Chapter Five: Cause in fact

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Chapter Five Cause in fact
Duty Breach Causation The defendants conduct
must be both the Actual cause, or cause in fact
of the harm AND the Proximate cause of the
harm. 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. In other words, the
defendants conduct must have been A but-for
cause of the plaintiffs injury.
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• 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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When are there problems in establishing
cause-in-fact?

• when the concurrence of two events may simply be
  a coincidence.
• when the defendants conduct is one of a number
  of alternative causes, each of which would have
  been sufficient to cause the harm, and you dont
  know which one it was.
• In either event, the argument is the harm would
  have happened anyway, even if the defendant had
  not acted.

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What does it take to satisfy the burden of proof?

• 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 p. 357

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Cause in fact When are there problems in
establishing cause-in-fact?

• when the concurrence of two events may simply be
  a coincidence.
• when there are multiple possible causes, each of
  which would have been sufficient to cause the
  harm, and you dont know which one it was.
• when you know that the defendants conduct
  increased the probability that the harm would
  follow, and you also know it increased it less
  than 50.

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A Cautionary Note the Substantial Factor Test
for Causation See note 8, p. 358
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.
Cause in fact
Proximate Cause
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A Cautionary Note The Substantial Factor Test
for Causation
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.
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A Cautionary Note The Substantial Factor Test
for Causation
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. TRANSLA
TION If its not a but-for cause, its not a
substantial factor in bringing about the harm!
Forget substantial, its just not a factor at
all!! BOTTOM LINE The substantial factor test
wasnt an easier, or alternative test for
causation, it was a HARDER test to meet!
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A Cautionary Note The Substantial Factor Test
for Causation

• Restatement, Second of Torts, 433
• 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

Requiring the conduct to be a substantial factor,
not just a factor, is a kind of proximate cause
requirement!
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When are there problems in establishing
cause-in-fact? The problem of multiple,
sufficient causes.

• when the concurrence of two events may simply be
  a coincidence.
• when there are multiple possible causes, each of
  which would have been sufficient to cause the
  harm, and you dont know which one it was.
• when you know that the defendants conduct
  increased the probability that the harm would
  follow, and you also know it increased it less
  than 50.
• when there are multiple forces operating, each of
  which would have been sufficient on its own to
  cause the harm.

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The Twin Fires Problem and cause-in-fact note
9, p. 358.
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?
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In one and only one -- situation, but-for
causation need NOT be shown
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 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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Assignments

Tuesday 369-389 n. 6 Wednesday 425-437 Thursd
ay 401-415 Friday 416-425, 437-439