Causation

Question 1

Conduct Must Be Both A ___________ and A __________ of Harm

Answer 1

Cause in Fact and Proximate Cause

Question 2

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.

Answer 2

Factual Causation

Question 3

Where consequences of negligent conduct were foreseeable, either directly, or if direct connection broken, by foreseeable intervening negligent conduct.

Answer 3

Proximate Causation

Question 4

For policy reasons, ________ negligent conduct may override all other causes and become the superseding intervening proximate cause

Answer 4

intervening

Question 5

When harm would not have occurred but for negligent act; or

When negligent act greatly multiplies the chances of harm

Answer 5

But For Test (Factual Causation Tests)

Question 6

If there is more than one negligent act meeting “but for” test, D’s act must be a substantial factor in causing the harm.

Answer 6

Substantial Factor Test (Factual Causation Tests)

Question 7

Conduct may be _________ but not a cause of a specific injury.

Answer 7

negligent

Question 8

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

Answer 8

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

Question 9

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.

Answer 9

Only one act is substantial enough

Question 10

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.

Answer 10

Neither act is substantial enough

Question 11

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.”

Answer 11

Either act is substantial enough

Question 12

In addition to being a cause in fact, D’s negligent conduct must be a _______ ______ of P’s harm

Answer 12

proximate cause

Question 13

Directly causes
Is foreseeable
Is a result within the risk of the conduct taken
Is a substantial factor in the result

Answer 13

Theories of proximate cause

Question 14

_____ is usually a question of law for the court and asks, “Does D’s conduct create a perceived risk?”

Answer 14

Duty

Question 15

_______ _______ 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?”

Answer 15

Proximate cause

Question 16

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

Answer 16

Direct Causation Test (Proximate Cause test)

Question 17

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

Answer 17

Foreseeability Test (Proximate Cause test)

Question 18

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

Answer 18

Foreseeability Test (Proximate Cause test)

Question 19

D is not liable for purely economic losses, i.e., losses without accompanying personal or property damages

Answer 19

The Economic Loss Rule (Exception to Foreseeability)

Question 20

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

Answer 20

Eggshell Skull Doctrine (Exception to Foreseeability)

Question 21

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

Answer 21

Result Is Within Risk Taken (proximate cause)

Question 22

D is negligent in providing instrumentality which causes harm within the risk of that entrustment

Answer 22

Negligent Entrustment (proximate cause)

Question 23

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

Answer 23

The Substantial Factor Test (proximate cause)

Question 24

D1 will be responsible for the harm caused by D2’s tortious conduct if D2’s conduct is considered a foreseeable ________ cause

Answer 24

intervening

Question 25

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

Answer 25

superseding

Question 26

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

Answer 26

Intervening Cause

Question 27

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

Answer 27

Superseding Intervening Cause