For those of us who teach proximate causation, this tragic case seems something out of a torts class. In Quebec, a couple was killed when a 300-pound male black bear crashed through their windshield and proceeded out the back window. This may top the recent cases of death by totem pole and casket.
The causation chain began when a Pontiac Sunfire in the eastbound lane hit the bear and sent it flying into the westbound traffic. The bear flew through the windshield of a Nissan Pathfinder sport utility vehicle — killing the 35-year-old female driver and a 40-year-old man sitting behind her. A 28-year-old front-seat passenger suffered only minor injuries and the driver and passenger of the Pontiac were unhurt. The bear hit with such force that it proceeded out the back window.
The speed limit was 90 kph (56 mph). Assuming the Pontiac was speeding, the question is whether we would hold the Pontiac liable as a matter of proximate causation. There would be a basis for negligence per se. Under the “but for” test for factual causation, there is probably enough here since the bear would not have struck the second car but for the original collision. However, there remains the question of whether the chain of causation becomes to attenuated given the multiplicity of factors.
The court in Berry v. Sugar Notch Borough, 43 A. 240 (Pa. 1899) addressed a factual causation question involving such variables. The driver was going down the tract at an excessive rate of speed under the local ordinance. As he passed under a tree, it was blown down crushing the roof of the car and causing the plaintiff serious injury. The Court rejected liability:
We do not think that the fact that the plaintiff was running his car at a higher rate of speed than eight miles an hour affects his right to recover. It may be that in doing so he violated the ordinance by virtue of which the company was permitted to operate its cars in the streets of the borough, but he certainly was not for that reason without rights upon the streets. Nor can it be said that the speed was the cause of the accident, or contributed to it. It might have been otherwise if the tree had fallen before the car reached it; for in that case a high rate of speed might have rendered it impossible for the plaintiff to avoid a collision which he either foresaw or should have foreseen. Even in that case the ground for denying him the right to recover would be that he had been guilty of contributory negligence, and not that he had violated a borough ordinance. The testimony however shows that the tree fell upon the car as it passed beneath. With this phase of the case in view, it was urged on behalf of the appellant that the speed was the immediate cause of the plaintiff’s injury, inasmuch as it was the particular speed at which he was running which brought the car to the place of the accident at the moment when the tree blew down. This argument, while we cannot deny its ingenuity, strikes us, to say the least, as being somewhat sophistical. That his speed brought him to the place of the accident at the moment of the accident was the merest chance, and a thing which no foresight could have predicted. The same thing might as readily have happened to a car running slowly, or it might have been that a high speed alone would have carried him beyond the tree to a place of safety. It was also argued by the appellant’s counsel that, even if the speed was not the sole efficient cause of the accident, it at least contributed to its severity, and materially increased the damage. It may be that it did. But what basis could a jury have for finding such to be the case; and, should they so find, what guide could be given them for differentiating between the injury done this man and the injury which would have been done a man in a similar accident on a car running at a speed of eight miles an hour or less?
The Canadian bear holds some similarities over the presence of superseding events, including the sudden incursion of the bear on the highway.