Negligence - Causation and Scope of Liability Flashcards
What is the “but-for” test?
Under the but-for test, the defendant’s conduct is a cause in fact of the plaintiff’s harm if, but-for the defendant’s conduct, that harm would not have occurred. If the plaintiff would have suffered the same harm had the defendant not acted negligently, the defendant’s conduct is not a cause of the harm.
What is the standard of reliability scientific evidence needs to meet?
- Whether it is generally accepted in the scientific community
- Whether it is derived by the scientific method
- Whether it has been subjected to peer review
- Whether it can be and has been tested
Other than meeting the standard of reliability, what other element must be met for scientific evidence to be admissible?
The scientific evidence must also be relevant to the decision to be made.
In a negligence case with two defendant actors where it is unclear which actor caused the harm, who has the burden of proof to show non-liability?
Each defendant has the burden of proof for themselves to show they were not the actor that caused the injury.
What is the phenomenon of multiple insufficient cause?
It is when the circumstances that the negligent conduct of either defendant would not, without the other, have caused the accident that harmed the plaintiff.
Who takes the responsibility when there are multiple insufficient causes?
Each of the defendants.
If defendant #1 causes a but-for harm to plaintiff, and then the plaintiff later suffers additional harm from negligent medical treatment from defendant #2, who is responsible for which harms?
Defendant #1 is liable for ALL the damages (including the negligent medical treatment, because it wouldn’t have happened but for their initial negligence), and defendant #2 is liable for the damage their negligent medical treatment caused.
Does loss-of-chance doctrine apply to cases outside the medical malpractice sphere?
No- they can ONLY be brought up in medical cases.
What is the test for multiple insufficient cause cases?
Use the but-for test. Each act should be a “but-for” act.
What is the rule of joint and several liability? (Concerted acting)
If they acted in concert, All persons are jointly and severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity.
When are parties acting in concert?
When parties act in accordance with an agreement to cooperate in a particular conduct or to accomplish a particular result. The agreement does not need to be expressed in words and may be implied and understood to exist from the conduct itself.
If one gives advice or encouragement to commit a tort, and the encouragement is a substantial factor in causing the resulting tort, is that person liable?
Yes, they will be held as a tortfeasor.
What is the multiple sufficient causes phenomenon?
When multiple acts occur and each would have been a factual cause of the physical harm at the same time in the absence of the other act, each act is regarded as a factual cause of the harm. (Think of the two fires that burned plaintiff’s property)
What test should be done when there is a concerted activity? (Applied to the actual activity)
Use the but-for test. “But for the concerted activity, there would be no harm.”
What does the Restatement say about scope of liability?
An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.
What is the “thin skull” rule?
It is the rule that the defendant takes the plaintiff as they find them. If defendant causes harm to plaintiff’s skull to break, and plaintiff happens to have a thin skull and is injured even though most other people wouldn’t be, defendant is still liable for breaking their skull.
Does the thin skull rule apply to mental conditions as well?
Yes. An example is of a boy who had a fear of doctors and was injured in a car accident. While recovering in the hospital, the boy developed a severe mental disorder from being around doctors. The defendant was liable for all the damages.
How does foreseeability come into play when evaluating scope of liability?
Defendant is liable for plaintiff’s injury where plaintiff’s injury was a reasonably foreseeable consequence of defendant’s negligent conduct.
When is there liability for an intervening cause?
There is liability when the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence.
What is an intervening cause?
An act of a third party that combines with defendant’s already-committed negligent act to produce plaintiff’s injury.
What is a superseding cause?
An act of a third person or other force that cuts off a negligent actor’s liability for his own antecedent negligence. It is in essence an extraordinary intervening cause.
What considerations factor into determining if an intervening act is a superseding cause?
1- The fact that it is intervening brings about a different kind of harm than normally would be expected.
2- The operation or its consequences thereof appear to be extraordinary rather than normal under the circumstances.
3- The intervening force is operating independently of any situation created by the actor’s negligence.
4- The intervening force is due to a third person’s act or failure to act, and the act is wrongful.
5- The degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
What happens when an actor is negligent, and then a force of nature or an independent act combines with the harm?
The actor is liable to the harms that result from the risks that made the actor’s conduct tortious.
Is an actor attempting to rescue or avert the harm to others considered a superseding cause?
No, they will not absolve the other from negligence.
