Negligence: Causation

Question 1

What is the purpose of causation in a negligence claim?

Answer 1

Causation ties the defendant’s tortious conduct to the plaintiff’s harm in an almost physical or scientific way.

There’s a need for some connection between P’s harm and D’s negligent conduct before imposing tort liability on D.

Question 2

What is proportional liability in a torts claim?

Answer 2

Proportional liability –> public law tort model, class action treatment of claims, scheduled damages, probabilistic determination of causation.

Ex: 58 people claim to have gotten sick from contaminated drinking. Jury finds that, based on the evidence, it’s more probable than not that D negligent behavior is the cause of the illness, even if it’s possible that of those 58, 10 may not have been directly affected by D’s actions. All 58 get paid damages, but the total distribution is based on 48 people.

Question 3

What is the single judgment rule in a tort claim?

Answer 3

Single action –> P must recover in one suit for any continuing or additional harm she might suffer in the future. Damages are routinely awarded for future harm if P can show that the future harm is more likely than not to occur.

P has the burden of proof for past and future damages beyond a preponderance of the evidence.

Question 4

Does the single judgement rule apply in disease cases (ex: asbestos exposure)?

Answer 4

The most common response to the single judgment rule in difficult to prove future damages cases like asbestos is to create an exception. Require P to sue for the additional harm once it’s occurred, aka “two disease rule” –> P can sue a second time only when the more serious disease is diagnosed. This goes for physical and emotional harm.

Question 5

What are the three causes of action for a P who may experience future harm but the harm has not yet manifested?

Answer 5

1) Pure risk: Excess risk created by D’s conduct. Very little success.
2) Fear of future injury: Emotional distress stemming from the waiting period to find out about future disease. Depends on likeliness of actually getting the second illness/disease.
3) Medical monitoring: Extra costs for incurred while getting medical help, b/c of D’s conduct. Does not affect a judgment for an illness than manifests (if it does manifest) later.
+ Plaintiff was exposed to proven hazardous substance b/c of D’s negligence
+ As a PROXIMATE RESULT of exposure, P suffers an increased risk of contracting a latent disease
+ Increased risk makes it necessary for further examinations
+ Monitoring and testing makes early discovery/treatment possible

Question 6

Why would jurisdictions be split on the medical monitoring cause of action for future harm?

Answer 6

Pro: Catch illness early, treat it early. State interest in D’s negligent behavior as well as P’s treatment options. Reducing costs. Enhance deterrence.

Con: Floodgates concern, contrary rule would siphon money away from physical injury P’s, complexity.

Question 7

What is the “substantial factor” test for causation and how does that affect P’s burdens?

Answer 7

But for any one of the defendant’s actions, the damage still would have occurred

+ If defendant’s negligent conduct contributed to plaintiff’s injury, then it was an actual cause
+ When multiple causes, P not required to rule out all other possibilities, just that more likely than not that this was the cause.
+ Defendant’s negligence must be a cause, not the only cause
+ Joint and Several liability, so plaintiff can get full recovery from any one defendant

Question 8

Explain “loss of chance” in a torts suit

Answer 8

P is attempting to show that D’s negligence increased the odds of an unfavorable outcome. However, P doesn’t have sufficient evidence that had D acted non-negligently, the harm more likely than note would not have occurred. Theory of injury vs. theory of causation.

Ex: Matsuyama v. Birnbaum –> permitting recovery for loss of chance is particularly appropriate in the area of medical negligence.

Question 9

What was the policy behind creation of the “loss of chance” rule?

Answer 9

Dissatisfaction with “all or nothing” rule, where P may recover damages only by showing D’s negligence more likely than not caused the ultimate outcome. Loss of chance is to combat the “blanket release from liability for doctors and hospitals any time there was less than 50% chance of survival, regardless of how flagrant the negligence.”

Ex: For a patient in a wrongful death suit. If P meets the evidentiary burden of 51% chance of survival, P gets 100% of the damages. But if P only shows a 49% chance of survival (before the physician’s negligence), it’s impossible to show how the physician’s negligence was the but-for cause of her death, she can recover nothing.

Inherently unfair to P’s. Fails to deter medical negligence. Fails to provide incentives for standard of care and skill. Fails to allow P’s the possibility for a better outcome. Punishes P’s who cannot evidence beyond preponderance of the evidence when the D got in the way to determine their future.

