Causation in fact outline 111104

1
Causation in fact (outline 11/11/04)

• Problem (1) Negligent defendant, uncertainty as
  to whether it caused the harm (or whether the
  harm was caused by some non-human or non-liable
  agent)
• Grimstad, Kirincich, Haft, Zuchowicz, Reynolds
• Problem (2) Negligent defendants, uncertainty as
  to which one caused the harm.
• Summers v. Tice DES cases
• Problem (3) Overdetermination.
• Kingston

2
Factual Causation Issues

• What is the substantive standard (i.e., the
  question the jury is asked)?
• What showing meets the burden of production? Or
  the same thing whats the standard of review?
• Who bears the burden of proof? Governs
• The risk of the absence of information
• The winner in equipoise
• Standard of proof How certainly must the facts
  be established?

3
Causation in fact

• What meets the burden of production?
• General answer Could a reasonable juror find
  that the defendant, more likely than not, caused
  the plaintiffs harm?
• Grimstad (drowning 1) Speculation doesnt
  count.
• Kirincich (drowning 2) Might the negligence
  have caused the harm?

4
Zuchowicz v. United States

• If
• Plaintiff establishes that defendant was
  negligent, and the negligent act is deemed
  wrongful because that act increases the chances
  of a particular kind of accident, and
• That sort of accident does in fact occur,
• Then, Plaintiff has made out a prima facie case
  (or even a rebuttable presumption) of causation.

5
Causation in fact

• What meets the burden of production?
• General answer Could a reasonable juror find
  that the defendant, more likely than not, caused
  the plaintiffs harm?
• Grimstad (drowning 1) Speculation doesnt
  count.
• Kirincich (drowning 2) Might the negligence
  have caused the harm?
• Zuchowicz Where act is deemed negligent because
  it increases the risks of the very kind of
  accident that occurred, that meets the burden of
  production.

6
Causation in fact

• Who bears the burden of proof (and therefore the
  risk of the absence of information)?
• Ordinary answer The plaintiff.
• Haft Where breach greatly enhanced the chances
  of the harm (maybe only where lack of proof is
  also caused by the breach), defendants bear the
  burden of proof.
• Zuchowicz maybe comes out to the same place.

7
Overdetermined harm (Kingston)

• Background
• Two concurrent wrongful acts by two Ds cause
  indivisible harm.
• Joint and several liability for each.
• One wrongful act by a D and one act of God cause
  indivisible harm.
• No liability for D.
• So issue
• Uncertainty as to which situation applies.
• Court D bears burden of disproving human
  agency for other fire.

8
Causation in fact

• What is the substantive standard (i.e., the
  question the jury is asked)?
• Ordinary answer Did the defendants negligence
  (or other breach) cause the plaintiffs harm?
  (But-for)
• Kingston, two defendants case Would each of the
  defendants breaches have caused the harm,
  independently of the other?

9
Causation in fact

• Who bears the burden of proof (and therefore the
  risk of the absence of information)?
• Ordinary answer The plaintiff.
• Haft Where breach greatly enhanced the chances
  of the harm (maybe only where lack of proof is
  also caused by the breach), defendants bear the
  burden of proof. Zuchowicz maybe comes out to
  the same place.
• Summers, read conservatively (about equipoise)
  the defendants, where they acted in concert.

10
Causation in fact

• What is the substantive standard (i.e., the
  question the jury is asked)?
• Ordinary answer Did the defendants negligence
  (or other breach) cause the plaintiffs harm?
  (But-for)
• Kingston, two defendants case Would each of the
  defendants breaches have caused the harm,
  independently of the other?
• Summers, aggressively Did negligence of one of
  the defendants cause the harm? (DES cases are
  similar, but adjust damages to account for odds)