Proving Causation in a Florida Product Liability Case

1. Causation: The Basic Rules
For the consumer attorney prosecuting a product liability case in Florida, there are three causes of action available: negligence, strict liability, and breach of warranty. Because of the available remedies for each of these causes of action, consumer attorneys pursuing a case involving personal injury or wrongful death will bring a claim based upon negligence, strict liability, or both. Breach of warranty provides for very limited types of damages and is therefore rarely used in a personal injury case. Therefore, this outline will address causation as it applies to negligence and strict liability.

The basic rule is that the defect or negligence must have caused the injury. Florida courts have applied the rules regarding causation in product liability cases the same as in negligence cases. The Florida Supreme Court, in West v. Caterpillar Tractor Company, Inc., 547 F.2d 885 (C.A. Fla. 1977), the seminal Florida case regarding strict liability, held that “[t]he ordinary rules of causation and the defenses applicable to negligence are available under our adoption of the Restatement rule [Restatement Second].”

Florida has a standard jury instruction for strict liability product cases which is virtually identical to the standard causation instruction for negligence. The standard strict liability product instruction provides:

A defect in a product is a legal cause of the [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the defect, the [loss] [injury] [or] [damage] would not have occurred.
Fla. Std. J. Instr. (Civ.) 5.2. The only difference between this instruction and the standard causation instruction for negligence is the substitution of the term “negligence” for “defect.” When bringing either cause of action — negligence or strict liability — the plaintiff must prove that his injuries were caused by either the defendant’s negligence or by the alleged defect.

2. Causation: Two Basic Elements
When courts discuss the issue of causation they often intermix the terms “causation,” “proximate causation,” and “legal causation.” The distinction between, and application of these terms to actual cases is often confusing and inconsistent. There is also a dramatic lack of agreement among both commentators and courts in applying these terms. Regardless of the terms used (and for simplicity, this outline will use the term “causation”), as a practical matter the plaintiff must prove two essential elements to prove causation: 1) that the wrongful conduct did, in fact, cause the plaintiff’s injuries; and 2) that the resulting accident was a reasonably foreseeable consequence of the defendant’s conduct. Coker v. Wal-Mart Stores, Inc., 642 So.2d 774 (Fla. 1st DCA 1994). Each of these essential elements of causation will be addressed below.

A. First Element: Causation-In-Fact
The first of these two elements the plaintiff must satisfy to establish causation is commonly referred to as the “but for” test, or “causation-in-fact.” Under this element the plaintiff must prove that there is a natural, direct, and continuous sequence between the defendant’s negligence (or the product defect) and the plaintiff’s injury such that “but for” the negligence or defect the injury would not have occurred. Sardell v. Malanio, 202 So.2d 746 (Fla. 1967); Sakon v. Pepsico, Inc., 553 So.2d 163 (Fla. 1989).

The “but for” test is problematic whenever the plaintiff’s injuries were caused by two or more factors. Under this scenario, when there are “concurrent causes” of the plaintiff’s injuries, the courts apply a “substantial factor” test. Asgrow-Kilgore Co. v. Mulford Hickerson Corp., 301 So.2d 441 (Fla. 1974); Loftin v. Wilson, 67 So.2d 185 (Fla. 1953).

B. Second Element: Foreseeability
The second element the plaintiff must satisfy to establish causation is commonly referred to as the “foreseeability” test. For this second element, the plaintiff must prove that the circumstances which led to the plaintiff’s injury were the natural and probable consequences of the defendant’s negligent conduct. Cone v. Inter County Telephone & Telegraph Co., 40 So.2d 148 (Fla. 1949); Goode v. Walt Disney World Co., 425 So.2d 1151 (Fla. 5th DCA 1982). Foreseeability is also usually required as part of plaintiff’s proof of the element of duty in a negligence case. However, this issue must also be proved with respect to the element of causation.

