Chapter Five: Cause in fact

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Chapter Five Cause in fact
Duty Breach Causation Actual cause, or cause in
fact Proximate cause Damages
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Chapter Five Cause in fact
The plaintiff must show that but for the
defendants negligence, the harm s/he suffered
would not have occurred.
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Chapter Five Cause in fact

• Alberts v. Shultz
• Plaintiff may recover damages for a lost chance
  of a better outcome by showing, to a reasonable
  medical probability, the defendants medical
  malpractice caused the loss of a chance, and the
  harm that might have been avoided in fact
  occurred.
• Recovery is measured by the percentage value of
  the plaintiffs chance for a better outcome

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Chapter Five Cause in fact -- Arguments against
the Alberts position

• Falcon v. Memorial Hospital (Mich. 1990) n. 6, p.
  366
• Abandons truth seeking function of tort law.
• No rational justification for holding defendants
  who did not cause the plaintiffs injury liable.
• Fennel v. Southern Maryland (Md. 1990)
• Plaintiffs who survive nonetheless recover
  damages!
• Confusing to jury
• Makes no sense to allow full recovery on a 51
  showing, then.
• Impact on the cost of medical services

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Chapter Five Cause in fact
Alberts v. Shultz Open issues Does the theory
apply outside the area of medical
malpractice? Can the theory be used by
defendants to reduce the plaintiffs recovery
where there was a better than even chance of
recovery?
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Chapter Five Cause in fact
A toxic gas escapes from defendants plant and a
town of 5000 people suffers exposure. In an
unexposed community, 2 out of 100,000 people will
suffer from a particular disease. After
exposure, 5 out of 100, 000 people would be
expected to develop the disease. 1) All 5000
people sue. Can they recover damages for the
increase -- more than double -- of the chance
that they will be sick, measured by 3/100,000 of
the ultimate cost of treatment? Does the logic
of Albert apply to allow recovery?
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Chapter Five Cause in fact
A toxic gas escapes from defendants plant and a
town of 5000 people suffers exposure. In an
unexposed community, 2 out of 100,000 people will
suffer from a particular disease. After
exposure, 5 out of 100, 000 people would be
expected to develop the disease. 1) All 5000
people sue. Can they recover damages for the
increase -- more than double -- of the chance
that they will be sick, measured by 3/100,000 of
the ultimate cost of treatment? Does the logic
of Albert apply to allow recovery? This claim
must not be confused with cases in which, as a
result of the tortious conduct of one party,
another party suffers exposure to something
harmful, which may, in the future, lead to an
injury.
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Chapter Five Cause in fact
A toxic gas escapes from defendants plant and a
town of 5000 people suffers exposure. In an
unexposed community, 2 out of 100,000 people will
suffer from a particular disease. After
exposure, 5 out of 100, 000 people would be
expected to develop the disease. 2) All 5000
people sue. Can they recover damages for their
emotional distress?
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Chapter Five Cause in fact
A toxic gas escapes from defendants plant and a
town of 5000 people suffers exposure. In an
unexposed community, 2 out of 100,000 people will
suffer from a particular disease. After
exposure, 5 out of 100, 000 people would be
expected to develop the disease. 2) All 5000
people sue. Can they recover damages for their
emotional distress? MetroNorth just
exposure Potter v. Firestone, note 4 p. 276
not unless feared event is probable, or defendant
reckless
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Chapter Five Cause in fact
A toxic gas escapes from defendants plant and a
town of 5000 people suffers exposure. In an
unexposed community, 2 out of 100,000 people will
suffer from a particular disease. After
exposure, 5 out of 100, 000 people would be
expected to develop the disease. 3) All 5000
people sue. Can they recover damages for their
medical monitoring expenses? Trend if it is
medically reasonable.
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Chapter Five Cause in fact

• How courts have responded to enhanced risk
  cases?
• No immediate recovery for the future
  consequences, unless there is a physical injury,
  and the future consequences can be shown to be
  probable (but see Petriello, n. 6 p. 347)
• Recovery allowed for medical surveillance,
  whether or not there has been an immediate
  personal injury.
• Statute of limitations and single recovery rule
  waived, to allow plaintiffs to sue if the feared,
  future consequence eventuates.
• When it does, plaintiff will still have to show
  actual causation (see Stubbs, Alberts).

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Chapter Five Cause in fact

• Why is cause-in-fact necessary in order to claim
  compensation through the tort system?
• When are there problems in establishing
  cause-in-fact?
• What does it take to satisfy the burden of proof
  on cause-in-fact?

