Causation of Harm

Question 1

Causation of Harm - General Concept

Answer 1

In order for someone to be liable, their act must be the:

1) Actual cause (“but for”) AND
2) legal (proximate cause) of the harm

• in evaluating these, you need to look at actual cause first (if no actual cause, def wins) - need to prove first that the harm if a result of def’s negligence, + then ask whether causation tight enough

Question 2

Actual Cause

Answer 2

• “but for” test - but for def’s negligence, would plaintiffs’ harm have occurred?
• notion of causal chain as a wedge, containing more possible causes of accident the further back one looks
• requires counterfactual inquiry -> need to ask what would’ve happened if the actor hadn’t engaged in tortious conduct

Question 3

Barnes v. Bovenmeyer

Answer 3

• 1963
• case where pl loses eye after steel entered it -> argues could’ve saved the eye if dr had removed the steel sooner
• BUT pl ultimately loses b/c expert witness says removing steel sooner likely would not have saved the eye -> ie. dr’s actions not really the but-for cause of the harm

Question 4

Scafidi v. Seiler - Facts

Answer 4

• 1990
• deals w/ enhanced risk inquiry - Scafidi had pre-existing condition that might’ve contributed to premature birth + death of her child, but dr’s failure to treat early labor might’ve increased the risk

Question 5

Scafidi v. Seller - Increased Risk Standard

Answer 5

• applies to instances of causation w/ allegations that def’s negligence exacerbated pl’s existing illness
• means jury must consider whether def’s negligence increased the risk of harm + whether such increased risk was a substantial factor in producing the harm

Question 6

Scafidi - Lost Chance Damages

Answer 6

• pl’s damages are limited based on % chance of having avoided the harm w/o the negligence (damages are calculated according to whatever percentage of the chance you miss out on)

Question 7

Tax Harm vs. Tax Risk

Answer 7

• tax harm = backward-looking approach - waits for harm to occur, then imposes full cost of loss on the actor
• tax-risk = future-oriented - even if you don’t cause the harm, you pay if you’re negligent (would pay PxL instead of full L)

Question 8

Why is tax-risk not widely embraced?

Answer 8

• compensation (where does the fine go if no one harmed?)
• private attorneys general (who brings the lawsuit?)
• overhead costs
• note that insurance performs function of changing tax-harm to tax-risk though

Question 9

Multiple Causation

Answer 9

• if there is a single harm w/ multiple causes, you run the actual cause analysis for both acts -> if both defs’ negligence caused the harm, the defs are jointly + severally liable

Question 10

Joint + Several Liability

Answer 10

• every def contributing to the same harm is liable to the victim for the whole amount of reasonable damages

Question 11

Proportionate Liability

Answer 11

• each def contributing to the same harm is liable to the victim only in proportion to his/her tortious responsibility for victim’s injury

Question 12

Contribution

Answer 12

• works with joint and several liability
• right that exists among joint and severally liable defs upon some indivisible claim for same injury, death, or harm whether or not judgment recovered against all or any of them
• note that this does NOT apply where the parties cause separate harms or if the harm is found to be divisible

Question 13

Indemnity

Answer 13

• may exist among liable parties
• traditionally, shifted entire loss from one party to another + was appropriate when one party had primary or greater liability/duty requiring to bear whole of burden as between parties

Question 14

Johnson v. Chapman

Answer 14

• 1897
• illustrates old rule of joint and several liability
• two defs, each owned warehouse to north of pl + party wall between them inadequate (both failed to repair it) -> their warehouses fell + caused damage to pl’s -> both defs jointly + severally liable

Question 15

Pro Rata Damages

Answer 15

• under Uniform Contribution Among Tortfeasors Act, pro rata damages -> damages split equally among the joint and severally liable parties
• avoids q of comparative fault/proportion of fault inquiry -> lower transaction costs but not attentive to degrees of fault

Question 16

Proportion of Fault

Answer 16

• Uniform Comparative Fault Act
• damages apportioned by court according to each responsible party’s proportion of fault
• reflects trend away from pro rata compensation among joint and severally liable parties (reshaping of doctrine through rise of comparative fault)

Question 17

Pros of Joint and Several Liability

Answer 17

• if D1 is unable to pay their share, better that D2 bear the loss than the injured party
• may not be able to find all defendants (better then to be able to held one fully accountable)
• rationale essentially is to make things easier on plaintiff - def is at fault, + therefore not unjust to make them pay, + priority is to make sure pl is compensated (fact that someone else also at fault for the injury is basically like a plus for def, they may wind up paying less for their negligence, but not entitled to paying less b/c they still caused the same initial harm)

Question 18

Cons of Joint and Several Liability

Answer 18

• concern for “deep pocket” defs - if even slightly at fault, can be hit for the whole sum of damages (with no assurance of being able to collect on their “right of contribution”)
• if the comparative fault is very unequal, unfair to force def w/ minimum fault to pay it all and then seek contribution from D2
• counterargument - let defs deal w/ practical burden of redistribution

Question 19

Statutory Developments - General Trends

Answer 19

• in the past 20 yrs, more than 2/3 of states have restricted joint and several liability through legislation
• general trend: spread of principle of proportionate responsibility from negligence (duty + breach) to liability (financial responsibility)

Question 20

Statutory Developments - Specifics

Answer 20

• approx 1/3 don’t have joint and several as a general doctrine - often retain for certain kinds of cases (intent, toxic torts, vicarious liability, hazardous waste)
• another 1/3 abolished for certain kinds of damages (ex: noneconomic), certain kinds of defs (those whose share of liability less than 50%), or for certain pls (ex: those not free of fault)

Question 21

California - Joint and Several Liability

Answer 21

• Cali abolished j and s for nonecon damages (including in cases w/ intentional torts)

Question 22

Texas - Joint and Several Liability

Answer 22

• TX statute abolished joint and several liability for all defs except those more than 50% responsible or involved in hazardous substance cases