Negligence - Causation and Scope of Liability

Question 1

What is the “but-for” test?

Answer 1

Under the but-for test, the defendant’s conduct is a cause in fact of the plaintiff’s harm if, but-for the defendant’s conduct, that harm would not have occurred. If the plaintiff would have suffered the same harm had the defendant not acted negligently, the defendant’s conduct is not a cause of the harm.

Question 2

What is the standard of reliability scientific evidence needs to meet?

Answer 2

• Whether it is generally accepted in the scientific community
• Whether it is derived by the scientific method
• Whether it has been subjected to peer review
• Whether it can be and has been tested

Question 3

Other than meeting the standard of reliability, what other element must be met for scientific evidence to be admissible?

Answer 3

The scientific evidence must also be relevant to the decision to be made.

Question 4

In a negligence case with two defendant actors where it is unclear which actor caused the harm, who has the burden of proof to show non-liability?

Answer 4

Each defendant has the burden of proof for themselves to show they were not the actor that caused the injury.

Question 5

What is the phenomenon of multiple insufficient cause?

Answer 5

It is when the circumstances that the negligent conduct of either defendant would not, without the other, have caused the accident that harmed the plaintiff.

Question 6

Who takes the responsibility when there are multiple insufficient causes?

Answer 6

Each of the defendants.

Question 7

If defendant #1 causes a but-for harm to plaintiff, and then the plaintiff later suffers additional harm from negligent medical treatment from defendant #2, who is responsible for which harms?

Answer 7

Defendant #1 is liable for ALL the damages (including the negligent medical treatment, because it wouldn’t have happened but for their initial negligence), and defendant #2 is liable for the damage their negligent medical treatment caused.

Question 8

Does loss-of-chance doctrine apply to cases outside the medical malpractice sphere?

Answer 8

No- they can ONLY be brought up in medical cases.

Question 9

What is the test for multiple insufficient cause cases?

Answer 9

Use the but-for test. Each act should be a “but-for” act.

Question 10

What is the rule of joint and several liability? (Concerted acting)

Answer 10

If they acted in concert, All persons are jointly and severally liable for the share of comparative responsibility assigned to each person engaged in concerted activity.

Question 11

When are parties acting in concert?

Answer 11

When parties act in accordance with an agreement to cooperate in a particular conduct or to accomplish a particular result. The agreement does not need to be expressed in words and may be implied and understood to exist from the conduct itself.

Question 12

If one gives advice or encouragement to commit a tort, and the encouragement is a substantial factor in causing the resulting tort, is that person liable?

Answer 12

Yes, they will be held as a tortfeasor.

Question 13

What is the multiple sufficient causes phenomenon?

Answer 13

When multiple acts occur and each would have been a factual cause of the physical harm at the same time in the absence of the other act, each act is regarded as a factual cause of the harm. (Think of the two fires that burned plaintiff’s property)

Question 14

What test should be done when there is a concerted activity? (Applied to the actual activity)

Answer 14

Use the but-for test. “But for the concerted activity, there would be no harm.”

Question 15

What does the Restatement say about scope of liability?

Answer 15

An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.

Question 16

What is the “thin skull” rule?

Answer 16

It is the rule that the defendant takes the plaintiff as they find them. If defendant causes harm to plaintiff’s skull to break, and plaintiff happens to have a thin skull and is injured even though most other people wouldn’t be, defendant is still liable for breaking their skull.

Question 17

Does the thin skull rule apply to mental conditions as well?

Answer 17

Yes. An example is of a boy who had a fear of doctors and was injured in a car accident. While recovering in the hospital, the boy developed a severe mental disorder from being around doctors. The defendant was liable for all the damages.

Question 18

How does foreseeability come into play when evaluating scope of liability?

Answer 18

Defendant is liable for plaintiff’s injury where plaintiff’s injury was a reasonably foreseeable consequence of defendant’s negligent conduct.

Question 19

When is there liability for an intervening cause?

Answer 19

There is liability when the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence.

Question 20

What is an intervening cause?

Answer 20

An act of a third party that combines with defendant’s already-committed negligent act to produce plaintiff’s injury.

Question 21

What is a superseding cause?

Answer 21

An act of a third person or other force that cuts off a negligent actor’s liability for his own antecedent negligence. It is in essence an extraordinary intervening cause.

Question 22

What considerations factor into determining if an intervening act is a superseding cause?

Answer 22

1- The fact that it is intervening brings about a different kind of harm than normally would be expected.
2- The operation or its consequences thereof appear to be extraordinary rather than normal under the circumstances.
3- The intervening force is operating independently of any situation created by the actor’s negligence.
4- The intervening force is due to a third person’s act or failure to act, and the act is wrongful.
5- The degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

Question 23

What happens when an actor is negligent, and then a force of nature or an independent act combines with the harm?

Answer 23

The actor is liable to the harms that result from the risks that made the actor’s conduct tortious.

Question 24

Is an actor attempting to rescue or avert the harm to others considered a superseding cause?

Answer 24

No, they will not absolve the other from negligence.

Question 25

Steve, a raging alcoholic, is hit by a taxi in New York. While in the hospital recovering from his injuries, Steve dies from alcohol withdrawals. Steve probably would have died from his alcoholism at some point, but being hit by the taxi hastened his death. Is the taxi driver liable for Steve’s death?

Answer 25

Yes, this is an example of the “thin skull” rule. The taxi driver has to take the plaintiff as they find them. Even though Steve would have died, his death was still hastened by the accident, therefore the driver is liable.

Question 26

T was working in a small room with an open flame and forced to use gasoline to clean a machine. A gasoline soaked rat in the room darted into the flame and there was an explosion, killing T. Did T’s employer proximately cause the injury to T?

Answer 26

Yes. Even though the manner in which the explosion happened (the gasoline soaked rat) was unusual, the foreseeable risk in this scenario is that the gasoline could come into contact with the open flame. That is precisely what happened. Assuming the other elements of negligence are met, T’s employer would be held liable for the injury.

Question 27

A is driving on a snowy night, and B comes around the corner and nearly crashes into A. A’s car is stuck in the snow, and so A has to get out to get it going. While A is in the road, C comes around the corner, slams on his breaks, and skids into A. Assuming that B was negligent in his driving, is B liable for A’s injury?

Answer 27

Yes, B’s negligence is the proximate cause for A’s injury. It is foreseeable that B’s negligence would cause A to have to get his car out of the snow, and that he could be hit in the process of doing that. Therefore, B satisfies the cause part of negligence and would be liable.

Question 28

A and B negligently started separate fires. The fire started by A reached C’s property and burned C’s house to the ground. Moments later, the fire started by B reached C’s property. Either fire alone would have been sufficient to completely burn C’s House. Which party(s) will be liable?

Answer 28

A will be liable because A’s caused the fire, which was what caused the actual harm. B’s fire did not do any damage. Therefore, A will be completely liable because A is the cause and B had no joint cause.

Question 29

Cleaning service negligent leaves the door to plaintiffs business unlocked. Security guard, who is required to check all doors, negligently omits to check this one. What type of cause is this, and what is the result? (Multiple sufficient, multiple insufficient, or other?)

Answer 29

Multiple insufficient cause because they are each a “but-for” cause. The security guard and the cleaning service agent will be jointly and severally held liable.

Question 30

Polluters A and B negligently released chemicals into C’s pond. As result, all of C’s fish died. Testimony establishes that both companies released amounts of pollution that would have killed the fish. What type of cause is this, and what is the result? (Multiple sufficient, multiple insufficient, or other?)

Answer 30

Multiple sufficient cause, and A & B will be jointly and severally held liable.