Question 10

Explain arguments against “loss of chance”

Answer 10

Loss of chance lowers the threshold of proof of causation –> diluting proof of preponderance of evidence

Medicine isn’t an exact science –> how could a P or court calculate statistical likelihood of survival? It’s speculative.

It’s also speculative to calculate if a patient were given a more accurate diagnosis and underwent treatment, if s/he would survive.

Question 11

True or false: Loss of chance is a separate compensable item of damages in an action of med malpractice

Answer 11

True.

Question 12

How does a court calculate loss of chance damages?

Answer 12

Proportional damages approach: percentage probability by which D tortious conduct diminished the likelihood of achieving some favorable outcome

D is responsible for the monetary value of the portion of D’s prospects that D’s negligence destroyed.

1) Calculate the total amount of damages allowable for death in a wrongful death statute. OR in med mal not resulting in death, full amount of damages allowed for injury. (assuming not a loss of chance yet)
2) Calculate chance of survival or cure immediately preceding the med mal
3) Calculate chance of survival or cure that the patient had as a result of the mal
4) Subtract the amount derived in step 3 from step 2.
5) Multiply the amount determined in step 1 by percentage calculated in step 4 to derive proportional damages for loss of chance

Question 13

Define the “But For” analysis with causation. Is it for single D’s or multiple D’s?

Answer 13

“BUT FOR” ANALYSIS: Single Defendant/Cause
Def: “But for” D’s negligence, would P’s injury have occurred?
Plaintiff must prove “But For” by a preponderance of the evidence either by:
+ No evidence
+ Disputed facts → QOF
+ No disputed fact → QOL

Question 14

How would a defendant respond to a “but for” claim against him?

Answer 14

In response, Defendant could:
+ Do nothing and still be successful if plaintiff fails burden of proof
+ Try to rebut plaintiff’s cause

+ If burden of production shifts, defendant must do something or he loses
+ If burden of persuasion shifts, defendant must prove it was NOT a but for cause when plaintiff has proven duty and breach

Question 15

How was the Stubbs case reflective of “but for” causation analysis?

Answer 15

Stubbs → P meets burden of production against single D
D: “Was it our negligence or someone else’s? → many possibilities beyond the contaminated water
Court: P doesn’t have to eliminate ALL the possibilities, but show reasonable certainty that D was at fault (preponderance of evidence)

Question 16

How does the Mitchell v. Pearson case reflect the “but for” analysis of causation and burden of proof?

Answer 16

Mitchell v Pearson Enterprises → P didn’t meet the burden
Too much speculation, P didn’t demonstrate enough facts to show D was the cause
QOL

Question 17

How does the Matsuyama case reflect loss of a chance/opportunity analysis?

Answer 17

Lost Chance Claim (Lost Opportunity): elements are duty, breach, causation, damages (not really but-for test)

+ Because of negligence, chance of being better off with adequate care was lost
+ Plaintiff does not allege that malpractice caused the entire injury, just that the negligence cost the plaintiff the chance of a better outcome

Matsuyama → P can claim loss of opportunity
Doctor “could have and should have” spotted the diagnosis “right then and there”
37.5% loss x $875,000 (full recovery) = $328,125 plus pain and suffering

Question 18

What are two cases discussed in class where the court determined that P’s evidence wasn’t sufficient for an increased risk claim?

Answer 18

Metro North → mere exposure isn’t sufficient

Philip Morris → longtime heavy smokers (not sufficient)

Question 19

What are the ways in which courts allow increased risk recovery?

Answer 19

Some jurisdictions allow Increased Risk recovery in three ways:

1) If more likely than not will get disease, will allow full recovery
2) Dillon → Will allow recovery for the % of increased risk
3) Single recovery rule, so if recover small % then actually get disease, cannot sue again

Question 20

What is the substantial factor test for causation?

Answer 20

Multiple D’s: But for any one of the defendant’s actions, the damage still would have occurred

Substantial Factor Test:
+ If defendant’s negligent conduct contributed to plaintiff’s injury, then it was an actual cause
+ When multiple causes, P not required to rule out all other possibilities, just that more likely than not that this was the cause.
+ Defendant’s negligence must be a cause, not the only cause

Question 21

True or false: Joint and several liability applies when a defendant is found to have caused P’s injuries in the substantial factor test.

