Causation in Fact in Omission Cases

Cause in fact is fundamental to imposing liability in many kinds of civil and criminal actions. The term refers to the causal link between an act or omission and resulting damage or injury. Lawyers, judges, and scholars frequently think of cause in fact as a purely factual question, unaffected by policy issues, that can be resolved adequately under normal burden of proof rules. In contrast, proximate or legal cause rules are explicitly intended to implement policy decisions concerning how far to extend the scope of liability.

In routine cases the determination of cause in fact appears to be simple and factual. For example, when a dry leaf ignites after a spark lands on it, most people would readily agree that the spark was a cause of the fire. However, two situations, omissions creating an intractable proof problem and multiple sufficient causes, create extremely difficult cause-in-fact problems.' Courts can solve these problems satisfactorily only by reference to policy; pure factual analysis simply does not provide an adequate answer.