Causation Flashcards
was the defendant the cause of the harm?
What is the basic standard for establishing that the defendant’s act was a cause of plaintiff’s injury?
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)
How did the court modify the standard in Stubbs?
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
What are multiple sufficent causes of an injury?
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)
How have courts dealt with multiple sufficient causes in addressing the cause in fact?
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.
For the Substantial factor test should it matter whether the relevant causes are all attributable to negligent actors?
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.
What policy concerns prompt the courts to modify the traditional but-for causation test when there are multiple sufficient cuases?
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.
What is Reduction in Chance?
The negligent diminution in the patient’s prospects for a favorable outcome
value of life TIMES the diminished probability of survival.
What is the “loss of original chance”?
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
Why has “loss of chance” been adopted in medical malpractice cases?
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.
How does the adoption of loss of chance affect the goals of torts policy?
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.
What is several liability?
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
What is joint and several liability?
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
What is the burden-shifting technique used in Summers?
When is it available?
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
How does burden-shifting advance tort’s policy goals?
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.
How does the approach in Summers compare with the substantial factor test used in Basko?
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)
What is alternative liability?
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.
What is “in concert” liability?
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)
What is enterprise liability? Why has it been rejected by DES cases?
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.
When can enterprise liability apply?
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
What is market share liability?
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
How is the “market share” defined?
Naitonal Market: Practical and maximizes the chance that Ps will obtain partial recovery. Reflect mobility of some manufacturers and their product
Local Market
How does market share liability define the victim’s injury?
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
How are damages measured under market share liability?
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.
How does proximate cause differ from cause in fact?
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
