Ch. 5 Causation In Fact -- Torts, Viator

Front 1

Sine Qua Non

Back 1

"Without which not"

Also called "but for" causation

Front 2

How is Sine Qua Non applied?

Back 2

Negligence is not actionable unless it is a cause in fact (the "but for" cause) of the harm for which recovery is sought

1. This requires foreseeability
2. It need not be the sole cause so long as it is a substantial factor

3. A party's conduct is the cause in fact of an event if the event would not have occurred but for that conduct; conversely, the conduct is not the cause of the e vent if the event would have occurred without it.

Front 3

Where the defendant's conduct increases(ed) the likelihood of he harm, and more probably not caused the harm, can the defendant be held liable?

Back 3

Yes

Front 4

Proof of Causation

Back 4

The plaintiff must produce evidence from which negligence can be reasonably inferred.

Speculation is not enough; need direct or circumstantial evidence.

Plaintiff must prove it is more probable than not that the defendant's negligence was the "but for" cause of the harm, that it greatly increased or multiplied the likelihood

Front 5

Exception to "but for" causation

Back 5

Medical malpractice -- Plaintiff may be able to recover for the reduced chance of recovery whether it was more likely or not the cause of teeth (Herskovits v. Group Health: defendant found to be the "but for" cause of the patient's death even though the patient probably would have died anyway)

Attorney malpractice -- reduced chance for recovering damages

Front 6

Typers of Concurrent Causes

Back 6

1. Where 2+ factors combine to cause the harm where independently they couldn't have

2. Where 2+ factors combine to cause the harm where independently they could have

"Combined conduct causes injury when alone neither is sufficient; or either sufficient alone."

Front 7

Substantial Factor Test

Back 7

The principle that causation exists when the defendant's conduct is an important or significant contributor to the plaintiff's injuries.

Front 8

Tortfeasor

Back 8

One who commits a tort; a wrongdoer

Front 9

Concurrent tortfeasor

Back 9

2 or more tortfeasors whose simultaneous actions cause the injury to a third party.

Such tortfeasors are jointly and severally liable.

Front 10

Joint tortfeasors

Back 10

2 or more tortfeasors who contributed to the claimant's injury and who may be joined as defendants in the same lawsuit.

Such tortfeasors are jointly and severally liable.

Front 11

Alternate Liability Theory

Back 11

When two defendants act negligently, but only one cause the harm, the burden shifts from the plaintiff to the defendants to prove which one did/did not cause the harm.

If they cannot do so, they're held equally liable.

Front 12

Enterprise Theory of Liability

Back 12

Where different manufacturers work together to make their product indistinguishable to avoid liability.

In such situations, the burden shifts on the defendants to disprove their culpability. If they cannot disprove culpability, they are all held liable

*This theory only applies in situations where there is an industry composed of a small number of members

Front 13

Market Share Theory of Liability

Back 13

Liability that is imposed on each member of an industry based on each member's share of the market or respective percentage of the product that is placed on the market, when the plaintiff, through no fault of her own, cannot trace the harmful exposure to a particular product and joins as defendants the markets most substantial producers.

Front 14

Four considerations for NOT holding defendant liable

Back 14

1. Unforeseeable consequences

2. Superseding causes

3. Policy concerns

4. Third party acts or omissions -- including plaintiff's contributory negligence

Front 15

Proximate cause asks...

Back 15

if it is fair to hold a defendant liable, even if the defendant is the Cause in Fact of the harm.

Front 16

Can there be more than one proximate cause?

Back 16

Yes.

Front 17

Is there a proximate cause for unforeseen or remote damages?

Back 17

No.

Front 18

Polemis Rule

Back 18

Direct v. Indirect Harm

So long as some type of damage is foreseeable by defendant's negligence, any unanticipated damages that results is the proximate result of the negligence.

If the harm is directly traceable to the negligence, it is the proximate cause of that harm.

Front 19

Reasonably Foreseeable Test

Back 19

From Wagon Mound 1, followed by Wagon Mound 2.

Rejected the Polemis test; essentially wiped out Polemis

Says that there is no proximate cause unless the defendant anticipated the type of damage that occurred.

If the defendant anticipated one type of damage and a different ape occurs, defendant is not liable for the unanticipated damages

Front 20

Palsgraf Majority Test

Back 20

Comes from Palsgraf v. Long Island R.R. Co. (fireworks fall off train, cause pennyweight to fall on plaintiff)

1. What there a reasonably foreseeable plaintiff? (a person at risk from the negligent act)

2. Was there a foreseeable type of harm that occurs from the negligent act?

3. Was the reasonably foreseeable plaintiff within the zone of danger?

4. Did the defendant have a duty to the plaintiff?

Front 21

Who usually decides questions regarding proximate cause?

Back 21

The jury. However, if the issue is intertwined with policy issues, it must be treated as a matter of law to be decided by a judge.

(Yun v. Ford Motor Co., spare tire fell off plaintiff's car. Decedent crossed traffic to retrieve it and was hit by a car; unforeseeable that the decedent would cross traffic and get hit, so no liability).

Front 22

Intervening acts

Back 22

Acts that occur between the negligent act and the resulting harm.

They are normal and foreseeable consequences. Intervening acts do not cut off liability.

Front 23

Superseding acts

Back 23

Intervening acts that are extraordinary, unforeseeable and independent of the negligent act. They cut off liability from the negligent actor.

A person must foresee the normal consequences of his conduct, but he is not responsible for extraordinary negligent intervening acts of third persons.

The plaintiff's own conduct can constitute a superseding cause, but it must be more than a contributory negligence to do so

Some "Acts of God" are superseding acts that can relieve a defendant of liability

Front 24

A defendant is not usually liable for the intentional (or criminal) act of a third party.

Back 24

True.

Front 25

When can a defendant be liable for the intentional (or criminal) act of a third party?

Back 25

1. He is under a contractual duty to protect the plaintiff against criminal conduct and fails to do so

2. He negligently maintains his property (i.e. leaving the keys in the door)

3. He negligently associated the third person (i.e. hiring a sex offender with no background check which results in the rape of another employee)

4. The act was foreseeable