TORTS II
A. CHAPTER FIVE: CAUSATION IN FACT
A. Factual causation. “but for”
i. In order to prove that a Δ caused the p’s injury, the p must prove two separate aspects of causation. The first is known as causation in fact (factual causation), also called ‘but for’ causation or ‘sine qua non.’ The p must show that the injury would not have occurred without the Δ’s negligent conduct.
ii. Under this test, it must be shown that plaintiff’s harm would not have occurred ‘but for’ the defendant’s act.
iii. If the defendant’s conduct was 1.the sole factor or 2. a substantial factorin causing the plaintiff’s injury, it follows that he will not be absolved from liability merely because other causes have contributed to the result, since
B. Proof of Causation
i. Where a Δ’s negligence greatly increases the chance of injury, the possibility that the accident could have occurred without the negligence does NOT break the chain of causation.
1. A p must prove, however, more than simply that a Δ was negligent and that the p subsequently was injured. The p must show that the Δ’s negligence actually caused (sole factor) or significantly contributed (substantial factor) to the injury.
2. The Δ does not bear the burden of disproving causation by demonstrating another plausible cause of injury. The p bears the entire burden of proving causation.
3. Where the Δ’s conduct creates a probably reduction in p’s life expectancy, even though the p would not have otherwise lived to a full life expectancy, the Δ can still be liable.
4. Daubert expert testimony test
C. Concurrent Causes
i. Where separate acts of negligence combine to produce a single injury, each tortfeasor is liable for the entire result even though each tortfeasor’s act alone may not have caused the result. Jointly and severely liable (both must account for 100% of ∏’s injuries).
ii. If two events are independently sufficient to cause an injury (like fire’s), each is liable for the full extent of the injury.
D. Problems in Determining Which Party Caused the Harm
i. Summers v. Tice (hunters shot person, while aiming at quail). If it is impossible to determine which of two negligent parties actually caused an injury, both may be held jointly and severally liable. Burden becomes the Δ’s to prove they didn’t do it and it was the other Δ.
ii. Sindell (who produced the drug?). Where several parties are involved, a court may apportion liability rather than imposing joint and several liability. (market share liability, holding that if defendants could not prove they did not make the DES at issue liability for damages would be apportioned based on their market share.)
B. CHAPTER SIX: PROXIMATE OR LEGAL CAUSE
A. Some FUN Info: 498 à attractive nuisance (a-e)
i. In addition to proving causation in fact, a p must show that the Δ’s conduct was the proximate cause of the injury. Proximate cause requires a natural sequence, unbroken by intervening (superseding) causes, that results in some injury.
B. Unforeseeable Consequences
i. A Δ is liable only for the ordinary and natural results of his negligent conduct. For example, a court has held that a person who causes a fire is not necessarily liable if the fire eventually burns a house far away.
1. Liable parties were obligated to take the injured party as they found him and that they were, thus, liable for damages for the aggravation of a preexisting illness.
ii. Where it is reasonably foreseeable that the Δ’s negligent conduct would cause some damages to the p, the Δ is liable even though the exact extent of the damages is not foreseeable.
1. A Δ is not liable for the unforeseeable consequences of his negligent conduct, even though they were the direct result of the Δ’s conduct.
2. The foreseeablity of consequences depends on the balancing between the likelihood of risk and the magnitude of damages flowing therefrom.
iii. A Δ may be liable in negligence only to those p’s who are in the circle of reasonable foreseeability.
C. Intervening Causes
i. An intervening act of a third party does not sever the causal connection if the act is a normal and foreseeable consequence of the risk created by the Δ’s original negligent conduct.
-However, for an intervening act to successfully cut off liability as to the first
1. For example, two parties who engaged in an illegal car race are jointly liable for injuries to a third person regardless of which party directly caused the injuries.
ii. The doctrine of comparative negligence does not necessarily preclude joint and several liability.
1. However, some courts have held that comparative negligence proportionately reduces a Δ’s joint liability.
B. Satisfaction and Release
i. A person who has suffered an indivisible harm caused by the negligence of several parties is not entitled to more than one satisfaction.
ii. At common law, when a p released one joint tortfeasor from liability, all other joint tortfeasors were also relieved. However, courts have held that a release which expressly reserves the right to sue other joint tortfeasors is enforceable.
iii. A ‘Mary Carter’ agreement, where one Δ settles prior to trial and guarantees the p a certain minimum recovery in exchange for a release, may violate public policy. These agreements provide an incentive for the settling Δ to assist the p at trial obtaining a large judgment against the other Δs.
C. Contribution and Indemnity
i. If one jointly liable Δ is forced to pay an entire judgment, he may seek contribution from the other Δ in a separate action.
ii. Contribution may be obtained even if the p only sued one Δ out of a number of responsible parties. If the Δ is forced to pay, he may seek contribution and prove that the other people should be partially liable.
iii. Some courts strictly interpret the requirement for joint liability prior to any contribution, even where the result is fundamentally unfair. Yellow Cab
The principle of indemnity allows a party who is not responsible for an injury
