Causation

Question 1

But-for Causation & Modifications Listed

Answer 1

1. But-for
2. Reasonable certainty

Multiple Sufficient Causes

3. Substantial factor test
4. Alternative liability
5. In concert liability

Question 2

But-for

Answer 2

Traditional

51% certain

Question 3

Reasonable Certainty

Answer 3

25-30% certain

Question 4

Substantial Factor Test

Answer 4

All factors cause harm

Both are equally liable
Insolvency: either one has to cover all if the other is insolvent

Texas applies this in products liability

Question 5

Alternative Liability

Answer 5

Only 1 of multiple factors cause harm (single injury)

Burden shifting (ex ante creation of risk)

Question 6

In concert liability

Answer 6

Plan or agreement

Question 7

Market Liability

Answer 7

1. Market Share Liability: % of market = % of liability (based on risk creation)
   
   • D cannot exculpate themselves
   • Types of markets: National/Local
   • Recovery:
     Several: P will not get full value of risk exposure if some man. unavailable or insolvent
     Proportional Several Liability: % of market that remains today (allocating risk of insolvent man. to remaining negligent def man.)
2. Enterprise liability: P proceeds against entire industry because small number agree to industry standards

+ Some jur. allow plaintiffs to seek full recovery from the identifiable, specific manufacturer that created the thing

Question 8

Medical Malpractice

Answer 8

Loss of Chance

1. Traditional: more prob than not injury due to D med mal (only 1 cause)
2. Loss of Original Chance:
   a) Reduction in change/value of original chance
   b) If greater than 50%, then recovers full OG chance
3. Reduction in Chance
   a) Recovery reduced
   b) (OG chance) - (reduced change) = x
   c) X times (value of life) = recovery amount

Question 9

Proximate Cause

Answer 9

BUT-FOR MUST BE SATISFIED IN ORDER TO GET THIS FAR

1. Type
   a) Foreseeable
   b) Remotely foreseeable
   c) Direct and immediate
2. Extent
   a) Egg-shell plaintiff rule (harm foreseeable, take P as they are)
   b) Precipitating Factor (triggers or causes inevitable event/mental breakdown to happen)
   c) Secondary harm (additional harm or damage as a result of the initial)
3. Manner
   a) Superseding Cause (Intervening Human actor: worse than negligence and unforeseeable)
   b) Attenuation in time and space