Week Eleven, Part 6 - Torts: Latin For Lawyers

In Torts, Professor Charles Rice is chewing through case law at an amazing pace. For the week, including a Monday make-up class, we read and brief 19 appellate decisions. For the most part, the cases focus on the causation element of negligence.

We discuss post hoc, ergo prompter hoc: the fallacy of concluding that since Event B happened after Event A, A was the cause of B.

Then we look at the sine qua non rule: “the act of the defendant without which there would not have been a tort.” Rice calls it “but-for causation” and says it’s the first question in determining liability.

“For example, ‘But-for defendant’s LF, would plaintiff’s house have burned down?’”

We looked puzzled: LF?

“Little Fire,” he says, “as opposed to ‘BF’ – Big Fire.”

We all jot down these symbols, as if they’re vital.

“Suppose Abel starts LF-1 and Baker starts LF-2. Little Fires join together in BF which burns your house down. Who’s liable?”

Several students struggle to answer.

Rice waits. “What else do you need to know?” He answers his own question. “Whether each fire is a substantial factor!”

We nod.

“If so, there’s concurrent causation,” Rice says, “and both A and B are liable. But if LF-1 would've just died out, there’s no liability for Abel.”

Class ends after Rice gives us an overview of market-share liability.

I head home about 6:00 p.m.

As we get supper ready, Terri asks me how school was.

“We learned about but-for causation, sometimes referred to as sine qua non.” I let the Latin roll off my tongue. “To prove the defendant negligent, the plaintiff must show that the defendant had a duty to be careful. That he breached the duty. And but-for the breach, there wouldn't have been any injury.” I’m ticking off the elements on my fingers.

“And?” she says.

“And I was thinking about you.”

She puts down the potato peeler.

“But-for you telling me about ND's reputation for great lawyers, and but-for you reviewing
my personal statement, and but-for you nixing my idea of being a court reporter, I wouldn’t be at Notre Dame Law School.”

“Thanks,” she says. “I did because I love you.”

“Oh I didn’t mean it like that,” I say, poking her in the ribs. “I’m looking for someone to blame!”

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