Courts have had a difficult time articulating a single standard for foreseeability as an element of causation due to the various fact patterns for which any standard would have to apply. Therefore, Florida courts have used several different standards to determine whether the plaintiff has established foreseeability as it pertains to causation.

One standard courts use to determine whether a plaintiff has proven foreseeability is the “natural and probable consequences standard.” This standard allows a plaintiff to prove proximate cause when his injuries were the direct result of, and in ordinary and natural sequence from the defendant’s negligence or from the defective product. Alternatively, this standard inquires whether the plaintiff’s injury is the type that would ordinarily and naturally be regarded as a probable, as opposed to possible, result of the negligent act or omission. Cone v. Inter County Telephone & Telegraph Co., 40 So.2d 148 (Fla. 1949); Bosket v. Broward County Housing Authority, 676 So.2d 72 (Fla. 4th DCA 1996). All that is necessary is that the defendant be able to foresee that some injury is likely to result in some manner as a consequence of his negligence. McCain v. Florida Power Corporation, 593 So.2d 500 (Fla. 1992); Sawaya, Id. at Section 3.4, p.128.

Another standard courts use to determine whether a plaintiff has proven foreseeability is the “scope of danger” standard. When using this standard the issue is whether the accident in which the plaintiff was injured was within the scope of the danger created by the defendant’s negligence or defective product. Under this standard the plaintiff is not required to prove that the defendant was able to foresee the exact sequence of events which lead to the injury. Rather, the plaintiff is only required to show that the “general type of accident is a reasonably foreseeable consequence of the defendant’s negligence.” Sawaya, Id.; Tieder v. Little, 502 So.2d 923 (Fla. 3d DCA 1987).

In Gibson v. Avis Rent-A-Car System, Inc., the Florida Supreme Court addressed the way in which a plaintiff could establish foreseeability by showing that an injury was within the scope of danger of a defendant’s conduct. Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla. 1980). The Court held that the plaintiff could accomplish this in three ways:

A. Statute or Ordinance. The legislature (or presumably the federal government) may enact a statute which specifies the type of harm for which a defendant is liable. Administrative agencies may also create a duty through rules or regulations. Such duty would make a defendant liable for harm to anyone foreseeably injured by the conduct or defective product;

B. Actual Knowledge. The plaintiff could show that the defendant had actual knowledge of the same type of harm that resulted in the past from similar conduct; or

C. The Reasonable Man Standard. This standard looks at whether a reasonable man would foresee the harm as a consequence of the conduct. Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330 (Fla. 1925); Firestone Tire and Rubber Company, Inc. v. Lippencott, 383 So.2d 1181, 1182 (Fla. 5th DCA 1980). Essentially, this standard asks whether a reasonable man would take precautions based upon what is probable, “in the known course of things.” Stark v. Holtzclaw, Id. at 105. Under the reasonable man standard, actual knowledge is not required. Plaintiff can establish foreseeability for purposes of proving causation based upon constructive knowledge, that is, what a reasonable man should know under the circumstances. Springtree Properties, Inc. v. Hammond, 692 So.2d 164 (Fla. 1997).

Regardless of the standard used to determine foreseeability, courts agree that foreseeability is almost always an issue of fact to be determined by the jury. Springtree Properties, Inc., Id.

3. Concurring Causes
A “concurring cause” is when there are “two separate and distinct causes that operate contemporaneously to produce a single injury.” Goldman v. Holman, 571 So.2d 422,424 (Fla. 1990). It is well established in Florida that a defendant may still be held liable for injuries caused by his negligence, or by his defective product, even if his conduct or the negligent product was a concurring cause of the plaintiff’s injuries. The issue is whether the defendant’s conduct or defective product was a “substantial factor” that contributed to the plaintiff’s injuries. Tieder v. Little, 502 So.2d 923 (Fla. 3d DCA 1987). If the plaintiff proves the defendant’s conduct or defective product was a material and substantial factor in bringing about the plaintiff’s injuries, the element of causation is satisfied.