Answer 21

True: Joint and Several liability applies when more than one D is found to have caused her injuries, so P can seek recovery from any of the D’s she chooses

Question 22

What is the alternative causation/liability test?

Answer 22

Shift burden to Defendant when:
\+ Multiple defendants are negligent
\+ One defendant's negligence (and only one) caused plaintiff's harm
\+ Plaintiff innocent
\+ Don't know who caused harm

Summers v. Tice

Question 23

True or false: the alternate causation test works in any burden-shifting situation

Answer 23

False. Won’t work when defendants have no greater knowledge or information than plaintiff, only when defendants in better position to offer evidence.

Rationale: defendant forced to speak and ID responsible party of will be jointly liable

Question 24

How is the alternative causation test like RIL?

Answer 24

Res Ipsa like, but we already know there was negligence (duty and breach), just shifting burden for causation

Question 25

What is enterprise liability?

Answer 25

Under alternate causation test:
+ Liability to entire industry when can’t ID specific injuries and all were negligent
+ Works when small number of defendants
+ Negligent, Industry wide standard

Question 26

What is market share liability? Does several or joint and several liability apply?

Answer 26

Under Alt. Causation Test
+ Defendant’s liable for the portion of risk created to the public-at-large in the national market (or market in an area)
+ Several Liability, so plaintiff cannot get 100% recovery if some defendant’s not in lawsuit, and cannot recover full amount from one defendant

Question 27

What is the policy behind market share liability?

Answer 27

Policy: We are not going to let drug companies (or big corporations that damage consumers) walk away due to causation issues → get some relief to P’s

Question 28

True or false: Market share liability applies to all consumer products?

Answer 28

False. Cannot apply to all goods → requires fungible (identical) goods that cannot be identified between companies

Question 29

Define concerted action in torts liability. Does several or joint and several liability apply?

Answer 29

Concerted Action:
+ Working together for tortious action
+ Agreement
+ Parallel activity without agreement is insufficient

Joint and several liability

Question 30

What are some problems and considerations with causation and toxic waste cases?

Answer 30

Problems of identification
Problems of boundaries
Problems of source
Will we have new theories as these cases become more common?
Can emotional harm be part of the damages?

Question 31

Define proximate cause in your own words

Answer 31

Legal cause. As a policy matter, how far should liability extend? How far removed? When too remote that cannot recover?

Question 32

What are the two competing proximate cause tests?

Answer 32

Two Competing Theories for Proximate Cause

1) Wagon Mound → Liability is limited to foreseeable risks of D’s negligent conduct
2) Polemis → Liability extend to all direct consequences

Question 33

Explain the Wagon Mound foreseeability test of proximate cause

Answer 33

Majority Rule: Requirement of Reasonably Foreseeable Consequences
+ Should D or a reasonable person (more often the latter) have foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the plaintiff?
+ The foreseeable harm test requires
(1) a reasonably foreseeable result or type of harm
(2) no superseding intervening force.

Question 34

Explain why the Wagon Mound case is the poster child for foreseeability in proximate cause?

Answer 34

Wagon Mound: Look at D’s conduct, that’s what he’s responsible for
+ D was told that the oil on water wouldn’t ignite → fire not foreseeable
+ D was only liable for making a mess at the dock
+ Reverses Polemis, make a new majority rule

Question 35

True of false: The type and manner of harm in foreseeability proximate cause test both matter

Answer 35

Half true/Half False
+ Must be a foreseeable type of harm, but the manner can be really weird
+ Don’t need to foresee exact way everything happened; just the type of risk

Question 36

Is a defendant who’s found to have proximately caused a plaintiff’s injury liable for secondary medical damages that happens after the initial tortious act has occurred? Why or why not?

Answer 36

If necessary step towards plaintiff’s recovery from defendant’s original negligence, original defendant will be liable for secondary harm

Ex: ambulance crash on drive to hospital
Ex: P catches an infection while at the hospital
Ex: P on crutches - slips and falls

Why? Legal Fiction that is deemed foreseeable as a matter of law because public policy that original tortfeasor should be liable

Question 37

Explain the Polemis Direct Consequences test for proximate cause

Answer 37

+ Foreseeability looked at for first instance of negligence (breach) but not for causation
+ If defendant engaged in negligent conduct, defendant will be liable regardless of foreseeability (proximate causation per se)
+ Must be unreasonable / negligent conduct
+ Must foresee some risk, but not necessarily the type of risk that occurred

Polemis
+ Once there’s unreasonable conduct at Duty and Breach, then it’s foreseeable for any kind of harm.
+ Thus, D is negligent whether it’s foreseeable or unforeseeable

Restatement: An actor’s liability is limited to those physical harms that result from the risk’s that made the actor’s conduct tortious

Question 38

What are the primary questions to ask in a foreseeability analysis?

