Causation Damages, and Defenses Flashcards
The two types of causation that need to be proven for a valid negligence claim
actual (but-for) and proximate
To show actual causation, P must show…
it is more likely than not, that but for D’s negligence, P would not have been injured. Other reasons don’t matter.
o Preponderance matters as long as more than 50%, then D is liable for full extent of damages under the “but-for” test.
(ex) If Stanley can show that it is more likely than not that City was responsible, he has established cause in fact. If the jury says there is a 75% chance City is liable, Stanley will still get all of his damages.
Actual (but-for) Causation
Causation where, but for the defendant’s breach, the plaintiff would be uninjured.
Four times when you deviate from but-for test
(1) multiple causes
(2) loss of chance
(3) alternative liability theory
(4) Market share liability
Multiple causes - Substantial Factor Test
Used when 2 Ds cause harm, but each D alone would have been enough to cause the entire harm. In this case, each D is a cause-in-fact if each was a substantial factor in causing the harm.
EXAMPLE: Two negligently set fires; If Parker sues Abel, he cannot show but for Abel’s fire, his house would not have been destroyed because Burnie’s fire would have done the same. Parker must use the substantial factor test to prove actual cause.
Substantial factor test
- Ask whether each breach is substantial in contributing to the injury
- Even if alone is not enough to cause injury, D can be liable if combined breach with another person causes injury
Liability if using substantial factor test
▪ Assume joint and several liability, so that P can sue one or both Ds and collect entire amount from one D alone. The D found liable can seek contribution from the other D.
When is joint and several liability available for two or more Ds?
where two or more defendants acting in concert injure the plaintiff or where two or more defendants acting independently injure the plaintiff, and the resulting damages cannot be allocated to particular defendants, all of the defendants are liable for the entirety of the plaintiff’s injury.
P’s total damage award against multiple Ds is capped at . . .
plaintiff may only recover from any or all defendants an amount equal to the total damages awarded.
The plaintiff can execute against each defendant for the total damages suffered but total amount can only be up total damages
Loss of Chance
(typically medical malpractice situations). This is not a majority rule.
▪ P must show that but for the medical malpractice, P would not have lost chance/died.
(ex) Dr commits malpractice, fails to diagnose her cancer. If timely diagnosis»_space; 40% chance that Paulina could survive, but by the time it is discovered, it is incurable. Paulina sues Doctor. She will lose because she cannot show that it is more likely than not that but for Doctor’s malpractice she would have survived. She already had a 60% chance of death.
VA Loss of Chance
VA DOES NOT RECOGNIZE as separate cause of action but may allow to show proximate cause
Alternative Liability Theory Concept
(Summers v. Tice – two hunters shoot at quail and P, who is clearly in the line of fire, gets hit. However, it is not clear which hunter actually fired the shot that hurt P!)
Alternative Liability Theory when to apply
● All Ds are tortious/negligent;
● All Ds are being sued together (can’t use if one D is left out); and
● Small number of Ds.
Burden when alternative liability theory applies
- Burden of proof is shifted to the defendants to prove they were not the cause
- If they can’t, they’re jointly/severally liable.
Market Share Liability for Generic Product
P cannot show which of a large group of negligent Ds was responsible for manufacturing the product that caused her harm. P can sue those who might have caused her harm and each D is responsible based on its share of the market.
Market Share Liability - Several Liability
X had 10% of the relative market; X will pay 10% of P’s damages unless X can show it could not have made the product that harmed P.
Proximate (Legal) Cause - policy reasons creating reasons to cut off liability
● Unforeseeable Extent of Harm
● Unforeseeable Type of Harm
● Unforeseeable Manner of Harm
Unforeseeable Extent of Harm
Does not matter that P suffered more harm than one would foresee. D is responsible for full the extent of harm, as long as the type of harm is foreseeable.
Eggshell Skull Rule
Take your victims as you find them. It does not matter if P is susceptible to greater harm because of a unique susceptibility, like an eggshell skull.
Unforeseeable Manner of Harm - Superseding Cause
Unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. A superseding cause relieves the original tortfeasor of liability for lack of proximate cause.
Unforeseeable Type of Harm
Was the injury suffered within the risk created by D’s negligent conduct?
(ex) jar of poison left negligently by stove; becomes a missile when it heats up»_space; arguably not a foreseeable type of injury (foreseeable would’ve been ingesting the poison)
Is any cause that intervenes between D’s action and P’s harm superseding?
No - The more culpable the intervening force, the more likely it supersedes. Typically, criminal conduct will be a superseding cause, but not if the criminal conduct is foreseeable.
(ex) LL fails to put good locks on apartment building; P is mugged »_space; Even though there was intervening criminal conduct, it will not be superseding because the harm was foreseeable based on the risk caused by LL
(ex) Construction co - no barricade to control traffic; worker injured by car that ends up on site BUT car is driven by ex-wife who intentionally hit him»_space; type of harm is foreseeable BUT not not the proximate cause because criminal act was a superseding cause.
Effect of intervening/supervening causes on proximate causation
- An intervening incident does not break the causal chain.
- A supervening incident does.