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Chapter Five Cause in fact

• 1) Burden on the plaintiff
• 2) In a civil case, that means more likely than
  not
• 3) Need not disprove all possible scenarios
• Test is whether, based on the evidence, the
  finder of fact is reasonably certain that among
  all the possible alternative causes, the
  defendants negligence caused the harm.
• Fact that the defendants conduct increased the
  risk of specifically this type of harm may meet
  the burden of producing evidence. See n. 5,n. 6
  p. 358

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Chapter Five Cause in fact 2. Joint and
Several Liability
Vicki was seriously injured when her car was
struck by an oncoming vehicle on an unlit,
country road. According to the driver of the
car, who was seventeen at the time of the
accident, he was driving down the seemingly
deserted road when his passenger, who was
fifteen, dared him to turn off the headlights.
Driver turned off the lights. Just then, a
horse, who had apparently wandered away from
Farmers farm, stepped onto the road right in
front of the car. Driver swerved across the
center line in order to avoid the horse. Vicki,
whose car was just rounding a curve, did not have
time to avoid Drivers car, and they collided.
According to Farmer, the horse was in her stall
when he checked on her an hour before the
accident, and the barn door was closed.
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Chapter Five Cause in fact 2. Joint and
Several Liability
How joint and several liability works If
defendants are jointly and severally liable, each
defendant is liable for the entire judgment,
although plaintiff can only recover the judgment
once. Allocation of liability is left to the
tortfeasors -- rights of contribution --
rights of indemnity Effect Risk of insolvency
is placed on the tortfeasors!
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Chapter Five Cause in fact 2. Joint and
Several Liability
How several liability works If defendants are
severally liable, each defendant is liable only
for the portion of the judgment that is
attributable to his fault. Its up to the
plaintiff to bring all potential defendants into
the lawsuit. The risk of insolvency is on the
plaintiff!
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Chapter Five Cause in fact 2. Joint and
Several Liability

• When are multiple defendants jointly and
  severally liable?
• When the negligence of each is a but for cause of
  the injury, the negligent acts combine to cause a
  single injury -- concurrent tortfeasors.
• When they act in pursuance of a common plan to
  commit a tort -- acting in concert.
• When the negligence of each is a but for cause
  of some injury to the plaintiff, and the
  defendants fail to meet the burden of showing a
  basis for apportionment. (no basis for
  apportionment)

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Chapter Five Cause in fact 2. Joint and
Several Liability

• When are multiple defendants not jointly and
  severally liable?
• When the negligence of each causes a distinct
  injury to the plaintiff
• distinct harms
• successive injuries
• apportionable injuries

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Chapter Five Cause in fact 2. Joint and
Several Liability

• Statutory reforms
• Abolish
• Abolish where defendant is less than, for
  example, 50 at fault
• Abolish for non-economic damages
• Abolish where plaintiff himself / herself is at
  fault
• Abolish in some areas, retain in others
• For our purposes the Uniform Comparative Fault
  Act (yet to come)

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Chapter Five Cause in Fact 3. Multiple
Defendants
Summers v. Tice Two defendants each shoot
negligently in plaintiffs direction. Plaintiff
is hit, cannot show which gun fired the shot that
hit him. Are the defendants concurrent
tortfeasors? Did they act in concert? What is the
basis for finding them jointly and severally
liable? Should we reconsider the result in the
high school marching band mothers food
poisoning hypothetical?
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Chapter Five Cause in Fact 3. Multiple
Defendants

• Summers v. Tice
• Two defendants each shoot negligently in
  plaintiffs direction. Plaintiff is hit, cannot
  show which gun fired the shot that hit him.
• Are the defendants concurrent tortfeasors?
• When the negligence of each is a but for cause
  of the injury, and the negligent acts combine to
  cause a single injury -- concurrent tortfeasors.