Answer 38

1) Was the person injured a foreseeable P? 
\+ Was P in a foreseeable zone of danger and within a class of people that could be harmed by negligent conduct? 

2) Was the type of harm foreseeable?

If the P and harm were foreseeable, D may be held liable for the injury that takes place in a usual manner
AND to the full extent of the injury

Question 39

What are the primary questions to ask in a direct consequences (minority proximate causation) analysis?

Answer 39

1) Was there unreasonable conduct re: duty or breach?
2) Did D engage in the negligent conduct?

Thus, D is negligent whether it’s foreseeable or unforeseeable.

Question 40

What are the common fact patterns for proximate cause? List at least three.

Answer 40

1) Rescue → “danger invites rescue”
2) Time → longer time, maybe too removed
3) Distance → further distance, more likely too removed
4) Intervening Force → a foreseeable event that occurs after (sometimes concurrently) defendant’s negligent act
5) Supervening Event → an unforeseeable event that occurs after D’s negligent act
6) Intervening v. Superseding Event
7) “Eggshell” Plaintiff (unexpected harm)

Question 41

True or false: In a situation where proximate cause is at issue, a D’s negligence make him liable to a victim and rescuer.

Answer 41

True! Negligent defendant liable to victim and rescuer, even if rescue is done negligently.

Question 42

True or false: D’s liability in a rescue situation only applies when the rescuer is acting on an impulse.

Answer 42

False. D is liable for the rescuer and victim, regardless of how much thought was put into the rescue. Rescue may be impulsive or deliberate BUT not too far removed (i.e. donating kidney).

Question 43

What is the difference between intervening and superseding event? Who decides which one it may be?

Answer 43

Intervening Force → a foreseeable event that occurs after (sometimes concurrently) defendant’s negligent act

Supervening Event → an unforeseeable event that occurs after D’s negligent act

Jury or judge can decide → depending on the breach

Ex: If there’s a statute that prevents behavior and it meets the statutory tests → it’s foreseeable and the judge can have jury instructed in intervening events
Ex: Was the bartender liable for an overserved person who went home/bed, drove drunk the next day and killed someone? Let the jury decide if a reasonable person or a reasonable bartender would be liable.

Question 44

True or false: Medical necessity is an intervening cause

Answer 44

True. Medical necessity is an intervening cause (foreseeable).

Question 45

True or false: If an intervening cause is a criminal act, the D is not liable.

Answer 45

False. Defendant liable if foreseeable even if intervening event is criminal act.

Question 46

Is suicide an intervening cause?

Answer 46

A limited number of jurisdictions will allow suicide as an intervening cause. It depends on the facts and the court.

Question 47

Explain how superseding events cut off D’s liability. Provide an example.

Answer 47

Superseding events Cuts off D’s liability UNLESS within the scope of risk created by D’s negligent conduct.

Ex: Criminal conduct, acts of God, recklessness

Question 48

Can defendants be liable for aggravating a P’s pre-existing conditions?

Answer 48

Yes. Defendant must take P as he finds him, even if not foreseeable –> eggshell defendant

Defendant may argue that just precipitated the onset of the disease / injury, so defendant only liable for the window of when it would have occurred

Question 49

Does the eggshell rule apply to bystanders of aggravation of preexisting conditions?

Answer 49

No.

Applies mainly to plaintiffs → not bystanders

Question 50

Is foreseeability always required to find liability? Are there any exceptions?

Answer 50

While foreseeability of consequences is generally required to find liability, courts make an exception and do not require that the type of personal injury suffered by a victim be foreseeable.

Question 51

Explain the limitation for emotional eggshell complaints

Answer 51

In order to be actionable, the harm must be such that it would cause distress in the ordinary sensitive person or the reasonably constituted person

R.3d: When P’s surfer greater damages than those that were foreseeable because of pre-existing “physical or mental conditions” the plaintiff may recover for all such harm