Causation

Question 1

What are 2 types of causation req’d?

Answer 1

(1) cause in fact/factual causation

(2) proximate cause

Question 2

What are the 3 tests for showing factual causation? In what cases do they apply?

Answer 2

1. But for test: An act is a but for cause of an injury when the injury would not have occurred but for the act. D refutes by showing injury could have occurred even if act did not. (Apply when there are multiple causes all independently insufficient to cause injury alone possibly)
2. Merged causes - substantial factor test: When multiple causes bring about injury and any one alone would have been sufficient to cause injury, apply this test. D conduct will be cause in fact if it was a substantial factor in causing injury. (can have J&S liability if both substantial causes)
3. unascertainable causes test: When there are 2 acts and only one could have caused injury but we don’t know which, then BoProof shifts to D’s and they must prove which one. (if unable to do so may both be liabel)

Question 3

What is proximate cause?

Answer 3

Even tho D’s actions were a cause in fact, they may not be proximate cause. proximate cause limits liability to only the foreseeable consequences of one’s actions.

Rule = D is generally liable for all harmful results that are the normal incidents of and within the increased risk cause by their negligent acts. (foreseeability test)

Question 4

When is a proximate cause issue able to be decided as MoL?

Answer 4

Generally not, if there is any question of whether conduct was foreseeable then must got o a jury - i.e. NO SJs.

Question 5

What is the difference between an intervening force and a superseding force? When will a force be intervening vs. superseding?

Answer 5

And intervening force is an additional event in the chain of causation that was a foreseeable result of D’s actions and therefore does NOT break the chain of liability. i.e., D will still be proximate cause.

A superseding force is an intervening force that is considered NOT foreseeable, thereby breaking the chain of liability/proximate causation.

The following are almost ALWAYS intervening forces:

• med mal
• negligence of rescuers
• protection/reaction forces to P/property
• disease or accident substantially caused by injury

Generally a force is intervening if it is a natural response or reaction to created situation, but will ALSO be intervening if D increased risk of harm from the following:

• negligent acts of third persons
• crimes and intentional torts of third persons
• acts of God
  (e. g., valet leaves keys in car and thief steals)