Causation

Question 1

What is the basic standard for establishing that the defendant’s act was a cause of plaintiff’s injury?

Answer 1

the basic principle is “cause in fact”.
To establish cause in fact P must show that:
more probably than not (Rest 3d 28) but for the defendant’s act, plaintiff would not have been injured. (Rest 3d 26)

Question 2

How did the court modify the standard in Stubbs?

Answer 2

They replaced the first portion “more probably than not” into a “reasoable certainty” but for the defendant’s act, plaintiff would not have been injured. This lowers the threshold of proof.
25-30% likely to have caused harm
Does not need to be the only cause

Question 3

What are multiple sufficent causes of an injury?

Answer 3

Multiple sufficient causes arise when there is more than one cause of a victim’s injury and each one of those causes would have been enough in its own right sufficient unto itself to cause the entire harm. (Substantial factor)

Question 4

How have courts dealt with multiple sufficient causes in addressing the cause in fact?

Answer 4

The traditional “but-for” causation test cannot apply to these causes because you are unable to determine which singular act was more likley/probable to have caused the victim harm.
The courts then developed the “Substantial Factor Test” where D’s breach is an actual cause if it was a substantial factor in bringing about P’s injury.
You would apply this test if multiple causes bring about P’s injury and any one of them would have caused the injury alone.

Question 5

For the Substantial factor test should it matter whether the relevant causes are all attributable to negligent actors?

Answer 5

In Basko they still apply the substantial factors test and the court states that it is better to effectively deter than letting someone negligent go free. However in Garcia where there was one innocent actor and another negligent actor and the harm could not be attributed back to one actor they shielded the innocent actor from liability and did not hold either actor liable.

Question 6

What policy concerns prompt the courts to modify the traditional but-for causation test when there are multiple sufficient cuases?

Answer 6

Deterrence: the defendants face no consequences and are under-deterred from engaging in the harmful conduct again.
Compensation: the innocent victim must absorb all of the costs. Under compensation
Moral Fairness: the defendants are not obligated to make the vicitm whole again. Therefore there is no corrective justice.

Question 7

What is Reduction in Chance?

Answer 7

The negligent diminution in the patient’s prospects for a favorable outcome
value of life TIMES the diminished probability of survival.

Question 8

What is the “loss of original chance”?

Answer 8

Asks whther more probable than not, the negligence deprived the victim of an original chance of a good outcome.
If it does, the P can recover the full value of the OG chance
If not then the P gets nothing

Question 9

Why has “loss of chance” been adopted in medical malpractice cases?

Answer 9

Patients regularly have a 50% or smaller chance of survival.
There will be a very substantial group of patients who have no chance of recovering under the traditional approach
Failure to recognize “loss of chance” places the burden of mistake on the innocent patient.
Patients expect doctors to protect their chance of survival.
There is reliable evidence on the chances of survival in medical settings.

Question 10

How does the adoption of loss of chance affect the goals of torts policy?

Answer 10

Deterrence: Deters doctors from being negligent in cases of survival
Compensation: Increases odds of compensation (depending on approach)
Moral Fairness: YEAH if you die cause a doc fucked up, your estate should totally get recovery; says the entirety of society.

Question 11

What is several liability?

Answer 11

Several liability refers to the individual liability of each defendant in a tort action.
When defendants act independently of one another (no common plan) to produce divisible injuries each is severally liable.
They will only be responsible for that identifiable divisible injury that was caused by their independent act

Question 12

What is joint and several liability?

Answer 12

Joint and several liability applies if
Defendants act in concert, that is, pursuant to a common plan or agreement; They will be jointly and severally liable for any injuries that occur due to acts that fall within the scope of that plan or agreement
Defendants’ independent acts concur to produce an indivisible injury
An injury that cannot be disaggregated and then measured separately

Question 13

What is the burden-shifting technique used in Summers?
When is it available?

Answer 13

The burden-shifting is a test when there is several possible causes of P’s injury. It is available when multipls D’s conduct (usually simultaneously) cause P’s injury but only one act causes serious damage but it is unclear which D caused the injury.
It is when the burden of proving actual cause shifts to Ds and if neither D can prove the other was responsible then all Ds are jointly and severally liable

Question 14

How does burden-shifting advance tort’s policy goals?

Answer 14

Deterrence: each D will be deterred based on risk-creation rather than materialization of harm
Compensation: the P will recieve the appropriate level of compensation and maximizes the chances that the P can collect the full amount of damages
Moral Fairness: This results in corrective justice for the innocnet P but creates some horizontal inequality between the Ds however it is less harsh to let a negligent co-defendant who created a risk absorb the costs than a fully innocent P.

