Negligence (Causation) Flashcards
Causation
what is it generally
D’s breach of duty causes the P’s injury that is there has to be a link bw D’s negligent act and P’s injury
Causation is a Q of fact for the jury, they are trier of fact thus the must consider the cause in fact and proximate cause
Causation baseline RULE
P has burden to prove that it was more than likely (preponderance of evidence) that it was D’s breach of duty caused the P’s injury
so there must be a link bw D’s negligent act and P’s injury
Cause in Fact Element
will require either the But For Test or the Substantial Factor Test
1) Cause In Fact
Majority test
The test is But for D’s negligent act, P wouldn’t have been injured
o We cannot use but for when we are dealing with more than one sufficient cause where either one of them acting alone would have caused the harm
2) OR Substantial Factor Test
Minority test
o Comes into play when we cannot use the but for test–>that is but for test does not make sense
o And when we have more than one sufficient cause
TEST: If 1 or both D’s negligent conduct/act was a substantial factor in causing the harm –>then they are the cause in fact
That is either one of those acts of negligence standing alone was enough to be negligent –> then SF test applies and see if test is met
Overdetermined Cause triggered in SF Test
what is it?
- If we are dealing with situation in which either act is at least sufficient to cause the result/stand alone and each act merge –> each D is a cause
o It it’s a combination of act of nature and person’s cause –> then we still use OD Cause
o Abrogation of Substantial Factor Test
Minority rule
- Although experts say SF test is fading, SF Test is still widely used by almost all jurisdictions
Typical Hnylka CL fact pattern:
where looking at both D’s who were negligent and only one of them shot P and really killed him, but we don’t know who really did it
When two defendants not acting together both serve as a proximate cause of a plaintiff’s injuries, both may be held liable for the full extent of the damage and the burden of proof shifts to each defendant to work out a fair apportionment of damages among themselves
Thus But for and ST Tests do not apply here–>and PC is found
Dealing with circumstantial evidence in relation to Factual Cause
what is it?
- When the but for test is clearly met or if we have direct evidence of causation–>then we don’t need to draw an inference on causation
Dealing with circumstantial evidence in relation to Factual Cause
- Ask these questions to draw inference to find Factual Cause
o 1) Did ’s (negligent act) increase the risk of P’s injury Must be Yes!
* You can also add in your argument that there could have been no other means/alts to help it does further increase the risk of ’s injury
o 2) And is the P’s injury of a character or type that would fall naturally from D’s negligent act? Must be Yes!
Expert Testimony for Causation
apply this rule if necessary
General RULE: Remember if its beyond understanding of a layperson juror –> will need ET
EXCEPTION: If it’s a matter of common knowledge –>no need of ET
Depending on how the ET on either side will state if there’s a connection bw D’s negligent act and P’s injury–>jury can conclude there is causation in fact
Expert Testimony for Causation
when faced with 2 injuries where 1 is more relevant to argue for P
o Following one case that required ETyou might have to use the 2 circumstantial Evidence Questions to find causation when finding bw 2 injuries, one that is minor and one that is severe
Ex. Finding of cancer after an operation and you are suing for a cut that happened and that cut somehow led to having cancer
So you would argue not only the cut injury but also for the cancer injury as
Lack of Informed Consent (relating to physician’s negligence)
what is it?
When physicians fails to mention side effects that appear later, just certain things that might happen to you if you weren’t informed
Lack of Informed Consent (relating to physician’s negligence)
applying the but for test rule
o Thus you apply But For Test
But for the doctor’s breach of duty in telling me ____ (side effect) would have happened, I would have been injured
Lack of Informed Consent (relating to physician’s negligence)
with patient centered approach
most jurisdiction including FL use the objective test to find causation in fact
TEST: What would a prudent person in the patient’s position have decided if adequately informed?
Concurrent Cause
what is it?
more than one negligent act but neither one of them standing alone would be sufficient to cause the harm to P –> We need both or P isn’t injured!
o Both negligent acts can happen at the same time or happen later or P isn’t injured–>nonetheless we need them both!
