Causation, Damages, and Defenses Flashcards
Causation Overview
P must prove sufficient connection between D’s breach and P’s injuries.
Two types of Causation:
- Actual (But For) Causation = P must show that were it not for D’s breach, this injury would not have occurred.
- Proximate Causation = P has to prove that it’s fair to hold D liable because such injuries were a foreseeable consequence of the breach.
Actual Causation Basics
Also called Factual Cause or Cause in Fact.
“But For” Test = ask: but for D’s negligence, would P’s injuries have occurred? if the accident would have happened even if D hadn’t breached, then D’s breach is NOT an actual cause. But if the accident wouldn’t have occurred without D’s breach, then the breach is an actual cause.
Actual Cause: Test for Merged or Commingled Causes
This is the test for proving actual cause when you have 2 or more Ds who do something negligent that combine and harm P, but EITHER D ALONE could have caused P’s injury.
Example: D1 and D2 both set separate fires that spread and merge to destroy P’s house, but either would have sufficed on its own.
The normal but for test doesn’t work here because both Ds would say even if I acted reasonably, you still would’ve suffered the loss. But that’s not a good law. So the solution lies in the:
“Substantial Factor Test” = if D’s negligent conduct was a substantial factor in causing the harm, it’s deemed an actual cause of the harm. If the negligent conduct could have caused the harm by itself, it’ll be considered a substantial factor in a merged causes case.
Actual Cause Test for Unknown Causes
The but for test also fails when you have 2 or more Ds who breached, but you don’t know which breach was the one that actually caused P’s injury.
Example: hunting accident where 2 shooters shot but only 1 bullet hit P. Summers v. Tice
In these scenarios, burden of proof shifts to both Ds. Since both were negligent, it’s fair to require each of them to show they weren’t the one that actually caused P’s injury. If neither could prove they didn’t do it, then they would both be jointly liable to P.
Be careful to make sure that all Ds are negligent. Don’t apply this in the mixed casserole example where they can’t tell if both were uncooked or only 1.
Wording: always say “the defendant’s negligent conduct was an actual cause of P’s injury”.
Proximate Cause Basics
To hold D liable, must prove sufficient nexus between D’s negligent conduct and the injury that actually resulted. We have to limit actual cause by accepting only those causes that are near enough, or proximate, to the injury.
Proximate cause is a limitation on D’s liability and is based on FORESEEABILITY. Was it foreseeable that D’s negligent conduct would cause P’s harm? Consider the zone of danger.
Judge foreseeability by asking why D’s conduct was deemed to be negligent in the first place. What risks to others were created by D’s actions? If one of the things that made D’s act negligent was a risk of harm and harm occurred, D’s negligence is most likely a proximate cause.
Proximate Cause: Direct vs. Indirect Cause Cases
Direct cause cases like a traffic accident where P hit D because P was going too fast are obvious that P was the direct cause because there was an uninterrupted chain of events from the time of D’s negligent act to the time of P’s injury.
Indirect cause cases are harder because there is more than just P and D involved. If something is super attenuated, it’s probably not going to hold up to proximate cause. In these cases, some other force or event comes into play after D’s negligent conduct that combines with it to cause injury to P. These intervening forces can throw a wrench in the foreseeability analysis (and this analysis is ALL ABOUT foreseeability). So you won’t see close calls on the MBE, but if the intervening force is on the list of predictable things, then that’s foreseeable.
Don’t confuse foreseeability with probability. It doesn’t need to be probable, just foreseeable.
Four Scenarios where Intervening Force is Always Foreseeable
- Subsequent Medical Malpractice =
Errors by health care providers are foreseeable and don’t cut off D’s liability. If your negligence sends someone to hospital and the doctor screwed it up, you are liable for the initial injury and also the subsequent injury (which the doctor would also be liable for). - Negligent Rescue =
Danger invites rescue. A certain percent of rescues will be done negligently. So if the good samaritan jumps in to save P and negligently causes P to hit head on rock, D is liable to P for the injury caused by rescuer. - Reaction Forces =
This is what happens when people react to danger. So if you negligently set off fire alarm causing stampede/trampling, you’re liable for that person’s injury because someone getting injured from a panicked crowd is always foreseeable. - Subsequent Accident or Disease =
If you negligently made someone more susceptible to some further harm, you’re liable for that further harm. Say you negligently cause someone to break a leg, they have to go on crutches. They’re not used to walking with crutches so they trip and die. You’re liable for the additional injury because it was foreseeable.
