Cause-In-Fact (Actual Cause)

Question 1

Two tests to establish cause-in-fact

Answer 1

1. But-For test
2. Substantial Factor test

Question 2

But For Test

Answer 2

a ∆ is the cause-in-fact if the event would not have occured but for the ∆’s negligence

Question 3

Substantial Factor Test

Answer 3

A defendant’s conduct is also the cause-in-fact of a plaintiff’s injury if that conduct was a substantial factor in bringing about the injury.

Question 4

When must you use Substantial Factor test?

Answer 4

When there are multiple neligent ∆, and either of whom would have brought about the harm

Question 5

How are multiple neligent ∆ viewed?

Answer 5

As jointly or severally liable

Plaintiff can recover fully against any of the ∆, and those ∆ can sue each other for contribution

Question 6

Alternative Liability Theory

Answer 6

• Where a plaintiff’s injury arises from the negligent conduct of two or more independently acting defendants,
• only one of whom can actually be responsible, and
• the plaintiff is unable to establish which defendant is in fact responsible,
• each and every defendant’s conduct is regarded as a cause- in-fact of the injury
• unless a defendant can prove that he did not cause the plaintiff’s injury.

Question 7

Alternative Liability Theory factors for application

Answer 7

1. Small number of ∆
2. Each of whom is negligent
3. All have been sued

If satisifed:

• Burden shifts to ∆ to show that they were not the cause.
• If ∆ cannot do so, ∆ will be jointly and severally liable

Question 8

Market Share Liability

Answer 8

Generic product, plaintiff cannot show which of a large group of negligent defendants is responsible. Plaintiff can sue: those ∆ who were negligent, who might have caused her harm