13) Neg - Cause + Damages

Question 1

Cause in Fact: test

Answer 1

MLTN that but-for D’s negligence, P would not have been injured

MLTN: ok if other possibilities (typhoid case)

Question 2

COF issues: kinds

Answer 2

1) multiple causes
2) loss of chance
3) alternative liability theory
4) market share liability

Question 3

COF: multiple causes: exs

Answer 3

multiple Ds
D + act of nature
etc

Question 4

COF: multiple causes: test

Answer 4

substantial factor test – was the negligence of THIS D a substantial factor in P’s injury?

Question 5

COF: multiple causes: when to use substantial factor test

Answer 5

must use when either D alone would have brought about the harm

Question 6

COF: multiple Ds: liability

Answer 6

assume joint + several liability where multiple Ds join together to create indivisible injury

Question 7

COF: loss of chance: traditional rule

Answer 7

if can’t show MLTN that would’ve survived, then can’t sue because a CHANCE of survival was lost (typically misdiagnosis cases)

Question 8

COF: loss of chance: many js now rule:

Answer 8

can recover for the lost chance of survival, but damages reduced to reflect the fact that had % chance of dying anyway

Question 9

COF: alternative liability theory: rule

Answer 9

if (factors) met, then burden shifts to D to show he was not the cause. If a D can’t do so, then joint/severally liable

Question 10

COF: alternative liability: factors

Answer 10

1) each D must have breached its duty
2) all possible Ds are sued together
3) small # of Ds

Question 11

COF: alternative liability theory: which test to use?

Answer 11

the special alt liability test

can’t use but-for, or SF
bc 1 didn’t shoot him–they weren’t both the cause

Question 12

COF: alternative liability: scenario

Answer 12

like Summers eye-shoot case…2 causes, we don’t know which it was, but it wasn’t both

Question 13

COF: market share liability: def

Answer 13

where generic product and P can’t show which of a large group of negligent Ds is responsible – each D is liable based on its market share

Question 14

COF: market share liability: type of liability

Answer 14

not joint and several –> just several (each only liable for its market share)

Question 15

proximate cause: aka

Answer 15

legal cause

scope of liability

Question 16

PC: 3 kinds

Answer 16

1) unforeseeable EXTENT of harm
2) unforeseeble TYPE of harm
3) unforeseeable MANNER of harm

Question 17

PC: unforeseeable extent: rule

Answer 17

D is responsible for full extent of harm caused, foreseeable or not

Question 18

PC: unforeseeable extent: eggshell P rule

Answer 18

you take your V as you find them (and are resp for full extent of harm, foreseeable or not)

Question 19

PC: u. type of harm: rule

Answer 19

D is liable if injury suffered by P is within the risk created by D’s negligence (ie, must be a foreseeable type of harm for recovery)

Question 20

PC: u. manner of harm: superseding cause def/rule/result

Answer 20

Superceding cause =
unforeseeable
intervening cause
that breaks chain of causation btwn initial wrongful and ultimate injury

thus: relieves the orig tortfeasor of any further liability

the more culpable the intervening force, the more likely it is to be superceding

Question 21

PC: u. manner of harm: analysis

Answer 21

looking for very unforeseeable, + often culpable, beh

Question 22

PC: u. manner/superceding: common scenarios: subsequent negligence (medmal/etc)

Answer 22

still foreseeable, no PC problem

exception

Question 23

PC: u. manner/superceding: common scenarios: further injury during rescue

Answer 23

still foreseeable, no PC problem

Question 24

PC: u. manner/superceding: subsequent negligence: exception

Answer 24

look for passage of time!

at some point, liability will be cut off

so normally still PC/liable even if subsequent negligence. but if too much time passes, then not

Question 25

PC: u. manner/superceding: common scenarios: criminal acts or intentional torts of 3rd parties

Answer 25

if they are unforeseeable under these circs, then no PC

Question 26

PC: u. manner/superceding: common scenarios: acts of God

Answer 26

no PC IF unforeseeable

Question 27

PC: u. manner/superceding: common scenarios: subsequent deadly/rare disease

Answer 27

no PC

Question 28

damages: rule

Answer 28

P must affirmatively prove damages (or will lsoe case) – there must be a cognizable injury

Question 29

damages: most common kinds

Answer 29

1) PI

2) property damage

Question 30

damages: nominal?

Answer 30

not in tort!

Question 31

damages: punis?

Answer 31

recoverable but only if the conduct was more culpable than negligence

Question 32

compensatory damages: def

Answer 32

designed to return P to his pre-injury position (using $)

Question 33

compensatory damages: rules

Answer 33

1) type of damages must be reasonably foreseeable
2) reasoanbly certain
3) not avoidable (avoidable consequences rule)

Question 34

compensatory damages: 2 kinds

Answer 34

1) special d.

2) general d.

Question 35

special d.: def

Answer 35

tangible, pecuniary (med expenses, lost wages, cost of repairing car)

Question 36

special d.: rule

Answer 36

can recover for past, present, future damages

Question 37

special d.: future d.s are…

Answer 37

reduced to present value

Question 38

collateral source rule

Answer 38

the fact that P is getting compensated from 3rd party source (insurance, union, etc) doesn’t mean that D dnn pay (inc gratuitous services)

Question 39

general damages: def

Answer 39

intangibles (most commonly pain + suffering)

Question 40

general damages: rule

Answer 40

more controversial bc harder to measure

Question 41

punis: culpabiltiy needed

Answer 41

(more than negligence!): willful, wanton, malicious, reckless (conscious disregard for high probability of harm)

Question 42

punis: goal

Answer 42

make example of D so he won’t do it again and neither will others, punish D

Question 43

punis: factors to set amount

Answer 43

1) wealth of D

2) reprehensability

Question 44

punis: aka

Answer 44

exemplary damages

Question 45

punis: limit on amt

Answer 45

due process clause: per SC usu less than 10x of compensatory damages amt