Cause-in-Fact Flashcards
Define Cause-in-Fact
The link between the breaching conduct and the harm. If no link, no liability
Steps to analyze CiF
- Define the breaching/negligent conduct
- What is the harm
CiF
How to identify when to use the “But For” Test
If D had not engaged in the negligent conduct, would the harm have come about anyway?
If the answer is no then D may be the but-for cause
CiF
What is the EXACT language to use when assessing the But For Cause?
“More likely than not, but for D’s [specific conduct], P’s [specific harm] would not have happened.”
CiF - But For
When to use the “But For Test Combined Concurrent Causes?”
If there are multiple causes or defendants and if one of the causes did not exist, then the harm would not have occurred (dominoes)
CiF
Identify when to use the “Substantial Factor” test.
When there are multiple causes and each cause is a “but for” cause that alone would have caused the harm. NOT limited to a particular number of causes
CiF - Substantial Factor
What is the EXACT language to use when utilizing the “Substantial Factor” test?
“More likely than not, D’s [specific conduct] was a substantial factor in the [specific harm].”
CiF
How do you prove Cause-in-Fact?
You do not need to disprove alternative theories - just show that the theory meets a preponderance of evidence.
* P will present facts in a way that encourages the jury to draw inferences that the connection between the conduct and the harm is clear
* D will present the facts in a way to encourage the jury to see the connection as distant
CiF - Proof
What is the test to show a strong causal link?
- If a negligent act was deemed wrongful
- The act increased the chances that particular type of accident would occur and
- That sort of mishap DID occur
CiF
What are the other considerations for CiF?
- Loss of Chance
- Joint and several Liability
- Alternative Liability
- Market Share
CiF - Other Considerations
How to establish Loss of Chance
P must establish that by a preponderance of the evidence that defendant caused his injury - the injury is P’s diminished likelihood of achieving a more favorable outcome/loss of chance to survive
CiF - Other Considerations
What may P recover for a “Loss of Chance” action?
P recovers damages proportionate to the portion of chance of recovery that d’s negligence destroyed
CiF - Other Considerations
Arguments for Loss of Chance
- It’s a new claim that is not for wrongful death
- Medical negligence that harms a patient’s chances of a more favorable outcome contravenes the expectation at the heart of the doctor-patient relationship that “the physician will take every reasonable measure to obtain an optimal outcome”
- Shortcomings of an “all or nothing” approach are widespread because patients often go to the doctor when their chances have fallen below 50%
CiF - Other Consideration
Arguments against Loss of Chance
- Undermines general requirement of preponderance of evidence
- Alters burden of proof in favor of plaintiff
- Statistical likelihood of survival is speculative
- Expands liability
- Too complex
- Inconsistent with wrongful death
CiF - Other Considerations
Define Joint and Several Liability
- The defendants acted negligently
- Each defendant contributed to the harm.
- It is unknown how to allocate the liability among the defendants.
CiF - Other Considerations
What are the 3 categories for Joint and Several Liability?
- Acting in concert
- Employer/Employee (w/in scope of employment)
- Independent actions concurring to cause harm (the single indivisible injury rule – when 2 or more negligent Ds cause the injury, both are liable for the entire harm)
CiF - Other Considerations
What is the test for Joint and Several Liability?
- P must prove that each D was negligent and
- That the negligence of each was the cause of the harm/injuries
CiF
When to use Alternative Liability?
We know that all Ds acted negligently, but we don’t know who caused the harm (the dueling shotguns- super rare)
CiF - Other Considerations
What is the Alternative Liability Test?
- Prove a breach of duty by all Ds and
- Join all Ds and
- Show that D is in a better position to address causation
CiF - Other Considerations
How to approach the Market Share theory
- P must join as many Ds as possible
- Ds who can show that they were not the cause can avoid liability
- Ds who cannot exculpate themselves are held severally liable in proportion to their market share of the national market
- P may only recover based on what % of the market is joined (may be less than 100%)
