Cause in Fact Flashcards
1
Q
Default Test
A
But For
2
Q
But For Test
A
Satisfied if P’s harm would not have happened but for D’s unreasonable conduct
3
Q
Application of But For
A
- 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
4
Q
Burden of Proof for But For
A
is preponderance of evidence (more likely than not)
5
Q
But For with RIL
A
- about occurence
- RIL is inferring D did something unreasonable
- Pretend they acted reasonably
6
Q
But For with Intentional Torts
A
- No presumed injury = but for [trench would P still be alive]
- If presumed injury = but for trespass would there be a presumed injury
7
Q
Multiple Sufficient Causes
A
- Two conducts, either of which alone would have caused the same damage, instead combine to cause the damage
- Two fires test
8
Q
Multiple Sufficient Causes Majority Test
A
- Substantial Factor
- Whether D’s conduct is c/f if it was a substantial factor in causing the harm
9
Q
Multiple Sufficient Causes Minority Test
A
- Sufficiency Test
- Whether D’s conduct alone would have caused this damage
10
Q
Alternative Liability
A
- 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
11
Q
Market Share Liability
A
- Sue substantial share of manufacturers
- Burden shifts to Ds to negated c/f
- Liable based on their market share
12
Q
Lost Chance of Recovery
A
P is in bad shape before they get to the ER and then doctor commits malpractices and P ends up dead
13
Q
Burden of Proof Lost Chance of Recovery
A
Preponderance of Evidence (more likely than not)
14
Q
Lost Chance of Recovery Minority Rule
A
- 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
15
Q
Lost Chance of Recovery Majority Rule
A
- Injury: lost chance of survival
- Damages: based on that lost chance due to medmal