Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

11 Cards in this Set

  • Front
  • Back
Causation in Fact

-2 main tests
-first step in determining if D's negligence was the cause of P's harm. Before determining if the relationship was too remote, must first decide if was an actual cause - cause in fact.

-Substantial Factor
But-For Test
-P's injury would not have occurred BUT-FOR D's negligent conduct

-not strong test, b/c injury can have many causes

-good starting point
Substantial Factor Test
-D's negligence was a substantial factor in bringing about injury

-doesn't require but-for showing
-used when there are multiple causes and can't satisfy but-for test
-but each cause alone would satisfy but-for test
Proof of Causation in Fact
-reliance on common knowledge
-circumstantial evidence (fact that accident occurred can be evidence, BUT res ipsa does not apply in proving causation)
-expert testimony
-NOTE - can prove causation even if you can't show how harm occurred
Admissibility of Expert Testimony
-Frye Test
-no longer relevant
-must show theory is generally accepted in scientific community
Admissibility of Expert Testimony
-Daubert Test - Part 1
-testimony does not have to be accepted by scientific community
-must show testimony based on scientific method:
a. has theory been tested?
b. subject to peer review?
c. degree to which theory has been accepted in scientific community
d. potential rate of error is within acceptable range?
e. did expert do research himself?
f. testimony based on pre-litigation research?
Admissibility of Evidence:
-Daubert Test - Part 2
-Fit Test
-expert testimony relevant to facts at hand?
-does it advance a party's cause?
-relative risk: if expert shows exposure by negligent conduct doubled relative risk --> causation established
(increase to relative risk > 2.0)
-not conclusive, but tort law only requires cause to be probable cause
Increased Risk of Harm = Proximate Cause?
-can't use But-For Test
-increased risk of harm a substantial factor in bringing about the harm?
-medical testimony can be sufficient to show causation
-but usually question for jury - increased risk = causation?
Problems of Proof - multiple parties negligent, but only 1 caused harm
-each is liable
-burden of proof shifts to D to prove they were not-negligent: "smoke-out"
-policy: not fair to make P identify which party responsible when it was D's conduct that put P in this position
Problems with Proof - Enterprise Liability
-Ds engaged in common ... (research regime, safety regime, etc.) --> court will usually impose J/S liability on each D
-unlike joint tortfeasors - don't know who parties were.
Problems with Proof - Market Share Theory
-Market Share Theory:
1. P brings into court parties with significant market share of cause of harm
2. burden shifts to D to show their product could not be cause
3. Ds unable to do so are liable for amount = their market share (NOT J/S L)

-some courts say unaccounted market share does NOT become responsibility of others
-others split unrepresented share between present Ds --> motivates D to find and implead other parties