Negligence: Causation

Question 1

What is counterfactual inquiry?

Answer 1

What would have happened if the actor had not engaged in the tortious conduct? (used to determine actual cause)

Question 2

A factual cause

Answer 2

An actor’s tortious conduct need only be “a factual cause” of the other’s harm. the existence of other causes of harm DOES NOT AFFECT whether specific tortious conduct was a necessary condition for the harm to occur.

Question 3

“Substantial factor” test

Answer 3

Used as an ALTERNATIVE to but-for causation. an actor’s breach is a factual cause if (1) the breach is a substantial factor in bringing about the injury and (2) there is no rule of law that relieves the actor from liability.

Question 4

Do you need direct evidence of factual causation?

Answer 4

Not always. When establishing causation, MERE SPECULATION or a possibility of causation will not suffice, but INFERENCES ab PROBABILITIES based on ordinary human experience are permissible.

Question 5

But-for causation

Answer 5

A specific breach must more likely than not cause/contribute to causing the injury.

Question 6

What is res ipsa for?

Answer 6

BREACH ONLY! That’s why in fedorzcyk, breach was already proved and they didn’t use res ipsa. they were trying to prove causation. she still could’ve slipped even if there were adequate strips bc she had oil all over the place.

Question 7

Acceleration

Answer 7

An act can also be a factual cause in accelerating an outcome that otherwise would have occurred at a later time. E.g. electrocution (from negligence) causes an acceleration in the death of the victim from natural causes. the loss of the victim’s years of life caused by electrocution provides the framework for determining the damages that would be recoverable in a wrongful death action.

Question 8

background causes

Answer 8

conditions that exist in the background that must be present for a harm to occur. e.g. oxygen in the air for an explosion.

Question 9

Multiple sufficient causes

Answer 9

When but-for causation cannot be proven by a preponderance of the evidence, then courts will sometimes find factual causation on policy grounds. If multiple acts occur, EACH OF WHICH ALONE would have been a factual cause of the physical harm at the same time IN THE ABSENCE of other act(s), EACH is regarded as a factual cause of the harm. E.g. two fires are spreading and each alone would destroy a particular house and they meet and burn the house down, then both are factual causes of the injury (even though but for the one fire, the injury still would’ve resulted)

Question 10

Acting in concert

Answer 10

Two or more parties are in a common enterprise or working together w/ a common goal when ONE commits a negligent act

Question 11

Acting in concert remedy

Answer 11

Those who act in concert are jointly and severally liable for any harm caused.

Question 12

Joint and several liability

Answer 12

Each defendant is independently liable for the full extent of the injuries stemming from the tortious act. If one ∆ pays whole damage award, they can seek contributions from the other ∆s.

Question 13

Joint tortfeasors

Answer 13

Two or more people operating INDEPENDENTLY EACH breach their soc, but the breaches are BOTH NECESSARY causes of the π’s injury.

Question 14

Joint tortfeasors remedy

Answer 14

Joint tortfeasors are jointly and severally liable for any harm caused.

Question 15

Alternative Cause Doctrine

Answer 15

Where one or more of the defendants caused the injury and the π cannot REASONABLY be expected to prove which one(s) actually caused the harm, then the court will then SHIFT THE BURDEN of proof to the ∆s on the issue of FACTUAL CAUSATION. Summers v. Tice

Question 16

Two places for limiting liability

Answer 16

(1) Duty is preferred as the doctrine for limiting liability when the limitations are clear, policy focused, and when early-resolution of liability is desirable. E.g. cases of public utilities or social hosts providing alcohol (where we want uniform, safe behavior as a matter of public policy). (2) Proximate cause/scope of liability is best for unique cases w/ complex fact patterns and a need to litigate the facts closely. Jury question.

Question 17

Proximate cause factors in Williamson v. Liptzin

Answer 17

proximate cause is (1) natural and continuous sequence; (2) unbroken by any new and independent cause; that (3) produced the π’s injuries; (4) is “but for” in nature; and (5) was a FORESEEABLE RESULT according to a PRUDENT PERSON.

Question 18

General foreseeability

Answer 18

π doesn’t have to prove that ∆ foresaw the injury in its precise form.

Question 19

possible v. foreseeable

Answer 19

Law doesn’t require ∆ to foresee events which are merely POSSIBLE, but only those which are reasonably FORESEEABLE. williamson v. liptzin

Question 20

General rule that if something is foreseeable

Answer 20

it doesn’t break the chain of proximate causation (e.g. problem we did where drunk driver hit pole that let wire go down and electrocute pedestrian)