Factual Causation Flashcards
D breach of duty must ..
Cause P harm in relevant senses
Possible to breach a duty and ..
Owe someone nothing
Le Roy Fibre McKenna majority holding
Not CN because P using land how he wanted and didn’t interfere with railroad right to use land
McKenna says the ..
Rights of one man in the use of his property cannot be limited by the wrong of another
Critique of McKenna
Oversimplifying causation, no Q about P actions
LeRoy Fibre Holmes Concurrence
Right to put flax on land but liability for railroad conditioned on if stacks reasonably far away from railroad
Holmes concurrence is more..
In line with modern negligence, unearths complexity
Alcholism doctor Hypo
But for Causation- If D disclosed (X) then no paralysis (Y).
Proximate Cause- Alcoholism not reason for paralysis so no legal cause
You need both … to establish prima facie case for negligence
Factual and Proximate Causation
But for Causation defined
When harm wouldn’t have occurred absent the conduct
Counterfactual causation
If no X, then no Y so X caused Y
Dominant rules for Factual Causation
Counterfactual, Probabilistic, Increased Risk, Lost Chance
Grimstad is a about..
Counterfactual Analysis
Grimstad holding
D not liable as matter of law,
Grimstad reasoning
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
How would P vs D lawyer handle Grimstad
P simplify causal chain, D complicate it
More probable than not for negligence means
More probable than not D negligence caused P harm
RST But for approach
What would have occurred if actor not negligent
Driver falls asleep at wheel and crashes in house. But for causation?
Easy yes, if not fallen asleep wouldn’t have crashed
Harder rst cases for but for causation include…
Tortious conduct marginally more risky than allowed OR failed to taken precautions to reduce risk but risk still would’ve been there
Stubbs is about..
Probabilistic Analysis
Stubbs holding
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
Zuchowicz is about ..
Increased risk
Zuchowicz rule
If D conduct negligent because increased risk and that very risk materialized, factfinder can infer negligence caused harm
Zuchowicz reasoning
FDA not statute but gives max dose because higher dose increases side effects so harm of drug outweighs the expected benefit
In Zuchowicz case, burden shifts to D to prove..
Wrongful conduct not substantial factor in the outcome
Zuchowicz holding
When negative side effect result of drug + wrongly prescribed dose fact finder can conclude substantial factor
Zuchowicz lets jury …
Decide but not required to find causation. (If no inference, done as matter of law)
Zuchowicz reasoning most effective when.l
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
P falls down apartment at night. Landlord lighting poor (statute requires them to provide well lit stairways) When can infer negligence?
Nighttime fall if no light, maybe if 10 watts. If 40 watt when required 50 far less likely
Pool with no lifeguard someone drowns. Can infer causation?
Yes but for cause even if risk of drowning still there when lifeguards present
Herskovits is about..
Lost chance analysis
Herskovitz facts
P less than 50% survival at all times, early detection 39%, late detection dropped to 26%
Traditional Jdx Lost chance rule
If less than 50% chance survival prior to D negligence, cannot recover
Traditional Jdx Lost chance policy
More fair to D, negligence didn’t cause the harm of death
Herskovits Jdx lost chance rule
P need only prove that D negligence caused significant reduction in chance of avoiding harm
Herskovits Jdx lost chance policy
More fair to P, who can’t prove D negligence caused harm even if it did, incentivizes D to give non negligent care
Matsuyama Jdx lost chance rule
Harm not wrongful death but the increased risk so compensate for that
Lost chance is an …
Unsettled doctrine related to medical malpractice
