Chapter V – Causation in Fact
LAW Sine Qua Non/Proof of Causation “but for”
1. 2. Negligence is actionable If it is a substantial factor (but for) in bringing about the harm a. Only If it is cause in fact i. (But for if one ∆) ii. (substantial factor if multiple ∆)
Examples / Notes
Ex: Statute says: must have lifeguard in hotel pools. No LG was present and father and son drowned. Ex: RR violated statute and didn‟t put warning signs at intersection. P gets injured but he knew of crossing. RR not liable: P knew of the crossing and could not have been misled by the absence of the sign Non Ex: On cruise ship all life vests are locked – there‟s an accident – ∏ immediately goes down – no cause in fact; no opportunity to get life vest. Non Ex: Car mfg fails (even if in violation of statute) to put warning in owner manual about some condition – If ∏ is proven to not ever read the manual, then “but for” is not met, and car mfg is not negligent Ex: one ∆ beaks arm; another breaks leg 2 diff harms
iii. Joint and Several liability 1. There is no reasonable way to apportion % of harm) iv. Lost Chance v. Market share liability (DES – only 6 jurisdictions)
vi.
vii. Negligence greatly multiplies chances of accident AND viii. Is of character naturally leading to occurrence of accident ix. Fact that it could‟ve happened without negligence is irrelevant. 1. “might‟ve happened anyway” not enough. b. It need not be the sole cause Ex: RR passenger falls down on unlighted
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c.
d.
Acts by 3rd person: i. An act of violence by one person AND ii. mere negligence by another person iii. cannot, together, contribute so as to become the one proximate cause of injury to a third person Causation burden of proof on P i. P must produce evidence ii. from which it can reasonably be inferred o Exception: 1. A suspicion on what caused an accident is not sufficient 2. Possibility of the existence of an event does not tend to prove its probability
stairs. She could‟ve slipped and fell anyway, but no light was definite contributor – it follows the natural and ordinary course of events that she would fall.
Non Ex: City digs a hole and leaves it uncovered. A boy pushes his friend in the ditch and he gets injured. City can‟t be sued.
Post hoc ergo Propter hoc – not valid! a. (Not enough that negligence of one person b. And injury to another coexists), c. Injury must be caused by negligence iii. that negligent conduct on the part of D was the proximate cause of the injury 3. iv. Med Mal cases 1. must be established with expert testimony 2. D can produce rebutting or discrediting evidence a. 3. D does not have to disprove P‟s causation claim
Non Ex: 3rd party trips on stairs of D and injures P. 3rd party does not know how he tripped – could‟ve been own clumsiness. P cannot allege negligence in maintaining stairs – Need to show causation.
Uncertainty of consequences a. If P can show that D‟s acts or omissions, b. increased the risk of harm to another
Ex: woman fell in bathtub. Anti skid strips were placed in shower. After she fell she noticed that her feet could fit between the strips – but didn‟t know for sure where feet were at time of fall. “because feet could fit, doesn‟t lead to the inference that she was standing between them” – D not liable for negligence. “after this therefore because of this” Non Ex: 2 yrs after being injured in the head by piece of glass, P develops skin cancer where injury is. D not liable for cancer – no researcher has yet to find cause of cancer!
i. Expert testimony of reduction of survivability rate is sufficient to allow case to go to jury c. jury will determine whether increased risk was a substantial factor in bringing harm. i. Jury allowed to speculate on what could’ve happened v. Legal Malpractice
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3.
Difficult to estimate what difference a lawyer‟s negligence made in the actual outcome of a trial 2. Proof of causation is even more difficult in negotiation situations (“there is no „correct‟ outcome of a negotiation”) Of the harm for which recovery is sought 1.
Lost Change – Reduction in chance of survival – Med Mal - Approaches: 1. “But for” – can‟t recover unless it is “but for” Dr. Negligence a. Denial of all liability 2. Liability for all Harm – “Relaxed causation” a. Loss of chance of survival b. Award for whole of loss c. Elements: i. Dr. negligence increases risk of death ii. Increased risk + cause are indistinguishable iii. If Dr negligence increases risk of harm, Dr. is liable for all harm Liability for lost Chance a. Damage proportional to loss
P Expert to testify that it is more likely than not that injury was caused by D‟s negligence D Expert to show that there are other possible causes. These causes need not be proved with certainty or more probably than not.
