As we reach the 13th day of the war in Iran – with death and destruction rippling throughout the Middle East – it’s important to bear in mind where the real failure lies.
Take proximate cause next. Suppose that in attempting to shoot and kill A, the defendant triggers a nest of hornets, unforeseeably hidden on the scene, that lethally sting both A and B.164 The defendant will be liable to A in battery,165 and liable to B in battery on the fictional basis that the defendant intended B’s death alongside A’s. But suppose that, in line with the maneuver described above, we dispense with that fiction and instead attempt to ground the defendant’s liability to B on the basis of ordinary negligence principles. Can we do so? Only if we acknowledge that the defendant’s enormous culpability as to A can expand the range of harms to B for which he is liable, beyond the boundaries of reasonable foreseeability which would normally delimit this range.166 If (for example) the defendant were merely careless in playing with a gun, notwithstanding the risk that by doing so he might shoot and kill A and B, it is unlikely that any court would hold him liable for bringing about B’s death by shooting and triggering an unforeseeable nest of hornets.167 The scope of the defendant’s liability for causing unforeseeable harm to B in the preceding case, just like his liability for causing unforeseeable harm to A, reflects his holistic culpability for his action. That is true whether the defendant’s liability to B is doctrinally secured by the fiction of transferred intent or instead by the proposition that the defendant’s heightened culpability can expand the ambit of harms for which he is liable in negligence, beyond those harms that he can reasonably foresee.
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