Negligence - Causation

Question 1

What is actual cause (cause in fact)

Answer 1

“but for” D’s act/omission, injury would NOT have occurred

Question 2

When is the substantial-factor test used?

Answer 2

When there are conceptual problems w/causation due to multiple causes

Question 3

Substantial-factor test

Answer 3

Whether the D’s tortious conduct was a “substantial factor” in causing the harm

3rd Restatement - “multiple sufficient causes”

Question 4

What is alternative causation?

Answer 4

1. P’s harm was caused by only ONE of a few defendants and
2. each was negligent BUT
3. it cannot be determined which one caused the harm

Question 5

When there is alternative causation, what do courts do?

Answer 5

Court shifts the burden of proof to the defendants

impose joint and several liability on both UNLESS one can show he did not cause the harm

Question 6

Concert of action - requirements

Answer 6

1. two or more tortfeasors
2. acting together colelctively
3. that cause the Ps harm

Question 7

Concert of action - result

Answer 7

All defendants will be jointly and severally liable

Question 8

Joint and several liability

Answer 8

may apply if 2+ D’s are EACH a factual cause of indivisible injury OR Ds acted with common plan or design

Question 9

Loss of Chance

Answer 9

Some jurisdictions

If P’s chance of recovery was less than 50% before D’s conduct THEN P can recover for the lost chance of recovery

Question 10

Loss of Chance Equation

Answer 10

Initial chance of survival - chance after misdiagnosis = lost chance

Lost chance x total damages = D’s liability

Question 11

What is proximate cause?

Answer 11

It is the scope of liability - ask whether the injury that occurred was within the scope of the D’s breach

Question 12

foreseeability - rule (M/m)

Answer 12

M: D liable for reasonably foreseeable consequences of a foreseeable type - NO liability for an unforeseeable TYPE of harm

m: D liable for ALL direct consequences

Question 13

what Ps can recover? - Rule (M/m)

Answer 13

M: P can recover if P was a foreseeable victim of D’s conduct

m: P’s harm was within the scope of liability of D’s conduct

Question 14

What is the Eggshell Skull Rule

Answer 14

The extent of damages need not be foreseeable - liable for unforeseen EXTENT of harm

Question 15

What is an intervening cause

Answer 15

a cause of P’s harm that occurs after D’s tortious act

Question 16

What is a superseding cause?

Answer 16

breaks the chain of proximate causation - D NOT liable

Question 17

Impact of an unforeseeable intervening cause

Answer 17

viewed as a superseding cause - no liability (Act of God, criminal act - sometimes, intentional tort of 3rd party)

Question 18

Impact of negligent intervening acts

Answer 18

viewed as foreseeable and MAY lead to joint and several liability (medical malpractice)