Negligence - Actual Harm and Factual Cause

Question 1

Actual Harm

Right v. Breen

Answer 1

An injury must be present to establish a negligence claim. Plaintiff claimed his injury was from a car accident but it wasn’t.

Question 2

Actual Harm

Restatement (Third)

Answer 2

There must be physical harm to satisfy this element. It can mean harm to the human body, to real property or tangible personal property. Pure emotional or economic harm won’t stand on their own without physical harm

Question 3

Actual Harm

Damages

Answer 3

The jury decides damages. Nominal and punitive damages typically won’t be awarded for negligence

Question 4

Factual Cause

Answer 4

The defendant’s conduct must be the factual cause of the plaintiff’s injury

Question 5

The But-For Test of Causation

Hale v. Ostrow

Answer 5

The defendant’s act or omission doesn’t have to be the only cause of harm to satisfy the but-for test. The defendant’s conduct is the cause in fact of the plaintiff’s injury if it directly contributed to the injury. Plaintiff was walking on a sidewalk and overgrown bushes blocked her path. She stepped off the sidewalk and fell because it was crumbling.

Question 6

Even-If Defense

Salinetro v. Nystrom

Answer 6

A defendant cannot be found negligent if the damage would have occurred even if he was not negligent. Plaintiff didn’t know she was pregnant and had an x-ray that killed her baby.

Question 7

Causal Apportionment

Answer 7

Each tortfeasor is responsible for the harm he caused and no more

Question 8

Fault Apportionment

Answer 8

Two or more tortfeasors are the cause of one injury and are equally liable

Question 9

Aggravation a Pre-Existing Condition

Answer 9

If a tortfeasor aggravates a pre-existing condition, he is only responsible for the added injury he caused.

Question 10

Respondeat Superior

Answer 10

Employers are responsible for their employees’ tortious conduct even if they are not the but-for cause. In some circumstances, the same is true for partners. If one is the but-for cause of a harm, they all can be liable for it.

Question 11

Landers v. East Texas Salt Water Disposal Company

Indivisible Injury

Answer 11

Defendants who individually contribute to a plaintiff’s harm when the harm is impossible to apportion can be sued jointly. Defendants poured saltwater in plaintiff’s pond, killing all the fist. The but-for test wouldn’t work because each would have killed the fish even if the other one didn’t dump saltwater in the pond.

Question 12

Duplicative Causation

Answer 12

If the actions of each defendant are sufficient to cause they harm, they are all liable for it

Question 13

Preemptive Causation

Answer 13

If the actions of each defendant are sufficient to cause the harm, the first defendant who caused the harm is liable for it.

Question 14

Lasley v Combine Transport, Inc.

Answer 14

Intoxication is not relevant to causation, but it is relevant to fault apportionment. Two defendants caused a fatal accident and one was drunk but that did not negate the fault to the other.

Question 15

Substantial Factor Test

Answer 15

If an actor’s negligence is a substantial factor in causing a harm, that negligence will be treated as the actual cause of the harm, regardless of any other independent force. This test applies when more than one actor causes a harm, each actor’s conduct would be enough to cause the harm, and it’s impossible to tell which actor caused what part of the harm.

Question 16

Increased Risk Showing Causation

Answer 16

If a negligent act is wrongful because it increases the risk of a particular accident occurring, and the accident occurs, it’s enough to let the trier of fact to find the negligence caused the accident. The greater the risk the defendant’s conduct will cause harm, the more likely the jury will be allowed to say the conduct caused the harm

Question 17

Dillion v. Twin Gas & Electric Co.

Loss of Chance

Answer 17

A defendant can be held liable for a harm when another force also may have caused the harm had it occurred. A boy grabbed a poorly insolated wire and was electrocuted to death. If he didn’t grab the wire, he would have fallen into water and got seriously injured or died.

The poorly insolated wire caused a loss of chance of survival.

Question 18

Alternate Causation

Answer 18

The burden of proof on the factual cause shifts to the defendants when

• Plaintiff sues multiple defendants and
• Plaintiff proves each exposed her to a risk of harm and
• The tortious conduct of one or more defendants caused Plaintiff harm, but
• Plaintiff can’t reasonably be expected to prove which caused the harm. Restatement (Third)

Question 19

Summers v. Tice

Defendants Apportioning Harm

Answer 19

The burden of apportioning harm falls to the defendants when independent tortfeasors cause the plaintiff’s injuries but it is impossible to tell what injury each caused. Defendants shot at quail and Plaintiff was in the line of fire. He was shot in the eye and the lip.

Because both defendants shot toward him, Plaintiff lost evidence of causation.

Question 20

Loss of a Chance

Answer 20

Loss of a chance occurs when the defendant’s tortious conduct causes the risks that makes the plaintiff lose a chance at something. It’s mainly used in medical malpractice.

Question 21

Mohr v. Grantham

Loss of Chance

Answer 21

The loss of a chance of avoiding a permanent disability is actionable in California. Defendant gave Plaintiff treatment that was below the standard of care and so plaintiff had worst neurological damage than she would have if she had proper medical care.

Question 22

Substancial Loss or Not

Answer 22

Some courts say that the loss must be substantial, but others reject this.

Question 23

Dillion v. Evanston Hospital

Future Harm

Answer 23

Doctor left pieces of a catheter inside the plaintiff but didn’t tell her. Plaintiff sued for future harm and damages. In Illinois, a plaintiff can sue for future harms.