"Yeah, the facts demonstrate a Shoney’s buffet of negligence, but there is no proof that any of that negligence caused any harm. So what?"
This case out of Illinois is a classic example. Russell was found severely injured at the bottom of some steps. When found he said "I fell over the railing." He died several weeks later. There were no witnesses to the fall.
The stairs were dripping in negligence. Even negligence per se. But the case was dismissed, and the dismissal affirmed on appeal.
Why? "[N]one of the testimony and affidavits addresses the issue of what caused Russell’s fall. Violations of an ordinance or a failure to comply with the building code, by themselves without evidence that the violations caused the injury, do not establish proximate cause. The possibility that the allegedly unreasonably dangerous staircase had caused Russell to slip and fall is insufficient to establish the necessary causal relationship between [the homeowner’s] alleged negligence and Russell’s injuries." [Citations omitted.]
What about Russell’s statement about the cause of the fall and the alleged negligence concerning the railing? That did not work either because it "shed no light on what caused Russell to fall."
What about Russell’s history of careful habits? No, that didn’t work either, because }whether Russell was exercising due care at the time of the incident has no bearing on whether there is any evidentiary support for the element of proximate cause."
The lesson: what we learned from Justice Cardozo in Torts 101 remains true today: "Proof of negligence in the air, so to speak, will not do." Palsgraf v. Long Island Railroad Company, 248 NYS 339 (1928), citing Pollock, Torts 11th ed., p. 455. (Before someone raises the point, I know that the majority opinion in Palsgraf went off on the duty issue. Nevertheless, the quotation still works nicely to demonstrate that negligence can abound but a case can be lost unless the negligent acts or omissions can be linked to the harm.) A person can fall down the steps for a host of reasons, some of which can be caused by a negligent condition on the steps, some of which can be caused solely by the negligence of person who falls.
But what about the concept of circumstantial evidence, you may ask? Can’t the jury infer, from the sum total of the evidence, including Russell’s statement, that a defect caused the fall?
And the answer is "No, not it Illinois."
The case is Strutz v. Vicere, No. 05 L 7712 (Ill. Ct. App. 3d April 29, 2009). Read it here.
Thanks to Torts Prof for bringing the opinion to my attention.