Ex: Dr. failed to diagnose P‟s cancer on first visit reducing survivability rate by 14% - P dies. Jury to decide whether Dr. omission was a significant factor in early death. Ex: In WA, 39-25% change of survival is sufficient evidence to allow proximate cause to go to the jury.
3.
Michigan View Ex: have terminal illness. Dr. diagnoses with flu. ∏ dies 2 weeks later. No „But For‟, patient dying anyway.
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Ex: if ∏ makes X/yr and if would have lived 2 more yrs if no negligence, then can recover 2X.
Ex: X/yr, Negligent decreased survival by 14% and would have lived 2 years, damage = 2X*14% Ex: Kramer – ∏ suffered a glass cut on forehead at ∆‟s hotel.2 yrs later he developed cancer in same spot.
Concurrent Causes
1. Where separate acts of negligence combine a. Courts use “substantial factor” rather than “but for” test. To produce a single injury Each actor is responsible for entire result a. As long as both substantial factors i. In cases involving > 1 ∆, courts use “substantial factor” and not “but for” test b. Number of ∆‟s i. If can‟t determine who‟s to blame, 1. Burden of appointment of blame shifts to ∆. ii. If unlimited ∆‟s and not all joined 1. use market share liability rule ???IN DES CASES ONLY??? c. Burden of proof of who specifically done it, not on ∏, but on ∆ Ex: 2 fires combine. Each is shown to cause damage on it‟s own. Both parties liable – even if one of the parties is not known.
2. 3.
Ex: 2 fires combine. Each is shown to cause damage on it‟s own.– One by lightening – other party is liable
Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury Otherwise, ∏ may be left remediless. (would be unjust)
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4. 1.
Even though one act alone is not cause of harm Rest 2nd - § 432 a. 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. b. 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. Rest 2nd - § 433 – determining substantial factor in bringing about harm a. Considerations important in determining whether the actor's conduct is a substantial factor in bringing about harm i. # of other factors contributing to producing harm and the extent of the effect which they have in producing it; ii. whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; iii. Lapse of time Rest 2nd - § 433A – Apportionment of Damage a. Apportioned among 2 or more causes when i. There are distinct harms, OR ii. There is reasonable basis for determining contribution of each cause to harm b. Otherwise, damage can not be apportioned.
Ex: P takes a drug that ends up causing cancer. Not known which mfg supplied the drug – there were a total of 200 mfgs but only 5 were ∆s. Apportion liability based on market share at time of sale.
2.
What cases apply to these?? Ex: (Anderson) 2 fires, one due to D‟s negligence, the other of unknown origins.
3.
4.
Rest 2nd - § 433B – Burden of Proof a. Burden of proof is normally on P, unless b. Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor c. Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm
Ex: If A and B are jointly liable, A gave 100%, then pay would pay nothing. Who
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pays how much is not a problem for the courts in this case; as long as ∏ get‟s 100% of damages given.
Which case applies here?
Ex: 2 hunters fire at the same time, one bullet hits ∏ - not known who‟s bullet hits. Both liable, unless one of them can prove it wasn‟t his bullet. Ex: 2 similar dogs barking at ∏. One of then ends up biting ∏. Owners of both dogs are liable.
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Chapter VI – Proximate / Legal Cause
LAW Proximate/Legal Cause
Cause in fact: deals with “but for” consequences of an act Proximate/Legal cause: o Concerns the determination of whether legal liability should be imposed where cause in fact has been established. o Denies liability for otherwise actionable conduct based on: o Logic o Common sense o Public Policy o Precedent o Ideas of what justice demands o What is administratively possible and convenient o Main test: o Was type of harm Foreseeable? o Was ∏ is foreseeable ∏?
Examples / Notes
Proximate: Next, nearest, immediately before or after in order Proximate cause: Cause which in a natural and continuous sequence, produces damage and without which the damage would not have occurred In order to be a proximate cause, the act or omission must be such that a person using ordinary care would have foreseen the event or some similar event which might reasonably result there from. There may be more than one proximate cause of an event.
Unforeseeable Consequences
Every person is liable for the consequences of his own acts. He is thus liable in damages for the proximate results of his own acts, but not for remote damages. Courts draw a line as to what is proximate and what is remote o (that a line a drawn is important – not where) How is this different than Polemis v Furness??
