Negligence (3) Cause-in-Fact (BAM/FML)

Question 1

Default Test: But-For

Answer 1

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

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

• Yes: C/F not satisfied (injury inevitable)
• No: C/F satisfied

(P would have been free from harm “but for” (absence of) D’s negligent conduct)
But for D’s unreasonable conduct, would have the injury occured? Yes – than no C/F | No – C/F

Question 2

Cause-in-Fact with RIL

Answer 2

RIL breach infers D did something unreasonable, so C/F requires pretending D acted reasonably

(Barrel would not have fallen, but-for unreasonable conduct)

Question 3

Multiple Sufficient Causes

Answer 3

When two conducts, either alone would have caused same damage, instead combine to cause damage

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

Question 4

Multiple Sufficient Causes, MAJ Test

MAJ Test: Substantial Factor

Answer 4

D’s conduct is the C/F of P’s harm if it was a substantial factor in causing that harm

Substantial Factors Considerations:
1) # of other factors and their contribution to the harm
2) If actor’s conduct has created force(s) or created situation where other forces are at play
3) Lapse of time (more recent more substantial)

Question 5

Multiple Sufficient Causes, MIN Test

MIN Test: Sufficiency Test

Answer 5

Asks whether D’s conduct alone would have caused this damage

Question 6

Definitation

Alternative Liability

Answer 6

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

Question 7

Test for Alternative Liability

Answer 7

When 2 or more tortious conducts creating similar risk of harm, only one conduct caused the harm (and we don’t know which one)

burden shifts to D to disprove c/f

There must be TWO unreasonable conducts – not simply that we don’t know which acted unreasonably, but that we don’t know which unreasonable conduct harmed P

Must create similar risk of harm

Question 8

Market Share Liability

Answer 8

(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 9

Loss Chance Recovery

(but-for variance)

Answer 9

P already in bad shape and medmal makes P worse, possibly dead

Question 10

Loss Chance Recovery

Loss Chance Recovery: MAJ Rule - Modern Approach

(Injury & Damanges)

Answer 10

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

Question 11

Loss Chance Recovery

Loss Chance Recovery: MIN Rule - All or Nothing

(Injury & Damanges)

Answer 11

Injury: death
Damages for death: P had to prove death was not inevitable. P has to prove at least 51% chance of surviving before the malpractice

Question 12

Chance of Future Injury

Chance Future Injury: MAJ Rule - All or nothing

Answer 12

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

Question 13

Chance of Future Injury

Chance of Future Injury: MIN rule

Answer 13

injury: risk of future injury
damages: limted to increased risk