Actual cause
Did D’s carelessness cause victims injury? (a.k.a. cause in fact, factual cause)
- but-for test = sine qua non or counterfactual test, which is the predominant test for actual cause: would P have been injured but for D’s breach?
If no, D’s breach was cause of P’s injury
If yes, D’s breach was NOT a cause of P’s injury - Burden of persuasion = preponderance of the evidence: breach probably needed to happen for injury (50%)
- Actual cause should go to the jury
- Substantial factor (R2d uses this) clarifies but-for test stating carelessness is a substantial factor if it’s
(1) a nontrivial necessary condition for P’s injury, or
(2) one of two or more simultaneously operating forces each sufficient to cause injury- doesn’t need to be the cause, just a cause
- R3d rejects this and defines Factual Cause = tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct (26), “but-for” test
Proximate Cause
D’s breach & P’s injury linked in the right way. Was D’s carelessness that led to victim’s injury too fortuitous (random) or remote to hold D responsible for injury? (aka “legal cause” or “scope of liability”)
- a duty issue. Often connecting the actual cause to the injury that occurred—not an independent element; it’s connecting things as pieces to a puzzle
- is P’s harm within the scope of the risk of D’s breach?
- liability limiting (we’ve already established actual cause, but question is: is this a cause that’s also a cause-in-fact, or is just an actual cause?
Multiple Sufficient Conditions (Rest 27) or “Concurrent Causation”
Pre-harm conditions, each of which, in the absence of the other would’ve been sufficient to cause P’s loss.
- 2 (or more) D’s acting independently
- Fault of one did NOT need to happen for harm
- Exception to But-For Test (Rest, 27) = if a condition would’ve been sufficient to produce harm which came into play only after the harm occurred, will not be deemed a cause (ex: fire 1 arrives after fire 2 burned down house)
Alternate Causation
Both D1 and D2 are acting wrongfully and could each be liable, only one is chosen
- two (or more) acting independently
- fault of only one was necessary for P’s injury, but which one is unknown
- Effective this = burden sharing
- We don’t learn anything more about whose fault it was
- D is in a better position to say whether or not they’re guilty
- shifts burden to D to disprove his carelessness that led to P’s injury—otherwise, actual causation is presumed & each D is subject to liability (apportionment determined by joint & several liability)
Toxic Torts and Enterprise Liability
Toxic Torts= illness/disease caused by exposure to substances for which D is responsible
- (1) need to establish general causation, but (2) does not establish specific causation; these rely heavily on witnesses
- Medical malpractice difficult for someone who already suffered —> probabilistic evidence to establish but-for causes
- Notoriously difficult to win because difficult to prove that the exposure was the actual cause and Daubert expert testimony standard: trial court can only admit expert testimony if expert is qualified & if testimony is based on sound scientific method
Enterprise Liability= an entire industry may be sued for causing harm (ex: dynamite for manufacturing explosives)
- Usually usually when a product is manufactured, sold to a group of consumers for their use, and then much later the harms are realized
- Responsibility is divided by share in the company
- Are willing to do this for the product is fungible or generic. It can be expensive in its goals.
- can serve a regulatory function (that D caused this harm to P)
Rest. 3d Scope-of-the-risk Test (Rest. 3D, 29)
“An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious”
- what harms would ordinarily ensue from the negligence within the scope of the risk? If the harm it is outside of the risk, not proximate cause.
