Cause in Fact Flashcards
*Grimstad
But for. Captain of barge drowned because barge not equipped with life buoys – or was that the cause? The court said that the likelihood that the wife could have grabbed the buoy, thrown it far enough, Grimstad grabbed it, and it worked to save him was overall unlikely, so not caused by lack of life buoy. In class, used those factors plus whether Grimstad could swim long enough before buoy thrown to him and said all were likely – 80% each. .8^5 is .33, so overall Grimstad was indeed unlikely to survive. Problem: case where duty and breach together are 70% likely and causation is 60% likely (assume damages 100%). Overall, the incident is only 42% likely, so the defendant should win because it is NOT more likely than not. However, it is actually the plaintiff who wins because the burden of proof is to show that all the elements are more likely than not.
Reynolds
Overweight woman fell down unlit steps near train platform and defendant argued she might have fallen down them in broad daylight. Court conceded that was possible, but said defendant’s negligence greatly multiplied chances of accident and was of character leading to its occurrence. Therefore, the mere possibility of it happening without negligence isn’t sufficient to break chain of causation.
*Zuchowicz
Z claims to have developed fatal lung condition because of defendant’s negligence in prescribing overdoes of drug. Court said it was more likely than not that the drug was responsible because even though it wasn’t possible to eliminate all other potential causes, the evidence supported a jury finding to a “reasonable medical certainty” based on the progression and timing of disease that the drug was the cause; AND the overdose specifically was responsible (necessary for causation to be met) - the modern trend is that the act must increase chances of accident and for drugs, the FDA has approved certain dosages for a reason.
Note that there might be a different result if the drug has a long latency period
Requiring a showing that the overdose, not just the drug, was responsible for disease is necessary because it is like asking whether speeding was the cause of an accident because need to ask whether the negligence was the cause.
The negligent party has the burden of bringing evidence denying but for cause (which defendant could have tried to do here)
*Union Stock Yards compared to Gray
Both defendants were negligent because they could have discovered defective nut of traincar) where court said the general rule is that one of several wrongdoers cannot recover against another unless exception like in Gray v. Boston Gas Light Co. where one does the act and someone else is “exposed” to liability and suffers damage (not fault of property owner that telegraphy wire fastened to chimney by gas company without his consent, same in hypo with bricks in falling in road). No exception here because both defendants guilty. No contribution or indemnity.
Joint & Several Liability
Each party is independently liable for full amount, and plaintiff can choose to collect from any one of them. But now, that party can seek contribution from other wrong-doers.
AMA
Gregos injured in motorcycle race, AMA asked court to bring in his parents to reduce amount it had to pay by amount of parent’s negligence. Court said that AMA was wrong that Li got rid of joint and several liability. Just because it is possible to assign percentage to relative culpability doesn’t mean each defendant’s negligence is not proximate cause of entire indivisible injury. • Abandoning JSL has bad effect on ability of injured person to recover. Wronged person shouldn’t be deprived of redress if a wrongdoer can’t pay – JSL fixes [even if plaintiff is a bit at fault! Because putting self at risk here is not as bad as defendant’s negligence putting others at risk]. Indemnity doctrine should be modified to allow partial indemnity - now basically same as contribution.
Strong dissent: Because a tortfeasor who is only a tiny bit at fault may have to pay all if other tortfeasors don’t have money, it totally messes up Li theory of assigning liability based on fault. Clark’s problem of 30/60/10 – If plaintiff 30% at fault and 60% at fault person bankrupt, the 10% at fault person has to pay 70%, which is ridiculous. NOTE: one way to solve is that the plaintiff and defendant 2 share the remaining 60% in a 3:1 ratio (this is RST view).
*Kingston
Fire! Northeast fire caused by RR and northwest fire of unknown origin (but probably human) both caused the destruction of plaintiff’s property. Court said it might be ok to exempt from liability a wrongdoer who sets a fire which unites with some raging natural forest fire started by lightning. But, if the northwest fire is started by a person, the RR company can be held liable for full damages. Since here there is an unknown cause, the RR should be held liable because otherwise that would make the wrongdoer a favorite over the innocent.
But for RR’s negligence, would the property more likely than not have burned? Yes, because other fire! Even though no but for cause, the court still blamed the RR. Why? If timing had been slightly different, would have had to pay - plaintiff shouldn’t be the one suffering due to the RR’s lucky timing with a lighting fire happening at the same time, rather than an hour or day later.
Apportionment?
RST endorses apportionment of damages where there is a “reasonable basis for the factfinder to determine…the amount of damages separately caused by each party.” See Smith v. J.C. Penny Co. where plaintiff wearing flammable coat bought from J.C. Penney, with material from Bunker-Ramo, and fire started by negligence of service station employee. Court said injuries were indivisible (couldn’t tell which caused by fire and which by coat and plaintiff suffered because of the totality of her condition)
*Summers
Plaintiff shot in eye by bird shot from shotgun while quail hunting when both defendants negligently shot towards him at bird, where court said that the negligence of both was the cause of the injury. The defendants acted in concert, and holding otherwise would exonerate both at expense of poor plaintiff. The plaintiff may not be able to meet burden of proof to pin injury on one over other and wouldn’t be able to recover. Burden is on defendant to absolve himself.
Note to RST where sofa thrown out window and pedestrian sues all 47 room occupants. RST say that it is correct to shift burden to defendants to absolve themselves BUT ONLY where plaintiff can show that all defendants acted tortiously, so NOT here (what about other case with conference where everyone was being rowdy and perhaps being negligent?).
*Sindell
Market Share Liability. DES miscarriage drug given to pregnant mothers caused cancer in children. Modified Tice rule grounded in the theory that between an innocent plaintiff and negligent defendants, the latter should bear the cost. The manufacturer is in the best position to discover defects, guard against the defects, and warn buyers. Holding manufacturers liable gives an incentive for safety! RULE for market share liability: “each defendant will be held liable for the proportion of the judgement represented by its share of that market unless it demonstrates that it could not have made the product which caused plaintiff’s injuries.” o You need a joinder of defendants who together manufactured a substantial percentage of DES. Here the plaintiff has that through the 11 it picked – doesn’t need all 200.
Other products: courts differ on whether lead paint is fungible like DES is. Many said there were different levels of danger present in different brands of paint. Hawaii allowed MSL to be used for blood products. CA for cigarettes, NJ for the DPT vaccine, and NY for guns rejected MSL because not fungible goods.
*Herskovits
Loss of a chance. Where less than 50% chance of survival, and further reduced by defendant’s negligent action, recover that % of full amount even though no but for cause. (Above 50% would be full amount because there is but for cause).
