Actual Cause - Jan. 23

Question 1

What question do you ask for actual causation? (Feldman)

Answer 1

When we have a single negligent injurer, we ask “but for the defendant’s breach of their duty of care, would the plaintiff have suffered the same injury?” This can also be stated “in the absence of the defendant’s breach of their duty of care, would the plaintiff have suffered the same injury?” If the answer is “yes,” then the defendant’s breach is not the “but for” cause of the harm.

Question 2

What four questions are another way to ask if the plaintiff’s harm was actually caused by the defendant? (Feldman)

Answer 2

1. What harm did the plaintiff suffer?
2. What did the defendant do or fail to do that allegedly constitutes the breach?
3. What does the plaintiff allege the defendant should have done?
4. Would the harm have been avoided if the defendant had done what the plaintiff says they should have done? This is the counterfactual question

Question 3

What are the elements of increased risk of harm? (Feldman)

Answer 3

(i) if a plaintiff introduces evidence that demonstrates increased risk of harm from negligent treatment “within a reasonable degree of medical probability,”

(ii) it becomes a jury question whether that increased risk was a “substantial factor” in producing the
injury, and

(iii) if that increased risk was a substantial factor in producing the injury, the measure of damages is the “lost chance of recovery” [p.573].

Question 4

What happens when the plaintiff proves actual causation? (Feldman)

Answer 4

When the plaintiff proves actual causation, the burden of proof shifts to the defendant such that the plaintiff recovers the total harm (or the applicable percentage of the total harm) unless the defendant can “demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are.”

Question 5

What is the alternative approach to actual causation? (Feldman)

Answer 5

The alternative approach is to allow plaintiffs to recover damages for the total harm suffered if they can prove that the increased risk was a “substantial factor” in producing the ultimate harm. See Kramer.

Question 6

What is multiple causation? (Feldman)

Answer 6

Where the negligence of some defendant – but not of any particular defendant – is a necessary cause (Kingston)

Question 7

What rule about multiple causation was adopted from Kingston? (Feldman)

Answer 7

The opinion therefore adopts the “rule” that both negligent injurers are liable for the entire harm (joint liability) and each is liable for the entire harm (several liability). Either injurer may escape liability by proving that the other injurer’s fire eclipsed their own because it was “of much greater proportions” (or that the other fire was of natural, not human, origin).