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
assumption of the risk
no recovery if P assumed the risk of damage
Requirements:
1. P knew of risk (subjective standard)
2. P voluntarily proceeded in the face of that risk
types of damages
- Personal injury
- Property damage
- Punitive damages
No nominal damages
personal injury
can recover all damages including
* past, present, and prospective damages
* economic and non-economic damages
property damages
cost of repair unless irreparable, then full market value at time of accident
punitive damages
only for wanton, willful, reckless, or malicious conduct
usually NOT for negligence but for intentional torts
non-recoverable damages
- interest from the date of damage in personal injury cases
- attorney’s fees
duty to mitigate
P must take reasonable steps to mitigate damages
