Page:Pelman v. McDonald's Corporation (S.D.N.Y. 2003).pdf/27

 bringing about the harm. Elsroth v. Johnson & Johnson, 700 F.Supp. 151, 166 (S.D.N.Y.1988) (citing Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 316, 434 N.Y.S.2d 166, 169, 414 N.E.2d 666 (1980)); see also Restatement (2d) of Torts § 431 (1965). “The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable [persons] to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred.” Restatement (Second) Tortsof Torts [sic] § 431, cmt. a.

Several factors are considered, including “the aggregate number of actors involved which contribute towards the harm and the effect which each has in producing it,” and “whether the situation was acted upon by other forces for which the defendant is not responsible.” ''Transamerica Ins. Fin. Corp. v. Fireman’s Fund Ins. Co.'', No. 89 Civ. 8625(PNL), 1992 WL 350800, at *9 (S.D.N.Y. Nov.19, 1992) (quoting Mack v. Altmans Stage Lighting Co., 98 A.D.2d 468, 470–71, 470 N.Y.S.2d 664, 667 (2d Dep’t 1984) (citing Restatement (Second) of Torts § 433)); see also Elsroth, 700 F.Supp. at 166 (“[W]e are particularly mindful of Professor Prosser’s observation that ‘no case has been found where the defendant’s act could be called a substantial factor when the event would have occurred without it.’ ”) (quoting W. Prosser, Handbook of the Law of Torts, § 41 at 240 (4th ed.1971) (applying New York law)).

The issue of proximate cause may be determined as a matter of law where no reasonable person could find causation based on the facts alleged in the complaint. E.g., Smith v. Stark, 67 N.Y.2d 693, 694, 499 N.Y.S.2d 922, 923, 490 N.E.2d 841 (1986) (granting summary judgment where there was no causation as matter of law in duty to warn context); Howard v. Poseidon Pools, Inc., 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 361, 530 N.E.2d 1280 (1988) (noting that question of legal cause may be decided as a matter of law where only one conclusion may be drawn from the established facts).

No reasonable person could find probable cause based on the facts in the Complaint without resorting to “wild speculation.” Price v. Hampson, 142 A.D.2d 974, 975–76, 530 N.Y.S.2d 392, 394 (4th Dep’t 1988) (ruling on causation as matter of law as jury could find causation only by engaging in “wild speculation”).

First, the Complaint does not specify how often the plaintiffs ate at McDonalds. The class action proposed by plaintiffs could consist entirely of persons who ate at McDonalds on one occasion. As a result, any number of other factors then potentially could have affected the plaintiffs’ weight and health. In order to survive a motion to dismiss, the Complaint at a minimum must establish that the plaintiffs ate at McDonalds on a sufficient number of occasions such that a question of fact is raised as to whether McDonalds’