Negligence (3) Cause-in-Fact

Question 1

Default Test: But-For

Answer 1

Satisfied if P’s harm wouldn’t have happned BUT FOR D’s unreasonable conduct

How to know when to switch… when the facts dictate so

Multiple actors but P does not know who specifically (alt liablilty)
Multiple sufficient causes (substainal factor test)

(P would have been free from harm “but for” (absence of) D’s negligent conduct)

Question 2

Multiple Sufficient Causes

Answer 2

Two conducts, either ALONE, could have caused damage … but combine and both cause damage

Fire example (compare to fires when faced with multiple causes to determine sufficient cause … is this like the two fires?)

Question 3

Multiple Sufficient Causes, MAJ Test

Substantial Factor

Answer 3

If D’s conduct is the C/F P’s harm, substantial factor in causing harm

Question 4

Multiple Sufficient Causes, MIN Test

Sufficiency Test

Answer 4

If D’s conduct alone would have caused these damages

Question 5

Alternative Liability

Answer 5

Multiple (2+) tortfeasors, each could have caused the harm, but we do not know for sure

Question 6

Test for Alternative Liability

Answer 6

Test: when 2 of more tortious conducts (creating similar risk of harm, only one cause harm but we do not know who)

burden shifts to D to disprove c/f

Question 7

Market Share Liability

Answer 7

(1) Sue substantial share of manufacturers
(2) Burden shifts to Ds to negate c/f, prove they were not responsible
(3) Liable based on their market share

Think the DES case

Question 8

Loss Chance Recovery

(but-for variance)

Answer 8

… but for medmal, P would still have X% chance of surviving

Question 9

Last Chance Recovery

MAJ Rule (Injury & Damanges)

Answer 9

Injury: lost chance of survival
Damages: based on the lost chance because of medmal

Question 10

Last Chance Recovery

MIN Rule: All or Nothing

Answer 10

needs to be 51% or greater for damages

Question 11

Future Injury

All or nothing (MAJ rule)

Answer 11

have to prove future injury more likely than not will occur; full damages for future harm

Question 12

Future Injury

Chance of future injury (MIN rule)

Answer 12

injury is risk of future injury; damages limted to increased risk