Causation Flashcards
But-for Causation: Proof standard
Preponderance of the evidence (51% or more)
But-for Causation: Test
- Traditional: But for this happening, injury would not have occurred
- Substantial Factor test
i. only used in causal overdetermination with multiple causes, each of which would cause injury independently
ii. both causes happened at the same time
iii. act is significant enough to regard as responsible
iv. two or more causes can be concurrently substantial
But-for causation: Loss of Chance/Opportunity
(Matsuyama v. Birnbaum where doctor was liable for not testing for cancer and patient died)
- Permits recovery for lost opportunity even if the diminished chance is <50%
- Reframes harm but requires standard of proof
- Measure of full damages (discounts full claim)
i. Lost 40% of your chance= recover 40% of damages
if there is a bunch of data it is likely to be used
But-for causation: Multiple Defendants: Joint and Several
Joint=suing both
Several=suing both but individual cases
Joint and several=sue one D for both’s harm and get full damages
- Can’t disentagle the defendants
- Both but-for causes
- P only recovers actual damages incurred, Ds figure out who pays what
But-for causation: Multiple Defendants: Alternative Liability
- Assumes all Ds acted negligently to the P, but can’t figure out the actual actor of harm
- Determinants:
a: clear breach by both
b: two+ Ds
c: Impossible for P to prove single but-for cause
d: Ds are sole cause of harm
e: Ds not acting in concert - Shifts burden of proof to Ds
(Summers v. Tice, 2 Ds shot Summers, he could recover from both of them since they couldn’t figure out who’s bullet did most damage)
But-for causation: Multiple Defendants: Concert in action
Both defendants cooperate in causing harm
Hypo of drag racers both being held liable for one of them hitting a pedestrian
But-for causation: Multiple Defendants: Market Share Liability
- Only applies to cases with many producers creating fungible products
Hymowitz v. Eli Lilly & Co., companies made DES anti-miscarriage pill that actually gave them cancer - Liability determined by share of market, proportion of market=propotion of damages, P can only recover severally
Proximate Cause: Direct Consequences
(Polemis)
Multi-Factor Test
a. Direct flow
b. Proximate time and space
Proximate Cause: Harm within the risk/ Foreseeability
- P must be in the class forseeably at risk due to D’s conduct
Palsgraf v. Long Island RR held that the wrong was the treatment of package, not subsequent injuries, and that P’s injuries were outside zone of forseeable injury (Cardozo majority)
- Harm must result from the same risk that made D’s conduct negligent
Wagon Mound overruled Polemis, and held it was unfair to burden Wagon Mound with the giant cost of little negligence
- Exceptions
a. If foreseeable harm comes about in an unforeseeable way, still have proximate cause
b. Thin Skull
Proximate Cause: Modified Direct Consequence
RS (2nd) 435 & Prosser
If the actors conduct is a substantial factor, it may be held not to be a legal cause of harm to another if when looking back from the harm to the actor’s negligent conduct, it appears highly extraordinary.
Andrews looks at public policy
Proximate Cause: Intervening Causes
- Anything that has a causal role that occurs after the negligent act DOES NOT MATTER, unless superseding
- Superseding Cause- significant enough to break the chain of liability and create a new chain
- Last Wrongdoer as a superseding cause
- Is it foreseeable that there would be an intervening actor? If yes, the causal chain is not broken
ex: if you put someone in the hospital and the doctor fucks up you are still liable since negligence in hospitals is reasonably forseeable
Proximate Cause: Role of Judge & Jury
Power can be shifted on how the judge frames the issues
ex: Cardozo framing Palsgraf as a duty issue vs. Andrews framing it as a proximate cause issue
