Causation Flashcards
Conduct Must Be Both A ___________ and A __________ of Harm
Cause in Fact and Proximate Cause
Where negligent conduct was a substantial factor in bringing about harm and without which no harm would have occurred. There may be more than one cause in fact.
Factual Causation
Where consequences of negligent conduct were foreseeable, either directly, or if direct connection broken, by foreseeable intervening negligent conduct.
Proximate Causation
For policy reasons, ________ negligent conduct may override all other causes and become the superseding intervening proximate cause
intervening
When harm would not have occurred but for negligent act; or
When negligent act greatly multiplies the chances of harm
But For Test (Factual Causation Tests)
If there is more than one negligent act meeting “but for” test, D’s act must be a substantial factor in causing the harm.
Substantial Factor Test (Factual Causation Tests)
Conduct may be _________ but not a cause of a specific injury.
negligent
Where negligent act reduces a chance at a more favorable outcome in a medical malpractice case, two rules have emerged to determine whether party is a substantial factor
Majority Rule: P must prove by a preponderance of evidence that P was deprived of a substantial possibility of a more favorable outcome
Minority Rule: P must prove by a preponderance of evidence that P was deprived of at least a 51% chance of a more favorable outcome
Where two (or more) independent negligent acts combine resulting in harm but only one party’s act was substantial enough to cause the harm, then only that party is a factual cause.
Only one act is substantial enough
Where two (or more) independent negligent acts combine resulting in harm but neither party’s act alone would have been sufficient enough to cause the harm, then both parties are considered substantial factors.
Neither act is substantial enough
Where two (or more) independent negligent acts combine resulting in harm but either party’s act alone would have been sufficient enough to cause harm, then both parties are considered substantial factors a/k/a “independently sufficient causes.”
Either act is substantial enough
In addition to being a cause in fact, D’s negligent conduct must be a _______ ______ of P’s harm
proximate cause
Directly causes
Is foreseeable
Is a result within the risk of the conduct taken
Is a substantial factor in the result
Theories of proximate cause
_____ is usually a question of law for the court and asks, “Does D’s conduct create a perceived risk?”
Duty
_______ _______ is usually a question of fact for trier of fact (judge or jury) and asks, “Is the harm or similar type of harm foreseeable as a result of the breach of duty?”
Proximate cause
Where harm results from an uninterrupted chain of events directly traceable to D’s negligent conduct
Foreseeability of result or the extent of harm are irrelevant
Factors cutting off direct causation include
time between actions; and
whether initial action alone would have caused harm
Direct Causation Test (Proximate Cause test)
D’s negligent conduct results in a foreseeable type of harm created by the negligent conduct, regardless of its extent. Factors considered include:
Resulting harm is of same general nature as type of harm risked by D’s conduct regardless of sequence of events or particular way in which result may have come about.
Resulting harm is of type increased by tortious or dangerous aspect of D’s conduct
Gravity of threatened harm is great and cost of adequate precautions minimal even if only remotely possible
Foreseeability Test (Proximate Cause test)
Manner of occurrence and extent of harm are irrelevant if
same general type of harm, or
the likelihood of the harm occurring is increased by the negligent conduct, or
a type of such gravity compared to burden
Foreseeability Test (Proximate Cause test)
D is not liable for purely economic losses, i.e., losses without accompanying personal or property damages
The Economic Loss Rule (Exception to Foreseeability)
D takes P “as is”, i.e., as long as type of harm is foreseeable and within risk, D deemed proximate cause of all harm that results, even if
those injuries were unforeseeable; or
resulted from hyper- sensitivities of P; or
pre-existing conditions of P
Eggshell Skull Doctrine (Exception to Foreseeability)
If D negligent, will be liable for all harm within the risk created D’s tortious conduct or harm increased by D’s tortious conduct
Negligent medical treatment is deemed within the risk of harming P requiring medical attention
Result Is Within Risk Taken (proximate cause)
D is negligent in providing instrumentality which causes harm within the risk of that entrustment
Negligent Entrustment (proximate cause)
Foreseeability is ignored altogether
Question is whether D’s act was relatively important compared with other but-for causes in producing harm
Factors include:
Existence and extent of other factors
Continuation of force created by D
Lapse of time involved, i.e., D’s negligence has run its course
The Substantial Factor Test (proximate cause)
D1 will be responsible for the harm caused by D2’s tortious conduct if D2’s conduct is considered a foreseeable ________ cause
intervening
D1 will not be responsible for any harm caused by D2’s tortious act if D2’s conduct is considered a ____________ intervening cause
Note: D1 may still be responsible for any divisible harm it caused P
superseding
A tortious act by D2
which comes along after an initial tortious act by D1
which is a foreseeable end result of D1’s negligence
which makes D1 responsible for the harm caused by D2.
The manner in which the end result occurred and the extent of the harm need not be foreseeable
Intervening Cause
An intervening tortious act by D2 which
Is not a foreseeable end result of D1’s tortious conduct
Relieves D1 of any responsibility for harm caused P by D2.
When intervening act may become superseding
Intervening force brings about different harm than would have otherwise resulted from D1’s conduct
Intervening force is extraordinary
Intervening force operates independently of any situation created by D1
Degree of culpability of D2, e.g., intentional or reckless
Superseding Intervening Cause
