Negligence: Actual Causation

Question 1

Types of Causation

Answer 1

But-for causation, multiple sufficient causes, indivisible harm, and substantial factor

Question 2

But for causation

Answer 2

the question is whether defendants breach was the but-for cause of the plaintiff’s injury. Are we sure that without the defendants “negligence” that the harm would have happened? Is there anything that connects the lack of safety measures to the harm?
If (a) a breachy act was deemed wrongful b/c that act increased the chances that a particular type of accident would occur and (b) a mishap of that type did happen, that’s enough to support a finding by the trier of fact that the breachy behavior caused the harm

Question 3

Calabresi’s factors for sending to the jury

Answer 3

(1) circumstantial evidence exists of a causal link, (2) greater capacity of the defendant than the plaintiff to explain what actually happened, or who was responsible, and (3) a belief that an erroneous finding of no liability is, in the particular circumstances, more harmful than an erroneous finding of liability

Question 4

What is the risks are obvious?

Answer 4

when the risks are not generally obvious but the defendant proves that the plaintiff knew of the danger, no causation. Even if plaintiff did not know of risk, breaching plaintiff escapes liability by proving that plaintiff would not have read and heeded a warning, had one been given.

Question 5

Failure to warn and causation

Answer 5

when the risks of harm are generally obvious to reasonable people–NO duty to warn of those risks.
In failure to warn cases involving products, some courts hold that a rebuttable presumption arises that the user would have read a warning and acted to minimize risks. Defendant must rebut this presumption or will be liable.

Question 6

Relaxing Causation

Answer 6

Where the risk-causing aspects of defendant’s conduct increased the chances that a particular type of accident would occur and an accident of that type did occur: That may be enough to support a verdict that defendant caused the accident

Question 7

Substantial Factor

Answer 7

is not and professor does not prefer this method

Question 8

Loss of Chance

Answer 8

The chance of death because of cancer
Most states allow loss-of-chance claims to reach the jury even when the plaintiffs cannot prove that the defendant was, more likely than not the cause of plaintiffs harm. A minority of states require plaintiffs to satisfy the traditional causation standard

Question 9

Concerted Action

Answer 9

To have liability against people who are acting badly for society but individually would not be held liable - think about the most minimal level of criminal conspiracy

Question 10

Where does liability rest in concerted action?

Answer 10

Lability rests upon the principle that all those who, in pursuance for a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit are equally labile with him.
Typically arises where this is another cause in fact

Question 11

Concerted Action and Separate Duty

Answer 11

Affirmative duty to come to victim’s assistance even though passengers did not cause accident
Absent that duty, jury could conclude that driver and passengers acted in concert–that passengers assisted driver in his breach

Question 12

Joint and Several liability

Answer 12

> Plaintiff may sue any one or more of the potential defendants in a single action. Any liable defendant is responsible for the full injury suffered by the defendant. Defendant is entitled to only one total recovery. (more so to do with damages how much you can recover)
When two or more people, by their actions, are the only possible causes of a harm, and the defendant has introduced evidence that one of the people is responsible, each defendant has the burden of proving that the other defendant is the sole cause of the harm. They are jointly and severally liable.

Question 13

Solutions to Joint and Several Liability

Answer 13

(1) defendant’s acted independently but caused indivisible harm and (2) defendants acted in concert

Question 14

Multiple Sufficient Causes

Answer 14

If multiple acts occur, each of which would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm

Question 15

Multiple Necessary Causes

Answer 15

Multiple but-for causes; without one than the other would not have happened

Question 16

Alternative liability

Answer 16

where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm

Question 17

Market Share

Answer 17

Each defendant imposed on the plaintiff a risk of harm. If they are all joined in the litigation, it is fair to divide up liability based on the risk each imposed. BUT… most courts have rejected “market share liability”… so this theory seems problematic to justify alternative liability