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Cause-In-Fact a.The "But for Test" a. First, must establish CAUSE-IN-FACT [Almost Always Involves a Counter-Factual]
i. If not for D's negligence, is it more probable than not the harm would have occurred? Grimstad b. Self-Proving Causation: In cases in which D's negligent conduct is wrongful because it substantially increases the risk of harm to P, and that harm occurs, we infer causation and P can get to the jury (Reynolds v. Texas) i. Need a kind of negligence that increases the likelihood of a particular kind of harm, avoids problem of the "recurring miss" ii. The But-For Test: If not for D's negligence, is it more probably than not that the harm would have occurred? (Third Restatement)
1. In order to get to the jury, the court must determine whether P has met his burden of production that in supplying enough evidence that a reasonable juror could infer that if not for P's negligence, the harm could not have occurred a. In the case of Grimstad, could D's wife, if there was a buoy on board, grabbed it, thrown it to him, and saved him?
i. New York Central RR v. Grimstad (p.378)
1. P sued for failure to equip the barge with proper life preservers when her husband fell into the water and drowned a. Causation question is: If there were life preservers on board, would Grimstad have been saved from drowning?
i. Court ruled that there is nothing to show that the defendant did not drown from another cause (i.e. did not know how to swim) or that life preservers would have saved him, or that the wife could have gotten the life preserver and thrown it to him.
1. Reversed and grants motion to dismiss
2. There is no reason why Grimstad should not have gone to the jury. Key question if whether the wife could have gotten the buoy and thrown it to him. Should be a question for the jury. ii. Haft v. Lone Palm Hotel
1. Plaintiffs brought wrongful death actions when a father and son drowned in a pool. Applicable statute provided that "lifeguard service shall be provided or signs shall be erected clearly indicating that such service is not provided". Defendant neither provided the lifeguard service nor posted the signs, and no evidence explained how the deaths actually took place. a. Court held that the plaintiffs had gone "as far as they possibly could under the circumstances in proving the requisite causal link between defendant's negligence and the accidents" and although the main purpose of a lifeguard is to prevent accidents, it is also to witness accidents. Accordingly, the burden of proof on causation should be shifted to the defendants.
b. Is this a res ipsa case?
iii. Self-Proving Causation
1. Reynolds v. Texas: If a particular cause of negligence greatly increases the chance of harm, and the harm occurs, that is enough to get to the jury
2. Self-Proving Causation invoked in circumstances where: a. The negligence of the defendant greatly multiplies the chance of accident to the plaintiff, and is of a character naturally leading to its occurrence b. Defendant does that act, and that particular accident happens i. Of course, defendant can always exonerate himself by proving something else caused the accident.
3. A kind of negligence that increases the risks of lots of things does not fall under self-proving causation. a. We are looking for a king of negligence that increases the likelihood of a particular kind of harm.
4. Reynolds v. Texas (p.380, lighted stairways): Plaintiff, a 250lb woman, after hurrying out of a lighted waiting room, fell down the unlighted steps leading to the train platform. a. Court held that where the negligence of the defendant greatly multiples the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect. i. Recurring Miss: If we do not let these plaintiffs get to the jury, defendants will never have an incentive to light stairs, etc.
5. Zuchowicz v. United States (p.382) (apply reasoning with CAUTION): Plaintiff developed a fatal lung condition as a result of defendant's negligence in prescribing a severe overdose of a drug a. Question of causation is whether the negligence (the overdose) caused the illness. b. Court allows self-proving causation: that is, if the overdose significantly increases the odds of hypertension and hypertension happens, we assume the overdose is a but for cause and it is up to the defendant to disprove that. i. Court is recognizing that direct evidence is not always possible c. Court holds overdose caused the injury
b.Joint and Several Liability: Multiple Sufficient Causes i. Both Negligent Causes [Kingston]: Both are held to have caused P's loss. Although neither was a "but-for-cause", both were "substantial factors"
1. Joint and Several Liability: Imposed in cases of joint tort feasors (both negligent causes), independent tort feasors in a single, theoretically indivisible harm, or for a single, divisible but practically indivisible harm (D's are responsible for proving how much they caused) ii. One Negligent, One Not: Courts usually do not hold negligent D liable, citing that there is no deterrence effect because even without D's risk of harm, the harm still would have ensued. iii. Pre-Emptive Causation: First fire destroys house, second comes shortly after to the same area. Neither a but for cause, but only the first is said to have caused the harm.
iv. Kingston v. Chicago & N.W. Ry (p.402)
1. Two fires came from two different directions and combined to burn plaintiff's house
a. Either fire would have alone burned the house b.One fire was started by defendant, the source of the second fire was unknown
2. Rules in fire cases: a. 2 negligent fires:
Each defendant is individually responsible for the entire damage (joint and several liability)
i. Both defendants in town/have money: they likely split it 50/50. If one is judgment proof, the other pays the entire thing
1. J & S liability rule applies to joint tort feasors, concurrent tort
feasors, and if either of defendant's acts individually would have caused the same damage
b.Negligent fire and a natural fire: defendant is off the hook. Defendant's fire is not a "but for cause" of the damage
3. Since the court did not know how the second fire started, and since the burden of this lost info determines who wins the case, the court rules in favor of the plaintiff v. Smith v. JC Penny Co.
1. Plaintiff was wearing a coat purchased from JC Penny made of flammable material supplied by defendant Bunker Ramo. Coat was set ablaze by a fire started through the negligence of another defendant's service station employees. a. Court had model of which to divide liability. An employee of the station had gasoline sprayed on his trousers and was in the same fire as the plaintiff, suffering only minor burns to his legs. Thus the jury could infer that the plaintiff would not
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