There is a legal concept in personal injury law called “proximate cause.” The big question in holding someone liable for the injuries of another is: “Was the defendant’s action the proximate cause of the injury sustained by the plaintiff?” In other words, was it the defendant’s fault or not.
In analyzing that question, various States have created other legal concepts, such as contributory negligence, comparative negligence, and strict liability. These concepts help tailor the causation element to the facts of the case. For instance, were the actions of the plaintiff a contributing factor to the injury sustained by him – by his failure to wear a seat-belt, did the plaintiff cause his own injuries, even if the defendant’s car hit his car.
In Barnett v. Schwartz, the Appellate Division – Second Department had to grapple with an issue concerning causation. Specifically, in a legal malpractice case, must the plaintiff prove that the defendant-attorney’s negligence was the sole proximate cause of the damages sustained by him?
In the case, the defendants argued that the trial court erred when it charged the jury that the plaintiffs needed to prove only that the defendants’ negligence was a proximate cause (i.e., a “substantial” cause) of damages. The defendants claimed that the trial court should have instead charged the jury that the plaintiffs needed to prove that “but for” such negligence they would not have sustained damages. The defendants argued that the “less rigorous standard” of causation charged by the court warranted reversal and a new trial.
The elements to be proved in a legal malpractice action have been subjected to various formulations. In the opinion, the court noted:
Thus, while it is clear that a plaintiff-client must prove negligence (i.e., that the defendant-attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community), some cases hold that the negligence must be “the” proximate cause of damages (Britt v Legal Aid Soc., 95 NY2d 443, 446; see e.g. Kleeman v Rheingold, 81 NY2d 270; Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407; Cohen v Wallace & Minchenberg, 39 AD3d 691; Cummings v Donovan, 36 AD3d 648; Kotzian v McCarthy, 36 AD3d 863), while others hold that it must be “a” proximate cause of damages (Bauza v Livington, 40 AD3d 791, 793; see e.g. Moran v McCarthy, Safrath &Carbone, P.C., 31 AD3d 725; Terio v Spodek, 25 AD3d 781; Pistilli v Gandin, 10 AD3d 353). There are also cases from this court requiring the damages to be a “direct result” of the negligence (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409; Kotzian v McCarthy, 36 AD3d 863; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725). In the main, the cases from the Court of Appeals, including the most recent, do not expressly require that the negligence be either “the” or “a” proximate cause of damages, but require proof that, “but for” the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action (in a classic lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action alleging negligent advice, etc.) (see e.g., Leder v Spiegel, 9 NY3d 836; Rudolf v Shayne, Dachs, Stanisci, Corker &Sauer, 8 NY3d 438; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428; Davis v Klein, 88 NY2d 1008; Carmel v Lunney, 70 NY2d 169). The defendants here, while not expressly describing the difference between proximate and “but for” causation, argue that the latter requires a greater, more direct degree of causation. However, we find no substantive import to the variations in the formulations discussed above, and hold that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages.
Neither party cited, and research did not reveal, any case from the Court of Appeals or any other court expressly holding that “but for” causation was synonymous with sole proximate cause, or that it requires a degree of causation in legal malpractice cases greater than proximate cause, i.e., greater than that which must be typically proved as against any other professional or lay defendant in a negligence action. Further, there was no case discussing or identifying any basis for singling out attorneys for special treatment on the issue of causation.
As mentioned in the decision, The Pattern Jury Instruction on legal malpractice, which focuses upon the lawsuit-within-a-lawsuit scenario, does not expressly use either the phrase “but for” or “proximate cause” in its formulation (NY Pattern Jury Instruction 2:152). However, the comments to the instruction, while noting the “but for” formulation, provide that a defendant-attorney’s negligence need only be “a” proximate cause of damages and refer the reader to the general Pattern Jury Instruction on proximate cause (NY PJI 2:152, p 872, 880; NY PJI 2:70). As stated: “Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause.”
The Second Department decision in Barnett v. Schwartz gave an instructive lesson concerning proximate cause in a legal malpractice case:
For example, in the lawsuit-within-a-lawsuit scenario, the plaintiff-client must prove that but for the defendant-attorney’s negligence they would have prevailed in the underlying action. Stated otherwise, if the plaintiff-client cannot prove that it would have prevailed in the underlying action, the defendant-attorney’s negligence was not a proximate cause of any damages arising from the loss of the same. Further, there are several decisions from this court requiring the plaintiff-client to prove both that the defendant-attorney’s negligence was “a” proximate cause of damages, and that “but for” such negligence it would have prevailed in the underlying action or would not have incurred damages (see e.g. Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725; Terio v Spodek, 25 AD3d 781). Clearly, these decisions do not provide for two different measures of causation in the same standard. Indeed, it would appear that the “but for” language, which grew out of the lawsuit-within-a-lawsuit scenario (see Carmel v Lunney, 70 NY2d 169; N. A. Kerson Co. v Shayne, Dachs, Weiss,Kolbrenner, Levy & Levine, 45 NY2d 730), is merely a recognition of the factual particularities of proving proximate cause and damages in such an action. When applied in a case involving negligent legal advice (i.e., a case where there is no underlying cause of action to lose), it would appear that the “but for” formulation is merely a recognition of the factual complexities that may attend proving proximate cause when the legal advice was merely one of a myriad of factors that contributed to the plaintiff-client’s ultimate decision or course of action (see e.g. AmBase Corp. v Davis Polk &Wardwell, 8 NY3d 428).
Finally, we note, a conclusion that the “but for” formulation of causation requires proof that the negligence of the defendant-attorney was the sole proximate cause of damages is contrary to the holding of the Court of Appeals that the contributory negligence of the plaintiff-client may be pleaded as an affirmative defense (see Arnav Indus. Inc. Retirement Trust v Brown,Raysman, Millstein, Felder & Steiner, 96 NY2d 300; see also Boudreau v Ivanov, 154 AD2d 638).
In determining that the legal malpractice case should continue and not be dismissed, the Second Department simply stated:
“In sum, regardless of the formulation employed, a plaintiff in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages.”