Cause in Fact

Question 1

Plaintiff Burden

Answer 1

Must prove, not only that plaintiff suffered legally cognizable harm, but that the harm, was in fact caused by the defendant

Question 2

But-For Test

Answer 2

Requires a showing that the harm would not have occurred ‘but for; the defendants conduct such that the tortious conduct was a necessary condition of the occurrence of the plaintiff’s harm.

Question 3

But-For Test
(Trier of fact hypo scenario)

Answer 3

The but for rule this required the trier of fact to imagine an alternate scenario that never happened, that is, to imagine what would have happened without the defendants negligence

Question 4

But-For Test
(Linking negligent act to harm)

Answer 4

Requires the plaintiff to identify exactly how the defendant’s conduct was negligent. Must also prove that their harm would not have occurred had the defendant not acted negligently

Question 5

But-For Test
(Factual cause not established)

Answer 5

If the plaintiff’s harm would have occurred even if the defendant had acted non-negligently

Question 6

But-For Test
(Actual cause depends on facts)

Answer 6

Whether a reasonable jury could find that defendants negligence was an actual case to plaintiff’s harm depends on the facts of a particular case

Some cases factual cause is not established because it appears that even extra precautions by the defendant would not have prevented harm

Question 7

But-For Test
(Hypothetical)

Answer 7

The focus of the hypothetical is on the happening of the defendants negligent act, not the reasons the act was negligent

Tractor trailer ex:

Tractor trailer stopped on the side of road, crash on the end

Counterfactual question is what would have happened if tailor had not stopped rig there, not what would’ve happened if trailer had a better reason to stop

Question 8

But-For Test
(Proof of causation)

Answer 8

Plaintiff cannot escape summary judgment by suggesting that there is a possibility that something the defendant did caused the plaintiff’s harm.

Crash ex:

Testimony that the crash would have been different in some way-but ‘we don’t know’ how- is insufficient to create a genuine issue of material fact

Question 9

But-For Test
(Factual differs from proximate cause)

Answer 9

Factual cause is a factual issue that does not entail policy decisions. The harm must be among the harms that result from the risks that made the actors conduct tortious

Question 10

But-For Test
(Two persons causing separate injuries )

Answer 10

Injuries are separate by two different tortfeasors, each tortfeasor will be liable for the harms that tortfeasor caused.

Question 11

But-For Test
(Two persons causing single indivisible injury)

Answer 11

Negligent acts of both are but-for causes of plaintiffs single injury and both are subject to liability

Have to show but-for for each tortfeasors negligent act

Question 12

But-For Test
(Liability for aggravation of preexisting injury)

Answer 12

If tortfeasor aggravates the plaintiffs preexisting disability, tortfeasor is ideally liable only for the aggravation. Apportionment should be done by the jury, which will often require expert medical testimony.

Jury was unable to apportion liability between aggravation of injury and preexisting injury, liability for entire injury was appropriate

Question 13

Respondeat superior liability (vicarious liability)

Answer 13

Liability is not based on negligence at all, but on the idea that, as a matter of policy, it should be liable for its employees harmful tort

Question 14

Conspiracy or in concert

Answer 14

Whose who act in conspiracy or in concert to cause harm are all liable for the harm caused even though only one of the conspirators is a redirect cause of harm. At least one persons conduct must be a but-for cause of harm. If they are, the others are liable because they are deemed responsible for that one person acts

Question 15

But for issues

Answer 15

n cases where the plaintiff has an indivisible harm with two different tortfeasor and they’re not in concert and the plaintiff cannot factually establish harm, they would lose claim

Landers

Whether each party’s negligence can be said to have been a factual case of the plaintiff’s harm, and if so, for what potion of the damages each defendant should be liable

Question 16

Substantial factor

Answer 16

The degree to which the conduct of a particular defendant was a factor in causing the harm and to relieve a defendant of liability if its conduct was insignificant or insubstantial when compared to the conduct of others

Question 17

Substantial factor
(Cali)

Answer 17

(1) The plaintiff would not have suffered the injury but for the defendant’s conduct; or (2) the defendant’s conduct was one of multiple causes sufficient to cause he alleged harm

Question 18

Substantial factor
(Application)

Answer 18

Defendant may be held liable for all of Plaintiff’s damages despite there being a second cause of Plaintiff’s damages - if Defendant’s negligence would have by itself been sufficient to cause Plaintiff’s damages.

Question 19

Substantial factor
(Multiple cause cases)

Answer 19

Substantial factor test necessarily applies whenever there is more than one cause of injury

Question 20

Substantial factor
(Third restatement rejection)

Answer 20

It instead provides that if tortious conduct of one tortfeasor, A, fails the but-for test only because there is another set of conduct also sufficient to cause the harm, then A’s conduct is still a factual cause of that harm.