∆ liable for unforeseen consequences that follow from a physical injury to ∏. (few courts have applied this to pre-existing physical conditions only) “Egg Shell” theory - A ∆ must take a ∏ as he finds him and hence may be held liable in
Ex: sparks fall on house 1 due to ∆‟s negligence. Fire spreads to house 2 then house 3. ∆ not liable for house 2 or 3. Could have been other accidental factors causing fire not under ∆‟s control: wind, heat, house 2 conditions. Rule adjusted later to find liability for first house fire jumped to (so,
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damages for aggravation of a pre-existing illness. Not a valid argument to say that the ∏‟s condition might have occurred without the accident. Rest 2nd - § 461 – Egg Shell Skull – ∆ is liable if: 1. ∏ has physical condition a. not known to ∆ b. Can‟t be known to ∆ 2. ∆‟s action aggravated it 3. Reasonable man concludes harm is probably result of ∆‟s act.
liable for house 2)
Ex: Sprained ankle causing inflammation to heart causing death. Ex: Loss of hair from fright. Ex: seemingly normal ∏ suffers minor or no physical injury during an accident. Accident proves to be the trigger for a nascent psychological condition which turns into schizophrenia. ∆ is liable!
Once the act is negligent, the fact that its exact operation was not foreseen is immaterial. The test of liability for an act is the foreseeability of injury from that act. If ∆ creates risk of harm A (foul smell at docks), but harm B (fire) results, then ∆ not liable for harm B (fire).
“The area within which liability is imposed is that which is within the circle of reasonable foreseeability.
5.
Rest 2nd - § 456 If A caused Harm to B, then B is liable for a. Fright, shock, emotional disturbance resulting from bodily harm b. Any subsequent bodily harm resulting from emotional disturbance
Tests for finding proximate cause: a. Direct consequence
Ex: ∆ causes a board to fall into a gas tank. By fluke of nature, board interacts with some gas vapor or substance in the gas tank, and burns whole boat. ∆ is liable for value of boat. Ex: (Wagon Mound) A spilled furnace oil that has a 170° F flash point. ∆ could not possibly foresee/expect to have known that the oil was capable of burning when spread over water. Unfortunate spark from cotton (which simmered long enough to reach high temp) causes oil to burn and destroy wharf. ∆ not liable… Unforeseeable!
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b.
c.
Does not use foreseeability Makes distinction between direct and indirect If some harm is foreseeable, then responsible for all harm i. Unless there‟s superseding act d. There has to be some foreseeability of harm Foreseeable harm a. Not enough to say: is any harm foreseeable b. Have to ask: Is this harm foreseeable? i. Not the way it happened (doesn‟t matter) ii. Is the type of harm itself foreseeable Forseeable ∏ a. Is the ∏ a foreseeable ∏? b. Negligence is relation between 2 parties – if ∏ not one of parties, then can‟t sue c. “Negligence in the air” will not do! d. Majority – Cardozo i. is ∏ in danger zone? ii. Negligence is relationship between 2 parties Minority – Andrews i. When you‟re negligent, your responsible for whole world ii. If you hurt P1, and P2 is then hurt, liable for P2.
a. b. c.
Ex: ∆ served foul smelling shrimp. Patron vomits, another slips on vomit… ∆ not liable ∆ bus driver speeds in snowstorm. He risked collision with another. But not liable for causing a snow-swirl that blinds another ∆ supplied a defective dog collar. Owner lost dog. Not liable if dog bit ∏. ∆ served boy rat poison. Not liable that parents lost child custody. ∆‟s acts cause child to become sick and not parents be mistaken for child abusers. Ex: A negligently driving car. B suffered head injury which ultimately led A, in a frenzy (i.e. unplanned) to commit suicide. A is liable. Non Ex: A negligently driving car. B suffered head injury causing him to become delusional and attacking C. A NOT liable for C‟s injury.
e.
Ex: This is the test used in Polemis. Plank fell into tank of petrol. Causing spark then explosion destroying ship.
