Negligent Torts - CAUSATION

Question 1

What is factual cause?

Answer 1

Element of negligence case where P shows a connection between the breach and the harm to the P.

(i.e., P shows that D’s breach was the actual case of P’s harm) (Sine qua non test)

Question 2

What are the three tests for factual cause?

Answer 2

1. But-for (subsequent causes) (not good for when there are multiple Ds)
2. Substantial factor (merged/joint causes)
3. Alternative causes test (alternative causes)

Question 3

When should the substantial factor test be used instead of the but-for test?

Answer 3

When separate destructive forces caused by multiple defendants have joined before causing harm to P

Question 4

What is the but-for test?

Answer 4

But-for the breach, the injury would not have occurred

Question 5

What is the substantial factor test? When do you use it?

Answer 5

When there are multiple defendants and two merged independent causes (e.g., X and Y start forest fires that meet in the middle and burn Z’s house)

KEY: If you took out each breach, would the injury still have occurred? (If yes, then both are factual causes.)

Question 6

What is the alternative causes test? When do you use it?

Answer 6

When there are multiple defendants acting simultaneously AND it is unclear who caused the harm

(e.g., X, Y, and Z go hunting for quail, and X and Y accidentally simultaneously shoot at Z such that it’s unclear who hit him)

KEY: Burden shifts to Ds, with each trying to show he was NOT the cause

Question 7

What is proximate causation?

Answer 7

After P proves that there was a duty, a breach, and breach was a factual cause of his injury, he must also prove that it would be FAIR to assign D liability.

(i.e., “Court’s 11th hour sanity check”)

[N.B. In general, fairness is self-evident]

a.k.a. “Scope of responsibility” or “Fairness”

Question 8

How do factual and proximate cause fit together?

Answer 8

Is it fair to say that the factual cause of the harm was a foreseeable consequence of D’s act?

Question 9

What does the proximate causation turn on?

Answer 9

Fairness, as measured by foreseeability

Question 10

What are considerations in determining foreseeability of damage/consequence? (3 things)

Answer 10

1. Passage of time (the more time, probably less foreseeable)
2. Physical distance (closer breaches, more likely forseeable)
3. How many important intervening events took place

Question 11

What are the common foreseeable subsequent results for proximate cause? (i.e., For what additional harms are Ds often liable due to proximate cause?) (4 things)

Answer 11

In addition to any harm directly caused by D’s action, D will also be liable for harms inflicted as a result of:

1. Intervening medical negligence,
2. Intervening negligent rescue,
3. Intervening protection or reaction forces, OR
4. Subsequent disease or accident. (e.g., D runs a red light and breaks P’s ribs, who then has his leg negligently broken by EMTs loading him onto the stretcher – D liable for ribs AND leg!)

Question 12

What is the role of the eggshell-skull plaintiff in proximate causation?

Answer 12

Unforeseeably severe harm is not considered in proximate causation

Question 13

What are the five elements of negligent torts?

Answer 13

1. D owed a DUTY to conform to a specific standard of conduct (to protect P from unreasonable risk of injury),
2. D BREACHed its duty,
3. Breach was the ACTUAL CAUSE of P’s injury,
4. Breach was the PROXIMATE CAUSE of P’s injury, AND
5. P suffered DAMAGE

Question 14

What are the two kinds of cause that must be proven? Which must be assessed first?

Answer 14

Factual cause AND proximate cause

Discuss factual cause first

Question 15

How does D’s rebuttal to a but-for argument begin?

Answer 15

“Even if…”

Question 16

What article should you never use when referring to factual cause?

Answer 16

Never use “the”

Always “A factual cause of the accident…”