Causation Flashcards
The “But For” Test
Factual Causation
If the π’s injury would not have occurred ‘but for’ the ∆’s tortious act or omission, then the ∆’s conduct is a factual cause of the harm
It must be the ∆’s negligence that caused the π’s harm
Legal Causation: Directness Test
Liability is imposed for any harm that may be said to have directly resulted from the defendant’s negligence no matter how unforeseeable or unlikely it may have been at the time the defendant acted
Legal Causation: Foreseeability Test
Liability is imposed for any harm that, given the defendant’s negligence, could have been foreseen by the defendant at the time of the incident
Proximate Cause
An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious
Substantial Factor Test
Was the ∆’s tortious conduct a substantial factor in causing the π’s harm?
Multiple or Indeterminate Causes
The “but for” test will not work if
- There are multiple tortfeasors, and it cannot be said that the ∆’s tortious conduct necessarily was required to produce the harm
- There are multiple possible causes of the π’s harm but the π cannot prove which defendant caused the harm
- The ∆’s negligent medical misdiagnosis increased the probability of the π’s death, but the π probably would have died even with a proper diagnosis
Joint and Several Liability
When the negligence of more than one defendant operate together to cause an indivisible harm, defendants might be held joint and severally liable
Joint Liability
Each of several obligors can be held responsible for the entire loss if the others are unable to pay
Several Liability
Each person has an obligation to pay only their proportionate share
Multiple Sufficient Causes
Multiple acts occur each of which alone would have been a factual cause of a physical harm of the same time in the absence of the other act(s), each is regarded as a factual cause of the harm
Multiple Causes: Alternative Liability
If the π’s harm was caused by:
- one of a small number of ∆s - usually two and max 4-5
- each of whose conduct was tortious, and
- all of whom are present before the court
then the burden of court may be shifted to each individual ∆ to prove that his conduct was not the cause in fact of the π’s harm.
The π must show that all ∆s may be responsible, and all responsible parties were present
Market Share Liability
When a π has been caused harm by a fungible (indistinguishable) product, and the manufacturer cannot be distinguished, a set of defendants liable for their relative proportion of the market they controlled
A manufacturer can escape liability by proving that its product could not have been the one that injured the π
Loss Chance of Survival
“But For” causation fails to cover situations in which a π already had a greater than 50% chance of death before seeking medical aid.
Rather than have doctors be completely immune to negligence when they can’t have been the one who made a patient more likely than not to die, instead the doctor is liable for the difference in the chance of survival that they were responsible for.
Ex: A patient with a 60% chance of death now has a 70% chance of death; doctor is liable for 10%
Proximate Cause: Emotional Distress
An actor who negligently causes sudden serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who:
- Perceives the event contemporaneously, and
- Is a close family member of the person suffering the bodily injury
Multiple Sufficient Causes: Synergistic Causes
Two or more causes combined effect is greater than the sum of their parts