Ex: Wagon Mound 1 – furnace oil on water not foreseeable at all that it will catch on fire. Therefore ∆ not liable. Jury decides whether something is
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foreseeable or not Ex: Palsgraf
Intervening Causes
Test: Is intervening act a normal or foreseeable consequence of the situation created by the ∆‟s negligence? Or is it just a condition for the harm? o ∆ Not negligent (IF NO) o Act extraordinary under the circumstances, o Act not foreseeable in the normal course of events, o Act independent of or far removed from the ∆‟s conduct Act of God: Liable if (Rest § 450): If act of God simply increases or accelerates harm to another due to negligence Not liable if (Rest § 451) o Act extraordinary (volcano) AND o Resulting harm is different than that which made conduct negligent Ex: (Derdiarian) construction site not properly protected, driver drives into site injuring worker. Contractor is liable for negligence. Ex: wrecking company did not secure condemned house to be wrecked. A fire inside spread to neighboring house. Liable: building was in an area where people sought to sleep and cook and that the building was accessible to vagrants. Thus, risk of harm by these people was not remote. Ex: radio station listed to extensively by teenagers had a contest: first listener to catch up to a DJ wins. One boy chasing a DJ drove another‟s car off Hwy and driver died. Station is liable – foreseeable that young listeners would break speed laws to win. Ex: high winds caused section of negligently maintained roof to fall and kill ∏. Not act of God (vis major) because ∆ had duty to repair a defective and dangerous condition. Ex: City dug a hole and left it uncovered. A 3rd person pushes ∏ into hole. City not liable because “but for” 3rd person shove, ∏ would not have fallen into hole. Ex: (Watson) ∆ caused gasoline to spill, 3rd party set it on fire either maliciously or in process of lighting a cigar. Jury to decide whether act was malicious, and if so, then ∆ not liable Ex: ∆ left door of its elevator shaft unlocked
o
∆ not expected to foresee criminal/Intentional acts Generally intentional or criminal acts of 3rd parties cut off causal chain; UNLESS Acts are foreseeable (448) ∆ knows or should‟ve known that a 3rd person will of opportunity to commit criminal or intentional act (449) Becomes superseding if unforeseeable
o
If Yes, then ∆ negligent o Even if act is unforeseen o If ∏ is hurt while escaping from danger created by ∆
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o o o
Attempt to alleviate Harm caused by D 2nd injury caused by weakened condition resulting from 1 st injury Wrongful Death: Liable for the suicide of persons who, as the result of their negligence, suffer mental disturbance destroying the will to survive (that is: commit suicide) Affirmative duty to prevent suicide is breached. Decedent un-aware of act Decedent had irresistible impulse This is found when decedent acted in a frenzy If any pre-meditation (bought poison, left note, etc) then ∆ not liable.
and unguarded, A trespasser, impersonating elevator boy ushered ∏ into elevator, ∏ is injured. Building owner not liable; could not foresee trespass. Ex: (449) ∆ sold gas to a minor – minor‟s sister threw a lighted match at it and got hurt by fire. ∆ liable – should‟ve known. Ex: ∆‟s car illegally parked, fire engine recklessly driven struck car then ∏. ∆ not liable because car was just condition for injury but not contributing efficient cause. Ex: ∏, bystander, falls and hurts knee as she was escaping a train car jumped the tracks Ex: Dr aggravates ∏‟s injuries while treating them Ex: onset of a disease likely to attack one in a weakened condition Ex: a 2nd break to a limb not fully recovered. Ex: (Fuller) Healthy person suffers severe head injuries in car accident causing to suffer seizures, depression, and ultimately commit suicide. ∆ is liable.
∆ liability for intervening 3rd party criminal acts: o ∆ had duty to protect ∏. o o ∆‟s affirmative act destroys or defeats protection owed by ∏. ∆ brings into association with ∏‟s person a 3rd person known to commit crime.
o
∆ has taken custody or person of dangerous criminal tendencies
Ex: movie theater liable for stabbing on premises. Had duty to have adequate patrol. Ex: ∆, a jewelry store operator, rents from ∏. Left key in door on a holiday and place was robbed. ∏ has duty to protect place, but not from leaving key in door. Ex: Security agency places a guard with a past on premise. Guard uses his pass key to gain access to an apt and assault tenant.
Keys left in Car – a thief causes a harm o When no statute or ordinance, no liability normally imposed. UNLESS o Car left in place where crime is especially likely to happen o Vehicle is extraordinarily dangeous Rescue Doctrine – “Danger invites rescue” To achieve rescuer status one must demonstrate:
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(1) ∆ was negligent to person rescued and such negligence caused peril or appearance of peril to the person rescued; (2) the peril or appearance of peril was imminent; (3) a reasonably prudent person would have concluded such peril or appearance of peril existed; (4) the rescuer acted with reasonable care in effectuating the rescue. o Rescuer does not assume risk b. c. Rescuer must show proximate cause like any other ∏ o Rescuers are foreseeable ∏s. Professionals o Fire fighters and Policemen i. Some states do not permit recovery if risk is reasonably anticipated by the job ii. Can recover if ∆‟s act was intentional in exposing firefighter to risk Can be invoked in products liability – still have to show causation
Non Ex: train director drops a passenger in an unsafe area when she did not get off at her station. ∏ was raped. ∆ not liable IF she voluntarily left the train. Ex: ∆ held liable for cop‟s death when shot by juveniles who escaped from a youth center.
d.
