Causation

cause-in-fact

“but for”

• Simple to state but harder to prove.

• But for the negligence (breach of duty) damage or injury would not have happened (but for the D’s speeding, the stopping distance would have been shorter and would not have caused the harm).

• New York Central R.R. v. Grimstad – P fell overboard and drowned immediately. D was negligent by not having life buoys on board but it was not the but-for cause of the P’s death.

“substantial” factor

What would have happened? (Zuchowicz – Overdose of Danochrine)

• Did Danochrine cause the disease that killed her? Court ruled that it did. Did overdose of Danochrine cause death? Court ruled that it was a substantial factor. Can’t show but-for but enough to show substantial factor.

• Experts ruled out other known causes of the disease which made the P’s contention more likely

• Campfire in dry conditions was but for cause but it was also the wind and lack of rain. “you take nature as you find it”

tougher issues

two forces (Kingston)

• 2 fires, 1 set by D negligently, simultaneously xconverges on P’s house and burn it down. If 1st fire hadn’t burned down the house the 2nd one would have.

• Make liable the tortfeasor in front of us, they are more guilty than the innocent P.

alternative liability (Tice)

• 3 people quail hunting, 2 D’s hit P in the face, one hits the lip other hits eye. 1 pellet in the eye and 2 shooters, 50% chance it came from either shooter.

• If it is that close, 50/50, D’s are held jointly and severally liable.

• Burden shifts to D to prove which one was negligent

• Joint and several liability – P can choose the “deep pocket” but that D can recover against the other D that D’s portion of liability.

loss of chance (Herskovits)

• D failed to diagnose the P’s cancer until his chances of survival were only 25 percent. There was testimony, hoever, that even absent the D’s malpractice (i.e. but-for the malpractice) D’s chances at survival would have only been 39%.

• Could not have been said that “but-for” the D’s malpractice, D would more probably than not have died.

• Court held that there could be a recovery for loss of chance for the difference in chances (the difference between 39% and 25%).

Market-share

Skipworth

• Girl who ate lead paint and was injured. Sought to sue all lead paint manufacturers in proportion to their market share.

• Don’t know which paint was consumed.

• P doesn’t win because the products (lead paint) are not the same (each have different levels of lead), and the time period (almost 100 years) was too long of a time to ascertain that all manufacturers were accounted for.

• Sindell v. Abbott Laboratories

• D’s were manufacturers of the drug DES usually taken by mothers during pregnancy. P’s alleged that they suffered injury as a result of exposure to DES in utero. The problem was not no individual P could identify which manufacturer(s) had made the DES that injured them.

• All DES was the same (unlike lead paint), market shares were easy to discern due to FDA regulations, and the period in question was only 9 months during the time the P’s were in the womb v. 100 years in skipworth.

• D’s held liable in proportion to their market share.

proximate cause

easy cases

foreseeable

• D’s negligence is a proximate cause of the P’s harm if causing that harm was a foreseeable result of acting as the D did.

• Incident to the negligence?

harm-within-risk

• D is drunk and driving erratically and hits a bump which causes his passenger to spill hot coffee on his lap.

• Coffee spill is not a harm within the risk of drunk driving.

• Berry v. The Borough of Sugar Notch

• Speeding trolley gets hit by a falling tree. Even though the speeding was negligent and that the tree would not have hit the trolley if it had been operating at the normal speed (because the tree would’ve already been down) the court ruled that getting hit by a tree was not a harm within the risk.

• Gorris v. Scott

• Sheep were washed overboard from a ship as a result of negligent violation of a regulation requiring that they be kept in pens. The regulation was promulgated under a statute designed to protect the sheep from contagious disease, not to keep them from being washed overboard. Having sheep go over board was not the harm within the risk of not keeping the sheep in pens (it was catching the contagious disease).

Intervening vs. superseding cause

• Run stop sign and...

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