As the Covid pandemic spread across the world and the United States, neighborhood pools, parks, gyms and all other manners of public gathering places began to close and many people began to wonder about the potential liability of remaining open or continuing to do business. Almost every defense attorney probably had the same reaction, "how in the world do you prove causation?" However, just because one cannot prove causation doesn’t mean that they won’t try. This article is an attempt to show what causation is and what the latest trends are with Plaintiff’s trying to establish causation in Covid cases.

Legal Cause for negligence is the term that is normally used in most states and federal courts to establish causation when it comes to negligence. As I am sure you are aware, the four (4) elements in most negligence cases are duty, breach, causation, and damages. In an effort to be consistent, we will look to the Restatement Third of Torts. The Restatement is a legal reference guide which many courts across the United States use as a guide to consistency across states in determining factors for negligence and other torts.

In the most recent version of the Restatement of Torts, the Restatement defines cause as "Legal Cause." Legal Cause is divided into two parts: Factual Cause and Proximate Cause. Restatement (3rd) of Torts: Phys. & Emot. Harm § 29. Factual Cause is the actual cause of the thing that happens. Id. It is often referred to as the sine qua non of the injury. The most familiar and widely used test to determine the Factual Cause of an injury is the "but for" test. Courts often ask, "But for the defendants conduct, would this injury have occurred?" This is the most difficult type of causation to prove in Covid cases and will be the focus of this discussion.