The responsible party (“defendant”) had a duty of care towards the plaintiff;
The defendant breached this duty of care;
The breach of duty actually caused and proximately caused the plaintiff’s accident; and
The accident resulted in damages to the plaintiff
The element of “proximate cause” also goes by the term “legal cause.” It is the linchpin of every negligence lawsuit because it links the defendant’s wrongful act to the plaintiff’s injuries.
How does Nevada law define proximate causation?
Proximate cause exists when:
the plaintiff’s injury was the natural and probable result of the defendant’s breach of duty, and
the defendant should have foreseen the injury in light of the circumstances
Nevada’s jury instructions for explaining probable cause differ depending on whether there may have been more than one cause of the injury:
If the plaintiff contends that the defendant’s wrongful act was the sole cause of the plaintiff’s injury, then there is a proximate cause if the injury would not have occurred “but for” the defendant’s wrongful act.
But if the plaintiff contends that there may have been more than one cause of the plaintiff’s injury, then the court switches from the “but for” test to the “substantial factor test“: There is proximate cause if the defendant’s wrongful act was a “substantial factor” in bringing about the plaintiff’s injury.
Example: Ben is driving drunk and has propane in his trunk. Ben hits a cyclist, causing the propane to explode and burn the cyclist. Although the propane was the cause of the burns, Ben’s drunk driving was still a substantial factor in setting into motion the events that caused the burn. Therefore, Ben’s drunk driving was a proximate cause of the cyclist’s injuries.
Had the cyclist in the above example been drunk and not Ben — and then the cyclist hit Ben’s car and was burned in the ensuing explosion — then Ben’s driving would not have not been a substantial factor in causing the cyclist’s injuries. Ben was driving soberly, and he should not have foreseen that a drunk cyclist would strike him.
Proximate cause versus actual causes
In order to prevail in a negligence claim, the plaintiff has to prove both actual and proximate cause. The actual cause is a much easier concept than the proximate cause.
Actual cause is simply the action that instigated the accident. For example, if a car strikes a pedestrian, the driver’s actions constitute the actual cause of the accident.
How do I prove proximate causation?
The best methods of proving proximate causation turn on the unique facts of the case and the available evidence. For example, if someone was injured in a slip-and-fall accident in a casino, valuable evidence for proving proximate causation would include:
surveillance video of the plaintiff walking responsibly and slipping anyway;
eyewitnesses who saw the floor was wet at no fault of the plaintiff;
expert testimony that the victim’s shoes did not cause the accident;
expert medical testimony that the victim’s injury was indicative of a slip-and-fall;
the plaintiff’s medical records before and after the accident
Unlike in criminal cases, plaintiffs in personal injury lawsuits do not have the burden to prove the case beyond a reasonable doubt. Instead, plaintiffs have to prove the case by a preponderance of the evidence.
By a preponderance of the evidence is a much lower standard of proof than beyond a reasonable doubt. It means that it is more likely than not that the defendant is liable.
Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996)(“[T]he “but for” instruction should be abandoned in favor of the “substantial factor” instruction in cases in which an injury may have had two causes, either of which, operating alone, would have been sufficient to cause the injury.”).
Yamaha Motor Company, U.S.A. v. Arnoult, 114 Nev. 233, 955 P.2d 661 (1998)(“To establish a prima facie case of negligence or strict tort liability, a plaintiff must satisfy the element of proximate causation. To establish proximate causation it must appear that at the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”).
About the Author
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.