Elements of Basic Tort—1)Duty; 2)Breach; 3)Causation; 4)Harm/Damages
Defenses of Tort—Contributory Negligence; Assumption of Risk
Causation
1. Cause-in-fact (But For-Any Other Poss. Cause in Facts?)
A. New York Central R.R. v. Grimstad (2nd Cir. 1920)
1. Issues: Was D negligent in not equipping barge w/life jackets or bouys? If so, did that negligence in fact cause Grimstad’s death?
2. Holding: Dis. Court erred in denying defendant’s motion to dismiss complaint b/c but for causation was not established. Grimstad could have died even if buoy had been on board. Negligence not the but for cause.
3. A very high standard of but for causation. Too high for most P’s. Case is outdated.
B. Zuchowicz v. United States (2nd Cir. 1998)
1. Issues: Were the fact findings clearly erroneous? (Appelate Ct. can test fact finding if it really needs to, but rarely does. Only deals with legal issues). Was Danocrine a but for cause of P’s death? Was overdose a but for cause of P’s death?
2. Holding: P died of Danocrine. Fact finder not erroneous. D’s attack on dist. Ct’s finding meritless. Negl. was a but for cause of death.
3. Causal Link: If a) negl. of D increased risk of harm and b) P suffered that very kind of harm, then there is a causal link and but for causation. Far more relaxed than Grimstad.
C. General Electric Company v. Joiner (U.S. 1997)
1. Electrician in chemicals (PCBs). Get cancer. Experts rejected
2. Issues: Did the district court abuse its
According to Daubert and Federal Rules of Evidence, judges still have autonomy to decide if expert testimony relevant and reliable. Gives some power to judges to determine if some experts’ testimony can serve as but for causation, which means judges may decide rather that juries.
5. *Policy: What’s wrong with having a lower standard for science in legal world than in scientific world? Why do we have lower standard? B/C we must reach decision. Academic scientists can simply ask another question.
D. Herskovits v. Group Health Insurance (Wash. 1983)
1. Man dies from cancer because of negl. diagnosis. 39 to 25%.
2. Holding: 14 percentage point reduction sufficient evidence for cause of action
3. Dominant Cause v. Contributory Cause: 1) chance of survival >50% Dr’s negligence can be held as dominant cause if Dr’s negligence caused a percentage point drop greater than the difference in percentage points between the patient’s chances at T1 and 100%. Otherwise, doctor is considered contributory cause and is assessed damages multiplied by the percentage point drop.
4. Lost Chance Theory Jurisdictions: 1) chance of survival < 51% and 2) death occurs, D can be held liable as contributory cause = damages times percentage point drop.
5. Preponderance Theory Jurisdictions: 1) chance of survival
