Torts
Kautsch
Summer 2015
Cause In Fact
1. Connection:
a. In a negligence action, the plaintiff needs to prove that there was a connection between a breach of duty and the damage that resulted
i. Sine Qua Non
1. “But-for” rule. “But for the defendants negligence occurring, the damage would not have occurred”
2. Tends to be more defendant friendly because the jury usually feels a perceived need to rule out all other causes. They feel they need to not even consider other causes, or eliminate them.
ii. Substantial Factor
1. More likely than not, the breach of duty caused the harm.
2. More plaintiff friendly because there is no perceived need by the jury to eliminate other causes
3. Burden on the plaintiff to show negligence was a substantial factor
4. Perkins Case (train speeding)
a. Jury did not have to consider whether if not for the excessive speed the harm would not have happened, they can determine if the excessive speed was a substantial factor
b. D’s argued, with testimony, that even under correct speed, there would not have been enough time to stop before hitting the car. Speed was not substantial factor
iii. Multiplication Factor
1. Breach greatly multiplied the chances of the accident and is within nature of injury you would expect
a. Very plaintiff friendly. If the negligence was not a substantial factor within itself, it could be a cause of harm if it multiplies the chances of an accident and the injury was natural of the type of risk
b. Reynolds Case (Stairs)
i. D argues that she could have fallen if it were lit (but-for, substantial arguments) but this eliminates those defenses
ii. Court says that saying the injury might have happened without the negligence is not sufficient to break the chain between cause and effect between the negligence and injury.
2. Or multiplied Risk of harm and
3. Increased risks were a substantial factor in the harm, even if it not of the natural type because in this case the natural type would have happened anyways (Herskovits p. 280)
a. Negligence did not directly cause the result, but the negligence still did play a role of some harm.
b. Herskovits (failed to diagnose cancer, and patient died)
i. The negligence of failing to diagnose did not cause the death, it would have happened anyways. But it decreases his chance of survival, which is still harm.
ii. Inability to impose liability ends up going against the intention of tort law, which is to discourage negligence and compensate people for tortious losses. So the court finds a way to still put liability, but not attach it to the whole death.
b. The breach must be probable cause of the damage
i. Not just possible
1. Courts may reject because of coincidence if evidence shows possibility “post hoc ergo proper hoc” “after this, therefore because of this”
ii. In some circumstance the court may accept the defense offering alternative possible causes of damage rather than a probable cause of damage (??)
2. Quality of the Evidence
a. Evidence of cause in fact must NOT be conjectural (hypothetical)
b. If evidence is scientific, it must be sound
c. Equivocal (vague) testimony is not sufficient (Gentry p. 273)
d. Must be basis for a reasonable trier of fact and meet the standard of preponderance of the evidence
e. Expert Testimony
i. Judge serves as gatekeeper by determining the reliability and relevance of expert testimony
ii. Judge will apply a two-pronged test:
1. Whether expert testimony reflects scientific knowledge, whether their findings are derived by the scientific method, whether their work product amounts to good science (Daubert)
2. Whether the testimony is a fit. Is it relevant to the task at hand and logically advancing a material aspect of the proposing party’s case
iii. Other Considerations
1. Are experts theories generally accepted in the scientific community
2. Have they been subjected to peer review and publication
3. Have they been tested independently of the litigation
3. Loss of Chance
a. The nature of the plaintiffs cause of action may complicate or ease the task of proving cause in fact
i. Loss of chance of survival may be an alternative to wrongful death
1. Herskovitz case shows how the plaintiff may not need to prove that the negligence more likely than not caused the harm. The loss of chance of survival existed and that is enough for it to go to a jury and be considered a substantial factor in the harm.
ii. Plaintiffs may attempt to claim loss of chance in other than medical circumstances
iii. A claim against an attorney for malpractice may include issues like in los of chance cases
4. Multiple Tortfeasors: The requirements for establishing cause and fact may be adjusted depending on the number and nature of Tortfeasors. An Action may be brought against:
a. A sole, known tortfeasor (Reynolds 271)
b. Concurrent Causes:
i. A tortfeasor who is known and who acted independently but concurrently with one or more others and whose negligent act:
1. Combined with another’s to cause a single injury (Hill 291)
a. Truck driver left his truck parked with no lights, driver of car swerved out of the way (negligently) and in doing so, passenger suffered injury. Truck driver say’s because driver of car was negligent, he should not be responsible. They could both use a but-for standard but this would leave the plaintiff with no recovery.
b. Where separate acts of negligence combine to produce directly a single injury (meaning the injury can’t be divided among the negligence of both parties. You cannot separate the harm and divide it behind the tortfeasor independently), each tortfeasor is responsible for the entire result, even though their act alone might not have caused it.
2. Was concurrent with another’s and was a substantial factor in causing a harm (Anderson 292)
nce such as wind, heat, etc.
c. Principle: If harm due to negligence is remote, it is not foreseeable and the plaintiff can not satisfy the element of proximate cause
d. Policy Considerations: Towns dependency on railroads, importance of insurance, cultural considerations
2. Policy Considerations in general
4. Principles for determining reasonable foreseeability: (competing principles, look to jurisdiction)
a. Thin Skull Rule
i. Ultimate harm is treated as being reasonable foreseeable if an initial, reasonably foreseeable harm aggravates a pre-existing condition
1. Bartolone Case: the whiplash he suffered was a reasonably foreseeable harm of the car accidence in which the defendant was found to be liable for. The ultimate harm of the psychotic break resulted from the harm of whiplash. Court says you are responsible for aggravating a pre-existing condition if the harm stemmed from the initial harm of the negligence.
2. Principle: D can be held liable for aggravation of a pre-existing condition of the P due to D’s negligence
b. Naturally and Continuously followed events
i. Ultimate harm treated as reasonably foreseeable if it directly, naturally and continuously followed, and was casually connected to, some foreseeable harm
ii. Polemis:
1. A plank fell into a hole of the ship when the chartered servants were discharging the ship, when the plank fell it caused a spark, which ignited the fuel on board. This caused an explosion and the entire ship was destroyed. Owner of ship says chartered company is responsible because of the negligent act of dropping the board caused all this. D say that you can’t expect a dropping of board to cause what happened.
2. The court says that the anticipation of the person whose negligent act has produced the damage is irrelevant. Once the act is negligent it does not matter that the exact operation was not foreseen
3. Principle: If negligence causes a reasonably foreseeable initial harm (plank causes damage when dropped in the hole) to the plaintiff and also directly and naturally causes a second harm, the second harm is treated as reasonably foreseeable ultimate harm.
c. Specific Type of Harm and Tort Feasor Knowledge
i. Ultimate harm is reasonably foreseeable only if it constituted a specific type of foreseeable harm, and if the tortfeasors knowledge was sufficient to make that specific type of harm foreseeable