Question 15

How does the approach in Summers compare with the substantial factor test used in Basko?

Answer 15

The difference between these two cases is here we have two actors one negligent and one innocent and you cannot tell which actor was the cause. In Basko we have one actor who commited botha negligent and innocent act. In Summers we cannot use substantial factor because it automatically places the 50/50 burden onto the Ds when there is a possibility that they themselves could determine who was the negligent actor then the damages get split. In Basko regardless of the innocent act the actor can be held liable for the negligent act because the negligence and innocence came from the same actor. For example in Garcia they would rather let a negligent actor go free than place unfair liability on an innocent actor who could end up liable for all the damages (which goes against the goals of torts)

Question 16

What is alternative liability?

Answer 16

It is the same as burden shifting. When a P can’t pinpoint which of multiple Ds caused their injury which allows them to shift the burden of proof to each D requiring them to prove they were not responsible.

Question 17

What is “in concert” liability?

Answer 17

It is when two or more Ds act in pursuant of a common plan or agreement and injure the P
Note: this applies even if injury and Ds culpability is divisible (burden shifting)

Question 18

What is enterprise liability? Why has it been rejected by DES cases?

Answer 18

Enterprise liability is when Ds are the basis of a shared enterprise where the industry as a whole could be held liable for any injuries that result from failing to use reasonable care to mitigate risks of injury.
It was rejected by DES cases because the industry was decentralized with over 200 manufacturers (vs 6 in Hall), the drug industry was regulated by the FDA (in Hall the industry voluntarily delegated safety to a trade association) and the drug industry did not engage in the same industry-wide cooperation that made imposition of collective liability appropriate.

Question 19

When can enterprise liability apply?

Answer 19

Small number of manufacturers/defendants
Adhered to an industry-wide standard that was set by a trade association to which they had collectively delegated some responsibility for safety investigation and design

Question 20

What is market share liability?

Answer 20

Market share liability holds a manufacturer liable based on its share of the market of a harmful product during the period that the harm occurred.
Represents the risk that the defendant created to the plaintiff

Question 21

How is the “market share” defined?

Answer 21

Naitonal Market: Practical and maximizes the chance that Ps will obtain partial recovery. Reflect mobility of some manufacturers and their product
Local Market

Question 22

How does market share liability define the victim’s injury?

Answer 22

It goes from a ex post harm standard to a creation of ex ante risk standard so a lower threshold for Ps to be exposed to.
Redefining the injury to be exposure to risk
If the plaintiff can prove but-for cause to one defendant, then they will be liable for all of it regardless of ex ante risk of all
Defendant, however, cannot exculpate themselves by proving the plaintiff did not ingest their pill rather they must show that they were not in the market at all during that time

Question 23

How are damages measured under market share liability?

Answer 23

Severally liable so do not have to cover all of the costs associated with the damages, but only their share of the risk
There are mulitple ways one being proportional several liability: a defendant’s several share would be adjusted based on the departure of some firms from the drug industry.
Tradtional model: a plaintiff can recover in full from ex post harm
The mix and match: compensates for both ex post harm and ex ante risk creation.

Question 24

How does proximate cause differ from cause in fact?

Answer 24

Cause in fact: involves an emprical inquiry into relations tracing back in time and space between defendant’s act and plaintiff’s injury so we can attribute more probable than not the defednant’s negligent conduct.
Proximate cause: involves policy judgment about the propriety and fairness of imposing liability on the defendant, even if the act was an actual cause of plaintiff’s injury. We have already decided that the defendent is a cause and fact then we use proximate cuase to establish that it is fair under the law to hold the defendant fully responsible for P’s injuries.

Defendants prefer ex ante to ex post

Question 25

What is the “eggshell plaintiff” rule?

Answer 25

The “eggshell plaintiff” rule says that a defendant who makes a careless mistake must take his or her victim as he finds that person and is liable for the full extent of the victims injuries, regardless of whether they are foreseeable.
Endorsed by Rest (3d) § 31

Question 26

How does the “eggshell plaintiff” rule differ from the “precipitating factor” approach?

Answer 26

The precipitating factor approach is like the substantial factor test where the negligent conduct of the defendant enhanced the risk of the inflicted damages but was the direct cause that what created the damages.
The difference between the two is that the “eggshell” rule is that it focuses on the conduct that is the cause of harm to a person while “precipiating factor” is the enhancement of risk that such harm occurs specific to mental health

Question 27

What is the liability for precipitating factor?

