarity in the realm of causation, I note here the outlines of that disagreement.

(a) As to the majority of our Court, I agree that there is, in fact, a *11case for causal connection between Wills’ conduct and the child’s death, but disagree with its holding that policy prohibits recovery. Such a policy prohibition is enunciated by the majority’s use of the terms, “too remote,” “intervening act not reasonably foreseeable,” and “not the proximate cause” (page 6 of the opinion). I further disagree with the majority’s statement that “proximate cause is undeniably a jury question.” If “proximate cause” means causation which as a policy matter will give rise to recovery, it is not a factual inquiry at all, but one of law.

(b) I disagree with the majority of the Court of Appeals in its holding (page 813) that “the earlier negligence of Wills ... could not directly have affected a life not even yet conceived and thus not in being,” as the causal connection of that conduct and the child’s death is a question of fact for the jury.

(c) I disagree with the concurring opinion in its holding that the statutory period of limitation commences with the date of Wills’ conduct, and not with the date of the child’s death (page 815). See Clark v. Singer, supra.

(d) Finally, I disagree with the dissent in its proposition that “ [w]hether or not the paraplegia of the mother could reasonably have been anticipated or foreseen as preventing a normal birth remains for determination upon evidence,----” (page 817) because this must be resolved upon legal policy as enunciated by the Court, and not upon finding of fact as discerned by the jury.

Causation is always a question of fact. Legal responsibility for causation, once established, is always a question of law.

4. I well understand that the reasoning behind this opinion might possibly subject persons to lawsuits many years after an event which is claimed to be causative of injury, as is already the case in a Clark v. Singer situation. This consequence requires address by the General Assembly through the enactment of more comprehensive statutes of limitation and of repose. As to this plaintiff, however, there is clearly a causal connection between the death of her child and the conduct of the defendant, and her claim was brought within the appropriate period of limitation.

The statutory law of our State in this realm is contained in OCGA §§ 51-12-8 and 51-12-9 (Code Ann. §§ 105-2008,105-2009), drawn directly from the Code of 1863 (§§ 3004 and 3005), as follows:

“If the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act or if other and contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer.” OCGA § 51-12-8 (Code Ann. § 105-2008).

“Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.” OCGA § 51-12-9 (Code Ann. § 105-2009).

Viewed in the light of the above analysis, our statutes provide not so much a statement of policy as an example of circumlocution.