Negligence - Actual Harm and Factual Cause Flashcards
Actual Harm
Right v. Breen
An injury must be present to establish a negligence claim. Plaintiff claimed his injury was from a car accident but it wasn’t.
Actual Harm
Restatement (Third)
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
Actual Harm
Damages
The jury decides damages. Nominal and punitive damages typically won’t be awarded for negligence
Factual Cause
The defendant’s conduct must be the factual cause of the plaintiff’s injury
The But-For Test of Causation
Hale v. Ostrow
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.
Even-If Defense
Salinetro v. Nystrom
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.
Causal Apportionment
Each tortfeasor is responsible for the harm he caused and no more
Fault Apportionment
Two or more tortfeasors are the cause of one injury and are equally liable
Aggravation a Pre-Existing Condition
If a tortfeasor aggravates a pre-existing condition, he is only responsible for the added injury he caused.
Respondeat Superior
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.
Landers v. East Texas Salt Water Disposal Company
Indivisible Injury
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.
Duplicative Causation
If the actions of each defendant are sufficient to cause they harm, they are all liable for it
Preemptive Causation
If the actions of each defendant are sufficient to cause the harm, the first defendant who caused the harm is liable for it.
Lasley v Combine Transport, Inc.
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.
Substantial Factor Test
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.
Increased Risk Showing Causation
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
Dillion v. Twin Gas & Electric Co.
Loss of Chance
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.
Alternate Causation
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)
Summers v. Tice
Defendants Apportioning Harm
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.
Loss of a Chance
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.
Mohr v. Grantham
Loss of Chance
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.
Substancial Loss or Not
Some courts say that the loss must be substantial, but others reject this.
Dillion v. Evanston Hospital
Future Harm
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.
