Negligence - Cause in Fact Flashcards
Cause-in-Fact
The plaintiff has to prove that the breach was a cause in fact of the plaintiff’s injuries
An additional requirement for plaintiffs to show
Cause in fact filters out cases that prove breach but not cause in fact
Approaches:
1. Completely subjective approach (true cause in fact), all you have to prove to the jury is that you would not have had the surgery if the info was disclosed, most plaintiff friendly approach (only 2 jurisdictions use this approach)
2. I can prevail if I can show that I would not have the surgery and a reasonably person could have shown that they would not have had the surgery (Restatement, third)
3. I have to prove that the hypothetical reasonable person would not have had the surgery (Canterbury), more defendant friendly approach
But/For Test
Need to be a necessary component of the plaintiff’s harm
Was the defendant a necessary cause of the plaintiff’s harm?
Plaintiff’s harm wouldn’t have occurred but/for the defendant’s negligent conduct
Think about necessary vs. sufficient
Third Restatement of Torts, § 26 Factual Cause (But/For Test)
Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct (but for the conduct the harm would not have occurred). Tortious conduct may also be a factual cause of harm under § 27.
Would there be a change if one of the tortfeasors was removed?
Lost Chances (Alternatives to But/For)
(a) A variation on the problem of statistical evidence arises when the plaintiff suffers a harm that was likely to have happened even if the defendant had not acted in such a way as to increase the risk of that harm still further
(b) The classic case is medical malpractice on the patients with severe illnesses
(c) Limited to medical malpractice, and not all courts use it (not all jurisdictions use it)
Third Restatement of Torts: § 27 Multiple Sufficient Causes (Alternatives to But/For)
If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.
(1) Multiple Sufficient Causes
-Causal Set Theory → Broader application of MSC
-Of A,B,C → A and B or A and C could have caused so suit against all A,B,C
(2) Substantial Factor
-Substantial Enough Approach → Broader application of SF
-Shifts burden of proof to defendant for them to prove they individually were not substantial enough
Third Restatement of Torts: § 36 Trivial Contributions to Multiple Sufficient Causes (Alternatives to But/For)
When an actor’s negligent conduct constitutes only a trivial contribution to a causal set that is a factual cause of harm under § 27, the harm is not within the scope of the actor’s liability.
Joint and Several Liability (MSC-Alternatives to But/For)
Means that the plaintiff can choose to sue any or all defendants for the full amount and that any defendants held liable by the plaintiff may apportion the damages among themselves and bring any further parties who out to bear a share of the damages
Plaintiff can choose to sue just one defendant, and up to that one wrongdoer to get help from the other wrongdoers (defendant’s duty to find the others)
The principle effect is to allocate to the defendants the risk that any one of them will become insolvent on the defendants, not on the plaintiff
Has gained widespread but not universal adoption, differs by jurisdiction
Alternative Liability (Alternatives to But/For)
(a) Some multiple-defendant cases present a problem of uncertainty about the identity of the plaintiff’s injurer
(b) Although we do not know which defendant caused the injury, we can shift the burden to the defense under this theory
-One defendant is a But/For cause but we don’t know which one
(c) Alternative causation
Concerted Action (Alternatives to But/For)
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he:
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance to the other in accomplishing a tortious result and his own conduct or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person
- Not responsible for knowing c, because rarely does something fall in c that isn’t already covered by a or b
Market Share Liability (Alternatives to But/For)
(a) Threshold–“Each defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused the plaintiff’s injuries.” pp. 329
(b) Not all courts have adopted and mainly in Sindell case → better to shift the burden of proof to defendants to have to show that they are not liable rather than to have innocent plaintiffs needing to prove, or just hold them liable for their percent of market share
(c) Mainly applied in DES cases
(d) Somebody in this case was responsible for the plaintiff’s harm (but it is unknown who spilled exactly what amount, only that they all spilled some amount that led to harm)
