Causation Flashcards
Loss of chance
A doctor may be held liable for loss of chance of life when the chance of survival was 50% or less
A P may recover the % of the loss
Causation in legal malpractice
The P must demonstrate that the attorney failed to exercise ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of his duty proximate lay caused P to sustain actual and ascertainable damages
Causation shown by P showing s/he would have prevailed in the underlying action or would not have incurred damages but for the D’s negligence. Cause in fact shown by the case w/in a case method
Joint and several liability
The rule of joint and several liability prevails where the tort reasons act in concert or unity of action and therefore applies to tort readies who intentionally unite in the wrongs act or who are present, assist or participate therein.
Cause in fact
Step 1: identify the breach
Step 2:identify the injury
Step 3: take the breach out of the picture. Would the injury have occurred without the breach?
Proximate cause
What are the foreseeable risks that make the behavior unreasonable? Do the harms that actually resulted from the breach match to the harms that are in the list of foreseeable risks?
Steps in causation
Step 1: cause in fact
- connection between the breach and the harm
- only element to which foreseeability is irrelevant
Step 2: proximate cause
- foreseeability
- the results that are proximately caused by the breach will either be the same as cause in fact or fewer
Thin skulled plaintiffs
You take your victim as is.
If the D’s tortious conduct caused harm, it is the D’s problem if the damages are more than they would be in another situation because P has some condition that made the harm more severe
Burden of proof when there are multiple tort feasors
Majority- P must offer proof to establish what injuries would have resulted but for the D’s negligence
Minority- D’s responsibility to show a rational basis that they are not jointly liable
Wrongful death
A doctor may be held liable for wrongful death when there was a greater than 50% chance of survival
Intervening causes
Other causes that have an impact on the harm but don’t overwhelm or wipe it out
Determined by asking is the occurrence of the event one of the risks the first D should have seen in the first place? If yes, then it’s likely intervening
Superseding causes
Events that overwhelm the situation or eliminate the negligence of the original tort feasor
The foreseeability of rescuers
Dangers invites rescue
The wrong to the victim is also a wrong to the rescuer if the rescuer is injured from rescuing
Foreseeability of personal rescuers
If you put yourself in danger you are liable to the person who rescues you
Loss of chance case example
Herskovitz v. Group Health Coopoerative
P’s husband sought treatment from D for chest pain and coughing, x-Ray was not read properly, P given cough medicine but then the next year sought second opinion and was diagnosed with lung cancer. Chance of survival was reduced by 14%. Court held D liable for 14% of damages
Proximate cause in medical malpractice
Oakes v. Patel
Oakes had an aneurysm that went undetected until it ruptured which resulted in a severe stroke. Prior to stroke he had sought treatment for severe headaches. CT scan taken but misread and apparently could’ve detected aneurysm. Digging into facts further it turns out an angiogram would’ve been necessary to deal w/ aneurism
aneurism was pre-existing not caused by D and “But for” the misread CT, the P would’ve still had an aneurysm
But for in multiple tort feasors example
Kingston v. Chicago & Northwesten Railway
P’s property was destroyed by the joining of two fires. One of which was caused by the D the other was an unknown cause.
But for either fire the outcome would have still occurred
Court decided D is a joint tort feasor and it is his responsibility to show that his fire was not the proximate cause
Cook substantive rule on joint liability
Substantial test- courts consider whether either or both causes of the harm are substantial or material factors in bringing it about
Fire case referenced in Kingston-
The rule of liability in the case of joint tort feasors does not apply when the origin of the superseding cause is unknown because one cannot with reasonable certainty attribute in whole or in part the fire having a responsible origin.
Respondeat superior
Applies when a master servant relationship exists and the employee (servant) was acting in the scope of employment when the negligent act occurred
Vicarious liability case examples
Ira s. Bushey & Sons v. US- us sail man returned to vessel from a night of drinking and turned wheels that let water into dry dock
Court held: men do not discard their personal qualities when they go to work. The tendency for seamen to find solids in drinking is well known. Employee was in scope of employment
Doe v. Gutherie Clinic Ltd. - nurse txt personal info to friend on pt. w/ std.
Court held: hospital didn’t authorize texting so employee was acting outside scope of employment
Dissenting: hospital should be liable for its own failure to prevent breaches. Respondeat superior developed on idea that master controls servant. Plus patients put trust in medical Corp. to keep info confidential (Prof. Moore agrees w/ dissenting)
Intervening causes
Other causes that have an impact on the harm but don’t overwhelm or wipe it out
Determined by asking is the occurrence of the event one of the risks the first D should have seen in the first place? If yes, then it’s likely intervening
Superseding causes
Events that overwhelm the situation or eliminate the negligence of the original tort feasor
Exceptions to vicarious liability
Employer and independent contractor because the employer’s right to control the employee is not there (e.g. Employee makes own hours, pay etc.).
Exception is when the independent contractor is hired for an inherently dangerous activity (belong things up) or the hired for a non delegable duty (e.g. Getting breaks repaired)
Vicarious liability is intended for who?
The injured party not the wrongdoer
The party who is held vicariously liable has the right to demand the employee pay him back for the damages
Indemnification
Shift of entire cost of damages from one party to the next. May be used when an employer is held vicariously liable
Directness test
(From court of appeal in Polemis case)
If the defendant is guilty of negligence, he is responsible for all the consequences, whether reasonably foreseeable or not
