TORTS OUTLINE
…NEGLIGENCE CONTINUED FROM LAST SEMESTER
III. CAUSATION
I. CAUSE IN FACT (Actual Cause)
A. SIN QUA NON – No liability for negligence unless D’s conduct was “that without which” the plaintiff’s injury would not have occurred. “BUT FOR” language is another way of putting it.
1. Was the defendant’s action a cause in fact of the plaintiff’s, this particular injury? If not, there is no negligence because the third element hasn’t been satisfied. If so, you go to the proximate cause analysis
2. Alternative Question: Is the defendant “in fact” the cause of the accident or WOULD THE ACCIDENT HAVE HAPPENED REGARDLESS OF D’s CONDUCT?
3. Used to be called “direct causation”.
B. But for test summary
1. D’s conduct has to be a SUBSTANTIAL FACTOR in causing injury of the plaintiff
2. Proof cannot be merely speculation nor that injury happened after D’s actions;
3. D’s actions POSSIBLY causing the injury is not good enough.
4. P must show that D’s conduct was a PROBABLE CAUSE OF P’S INJURY;
5. Exception in single cause cases: Herskovitz case – reduced chance of survival – cancer patient less than 50% chance of survival
6. Exception in multiple cause cases – CONCURRENT CAUSES:
a. Probably only one of the defendants caused P’s injury; OR
b. None of them alone would have caused the injury, only the combination of two or more parties actions that caused the injury; OR
c. Fire case – ANY of D’s could have or would have cause the injury. Test is changed to:
7. SUBSTANTIAL FACTOR TEST: D’s will still be liable if his/her conduct was still a substantial factor in causing P’s injury.
a. If multiple causes possible, but only one cause truly caused the injury and P can’t tell which one, P needs only present proof that there was some sort of negligence that cause the injury – name all possible D’s, or MARKET SHARE TEST: at least in DES cases a substantial share of the market held by those defendants.
8. Perkins v. Texas and New Orleans Ry. Co.
a. Facts: P was driving his car on a street that had a railroad crossing that was marked. The train tracks view of oncoming cars was obstructed due to a warehouse on that intersection. The train operators normally blew their whistles and shined their light to warn oncoming cars. The Ds were traveling 12 miles an hour beyond safety requirements for the railroad. The Ds did not see the Ps car until it was too late and hit the P killing 2 passengers. Ps are saying that the D was negligent in speeding and that negligence caused the accident. The Ps are arguing that if the Ds would have been traveling at the required lower speed limit the Ps would have had more time to get past the train or the Ds could have stopped the train.
b. Issue: Was the
i) in cases that do not involve issues of intervening cause, proof of causation is satisfied by proof that a party’s conduct was a cause in fact of the damages alleged.
ii) cause in fact: the event would not have occurred but for that conduct
iii) Inadequate proof on causation – need at least enough proof so a reasonable jury could infer a connection; Court does confirm the “but, for” test – but for the D’s negligent conduct (crappy steps), the accident and the P’s death would not have occurred – but holds that P DID NOT PROVE THIS CONNECTION. There is no other evidence besides Bacon’s testimony. Mere speculation not enough and as a mater of law, don’t send this issue to the jury so summary judgment is appropriate.Saying that Bacon stumbled on the stairs requires speculation which according to precedent is not sufficient to defeat a summary judgment motion. (benson v. Diehl).
(1) In Krone v. McCann: P sought damages for injuries she got when she fell on the property of the D. P was unable to ID what she fell on and summary judgment was granted because P has to prove evidence from which it could be reasonablly inferred that negligent conduct on the part of the d was the proximate cause of the Ps injuries.
Court affirmed the summary judgment.
