Chapter Six

Question 1

What is the difference between actual cause and proximate cause?

Answer 1

Actual cause exists when the defendant’s actions are the direct, factual cause of the plaintiff’s injuries. In contrast, proximate cause exists when the defendant’s conduct was so closely connected to the plaintiff’s injuries that the defendant should be held liable.

Question 2

but-for test

Answer 2

The defendant is deemed to be the actual cause of the plaintiff’s injuries if the plaintiff’s injuries would not have occurred but for the defendant’s negligence.

Question 3

substantial-factor test

Answer 3

If the defendant’s conduct was a substantial factor in producing the plaintiff’s injury in cases where concurrent causes produce a single, indivisible harm in which the damage from one event cannot be separated from that caused by the other, the courts have generally found both events to be a substantial factor in producing the plaintiff’s injuries.

Question 4

Alternative liability theory

Answer 4

The defendant is deemed to be the actual cause of the plaintiff’s injuries unless the defendant can prove that his or her actions did not cause the plaintiff’s injuries.

Question 5

market share liability theory

Answer 5

Allows recovery if the plaintiff can show multiple defendants were negligent (or produced a dangerous product) but is unable to pin the injuries on one specific defendant.

Question 6

concerted action theory

Answer 6

According to this theory, the plaintiff must show that a tacit agreement existed among the defendants to perform a tortious act by demonstrating the existence of a common plan or that the defendants assisted or encouraged each other in accomplishing a tortious result.

Question 7

In what circumstances have courts opted to use the substantial-factor test rather than the but-for test?

Answer 7

In cases where concurrent causes produce a single, indivisible harm in which the damage from one event cannot be separated from that caused by the other, the substantial-factor test is used rather than the but-for test.

Question 8

How do the alternative liability and market share liability theories assist plaintiffs in proving their cases?

Answer 8

If the plaintiff cannot prove which defendant actually caused the injuries, the plaintiff can shift the burden back on the defendants to show who actually caused the harm using the theory of alternate liability or market share liability. If the tortfeasors are unable to prove that they did not cause the plaintiff’s injuries, they will all be found liable.

Question 9

What is the “lost chance of recovery” theory, and how does it help plaintiffs?

Answer 9

The “lost chance of recovery” theory of liability allows medical malpractice plaintiffs to recover if they can prove a loss of the chance to recover, even if they cannot prove that the doctor’s negligence resulted in a loss of life.

Question 10

What does the issue of proximate cause boil down to, and why do courts struggle with this concept?

Answer 10

The question of proximate cause basically boils down to a question of foreseeability. The difficulty that the courts grapple with is where to draw the line in determining whether conduct was foreseeable and that the defendant should be held liable.

Question 11

What are the facts in Palsgraf?

Answer 11

In Palsgraf one of the defendant railroad’s employees, attempting to assist a man running to board the defendant’s train, accidentally dislodged a package from the passenger’s arm. Unbeknownst to anyone, the package contained fireworks, which exploded when they fell. As a result of the shock of the explosion some scales at the other end of the platform fell and hit the plaintiff.

Question 12

What was the issue before the court in Palsgraf?

Answer 12

Whether the defendant’s negligence toward the passenger should give rise to liability to the plaintiff, who was injured by a series of fluke events.

Question 13

(Palsgraf) What did the majority rule, and why?

Answer 13

The majority ruled that the defendant was liable for all reasonably foreseeable consequences of his negligence. He owes a duty of care to the reasonably foreseeable plaintiff.

Question 14

(Palsgraf)Why did the dissent disagree?

Answer 14

The dissent held that the defendant owes a duty to the world at large and not just to those in the “danger zone.” Similar to “direct causation,” the defendant is liable for all consequences flowing directly from his or her actions no matter how unforeseeable.

Question 15

Do most courts follow the majority or the dissent?

Answer 15

majority

Question 16

What is the direct causation rule?

Answer 16

Under the direct causation rule, a defendant is liable for all consequences of his or her negligent acts, no matter how unforeseeable those consequences may be, so long as they flow directly from his or her actions.

Question 17

How was direct causation rule developed in Polemis?

Answer 17

In Polemis, while the defendants were unloading a ship, which they had chartered from the plaintiffs, they negligently dropped a plank into the hold. Somehow the plank struck a spark, which ignited petroleum the ship was carrying, and the resulting fire destroyed the ship. Although plainly no one could reasonably have foreseen that dropping a plank would strike a spark and destroy the entire ship, the defendants were held liable because the fire was the direct result of their negligent act.

Question 18

Why is this rule criticized?

Answer 18

The logical extension of the rule would result in limitless liability. Proponents of the view argue that a loss should be borne by the guilty rather than by the innocent.

Question 19

What is the relationship between duty and proximate cause?

Answer 19

A defendant is liable only if his or her conduct poses a foreseeable risk to the plaintiff. Similarly, a defendant owes a duty of care only if there is a foreseeable risk to the plaintiff. Proximate cause is basically a policy question. It allows the courts to cut off liability in cases in which it would be inherently unfair to hold a defendant liable.

Question 20

Exception to the Cardozo:

Answer 20

1. The “eggshell skull” Rule: defendant must take the plaintiff as he finds him.
2. the defendant is liable for harm occurring in an unforeseeable manner if harm is of the same general type that made the defendant’s conduct negligent
3. The defendant is liable if the plaintiff is a member of a class to which there is general foreseeability of harm even if the plaintiff was not particularly foreseeable

Question 21

Explain the difference between intervening and superseding causes.

Answer 21

An intervening cause is anything that occurs after the defendant’s negligent act and that contributes to the plaintiff’s injury. If the intervening cause rises to such a level of importance that it precludes the defendant’s negligence from being the proximate cause of the plaintiff ‘s injury, it becomes a superseding cause that supersedes, or cancels out, the defendant’s liability.

Question 22

Give an example of an intervening cause.

Answer 22

A doctor’s malpractice occurring after a defendant’s negligence.

Question 23

Give an example of a superseding cause.

Answer 23

Act of God

Question 24

Under what circumstances will the courts find an unforeseeable intervening cause not to be a superseding cause?

Answer 24

If the intervention was not foreseeable but led to the same type of harm as that threatened by the defendant’s negligence.

Question 25

is proximate cause a jury question for the judge

Answer 25

Jury