Answer 27

It would have developed on its own, but the conduct/act caused it to manifest sooner than it would have so the liability is for the time lost or accelerated

Question 28

Why is the defendant liable for the exacerbation of P’s injuries due to medical malpractice?

Answer 28

Rest (3d) §35: the defendant is liable for the harm the plaintiff suffers due to a third parties efforts to render aid so long as the enhanced harm arises from a risk that inheres in the effort to render aid. This would also apply to medical malpractice since the doctor is a third party rendering aid reasonably required by the plaintiff’s injury.
NOTE: the Defendant can seek contribution from the doctor for the amount related to the exacerbation of the original injury.

Question 29

When is the defendant liable for injuries that plaintiff sustains while riding in an ambulance on the way to the hospital for treatment after an accident?

Answer 29

the defendant is only held liable so long as the enhanced harm while driving the ambulance arose from a risk that inheres in the effort to render aid.

Question 30

What is the rule in Polemis for deciding whether a defendant can be held liable for an unforeseeable type of harm?

Answer 30

A plaintiff can recover from an unforeseeable type of harm if the harm was a direct result of the defendant’s negligence.

Question 31

What is the rule in Wagon Mound I for determining when a defendant can be held liable for an unforeseeable type of harm?

Answer 31

If it is an unforeseeable type of harm you will not be liable whether it is inflicted directly or indirectly as a result of your negligence

Question 32

How does Wagon Mound II affect the ruling in Wagon mound I?

Answer 32

As long as the risk was at least remotely foreseeable the defendant could be held liable. WM II stretches the concept of foreseeability to allow plaintiffs to recover

Question 33

Which rule is best from the standpoint of deterrence, compensation and moral fairness?

Answer 33

Polemis promotes deterrence, compensation and moral fairness more so than WM I.

Question 34

What are the circumstances in which unforeseeable manner can insulate a defendant from liability?

Answer 34

A “superseding cause” could insulate a defendant from liability.
An “superseding cause” is a cause which interrupts the natural sequence of events and prevents the probable results from the negligent act to occur and produces a different result that could not have been reasonably foreseen

Question 35

What is an intervening cause and when does an intervening act become a superseding cause?

Answer 35

An intervening cause is an even that occuts after the defendant’s initial act and contributes to the harm suffered by the plaintiff.
An intervening act become a superseding cause when it breaks the chain of causation and defeats proximate causation. If it is not foreseeable it then supersedes the defendant’s mistake and insulates the defendant from liability

Question 36

When are relations in time and space too attenuated?

Answer 36

The lapse in time and space is not too attenuated as long as the conditions that the defendant created remained unchanged during this period. (Polemis)

Question 37

How do claims of unexpected manner turn on the degree of specificity or generality with which the relevant facts are described?

Answer 37

Rest (3d) §29
whether the harm arose from the “risks that made the actor’s conduct tortious” focusing on the foreseeabe risks associated with the defendant’s conduct which is the actual cause not trivial details
Rest (3d) §30
“An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that does not generally increase the risk of that harm.”
what is critical is evaluating what teh categorical risks are that inhere in the tortious mistake.
Rest (3d) §36 (multiple causes)
If the defendant commited a trivial mistake that was not inherently the cause of the more catastrophic injury as a result of the multiple cuases then the harm is not within the scope of the actor’s liability.

Question 38

How does Justice Cardozo limit liability in Palsgraf?

Answer 38

Ex ante the P was an unforeseeable victim since the compact with respect to the P was not violated because any risk that was created through the guard’s carelessness did not endanger. Mutual understandings about risk were not violated by a wholly unforeseeable invasion of the plaintiff’s interests.
Applies a relational concept of negligence

Question 39

How does Justice Andrews’ approach differ?

Answer 39

Owes a duty to anyone harmed by the “foreseeable consequences” of their negligent actions
He argues that under an enhancement of risk the duty is owed not just to a foreseeable victim but to the public at large. This emphasized an ex post approach relying on a legal fiction so once a defendant enhances the risk of harm to the public anyone who suffers an injury can recover. No need to have foreseeability ex ante

Question 40

What does Kinsman I reveal about the relative influence of Polemis and Wagon Mound in defining the scope of liability?

Answer 40

By finding that the risk of flooding was at least remotely foreseeable, but it also emphasized the influence of Polemis. Even if it was unforeseeable we still think it was direct and responsible for it
Here, the injury was direct, regardless of whether it was foreseeable.
Essentially allowing both approaches to define the scope of liability.