Rest 2nd - § 442 Considerations to determine if intervening act is superseding? a. Harm brought by new act is of diff kind than would have been brought by orig act b. Are consequences extraordinary? c. Is the new act operating independently of orig act or is it a normal result of orig act? d. Is the intervening act a result of a 3rd person‟s act or failure to act e. No idea what this one is about! f. How culpable is the orig act in setting the intervening act in motion Rest 2nd - § 447 Intervening is not superseding if: a. If actor at time of his negligent conduct should have realized that a 3 rd person might so act OR b. A reasonable person would not consider the 3rd person act as highly extraordinary given the conditions of the situation; OR c. The intervening act is a normal consequence of a situation created by actor‟s conduct and the intervening act was done in an extraordinary way. Superseding Causes a. Acts of God b. Criminal / Tortious acts (if unforeseeable) Examples of Rescue Doctrine: (1) rescuer hurt while trying to rescue ∆ from suicide attempt – ∆ liable (2) child of train passenger left on platform, train starts going, rescuer grabs child and runs after train to give child to mom and falls and gets hurt. RR not liable – not foreseeable! Foolish action. (3) ∏ is injured while rescuing his own property from a fire caused by ∆.
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c. d.
Acts by someone of higher moral or legal authority (parent) Acts of Extraordinary / bizarre negligence
(4) Smoke detector mfg liable to neighbor who was injured trying to rescue elderly resident from boarding house fire (5) Whether subsequent rescuers can recover is a question of jury on proximate cause. Ex: (Kelly) Host continued to serve drinks to intoxicated guest( and they knew he was), guest negligently hit ∏ causing her severeinjuries. Court found guests liable.
Public Policy
Intoxicated Guests MINORITY VIEW o A host who serves liquor o to an adult social guest knowing that the guest is intoxicated Guest will be operating a motor vehicle o Is liable for any injuries o The Guest caused as a result of the negligent operation of the motor vehicle If the negligence is caused by the intoxication MAJORITY VIEW (1) Many Jurisdictions have imposed liability on those who serve alcohol to minors.
Almost all state supreme courts ruling on this issue have declined to impose liability on a social host when the recipient of the alcohol is an adult.
(2) Some courts may not impose liability if the host himself is a minor (3) Alcohol-beverage control laws: o Against commercial dispensers o Violation is usually negligence per se. (4) Employers: some courts find employers liable if o Employee drinking on the job o Employee drinking at company function (Xmas party) Multi-generational liability (1) An injury to a mother which (2) results in injuries to a later-conceived child (3) does not establish a cause of action in favor of the child (4) against the original tortfeasor
Ex: 2 adult companions held liable to estate of minot who drowned while intoxicated after ∆‟s provided alcohol Ex: Mom who bought beer for high school party of son‟s friends may be liable to estante of driver who was killed by minor party guest who ran a red light.
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Shifting Responsibility
USUALLY, when ∆ has negligently created a risk of harm to ∏, the failure of a 3 person to intervene and take some action to prevent the risk will not affect the liability of ∆ when harm occurs. Sometimes the risk created by on ∆ is shifted to another. The other person is said to take control of it. No clear test of when that fact shields the original wrongdoer! If 3rd party has duty to fix a situation; that does not limit ∆’s liability. Both 3rd party and ∆ are liable BUT, if 3rd party came along and took control of the instrumentality, then 3 rd party become negligent.
rd
Ex: ∆ negligently sets grass on fire that is burning toward ∏‟s house. The failure of someone else to put out the fire does not relieve ∆. Ex: elderly woman negligently leaves medicine on park bench – boy picks up and takes home. Mom sees medicine recognizes risk and takes bottle away and put on counter. Boy still can get to it, does, and takes medicine which causes him injury. Old woman is not liable (the risk she created is terminated), but Mom is liable for negligence. Ex: druggist negligently mislabels drug – Nurse recognizes the error but still allowed patient to take it causing harm. In this case, both druggist and nurse are liable.
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