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Flashcards in Causation Deck (33)
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1

Factual or proximate causation first?

Factual

2

Factual causation does what?

Connects breach to injury

3

Be sure to never use the definite article "the" actual cause. Always use "a" cause. Why?

Every event has an infinite number of causes.

4

Test for factual causation is called the what test?

But for

5

To prove factual causation, the plaintiff must prove . . .

But for the breach, he would be uninjured today

6

Two situations in which we don't use the but for test for factual causation?

Mingled/Joint Causes

Unascertainable/alternative Cause

7

"Mingled cause" cases involve . .

Two or more defendants, acting independently, create destructive forces that eventually mingle together and injure the plaintiff (e.g., two fires)

8

In "mingled causes" cases, we use what test? What does it say?

Substantial Factor Test

A breach is a substantial factor if it was capable of causing the injury all by itself.

9

In a mingled causes case, what happens if both causes are substantial?

Severally and jointly liable

10

In an unascertainable cause case, what is true of the burden of proof?

It shifts to the defendants, and the defendants must try to exonerate themselves.

11

The test of fairness for proximate cause is ______.

Foreseeability.

12

In a direct cause case, the only time you will NOT have a foreseeable outcome is when you are comfortable characterizing the outcome as ____ or _____

Freakish or Bizarre

13

What is the general test we apply for proximate cause? Explain it.

Foreseeability.

A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

14

The Well-Settled Quartet of Foreseeable Outcomes (i.e. cases where someone else does that discrete act, but your liable because you put the events in motion). What are they?

Intervening Medical Malpractice

Intervening Negligent Rescue

Intervening Reaction or Protection Force

Subsequent Disease or Accident

15

Independent intervening forces that are not a natural response or reaction to the situation created by the defendant's conduct MAY be foreseeable if the defendant's negligence . . .

Increased the risk of harm from these forces.

16

When there are foreseeable results caused by unforeseeable intervening forces, the defendant usually is/isn't liable.

Is

17

When there are unforeseeable results caused by foreseeable intervening forces, the defendant is/isn't liable.

Isn't

18

When there are unforeseeable results caused by unforeseeable intervening forces, the defendant is/isn't liable.

Isn't

19

In the rule excusing D from liability in situation where there is an unforeseeable result caused by an unforeseeable intervening force, the intervening forces that produce the result are generally deemed unforeseeable and ______

Superseding.

20

Superseding forces do what in a proximate causation situation?

Break the causal connection between the defendant's initial negligent act and the plaintiff's ultimate injury, thus relieving defendant of liability.

21

For liability to attach, a plaintiff must prove actual cause, proximate cause, or both?

Both

22

Before D's conduct can be considered a proximate cause of P's injury, it must first be a ____ __ ____ of the injury.

Cause in fact (actual)

23

Foreseeability Test: A D is generally liable for all harmful results that are the ____ ____ of and within the ____ ____ caused by his acts.

Normal incidents

Increased risk

24

Foreseeability Test: A D is generally liable for all harmful results that are the normal incidents of and within the ____ ____ caused by his acts.

Increased risk

25

Foreseeability Test: A D is generally liable for all harmful results that are the _____ ______ of and within the increased risk caused by his acts.

Normal incidents

26

In a direct cause case, where there is an uninterrupted chain of events from the negligent act to P's injury, D is liable for ___ ____ ____, regardless of the unusual manner in which they arose or the unusual timing of cause and effect.

All foreseeable harms

27

In a direct cause case, where there is an uninterrupted chain of events from the negligent act to P's injury, D is liable for all foreseeable harms regardless of the unusual manner in which they arose or the unusual timing of cause and effect. D is NOT liable for _____ ___ ___ not within the risk created by D's negligence.

Unforeseeable harmful results

28

Most harmful results will/won't be deemed foreseeable in direct cause cases.

Will

29

Liability? Foreseeable harmful result from a foreseeable intervening force?

Yes

30

Liability? Foreseeable harmful result from an unforeseeable intervening force?

D liable UNLESS intervening force is a crime or intentional tort.