When an actors negligent conduct constitutes only a trivial contribution to a causal set that is a factual cause of harm, the harm is not considered within the scope of liability

Question 21

Indivisible injury

Answer 21

An injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit

Question 22

Substantial factor & Indivisible injury

Answer 22

Substantial factor can be used in cases where there could be multiple defendants contribute to a single, inseparable harm, where its difficult to determine the exact proportion of each parties responsibility the

substantial factor test helps establish if a defendant’s actions were a significant contributing factor to the injury, making them liable for the full extent of the harm

Question 23

Increased risk showing causation

Answer 23

If (a) a negligent act was deemed wrongful because that act increased the changes that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding that negligent behavior caused the harm.

Strong casual link exists.

Negligent party bring evidence denying but for cause and suggesting that in the actual case the wrongful conduct had not been a substantial factor

“[T]he greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Question 24

Liability for negligence attaching

Answer 24

Liability for negligence attaches only when factual cause links defendants negligence to the plaintiffs injury

Question 25

Alternative liability

Answer 25

Where there are multiple defendants but only one caused plaintiff’s harm, the burden shifts to the defendants to show lack of causation if:

All of the defendants were negligent,

All of the defendants are equally likely to have caused plaintiff’s harm, and

It is impossible to know which defendant caused plaintiff’s harm

Question 26

Alternative liability
Ex: hunting

Answer 26

First hunter can be found negligent even though bullet didn’t hit plaintiff if (1) his shooting was negligent and (2) it was reasonably foreseeable that shooting in that direction would encourage his companion to shoot that way negligently too

Question 27

Alternative liability
(strength)

Answer 27

Stronger when the effect of the rule is not to assign full liability to the negligent defendant but instead to allow negligent defendant who potentially has a causal role to be counted as one defendant in the broader apportionment

Question 28

Alternative liability
(Restatement )

Answer 28

When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them caused the plaintiff’s harm but the plaintiff cannot reasonably be expected to prove which actor caused the harm, the burden of proof, including both production and persuasion, on factual cause is shifted to the defendants

Question 29

Lost chance

Answer 29

[n]o matter how small that chance may have been—and its magnitude cannot be ascertained—no one can say that the chance of prolonging one’s life or decreasing suffering is valueless.

Question 30

Lost chance
(Only medical mal-practice cases)

Answer 30

Loss opportunity as cognizable harm have almost universally limited its recognition to medial-malpractice cases, can hold to cases where the ultimate harm is some serious injury short of death

Question 31

Lost chance
(Majority)

Answer 31

appropriate framework for considering a lost chance claim was with a substantial factor theory

Plaintiff prove that the defendants alleged act or omission was a substantial factor in causing the plaintiff’s injury, even if the injury could have occurred anyway.

Question 32

Lost chance
(Plurality)

Answer 32

found it more analytically sound to conceive of the injury as the lost chance. It does not prescribe specific anner of proving causation in lost chance.

Rather, it relies on established tort theories of causation, without applying a particular causation test to all lost chance cases. Instead, the loss of a chance is the compensable injury.

Question 33

Lost chance
(Damages)

Answer 33

Treating loss of a chance as the cognizable injury, recover for the loss of an opportunity for a better outcome while providing for the proper valuation of such an interest

Herskovits- Proportional damages

if the loss was a 40 percent chance of survival, the plaintiff could recover only 40 percent of what would be compensable under the ultimate harm of death or disability (i.e., 40 percent of traditional tort recovery), such as lost earnings.

Question 34

Lost chance
(Dissent)

Answer 34

The end result is that liability may be imposed upon a defendant based on the possibility, rather than the probability, that his negligence caused injury to the plaintiff.

Question 35

Lost chance
(Relaxed causation test)

Answer 35

Relaxed plaintiffs burden of proof of causation in cases when a physician causes the loss of a chance of 50% or less

The causation requirement is relaxed by permitting plaintiffs to submit their cases to the jury upon demonstrating that the increased risk created by defendant’s negligence was a substantial factor or that the defendant’s conduct “destroyed a substantial possibility” of achieving a more favorable outcome

Question 36

Lost chance
(Quantified value-of-the-chance)

Answer 36

Instead, the lost opportunity for a better outcome is itself the injury for which the negligently injured person may recover.

Under this approach, if the chance of survival was 40% and the defendant’s negligence more likely than not eliminated that chance, then the defendant would be liable for the loss he has caused—the chance.
presumably 40% of the damages for which the defendant would be liable if he caused death.

Question 37

Lost chance
(Increased risk of future injury)

Answer 37

Theories of lost chance of recovery and increased risk of future injury have similar theoretical underpinnings

Question 38

Preponderance of evidence

Answer 38

More likely than not standard. Translate into numbers, require the plaintiff to persuaded the trust the probabilities are greater than 50% that each element is established

Question 39

Vicarious liability

Answer 39

Holds a person or company responsible for actions committed by others or by their employees. Typically, it applies to those who are in control of people who cause harm to victims