Causation Flashcards
Causation
The plaintiff must prove that the defendant’s actions were both actual cause (the ‘but for’ cause) and the proximate cause (i.e., within the scope of liability) of the plaintiff’s injury
The ‘But For’ Test
- If the plaintiff’s injury would not have occurred ‘but for’ the defendant’s tortious act or omission, then the defendant’s conduct is a factual cause of the harm
- If the injury would have occurred regardless of the defendant’s act, then that is not the factual cause
Substantial Factor Test
- When ‘but for’ causation fails, many courts substitute a ‘substantial factor’ test
- Third Restatement - if each of several causes or acts may have contributed to the plaintiff’s injury, each cause or act is regarded as a factual cause of the harm
Alternative Liability - Joint & Several Liability and Multiple Causes
If the plaintiff harm was caused by:
a) one of a small number of defendants - usually two and almost never more than 4 or 5,
b) each of whose conduct was tortious, and
c) all of whom are present before the court,
then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm
- The plaintiff must show that all defendants may be responsible, and that all parties who may be responsible are actually present
- Policy - doesn’t want rule where plaintiff cannot recover when it is certain that someone caused harm, just because not sure which of two
- Plaintiff must prove that each defendant was engaged in negligent conduct
Market Share Liability
- When a plaintiff has been caused by harm by a fungible product, and the manufacturer cannot be distinguished, a set of defendants liable for their relative proportion of the market they controlled
- A manufacturer can then escape liability by proving that its product could not have been the one that injured the plaintiff
- Important that products are fungible (indistinguishable) so that proportion of harm makes sense - a lack of fungibility will make courts less likely to apply market share liability
Loss Chance of Survival
- But for causation fails to cover situations in which a plaintiff already had a greater than 50% chance of death before seeking medical aid
- Rather than have doctors be complete 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
- Patient with a 60% chance of death now has a 70% chance of death, doctor is liable for 10%
Proximate Cause (legal cause)
- An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious
- Asks who the blame should be assigned to
- A conceptual/moral/political way to make a decision about when we can attribute a harm that may be distant in time or location to cause
- A defendant’s liability is limited to those harm that result from the risks that made the defendant’s conduct tortious
Factors for Proximate Cause
- Is there a natural and continuous sequence between cause and effect?
- Was one a substantial factor in producing the other?
- Was there a direct connection without the intervention of too many intervening causes?
- Was the cause likely to produce the effect?
- Could the defendant have foreseen the harm to the plaintiff?
- Is the cause too remote in time and space from the effect?
Foreseeability of Harm
- Whether the plaintiff can recover for the specific type of risk that harmed her depends on if the harm caused was of the type the foreseeability of which we were trying to prevent
- 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
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
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
Multiple Sufficient Causes: Overdetermined Causes
All actors held liable where a subset of them committing the act would have sufficient to cause the harm at issue
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
