Factual Causation

Question 1

D breach of duty must ..

Answer 1

Cause P harm in relevant senses

Question 2

Possible to breach a duty and ..

Answer 2

Owe someone nothing

Question 3

Le Roy Fibre McKenna majority holding

Answer 3

Not CN because P using land how he wanted and didn’t interfere with railroad right to use land

Question 4

McKenna says the ..

Answer 4

Rights of one man in the use of his property cannot be limited by the wrong of another

Question 5

Critique of McKenna

Answer 5

Oversimplifying causation, no Q about P actions

Question 6

LeRoy Fibre Holmes Concurrence

Answer 6

Right to put flax on land but liability for railroad conditioned on if stacks reasonably far away from railroad

Question 7

Holmes concurrence is more..

Answer 7

In line with modern negligence, unearths complexity

Question 8

Alcholism doctor Hypo

Answer 8

But for Causation- If D disclosed (X) then no paralysis (Y).
Proximate Cause- Alcoholism not reason for paralysis so no legal cause

Question 9

You need both … to establish prima facie case for negligence

Answer 9

Factual and Proximate Causation

Question 10

But for Causation defined

Answer 10

When harm wouldn’t have occurred absent the conduct

Question 11

Counterfactual causation

Answer 11

If no X, then no Y so X caused Y

Question 12

Dominant rules for Factual Causation

Answer 12

Counterfactual, Probabilistic, Increased Risk, Lost Chance

Question 13

Grimstad is a about..

Answer 13

Counterfactual Analysis

Question 14

Grimstad holding

Answer 14

D not liable as matter of law,

Question 15

Grimstad reasoning

Answer 15

Nothing to show P didn’t drown because couldn’t swim, if life buoy would’ve gotten in time, known how to throw correctly etc. if life buoy no crowing must be more probable than not

Question 16

How would P vs D lawyer handle Grimstad

Answer 16

P simplify causal chain, D complicate it

Question 17

More probable than not for negligence means

Answer 17

More probable than not D negligence caused P harm

Question 18

RST But for approach

Answer 18

What would have occurred if actor not negligent

Question 19

Driver falls asleep at wheel and crashes in house. But for causation?

Answer 19

Easy yes, if not fallen asleep wouldn’t have crashed

Question 20

Harder rst cases for but for causation include…

Answer 20

Tortious conduct marginally more risky than allowed OR failed to taken precautions to reduce risk but risk still would’ve been there

Question 21

Stubbs is about..

Answer 21

Probabilistic Analysis

Question 22

Stubbs holding

Answer 22

Not essential for P to eliminate all other possible causes, just must produce evidence that jury can conclude with reasonable certainty D negligence the cause

Question 23

Zuchowicz is about ..

Answer 23

Increased risk

Question 24

Zuchowicz rule

Answer 24

If D conduct negligent because increased risk and that very risk materialized, factfinder can infer negligence caused harm

Question 25

Zuchowicz reasoning

Answer 25

FDA not statute but gives max dose because higher dose increases side effects so harm of drug outweighs the expected benefit

Question 26

In Zuchowicz case, burden shifts to D to prove..

Answer 26

Wrongful conduct not substantial factor in the outcome

Question 27

Zuchowicz holding

Answer 27

When negative side effect result of drug + wrongly prescribed dose fact finder can conclude substantial factor

Question 28

Zuchowicz lets jury …

Answer 28

Decide but not required to find causation. (If no inference, done as matter of law)

Question 29

Zuchowicz reasoning most effective when.l

Answer 29

Dosage significantly in excess (200%) less so when overdose is small because at that point harder to see overdose as cause rather than just the medication itself

Question 30

P falls down apartment at night. Landlord lighting poor (statute requires them to provide well lit stairways) When can infer negligence?

Answer 30

Nighttime fall if no light, maybe if 10 watts. If 40 watt when required 50 far less likely

Question 31

Pool with no lifeguard someone drowns. Can infer causation?

Answer 31

Yes but for cause even if risk of drowning still there when lifeguards present

Question 32

Herskovits is about..

Answer 32

Lost chance analysis

Question 33

Herskovitz facts

Answer 33

P less than 50% survival at all times, early detection 39%, late detection dropped to 26%

Question 34

Traditional Jdx Lost chance rule

Answer 34

If less than 50% chance survival prior to D negligence, cannot recover

Question 35

Traditional Jdx Lost chance policy

Answer 35

More fair to D, negligence didn’t cause the harm of death

Question 36

Herskovits Jdx lost chance rule

Answer 36

P need only prove that D negligence caused significant reduction in chance of avoiding harm

Question 37

Herskovits Jdx lost chance policy

Answer 37

More fair to P, who can’t prove D negligence caused harm even if it did, incentivizes D to give non negligent care

Question 38

Matsuyama Jdx lost chance rule

Answer 38

Harm not wrongful death but the increased risk so compensate for that

Question 39

Lost chance is an …

Answer 39

Unsettled doctrine related to medical malpractice