13) Neg - Cause + Damages Flashcards
Cause in Fact: test
MLTN that but-for D’s negligence, P would not have been injured
MLTN: ok if other possibilities (typhoid case)
COF issues: kinds
1) multiple causes
2) loss of chance
3) alternative liability theory
4) market share liability
COF: multiple causes: exs
multiple Ds
D + act of nature
etc
COF: multiple causes: test
substantial factor test – was the negligence of THIS D a substantial factor in P’s injury?
COF: multiple causes: when to use substantial factor test
must use when either D alone would have brought about the harm
COF: multiple Ds: liability
assume joint + several liability where multiple Ds join together to create indivisible injury
COF: loss of chance: traditional rule
if can’t show MLTN that would’ve survived, then can’t sue because a CHANCE of survival was lost (typically misdiagnosis cases)
COF: loss of chance: many js now rule:
can recover for the lost chance of survival, but damages reduced to reflect the fact that had % chance of dying anyway
COF: alternative liability theory: rule
if (factors) met, then burden shifts to D to show he was not the cause. If a D can’t do so, then joint/severally liable
COF: alternative liability: factors
1) each D must have breached its duty
2) all possible Ds are sued together
3) small # of Ds
COF: alternative liability theory: which test to use?
the special alt liability test
can’t use but-for, or SF
bc 1 didn’t shoot him–they weren’t both the cause
COF: alternative liability: scenario
like Summers eye-shoot case…2 causes, we don’t know which it was, but it wasn’t both
COF: market share liability: def
where generic product and P can’t show which of a large group of negligent Ds is responsible – each D is liable based on its market share
COF: market share liability: type of liability
not joint and several –> just several (each only liable for its market share)
proximate cause: aka
legal cause
scope of liability
PC: 3 kinds
1) unforeseeable EXTENT of harm
2) unforeseeble TYPE of harm
3) unforeseeable MANNER of harm
PC: unforeseeable extent: rule
D is responsible for full extent of harm caused, foreseeable or not
PC: unforeseeable extent: eggshell P rule
you take your V as you find them (and are resp for full extent of harm, foreseeable or not)
PC: u. type of harm: rule
D is liable if injury suffered by P is within the risk created by D’s negligence (ie, must be a foreseeable type of harm for recovery)
PC: u. manner of harm: superseding cause def/rule/result
Superceding cause =
unforeseeable
intervening cause
that breaks chain of causation btwn initial wrongful and ultimate injury
thus: relieves the orig tortfeasor of any further liability
the more culpable the intervening force, the more likely it is to be superceding
PC: u. manner of harm: analysis
looking for very unforeseeable, + often culpable, beh
PC: u. manner/superceding: common scenarios: subsequent negligence (medmal/etc)
still foreseeable, no PC problem
exception
PC: u. manner/superceding: common scenarios: further injury during rescue
still foreseeable, no PC problem
PC: u. manner/superceding: subsequent negligence: exception
look for passage of time!
at some point, liability will be cut off
so normally still PC/liable even if subsequent negligence. but if too much time passes, then not
PC: u. manner/superceding: common scenarios: criminal acts or intentional torts of 3rd parties
if they are unforeseeable under these circs, then no PC
PC: u. manner/superceding: common scenarios: acts of God
no PC IF unforeseeable
PC: u. manner/superceding: common scenarios: subsequent deadly/rare disease
no PC
damages: rule
P must affirmatively prove damages (or will lsoe case) – there must be a cognizable injury
damages: most common kinds
1) PI
2) property damage
damages: nominal?
not in tort!
damages: punis?
recoverable but only if the conduct was more culpable than negligence
compensatory damages: def
designed to return P to his pre-injury position (using $)
compensatory damages: rules
1) type of damages must be reasonably foreseeable
2) reasoanbly certain
3) not avoidable (avoidable consequences rule)
compensatory damages: 2 kinds
1) special d.
2) general d.
special d.: def
tangible, pecuniary (med expenses, lost wages, cost of repairing car)
special d.: rule
can recover for past, present, future damages
special d.: future d.s are…
reduced to present value
collateral source rule
the fact that P is getting compensated from 3rd party source (insurance, union, etc) doesn’t mean that D dnn pay (inc gratuitous services)
general damages: def
intangibles (most commonly pain + suffering)
general damages: rule
more controversial bc harder to measure
punis: culpabiltiy needed
(more than negligence!): willful, wanton, malicious, reckless (conscious disregard for high probability of harm)
punis: goal
make example of D so he won’t do it again and neither will others, punish D
punis: factors to set amount
1) wealth of D
2) reprehensability
punis: aka
exemplary damages
punis: limit on amt
due process clause: per SC usu less than 10x of compensatory damages amt