Causation, Limited Duty of Care, Joint Tortfeasors, Landowners

Question 1

What is factual causation?

Answer 1

A factual inquiry into whether the defendant’s conduct precipitated the injury. The event would not have occurred “but for” defendant’s conduct.

Plaintiff has burden of proof.
Subject to the substantial factor test.

Question 2

What is proximate causation?

Answer 2

A policy inquiry into whether it is fair to impose
liability on a defendant whose conduct was a
factual cause.

Question 3

Substantial factor test

Answer 3

Conduct is a “substantial factor” if it was:

1) Indispensable (“but for”) or
2) Independently sufficient

Question 4

Loss of Chance Doctrine (informed consent medmal)

Answer 4

This doctrine allows a plaintiff to recover damages by showing that the defendant was a substantial factor in causing the plaintiff to lose a significant chance (>50%) of escaping the harm in question (e.g., death, paralysis, loss of a limb, etc.).

Question 5

Daubert Test for Expert Testimony

Answer 5

First, courts must determine (1) whether the expert’s testimony reflects “scientific knowledge,” (2) whether the findings are derived by the scientific method, and (3) whether their work product amounts to “good science.”

Second, the proposed testimony must be deemed relevant to the task at hand.

Question 6

Factors considered under Daubert Test of “Good Science”

Answer 6

use of generally accepted techniques, treatment from peer review and publications, testability, acceptable rate of error, purpose (ex. was the research conducted for the purpose of litigation?)

Question 7

What are concurrent causes?

Answer 7

(1) Conduct that combines to cause injury where neither alone would have been sufficient. The combo is the “but for” cause
(2) Conduct that combines to cause injury where either alone would have been sufficient as long as each was a substantial factor. Each event is an independent “but for” cause.

Question 8

What happens when plaintiff cannot determine which defendant is the cause?

Answer 8

The burden shifts to the defendants to apportion blame among themselves. (Alternative liability, enterprise liability, and market share liability)

Question 9

What happens in market share liability?

Answer 9

Drug is known cause. Many manufacturers of the drug. Burden shifts to each Defendant to prove it did not manufacture the drug. Defendants who cannot do that, pay market share.

Question 10

RS 39 on limiting liability

Answer 10

An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious. Factors like lapse of time and distance are usually relevant to consider.

Question 11

How do we characterize fairness for proximate cause?

Answer 11

1. Foreseeability
2. Directness and Remoteness
   – Natural and Continuous Sequence
3. Result within the Risk
   - Did the Negligence “Run Its Course”
4. Andrews Factors

Question 12

Andrews Factors from Palsgraf

Answer 12

Natural and Continuous sequence of events (unbroken causal train)
• no superseding, intervening causes
• too attenuated
• foreseeable type of harm
• foreseeable consequence
• remoteness

Question 13

What are the 4 proximate cause problems?

Answer 13

(1) unforeseeable plaintiff (no liability)
(2) unforeseen extent (eggshell skull doctrine)
(3) unforeseen type of harm (it depends)
(4) unforeseen manner of harm (yes, flaming rat)

Question 14

Unforeseen Manner of Harm

Answer 14

If the general type of harm is foreseeable, it does not matter that the harm came about in an unusual manner.

Question 15

What is eggshell skull doctrine?

Answer 15

Defendant still liable for unforeseeable extent of harm. Defendant must take plaintiff as they are.

Question 16

Intervening Cause

Answer 16

A force that comes into play after the defendant’s tortious conduct and contributes to production of the harm.
Intervening causes generally do not cut off liability for D.

Question 17

Superseding Cause

Answer 17

An intervening force of the type that cuts off the defendant’s liability because it was both unforeseeable and brought about unforeseeable results.
Unforeseeable in this context often means truly bizarre.

Question 18

Examples of Superseding Causes

Answer 18

Intentional or Criminal Conduct of 3rd Parties, Rescuers, Suicide, and Extraordinary Act of Nature

Question 19

When is suicide merely an intervening cause?

Answer 19

if Plaintiff’s suicide resulted from irresistible impulse created by D’s conduct

Question 20

Rescue Doctrine Exception to Proximate Cause

Answer 20

Defendant is liable for harm to one who reasonably attempts to rescue another imperiled by D’s negligence.
Requirements: (1) D caused peril or appearance of peril; (2) Peril was imminent; (3) A RPP would have concluded that peril existed; (4) Rescuer acted with reasonable care in effectuating the rescue.

Question 21

What was the traditional approach to proximate cause?

Answer 21

Direct vs Indirect Cause (Polemis)

Question 22

What are the public policy limits on negligence?

Answer 22

No duty to rescue, no liability for pure economic loss, and no liability for negligent IIED.

Question 23

Exceptions to the Failure to Act limit on liability

Answer 23

relationship to victim (family, common carriers, employment); relationship to tortfeasor (children, mental health patients); entrustment of dangerous instruments; causal involvement in the accident; voluntary assumption of duty; statutory duty

Question 24

Joint and Several Liability

Answer 24

Means that there are multiple tortfeasors who can be sued, and each is individually liable for the full amount of plaintiff’s loss

Several Liability when Ds cause separate harm (Ex. A shoots C in the arm & B shoots C in the leg).
Joint Liability when no reasonable basis exists to apportion damages.

Question 25

When does J+S liability apply?

Answer 25

(1) Defendants acting in concert –( the more joint planning and action there is, the more likely it is that both would be held liable for action of one)
(2) D’s share a common duty to P-(Employment, owner & driver of car, owner & manufacturer)
(3) Defendants act independently to cause an indivisible harm to P.

Question 26

Contributory Negligence

Answer 26

When plaintiff contributes to harm, they are unable to recover. (now a minority rule, 6 states)

Question 27

Comparative Negligence

Answer 27

When plaintiff is partially at fault, they can recover according to their percentage of fault.

Question 28

Elements of NIED

Answer 28

(1) Negligence
2) Severe emotional distress
– judged by ‘normal’ (no ‘eggshell P’ rule)
3) Causation
4) Proof that the plaintiff was the direct victim or a
bystander under Thing

Question 29

What is bystander liability for NIED?

Answer 29

Thing Test:

(1) plaintiff closely related to the harmed
(2) Present & aware of the harm
(3) Serious ED, usually needs physical manifestation

Thing’s bright line rule replaces the Dillon guidelines

Question 30

NIED Direct Victim

Answer 30

Direct victim if the distress results from the breach of a duty owed to the plaintiff

Question 31

NIED Bystander

Answer 31

Bystander if the distress results from observation or knowledge of harm to another

Question 32

Can plaintiff recover for fear of future harm after toxic exposure?

Answer 32

When P exposed to toxic substance but no present symptoms as result of D’s negligence, many courts will allow P to recover for medical monitoring and ED.
Some courts require a greater than 50% chance of contracting disease at some future date.
Some courts allow ED damages for reasonable fear of HIV exposure.

Question 33

What is the extent of premises liability?

Answer 33

Rowland rule: Where the host is aware of a dangerous, concealed condition and is aware that a person on the premises is about to come in contact with it, the jury can decide that this constitutes negligence.

Question 34

Attractive Nuisance Doctrine

Answer 34

Landowner is liable when a child is lured onto a premise because of some enticing thing (mechanism, pool, etc) that poses a danger to them.