That connection was required as a basis for the

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That connection was required as a basis for the consideration of all the other issues in the case. 5 The identification of a defendant and proof of a causal connection between his conduct and the victim’s injury is a gateway issue that cannot be ignored in any negligence case, but when estab- lished does not of itself impose liability. 6 It is a factual issue based on hindsight which may be supported by direct, circumstantial, or expert opinion evidence. Innumerable details of fact may be relevant in making proof of Hotel’s conduct in the operation of the swimming pool and its connection with the deaths. [14] It will be noted that the court would require “the defendants to show the absence of a lifeguard did not cause the deaths.” 7 With great respect it must be said that the absence of a life- guard or the failure to provide other safeguards caused nothing. 8 Negligence law is based on af- firmative conduct, or the failure to do something after an affirmative undertaking to perform. Here the operation of the pool was Hotel’s undertaking which caused the death of the guests. The failure to provide lifeguards or the absence of other safeguards by Hotel were highly rele- vant to the issues of Hotel’s duty and the negligent violation of its duty, but those issues could only be reached after causal connection was established. The determination of causal connection is emphasized because in many cases it is ignored, erroneously identified, confused with other is- sues, or submerged by irrelevancies. 9 In this case the causal connection between the Hotel’s op- 5 5 This is true of any negligence case, as is indicated in cases dependent upon res ipsa loquitur to sustain the negli- gence issue. See, e.g. , Barnes v. United States, 349 F.2d 553 (5th Cir. 1965); Davis v. Memorial Hosp., 58 Cal. 2d 815, 376 P.2d 561, 26 Cal. Rptr. 633 (1962); Manley v. New York Tel. Co., 303 N.Y. 18, 100 N.E.2d 113 (1951); Comet Motor Freight Lines, Inc. v. Holmes, 203 S.W.2d 233 (Tex. Civ. App.-- Eastland 1947). 6 6 See W. Prosser, Law of Torts § 41, at 236 (4th ed. 1971) [hereinafter cited as Prosser]. Dean Prosser does not clearly state that causal connection and proximate cause are distinct concepts, but his discussion is good, and he does recognize that “causation is a fact,” id. at 237, and since proximate cause is a defensive legal concept, the dis- tinction necessarily follows. 7 7 3 Cal. 3d at 765, 478 P.2d at 470, 91 Rptr. at 750. 8 8 There are many statements by courts and writers indicating that omissions or the absence of protections are proxi- mate causes. This cannot be true as to causal connection, cause-in-fact, or causal relations (three synonyms for the same factual concept). Proximate cause reflects "fault" and is frequently used to indicate a limitation of duty, or a defense to the negligence issue. Dean Prosser recites many cases in which these usages are found, though no doubt many courts and writers use proximate cause to indicate casual connection. See Prosser § 42, at 244-46.
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