- foreseeability and scope of the risk tend to reach the same results and both raise the level of generality problem
Targets of Foreseeability ** start with foreseeability ONLY for proximate cause
- Duty: foreseeability of the victim, judge (MacPherson)
- Breach: foreseeability of the event, jury (Adams)
- Proximate Cause: foreseeability of the type of injury,judge (Palagraf)
- Damages: foreseeability of the extent of the injury (eggshell skull P: Vosburg) jury be suspicious of foreseeability here
Superseding cause
Cause that precludes the imposition of liability upon the remote wrongdoer, even though the remote wrongdoer was also necessary condition of victims injury
- breaks the causal chain
- overrides or (preempts) prevents proximate cause
- two basic features:
(1) two wrongdoers acting independently of one another no concert of action or common plan between them
(2) the wrongs are committed in a sequence, so the initial wrongful act is more remote time and space from P’s injury, and a subsequent wrongful act that’s more direct or immediate infliction of injury - Pollard and Clark: D is not responsible when third-party’s act transformed the situation as to introduce “a new power of doing mischief”
- Rest. 3d rejects superseding cause and relies on apportionment: greater culpability will pay a larger percent of damages
- Remote is only careless for having “set the stage” for the immediate wrongdoers wrong
Negligence Per Se
Establishing breach of negligence based on violation of a statute
- Tort law is statutory law = statutes of modified tort law throughout history
- statute’s role in tort law: creating new torts, eliminating common law torts, replacing tort law with alternative schemes, altering remedies for successful claimants, abolishing defenses, changing procedural evidentiary rules
- Rationales:
(1) legislative supremacy (see Cardozo in Martin v. herzog) legislator has set a standard, jury can’t relax that standard
(2) fairness/reliance = p entitled to rely on other others compliance with legislative standards; D had notice that non-compliance —> trouble
(3) instrumentality = easy for P to prove negligence —> greater incentive for compliance
(4) efficiency/rule of law = bypass jury with a bright line rule (ex: even-handedness across cases, less litigation) without losing; preserving legal standard
Steps of Inquiry: Negligence Per Se
- Does the statute or reg set a standard of conduct?
- Did D violate it without excuse (Rest. 3D, 15) —> Breach
- Was the violation an actual cause of P’s injury? —> Actual Cause - Is P a member of the statute protected class? —> Duty
- Was the incident among those the statute was intended to prevent? —> Proximate Cause
If YES to all, then it is negligence per se, without having to establish the detailed to exercise ordinary care
If NO to any, is not negligence per se, but might still be able to introduce the violation as evidence suggesting that failed to conform to the common laws of ordinary care standard
Wrongful Death Statutes
- Authorize survival actions for losses and occurred by decedent during life plus funeral expenses. Claims survive their death, pursued and defended by estate.
- “Direct action” compensation sought for injuries suffered by tort victim, payable to victims estate - Authorize wrongful death actions to allow decedent, surviving family members to seek comp. for loss of support they have occurred from killing
- “derivative action” by persons who are not themselves victims, but suffered injuries because of fatal tort against relative
- Loss of consortium action, where spouse S1 can recover from D for carelessly injuring (but not killing) spouse S2 to deprive S1 of S2’s companionship
Negligent Infliction of Emotional Distress (NEID)
D’s careless as to P’s emotional well-being, causing trauma, but not discrete physical harm
- Breach of duty to take care to cause emotional distress in and of itself
- different from parasitic claims emotional D’s arising from physical injury (ex: these carelessness leads to physical and emotional injury or traumatizes P causing later physical harm)
- Only recognized in the second half of the twentieth century
Physical & Emotional Harm (Rest. 3d, 47)
An actor whose negligent conduct causes serious emotional disturbance to another subject to liability to the other, if the conduct:
a) places, the other immediate danger, a bodily harm and the emotional disturbance results from the danger (Zone of Danger); or
b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance
- Specific forms of relationships were more likely placed someone in a place of emotional vulnerability (ex: family hiring to prepare a corpse & Something negligent happens with the body) —> has expanded to include reliance on emotional well-being of the victim (usually involves minors; patient)
- Will look to professional setting, P’a reliance on D, P’s vulnerability to emotional distress and variety of other other contextual features
Bystander Liability
Liability to certain person who witness other being injured, killed by the carelessness of D
- most prominent exception to limiting NIED to zone of danger and undertaking cases
Loss of Chance (medmal) R3d
If there’s negligence where someone had a chance of survival, you can establish causation on chance if that survival (I.e., if someone acted reasonably, chance of survival would’ve increased)
Aligning the Elements - Relationally & Proximate Cause
Duty & Breach
- Relationality: P must prove not merely that D was careless, but that D was careless as to P
- Andrew’s’ Palsgraf dissent: there should be no relationality requirement but instead common sense limits on liability
Actual Cause & Injury
- Proximate Cause: P must prove D’s breach caused P’s injury in a non-fortuitous manner (fortuity determined by foreseeability or scope-of-risk test)
- Andrew’s Palsgraf dissent: proximate cause gives jurors an occasion to set common sense liability limits
