Negligence - Cause/Damage/Defenses Flashcards
Cause In Fact - But For Cause
a. Default cause when there is only one defendant
b. The harm would not have occurred “but for” the defendants negligence.
c. Elements:
i. The defendants negligence happened before the injury and
ii. The injury would not have occurred absent the defendant’s negligent conduct.
d. Special case = (Reynolds v. Texas & Pac Ry. Co.)
i. Where the negligent conduct greatly multiplies the chance of the accident, the mere possibility that it might not have happened if negligent act didn’t occur is NOT sufficient to break but for causation chain.
e. Possibilities will not sustain a verdict (^need probable/greatly multiply)
i. The mere possibility that the harm would have still happened does not negate cause-in-fact.
ii. Nor is it sufficient to show a possibility that the injury was caused by the negligent act
Cause In Fact - Concurrent Causes
But For Exception - more than one defendant
(1) Multiple acts or forces combined to cause an injury and
(2) None of the forces standing along would have been sufficient to cause the injury.
These DON’T have to happen at the same time — think multiple chain car crash.
Each tortfeasor is responsible for the entire result (damages can still be split)
Cause In Fact - Substantial Factor Test
But For Exception - multiple defendants
(1) Where multiple forces converge at the time of the plaintiff’s harm and
(2) Where each of the multiple forces would have been sufficient to cause the harm
Under this test, a defendants’ conduct is an actual cause of the plaintiff’s injury if the defendant’s conduct alone would have caused the injury, even if another act or force would have also independently caused the injury. — i. Wild fire combines w negligent fire
Difference between concurrent is that substantial is (1) same time and (2) would have happened on own.
Cause In Fact - Alternative Causes
But For Exception - multiple defendants
Where two or more agents were negligent to a third who is injured, both negligent actors are liable for the injury although only one of them could have caused it.
i. Think one bullet hit the guy, but multiple shooters (Summers v. Tice)
Burden shifts to the defendant to show that they were not the one who caused the harm.
This is not “we don’t know which one of you did it” BOTH have to be negligent
Cause In Fact - Loss-of-Chance Theory
a. Almost exclusively used in medical malpractice due to availability of data/statistics.
b. Elements
i. Plaintiff must establish that they lost a “substantial chance” of a better medical outcome due to the defendant’s negligence.
1) Substantial chance is variable. Chance not to die? 1% may be substantial.
ii. Plaintiff must plead with specificity the lost chance (plead the percentage and quality of the loss chance) which must be based on the plaintiff’s experts and relevant scientific evidence that meets the standard of reasonable medical probability.
iii. Plaintiff must suffer the physical harm that they might have avoided had they received proper care.
c. Plaintiff is allowed to recover only the proportion of the damages equal to the loss of chance.
Daubert Test
a. Two part analysis for admissibility of scientific expert testimony:
i. Determine whether the experts’ testimony reflects “good science”
ii. Ensure that the expert testimony is “relevant to the task at hand”
1) i.e. does it logically advance a material aspect of the case.
2) If testimony is about causation to be material it must satisfy causation (plausible/more than 50%).
b. Judge becomes gate-keeper for deciding what expert testimony is admissible.
i. In order to avoid non-meritorious cases to advance because someone pays an expect a butt load of money to agree with them.
Cause In Fact - Market Share Liability
a. MINORITY APPROACH
b. Measure the likelihood that any of the defendants supplied the product which allegedly injured the plaintiff by the percentage of the market share they have (Sindell v. Abbott Laboratories).
c. Most courts have declined to apply this outside of DES context.
Breach formula
Learned Hand Formula: B<PL
Whether the burden of adequate precaution was less than the probability that something will happen multiplied by the gravity of the resulting injury
What is normally done (custom) may be used as evidence of what a reasonably prudent person would do, but it is not conclusive.
Can influence the burden and likelihood though.
What is proximate cause?
The plaintiff is required to prove that the defendant should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered buy the plaintiff.
Whether the injury is the natural and probable consequence of the defendant’s negligence.
Palsgraf Majority
Cardozo = the risk reasonably to be perceived defines the duty to be obeyed. Reasonably foreseeable zone of danger. No liability to a plaintiff who could not have been foreseen.
Palsgraf Dissent
Consequences cannot be confined to those who may probably be hurt. If an act has a tendency to harm, it harms him a mile away as surely as it does on those on the scene.
The negligent person owners a duty to society, not to one specific man.
Superseding Cause (definition)
Intervening act between the negligent act and the injury that was not a normal or foreseeable consequence created by the negligent act.
Superseding Cause (factor test)
Restatement §442:
(a) different type of harm than expected from negligent act
(b) the intervening act is extraordinary and not the normal given the circumstances.
(c) intervening act was independent of any situation created by the actor’s negligence or is not the normal result of the negligent act.
(d) the intervening act is due to a third person’s act or failure to act.
(e) the intervening force is due to third person’s wrongful act as such that it subjects the third person to liability to him.
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
How are acts of god or forces of nature viewed in regards to intervening or superseding causes?
If you fail to remedy a dangerous condition you are liable for injuries resulting therefrom even though the cause of the injury is an act of god. The causal connection is not broken.
Criminal acts - intervening or superseding acts?
General rule = no duty to anticipate the criminal acts of a third party.
