Actual Causation Tests Flashcards
What is causation?
Link and Connection between P’s Injury and D’s Conduct
What question is asked to determine whether there is causation?
Did the breach cause the harm?
What is the burden of proof required to prove causation?
By a preponderance of evidence, more likely than not, 50% or more.
“But-For Test”
Seeks to identify an essential cause of P’s injury. Pl. must prove more likely than not that D.’s conduct caused harm (TEST: without D’s conduct, the injury would not have happened.) (Cay v. Lousiana - Bridge railing –> causation)
When does the Multiple Sufficient Independent Causes apply?
Each factor, 2 or more, on its own causes the injury. (Kingston - Union of Two Fires)
When does the Alternative Liability Doctrine apply?
When two or more persons by their conduct are possibly the sole cause of the harm, it is presumed that all D’s caused the harm unless one provides evidence negating causation as to them. (Summer v. Tice - Hunting)
What are the elements of Alternative Liability?
(1) more than one tortfeasor
(2) all tortfeasors are engaged in similar conduct (all acted tortiously)
(3) Plaintiff was injured as a result of the actions of one of the tortfeasors
(4) Plaintiff name all tortfeasors to the action (Burke v. Shaffner - pickup truck)
When can you apply the Substantial factor test?
When two acts combined bring about the injury, but cannot bring about the injury on its own. P has the burden of proof.
What does the Market Share Liability test allow you to do when you have multiple manufacturers?
P may recover from multiple D’s (manufacturers) jointly or severally even when they can’t ID the D that caused the harm.
When can you apply the Market Share Liability test?
Applies when Ds 1) participate in the same market and 2) produce a generic (fungible) product, thus the P may then recover in proportion to D’s share of the marketplace. (Sindell v. Abbott Labs)
What is the rule that Sindell v. Abbot established?
P Must bring Ds, constituting a substantial share of the market of
the product. Each D that fails to bring evidence that they are not the cause, is liable only for their percentage share of the market at the time of the injury.
Concert of Action
2 or more people agree to violate a law
What is the rule for P.’s claiming an exposure to a disease that causes an increased risk of future harm?
P cannot recover for mental anguish of increased risk of developing disease when no disease is presently manifested. (Temple - asbestos)