Proximate Cause: Other Intervening Forces
3 diff types of intervening forces:
1) Negligent Conduct by 3rd Parties
2) Intentional Torts or Crimes by 3rd Parties
3) Natural Forces - Acts of God
In all, need to make judgment on foreseeability: would D have to be clairvoyant to have foreseen this consequence of this breach?
Damages
Only 1 damages issue tested on MBE.
General Rule: P can recover all their damages: economic damages such as medical expenses and lost earnings as well as noneconomic like pain and suffering damages. Noneconomic includes emotional distress.
What if it was just emotional distress? Then use NIED rules. No recovery for emotional distress caused by negligent damage to property. Even pets.
Damages to property - recover either cost of repair or if property has been completely destroyed.
NO PUNITIVE DAMAGES in negligence action.
Eggshell Skull Rule
If D is liable to P for negligence, D is liable to the full extent of P’s harm even if the extent of the harm was unforeseeable.
“Take your victim as you find him.”
Defenses to Negligence
Affirmative Defense = D concedes that P can establish all the elements of P’s prima facie case, but introduces new facts that if believed by the fact-finder, would either completely relieve D of liability or mitigate the amount of damages D has to pay.
Contributory Negligence
Contributory negligence = P fails to use relevant standard of care to protect self from foreseeable risks of harm.
The standard of care could be reasonably prudent person or something else like reasonable child, or statutory standard. Same type of analysis as D’s negligence.
If P is contributorily negligent, old rule said P was barred from recovering completely, even if P’s negligence was much smaller, like 1%. That’s the traditional rule - complete bar on recovery for contributory negligence. But modern trend is comparative negligence in most states.
Assumption of Risk
Total bar like traditional contributory negligence.
P must have known of risk and voluntarily assumed it. Easy cases are when P expressly assumes a risk. Harder cases involve implied assumption of risk where you have to ask if P knew about and voluntarily assumed risk. “Voluntary” implies a choice. Not voluntary if P has no feasible alternative to going forward.
Comparative Negligence
Replacement for contributory negligence in most states.
“Partial” Comparative Negligence = P can’t recover if she was more at fault than D. However, if P was less at fault than D, she can recover, but the recovery will be reduced by percentage of fault.
“Pure” Comparative Negligence = P can recover against D no matter percentage of fault. P could be 99% at fault and still win. But recovery will be reduced by 99% here.
Always apply pure comparative negligence unless the MBE tells you otherwise. It will say if it wants either traditional contributory negligence or partial comparative.
The Casserole Problem (Actual Causes)
- The 2 dishes were combined into 1 larger dish, from which the guest served herself. It’s not known which of the dishes contained the bacteria or whether both did. = NO ACTUAL CAUSE can be established. We don’t know which party caused the harm and we also don’t know whether both parties were negligent.
- The 2 dishes were kept separate, and the guest took portions from both dishes. Both dishes were found to contain the bacteria at a dangerous level. = MERGED CAUSES. Both parties were negligent, and the harm was caused from the combined contents of both dishes in the guest’s stomach after she consumed them. The negligence of both parties was a substantial factor in causing the guest’s illness.
- The 2 dishes were kept separate, and the guest took portions from both dishes. Only one of the dishes was found to contain the bacteria, and the volunteer who prepared that dish was identified. = “BUT FOR” CAUSATION. You have 1 negligent volunteer and a clear case of actual cause.
- The 2 dishes were kept separate, and the guest took portions from only 1 dish, but the dishes looked identical and the guest can’t remember which dish she took portions from. Both dishes were found to contain the bacteria. = UNKNOWN CAUSE. Both volunteers were negligent, but the guest isn’t able to show whose negligence caused her illness; so the burden on the actual cause element shifts to the volunteers.
