It will be noted that in summers and the projected

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It will be noted that in Summers and the projected case the problem is causal connection, a fact issue, and not a fault issue as is proximate cause. The court justified shifting the burden of proof of causal connection to the defendant in order to do justice. The same result could have been reached by orthodox procedural practice, but the shifting to do justice was an intelligent way to reach the result and no criticism is made of it. [42] Summers is valuable in another respect in that it indicates the confusion courts have in distinguishing between factual causation and proximate causation. “Whose shot struck him in the eye” is an entirely different problem from whether “Hotel’s negligence was a proximate cause of the deaths of Haft and son.” The California court apparently thought the two issues were the same. As indicated early in this discussion, Hotel’s operation of the pool was a substan- tial cause of the deaths. When causation, Hotel’s duty, and the negligent violation of its duty to provide safeguards at the pool for its guests were shown, that should have ended the case in plaintiffs’ favor. Liability was complete unless Hotel sustained its burden of proof on the issue of contributory negligence. Since the court had already indicated that the plaintiffs proved the negligence of Hotel in not providing an important safeguard at the pool as required by statute, why was the burden placed on Hotel to prove that the absence of the safeguards did not cause the deaths of Haft and his son? [43] The holding of the court is made ambiguous by what is said, but what it did was to place the burden on Hotel to prove affirmatively the defense that its failure to have a lifeguard at the pool was not negligent. Although when a proximate causation doctrine is unmasked it is usu- ally seen to be foolish, it is too much to make that charge against this court. What the court ap- parently had in mind was that if Hotel was to be relieved of liability for failing to have safe- guards at the pool for its guests it must prove that it was not negligent. To do this the court con- verted the defense of “no negligence” into one of proximate cause, thus requiring Hotel to prove something that could not be proved. 38 II. The Texas Experience [44] The California Supreme Court is not alone in its failure to identify the issues in a negli- gence case, and to be taken on a “snipe hunt” for proximate cause. The contrast in the identifica- tion of the issues in two recent Texas cases reflects the importance of the correct identification of the issues. The driver of an automobile, Gentry, and his passenger, Stanley, were killed by a col- lision with the defendant’s train at a highway-railway crossing. Two actions were bought, but were consolidated for trial.
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