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Chapter Five Cause in Fact 3. Multiple
Defendants
Summers v. Tice Two defendants each shoot
negligently in plaintiffs direction. Plaintiff
is hit, cannot show which gun fired the shot that
hit him. Are the defendants concurrent
tortfeasors? Did they act in concert?
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Chapter Five Cause in fact 2. Joint and
Several Liability
876 Persons Acting in Concert For harm
resulting to a third person from the tortious
conduct of another, one is subject to liability
if he (a) does a tortious act in concert with
the other or pursuant to a common design with
him, or (b) knows that the other's conduct
constitutes a breach of duty and gives
substantial assistance or encouragement to the
other so to conduct himself, or (c) gives
substantial assistance to the other in
accomplishing a tortious result and his own
conduct, separately considered, constitutes a
breach of duty to the third person.
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Chapter Five Cause in Fact 3. Multiple
Defendants
Summers v. Tice Two defendants each shoot
negligently in plaintiffs direction. Plaintiff
is hit, cannot show which gun fired the shot that
hit him. Are the defendants concurrent
tortfeasors? Did they act in concert? What is the
basis for finding them jointly and severally
liable?
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Chapter Five Cause in fact Multiple
defendants
When are multiple defendants jointly and
severally liable? Alternative liability When
two (or more?) defendants, (all whom are before
the court?), are negligent, but it is uncertain
which one caused the injury, each defendant is
jointly and severally liable for the entire harm
unless the defendant can show his act did not
cause the harm.
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Chapter Five Cause in Fact 3. Multiple
Defendants
Summers v. Tice Two defendants each shoot
negligently in plaintiffs direction. Plaintiff
is hit, cannot show which gun fired the shot that
hit him. Are the defendants concurrent
tortfeasors? Did they act in concert? What is the
basis for finding them jointly and severally
liable? Should we reconsider the result in the
high school marching band mothers food
poisoning hypothetical?
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Chapter Five Cause in fact 3. Multiple
defendants
Note 8, p. 377 Defendant A manufactures drug A.
Defendant B manufactures drug B. Defendant A
should have known drug A can cause blindness and
is negligent for manufacturing it. B also can
cause blindness, but defendant B had no way of
knowing that, and was not negligent for
manufacturing it. Plaintiff takes both drugs,
either of which alone would have caused him to
become blind. Is defendant A liable? Suppose
both defendant A and defendant B were negligent?
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Chapter Five Cause in fact
A cautionary note the substantial factor test
for causation 431 What Constitutes Legal
Cause The actors negligent conduct is a legal
cause of harm to another if (a) his conduct is
a substantial factor in bringing about the harm,
and (b) there is no rule of law relieving the
actor from liability because of the manner in
which his negligence has resulted in harm.
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Chapter Five Cause in fact Multiple
defendants
Restatement, Second, of Torts 432 Negligent
Conduct as Necessary Antecedent of Harm (1)
Except as stated in Subsection (2), the actor's
negligent conduct is not a substantial factor in
bringing about harm to another if the harm would
have been sustained even if the actor had not
been negligent. (2) If two forces are
actively operating, one because of the actor's
negligence, the other not because of any
misconduct on his part, and each of itself is
sufficient to bring about harm to another, the
actor's negligence may be found to be a
substantial factor in bringing it about.
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Chapter Five Cause in fact Multiple
defendants

• Factors to consider in determining whether the
  defendants conduct is a substantial factor in
  causing harm
• the number of other, contributing factors
• whether the force is active or merely sets the
  stage for harm
• lapse of time
• Restatement, Second of Torts, 433

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Chapter Five Cause in fact Multiple
defendants

• When are multiple defendants jointly and
  severally liable?
• concurrent tortfeasors (single harm, as opposed
  to divisible,
• successive or apportionable harms)
• inability to apportion
• acting in concert
• other vicariously liable defendants
• alternative liability (Summers v. Tice)
• alternative liability / twin fires scenario

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Chapter Five Cause in fact Multiple
defendants
Hymowitz v. Eli Lilly Market Share
liability Where 1) manufacturers act in a
parallel manner 2) to produce an identical,
generic product 3) which causes injury many years
later 4) and the legislature has created an
expectation that recovery will be available by
creating an exception to the statute of
limitations liability will be apportioned even
though the plaintiff cannot show which
manufacturer produced the product that harmed her.
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Chapter Five Cause in fact Multiple
defendants
What is the basis for apportionment? National
market share or local market share? Is liability
joint or several? Can the defendant prove out
by showing It did not manufacture DES for
pregnancy use? It did not manufacture the DES
the plaintiff took?
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Chapter Five Cause in fact Multiple
defendants

• When are multiple defendants jointly and
  severally liable?
• concurrent tortfeasors
• inability to apportion
• acting in concert
• other vicariously liable defendants
• alternative liability (Summers v. Tice)
• alternative liability / twin fires scenario
• market share liability

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Chapter Five Proximate Cause
Duty Breach Causation Defendants act must be
both An actual cause, or cause in fact of the
plaintiffs injury And a proximate cause of the
injury. Damages