Negligence: causation

Question 1

Multiple causes

Answer 1

If two or more causes or acts may have contributed to a plaintiff’s indivisible injury,

each of which alone could have been a factual cause of that injury,

the test is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.

Question 2

Intervening causes

Answer 2

Intervening causes do not break the chain of causation.

Normal forces of nature, including rain, are considered foreseeable intervening causes and will not limit the defendant’s liability.

Question 3

Superseding causes

Answer 3

If both the intervening cause and the harm are unforeseeable, the intervening cause becomes a superseding cause, and the defendant’s liability is cut off by that superseding cause.

Examples of unforeseeable superseding causes include:

(1) extraordinary acts of nature (“acts of God”);
(2) criminal acts; and
(3) intentional torts of third parties.

Question 4

Cause in fact: lost chance of survival

Answer 4

Jurisdictions that allow recovery for the loss of the chance of survival have created an exception to the traditional common law rules for establishing cause in fact.

Under the traditional rules, a plaintiff would be required to prove that reasonable action—e.g., a correct diagnosis—would, more likely than not, have led to the decedent’s survival.

By contrast, under lost chance of survival, a plaintiff can recover for the reduction in the decedent’s chance of survival that was caused by the negligent conduct.

Question 5

Intervening causes: foreseeable harm

Answer 5

In determining whether a cause is intervening or superseding, the relevant question is whether the injury was within the scope of what made the conduct negligent in the first place.

When an intervening force is unforeseeable, a defendant will still be liable for her acts (or omissions) if the result was nevertheless foreseeable.