Cause in Fact Flashcards
Default Test
But For
But For Test
Satisfied if P’s harm would not have happened but for D’s unreasonable conduct
Application of But For
- Pretend D acted consistent with SOC; does P’s injury still happen
- Yes, c/f not satisfied because P’s injury would have happened no matter how D acted
- No, c/f satisfied
Burden of Proof for But For
is preponderance of evidence (more likely than not)
But For with RIL
- about occurence
- RIL is inferring D did something unreasonable
- Pretend they acted reasonably
But For with Intentional Torts
- No presumed injury = but for [trench would P still be alive]
- If presumed injury = but for trespass would there be a presumed injury
Multiple Sufficient Causes
- Two conducts, either of which alone would have caused the same damage, instead combine to cause the damage
- Two fires test
Multiple Sufficient Causes Majority Test
- Substantial Factor
- Whether D’s conduct is c/f if it was a substantial factor in causing the harm
Multiple Sufficient Causes Minority Test
- Sufficiency Test
- Whether D’s conduct alone would have caused this damage
Alternative Liability
- Two or more conduct, but only one caused the harm and we don’t know which one
- Two shooters shooting at a bird towards a dude
Market Share Liability
- Sue substantial share of manufacturers
- Burden shifts to Ds to negated c/f
- Liable based on their market share
Lost Chance of Recovery
P is in bad shape before they get to the ER and then doctor commits malpractices and P ends up dead
Burden of Proof Lost Chance of Recovery
Preponderance of Evidence (more likely than not)
Lost Chance of Recovery Minority Rule
- Injury: death
- Damages: for death. P has to prove death was not inevitable
- P has to prove at leave 51% chance of surviving before the malpractice
Lost Chance of Recovery Majority Rule
- Injury: lost chance of survival
- Damages: based on that lost chance due to medmal
Chance of Future injury
Person is fine and medmal makes it so they could have an injury in the future
Chance of Future Injury Majority Rule
- All or Nothing
- Have to prove future injury more likely than not will occur
- Full damages for that future harm
Chance of Future Injury Minority Rule
- Chance of Future Injury
- Injury is risk of future injury (risk is present injury)
- Damages limited to that increased risk
How to Approach C/F
- Start with But For
- Switch if facts dictate it
- Just because more than one D not automatically a different test
C/F Tests for Intentional Torts
- But For
- Multiple Sufficient Causes
- Alternative Liability
C/F Tests for Negligence
- But For
- Multiple Sufficient Causes
- Alternative Liability
- Market Share
- Lost Chance Recovery (medmal)
- Future Injury (medmal)
