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Cause In Fact Outline

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Did the violation actually cause harm?

I. But-For Causation a. Rule i. RTT: when a single D is potentially liable for P's harm, D caused-in-fact the harm if the harm would not have occurred but for the negligence or liable conduct.

1. The burden is generally on the P and is a preponderance of the evidence standard (more likely than not) (Grimstad); a. exception: when D's negligence prevented / destroyed evidence that would suggest causation ("insult to injury"), rebuttable presumption of causation (burden shifts to D) (Haft). b. Analysis i. But-For Causation

1. The relevant causation is heavily dependent on underlying liability; if D is liable because drove truck where it didn't belong, P must prove weight was enough to harm pipes. But if D is liable because drove truck exceeding max weight, P must prove the excess weight caused harm. ii. Burden Shifting

1. The "insult to injury" rule is designed to "stick it to the breacher"; if the D's negligence is the reason why P can't prove causation, the D should have to.

2. Posner in Indiana Harbor Belt notes that destroyed evidence may lead to strict liability. c. Cases i. N.Y. Cent. R.R. v. Grimstad (2d Cir. 1920, 451): P drowned and wife saw him drowning but boat did not have life buoy on board; no but-for causation, since no guarantee P would more likely than not have survived with one. ii. Squibs

1. But-For a. Ford v. Trident Fisheries (Mass. 1919): D not liable for not having accessible lifeboats since no proof boat would have saved P in time. b. Kirincich v. Std. Dredging Co. (3d Cir. 1940): whether D is liable for inadequate lifesaving equipment is question for jury. c. Reyes v. Vantage Steamship Co. (5th Cir. 1980): question of fact whether, had
D had rocket-powered line thrower (in line with statute), D would have saved drowning sailor; since only 15% chance it would have saved P, D not liable.

2. Burden Shifting a. Haft v. Love Palm Hotel (Cal. 1970): D has burden to prove no causation when
P drowned in pool without lifeguard, since the lifeguard would have at least witnessed how P died. b. Schuabe v. Custer's Inn Ass'n (Mont. 2000): D had a sign warning that pool had no lifeguard, but no CPR-trained personnel nearby as required; still, burden does not shift, since P was underwater for long time and CPR-trained personnel would not have saved him anyway.

II. Substantial Factor Test a. Rule i. California / Minority Rule: cause-in-fact satisfied if the liable conduct was a substantial factor in the injury:

1. if D's act was wrongful because it increased the risk of a harm, and that type of harm occurred (e.g. negligence per se or Herzog) there is at least a permissive inference of causation (Zuchowicz). a. The opinion could also be read to provide in strong cases for a rebuttable presumption of causation and burden shift to D to disprove causation (Shugerman). ii. Manufacturing defects: the product departs from the intended design.

1. If the malfunction is ordinarily a result of a defect and not due to the P or other causes (similar to res ipsa), there is an inference of causation (RTT:PL SS 3). b. Analysis i. The "substantial factor" test is generally used when there is uncertainty; may be a supplement for the but-for test and function as a risk multiplier, e.g., if D's conduct was a substantial factor in multiplying the risk of P falling, D may be liable. (Reynolds; FFTL 104). ii. California uses this rule instead of the but-for test because the but-for test is overly prejudicial to Ps.

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