Causation

Question 1

what test is applied if but for causation does not work due to concurrent causes? (neither D would be liable)

Answer 1

substantial factor

Question 2

Causation in fact

Answer 2

1. D’s negligence is a substantial factor in bringing about P’s injury
   and
2. a. Counterfactual inquiry: if the train weren’t speeding, would the injury still have occurred?
   or
   b. Defendants negligence greatly increases chance of injury and is of a character naturally leading to that injury (Evidence to show D’s negligence (more likely than not to cause injury 51% or higher)

Question 3

Concurrent Causes: When multiple acts occur and each alone would have been a factual cause in the absence of the other act….

Answer 3

each act is a factual cause of the harm. This is a question about factual causation when two independent acts of negligence join together to create one harm where either independent act alone would have been sufficient in creating the harm.

Question 4

Even if concurrent acts are not sufficient individual to create harm… when combined…

Answer 4

each act is a factual cause of the harm

Question 5

Either or challenge under doctrine of alternative liability

Answer 5

both defendants may be held jointly liable if it is impossible to tell which one caused the Ps injury, and the burden of proof will shift to the Ds to either absolve themselves of liability or apportion the damages between them. (the Ds are in a better position to figure out who actually did it)

Question 6

What does the plaintiff have to demonstrate before the burden shifts to defendant (in multiple defendants?)

Answer 6

Each defendant must be shown to have breached the standard of care before burden shifting on the issue of causation becomes available. This question asks about shifting the burden of proof on the issue of causation of fact to the defendant in the absence of a showing that all defendants engaged in tortious behavior.

Question 7

What is the plaintiff required to prove in proximate causation?

Answer 7

The plaintiff is required to prove that the defendant should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the plaintiff.

Question 8

Is order to establish causation in a negligence action are actual and proximate cause both required?

Answer 8

yes

Question 9

foreseeable plaintiff

Answer 9

Most courts now agree that the physical injuries to a passenger who was injured while standing on Railroad’s platform as a result of Railroad’s negligence would be foreseeable to Railroad.

Question 10

Pure comparative - severally liable
P- 20%
D- 20%
D-60%

Answer 10

RECOVERS 20% from D
and 60% from D

Question 11

Contributory
joint and severally liable
P- 20%
D- 20%
D-60%

Answer 11

P does not recover

Question 12

Not as great as
joint and severally liable
P- 20%
D- 20%
D-60%

Answer 12

50%

P can recover 80% from D at 60%.

Ps recovery reduced by own negligence.

Question 13

Not greater than
severally liable

P-20%
D-20%
D-60%

Answer 13

P can recover
20% from D
and
60% from D

Question 14

Joint and several liability

D1-30%
D2-70%

Answer 14

P can recover 100% from D1 or 100% from D2

or 30% from D1 and 70% from D2

Question 15

exception to vicarious liability for contractors

Answer 15

highly dangerous activity, statute/ policy

Question 16

Strict liability in general

Answer 16

A person who carries on an abnormally dangerous activity may be subject to strict liability for physical harm resulting from it.

Question 17

Strict liability livestock

Answer 17

possessor of livestock that intrudes on another’s land may be subject to strict liability if the animal escapes and causes harms that are an appreciable part of the risk justifying imposition of strict liability.

Question 18

Strict liability wild animals

Answer 18

A possessor of a wild animal may be liable for injuries caused by the animal without regard to due care used.

Question 19

Does comparative fault exist in strict liability?

Answer 19

yes, A plaintiff’s recovery in strict liability may be reduced by the percentage of comparative fault assigned to the plaintiff.

Question 20

in a comparative fault jurisdiction does assumption of the risk become a part of the comparative fault calculus in a strict liability case?

Answer 20

yes

Question 21

Defenses to negligence

Answer 21

contributory
comparative
mitigation (failure to submit to surgery)
assumption of risk
intervening event