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Torts I: Causation
Torts I Causation

Additional Law Flashcards





Two Aspects of Causal Analysis



1st Step) Was the conduct the cause-in-fact

The "but for test" (But for D's action the injury would not have occured).


2nd Step)  Was the conduct the Proximate Cause

The action must not only be the cause in fact but also the legal cause of the injury.


You must show that the D's negligence, not just his conduct, caused the injury

Tests for Actual Cause/Cause in Fact

The "but-for" test


But for the D's negligence (not just conduct) the injury would never have happened

(Ex. Danocrine overdose-the excess amount of Danocrine had to cause the harm, not the regularly prescribed amount of the drug)


Substantial Factor Test


Weighing multiple causal factors.  Do not use on the exam unless you actually have multiple causal factors and even then use it with caution


Loss of Opportunity (Medical only)


Must show to a reasonable degree of medical certainty that there was a causal link between a Dr's negligence and the loss of opportunity to seek a successful remedy.

--This can also potentially come into play when some non-medical factor causes a delay in treatment (The Bungee Example from the Practice Test)



Sufficiency of Evidence

Sufficiency of evidence is a fact-based contextual issue.

Make a case for other causes as a counterargument.



Expert Testimony to Show Causation

Expert Testimony:

General Rule is that experts are necessary where ordinary people can only speculate.





Expert Testimony


"More Likely Than Not"


Expert must testify that "to a reasonable degree of medical certainty" D's wrongful conduct was "more likely than not" (greater than 50%) the cause of the injury


DV for D if expert cannot testify to this



Risk of Future Injuries

If the injuries are more likely than not then you can recover w/ expert testimony.


If injuries are possible but not more likely than not:


--There is no recovery for the risk of future injury.  If an injury arises the statute of limitations begins at discovery


--Medical Monitoring Costs (J/S).  Can be paid as a lump sum or as costs are incurred.


--Emotional Distress.  Possible but stronger if future injury is certain.


Tests and Limitations for Proximate Cause

Not all injuries actually caused by the D's conduct will be proximately caused by his conduct.


Limitations on Proximate Cause:


Foreseeability of the harm

D is liable for all foreseeable harmful results regardless of their timing.


Foreseeability of the victim

D only owes a duty of due care to foreseeable victims


J/S over whether liability is limited to foreseeable victims within the "zone of danger" (majority rule) or all foreseeable victims 

When do a Proximate Cause Analysis of causation and what to do when you find it.

Look for: 


Unforeseeable Consequences

-Injury (eggshell skull plaintiff)

-Victim (no duty to unforeseeable victims)

-Manner (weird stuff happens)


Intervening Actors


When you find a proximate cause issue remember there are not hard and fast rules.  Just make a note of it and bring out any issues that it might cause.  

Some proximate cause rules that you might be able to apply.

Eggshell Skull Plaintiff Rule--you take your victims as they are.


Foreseeability of medical malpractice as a result of tortious injury.


Negligent Rescue does not break the chain of causation because danger invites rescue.  Willful or wanton negligence by a rescuer is not considered to be proximately caused by the original conduct. 



How do you handle Multiple Wrongdoers

General Rule:

P can sue any, some, or all wrongdoers and collect the full amount of damages.  Each D is held jointly and severally liable for the full amount of damages.



The wrongdoer who has to pay can seek contribution from the other D.



When multiple wrongdoers cause multiple injuries that are separate and distinct and the damages caused by each injury can be divided from the other each wrongdoer will be liable for the damages that he caused.


Where the injury was caused by one of two or more people that were acting negligently and the P cannot determine which caused the harm the burden of proof shifts to the wrongdoers to show that they did not cause the injury or they will all be held liable.


Independent "sufficient" causal factors


One is wrongdoing and one is innocent


Possible Approaches:


-But For Test to Deny Liability


-Use something like the substantial factor test to permit recovery


Independent "sufficient" causal factors


Both are wrongdoers


Use "but for" test to deny liability


Use Substantial Factor test to permit recovery

Concerted Action

Multiple D's acting together.  


Each has vicarious liability for the other. 


Ex. Drag racing

Test for recovering Medical Monitoring Costs in Mass Torts

1) P was, relative to the general population, significantly exposed

2) to a proven hazardous substance

3) through the tortious conduct of the D

4) as a proximate result of the exposure, P has suffered an increased risk of contracting a serious disease

5) the increased risk makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed without exposure

6) monitoring procedures exist that make the early detection of a disease possible

Enterprise Liability

Used with multiple D's.


Applied when there is an industry-wide practice was negligent.


Not commonly used today.

Market Share Liability

Multiple D's. Usually large cases (product liability/prescription drugs)


Product must be fungible among different manufacturers.



--Geographic Scope of Market

--Temporal Scope

--Absent Defendants (who picks up their slack)

--Insolvent Defendants (ditto)

--Defendants who can definitively disprove their role in a particular P's harm but probably caused harm elsewhere


Joint and Several Liability


Traditional Rule


Traditional Rule:


P can sue any, some, or all wrongdoers who caused the harm


P can collect the full amount of the judgement (but no more than that amount total) from any, some, or all wrongdoers


Basis for Rule:

If Contrib. acts as a total bar an innocent P can recover so that problems of allocation are placed on the wrongdoers.


Joint and Several Liability


Modifications of the Traditional Rule (Comparative Fault)


There are multiple methods for allocating the percentage liability for damages


Note issues concerning Defendants not sued by the P

-joinder rules

-absent wrongdoers (settling defendants, immune defendants)


Note issues concerning one Defendant committing an intentional tort and other defendants had a duty of due care to prevent that tort (Foreseeable 3rd Party Misconduct)


No contribution at common law


In most states D's have a right to contribution against other D's


Can be divided up per D


Can be divided up based upon proportional fault

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