Negligence: Causation & Damages Flashcards
Actual cause
- But-for test
- substantial factor test
- burden-shifting test
but-for test
But for D’s alleged breach of duty, P’s injury would not have occurred
substantial factor test
for multiple causes of P’s injury:
D’s breach is an actual cause if it was a substantial factor in bringing about P’s injury
Applies when multiple causes where any alone would cause P’s injuries
burden-shifting test
used if multiple D’s acts (often simultaneously), only one causes P’s injury, but it’s unclear which D caused the injury
EX: gun range hit
Burden of proof shifts to Ds to prove which D was responsible OTHERWISE all D’s are jointly and severally liable
Proximate cause
D is liable for foreseeable outcome of his conduct
Usually foreseeable on MBE
question of fact for jury
Proximate cause issues
- Direct causes
- Indirect causes
ditrect cause
D is liable unless unsually bizarre or unpredictable (aka not foreseeable)
foreseeable intervening act
there is proximate cause + D is liable
injury to rescuers are usually considered foreseeable
foreseeable intervening act tips
- It’s a normal response or reaction to D’s negligent act
- D’s negligence increased the risk that an intervening force would cause harm to P
unforeseeable intervening cause
no proximate cause and D’s liabilty
thin skull rule
D takes P as he finds him and liable for full extent of P’s injuries regardless of whether they were foreseeable to D
comparative negligence
reduces P’s damages by amount P’s own negligence is responsible
partial/modified comparative negligence
P can only recover if < 50% at fault (NOT 50%)
minority allows 50% or less
pure comparative negligence
P can recover even if > 50% at fault
contributory negligence
P barred from recovering if P’s negligence contributed to her injuries
Last clear chance defense: can recover if D’ had last clear chance to avoid injury-causing accident