4. Causation in Crashworthiness Cases
One exception to the general rules regarding causation recognized in Florida is for cases involving automobile crashworthiness. A crashworthiness case is a suit where the plaintiff claims an automobile manufacturer failed to incorporate sufficient safety protections for occupants in a vehicle. Such cases are referred to as “crashworthiness” cases because the allegation is that a vehicle design did not provide sufficient crash protection. The Florida Supreme Court adopted the crashworthiness doctrine in the case of Ford Motor Company v. Evancho, 327 So.2d 201 (Fla. 1976). The Evancho Court ruled that a manufacturer will be liable for a plaintiff’s enhanced injuries when: 1) the injury was caused or enhanced by a design or manufacturing defect; and 2) the injury was reasonably foreseeable and reasonably could have been avoided.

An example of a crashworthiness case is a roof crush case, in which a vehicle rolls over and occupants are injured because the vehicle’s roof intrudes into the vehicle’s occupant space. Another example is a vehicle which bursts into flames after a crash resulting in the vehicle’s occupants being burned.

For years Florida courts struggled with causation and comparative fault as applied to crashworthiness cases. These were decided in favor of consumers by the Florida Supreme Court in the D’Amario v. Ford Motor Company, 806 So.2d 424 (Fla. 2001).

The D’Amario Court recognized that in a crashworthiness case there are two separate impacts. The first impact is the crash itself – ie., when a vehicle hits a tree and bursts into flames, the first impact is the vehicle hitting the tree. In a rollover, the first impact is the vehicle rolling over onto the road. The court recognized that there is also a second impact in a crashworthiness case: the impact of the occupant hitting the inside of the vehicle. It is this “second impact” that the crashworthiness theory is based upon, and the auto manufacturer’s failure to take reasonable steps to prevent this second impact from causing plaintiff injuries.

In recognizing that crashworthiness cases involve two distinct impacts, and that liability against an auto manufacturer is based solely on the second impact, the Court ruled the actions of the at-fault driver should not be held to be a concurring cause of the plaintiff’s injuries. Rather, the sole issue for the jury was whether the auto manufacturer’s negligent or defective design was the cause of the plaintiff’s injuries. Accordingly, in a crashworthiness case, the at-fault driver does NOT go on the verdict form, and the sole issue for the jury’s consideration is whether the manufacturer’s conduct or design caused the plaintiff’s damages.

5. Burden of Proof
The general rule for causation, as with other elements in a negligence or strict liability claim, is that the plaintiff has the burden of showing causation by a preponderance of the evidence, or rather, the “more likely than not” standard. Judge Sawaya, in his landmark treatise, Florida Personal Injury Law and Practice, summarizes it best “the plaintiff must show that the negligent act or omission probably would have affected the outcome.” Sawaya, Id. at Section 3.9, p.160.

6. Market-Share Liability
One exception to the general rule requiring proof of causation with respect to a particular defendant applies to cases where a plaintiff, through no fault of his own, is unable to identify from a group of tortfeasors which specific tortfeasor caused his injury. This issue commonly arises in mass tort cases where there is a relatively small group of defendants who have produced a particular hazard. One example of this is with asbestos manufacturers whose products caused certain plaintiffs to develop asbestosis and mesothelioma.

The Florida Supreme Court adopted the doctrine of market share liability in the case of Conley v. Boyle Drug Company, 570 So.2d 275 (Fla. 1990). The Court further defined and discussed this doctrine in the case of King v. Cutter Laboratories, Div. of Miles, Inc., 714 So.2d 351 (Fla. 1998). In holding that a plaintiff is entitled to recover in Florida under a market share theory, the court recognized that this theory was applicable where several manufacturers produced an inherently dangerous product and where the plaintiff was unable to identify which manufacturer produced the precise product which caused the injury because of several factors. Some of these factors include the number of manufacturers who made the product; the lapse of time between the date the product was made and the onset of injury; and because one or more manufacturers were not able to be joined in the lawsuit.