Torts: Negligence (Causation, Damages)

Factual Causation Subtopics 

The “But-For” Test 

Concurrent Causes 

Overdetermined (multiple, sufficient causes)

Substantial Factors 

Special Problems in Factual Causation

The “But-For” test

A counter-factual thought experiment asking if removing a negligent event or conduct from the chain of events would have prevented the harm

A substantial factor is always a but-for cause

Perkins v. Texas and New Orleans R.R. Co

Trains speeding (breach/negligence) was not a “but-for” cause of the crash b/c even if going to speed limit, the crash would likely still have occurred

Concurrent causes

More than 1 negligent causal factor is necessary b/c neither is sufficient on its own to produce harm; both are responsible/liable

Can use but-for cause here

Hill v. Edmonds 

Ps negligent driving and Ds negligent parking both but-for factors of the crash, so both can be liable even if their actions alone would not have been sufficient to bring about the harm 

Overdetermined (multiple, sufficient) causes

More than sufficient to bring about harm; doesn’t matter if harm was going to occur anyways

But-for test doesn’t work here b/c both causes sufficient, so need to consider if act was a “substantial factor”

Anderson v. Minneapolis

D claims he can’t be liable to P b/c Ps property was going to be ruined by other fire anyways and court says doesn’t matter b/c the fires intermingled, so Ds fire was a substantial factor in the damage of Ps property

3rd Restatement + Overdetermined causes 

If multiple sufficient acts, each is regarded as a factual cause of the har, 

Overdetermined causes + natural v. human causes

Some courts say both causes must be human OR further both causes must be human + tortious

Successive causes

where a second cause accelerates/hastens harm that would have occurred anyways

Usually a question of adequate damages

Kind of like a but-for cause of the harm happening WHEN it did

Substantial factors definitions 

Can have multiple meanings, but usually means a “but-for cause” unless overdetermined/multiple sufficient cause cases 

Jury instruction of substantial factor alone is hard for jury to understand/is ambiguous 

Doull v. Foster

Court says that but-for cause test is better jury instruction than substantial factor test even in multiple sufficient causes cases b.c it ensures that Ds negligent conduct (not providing informed consent, failure to diagnose, failure to oversee) can cause liability when it necessary cause of harm

Special Problem in Factual Causation

Multiple fault/alternative liability M

Multiple fault/alternative liability 

50/50 chance between two Ds causing the harm, so reaching the standard of proof is impossible where preponderance of the evidence is 50.1% chance 

Summers v. Tice

There was a 50/50 chance that either D shot the pellet that hit P in the eye and court ruled that to avoid injustice to P both Ds could be held liable even if they weren’t working in concert

Other considerations for multiple/alternative liability

Shifts burden of proof to D when ALL were neg (b/c in best position to offer evidence/otherwise would be unfair to P b/c 1 is 100% liable)

Extends from 2 to 3 Ds too

All Ds must be in one suit

If P could have figured out liable person, but didn’t, court disinclined to use alternative liability

Limited in toxic torts and products liability cases

Proximate (Legal) Cause/Scope of Liability Subtopics 

Basis 

Direct vs. Remote Causes 

Type of Injury + Foreseeability

Eggshell Skull Rule 

Duty vs. Proximate Cause in Palsgraf 

Risk Rule

Intervening and Superseding Causes 

Basis for Proximate Cause

But-for cause alone would lead to liability for absurd causes, so need proximate cause to limit but-for causes (botched vasectomy doc liable for all of twins harms)

Must satisfy both parts of causation, so if don’t satisfy factual cause, then don’t get to proximate (Person hitting car is but-for cause of getting injured in trail derailment, but it is not w/in scope of liability)

Foreseeability is huge

Atlantic Coast Line R. Co. v. Daniels

Says that but-for test would go haywire (but remember can only consider negligent acts!!!!!!) so need to draw a line somewhere; jury gets to decide where line is drawn 

Ryan v. New York Central R.R. Co + Direct vs Remote Causes 

Court rules that P is only responsible for damage to the first-building that fire impacts, which was Ds own shed, due to foreseeability and inability to control natural conditions so DV affirmed 

DV problematic b/c takes question away from the jury 

Suggest bias against tort law as a mechanism for affording relief 

Type of Injury and Foreseeability

Ds liable for the natural, necessary, probable consequence of their actions b/c type of damage is generally foreseeable in these cases

Wagon Mound No. 1

Wharf operator sues freighter who leaked oil into harbor causing damage to slipways (but didn’t sue for this) and fire after wharfs workmen dropped molten metal in harbor and court says that foreseeability test should be used for type of injury (fire) here

If directness test was used here, P could probably have won, but under foreseeability test P will probs not win b/c comparative fault of welding

Wagon Mound No. 2 

Ship owners try to sue freighter and reverses decision for the freighter b/c even a small risk is important important to protect against even if probably is small and the freighter, a professional, should have known that the oil had lit on fire in the water before (so type of harm, fire, foreseeable)

Difference btwn Wagon Mound and Eggshell Skull

Eggshell skull says doesn’t matter if you can foresee EXTENT of harm, but you have to foresee TYPE of harm

Egg Shell Skull Rule 

D takes P as he finds him, so can be liable for aggravating pre-existing illness U

uses of egg shell skull rule

When extent of harm is unforeseeable b/c of something specific to P (pre-existing physical conditions + mental conditions/fragile psyche in most jurisdictions)

Applies regardless of directness-remoteness test

DOES not apply if P is also negligent

Bartolone v. Jeckovich

D found liable for car crash and then found liable for damages to P whose pre-exisiting schizophrenia emerged as result of the crash and left him disabled

Purpose of egg shell skull rule 

Practical necessity b/c otherwise we would have to determine “normal” type of injury each time 

Provides justice, compensation, deterrence, corrective justice 

Given existence of thin-skulled people, must foresee that you could harm them 

Duty vs. Proximate Cause in Palsgraf

Disagree about where foreseeability should be analyzed (C says duty to foreseeable P, A says duty to everyone, but must be proximate cause/w/in scope of liability)

Can there be liability for unforeseeable Ps

Yes

Andrews Proximate Cause considerations 

Natural and continuous sequence 

Direct connection 

Remoteness in time and space 

Intervening causes 

Foreseeability 

Risk Rule

An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious

Satisfied if the harms risked by neg. conduct include general sort of harm P suffered

Difference between risk rule and foreseeability

RISK RULE DOESN’T NEED FORESEEABILITY SO DIFF FROM WAGON MOUND

Can be w/in risk but unforeseeable (satisfies rule)

EX: anchor breaks, risk is damage that will be caused, but then it causes a bridge to fall down

Can be foreseeable risk, but harm not related to risk caused by neg. conduct (does not satisfy risk rule)

EX: D fails to warn visitors about toxins in lake, but then D drowns

Based on what RP would say can happen from D’s negligent conduct

Yun v. Ford Motor Co. 

Ford could potentially be liable for defective product, but the fact that the father left the car and traveled on foot across a highway is highly extraordinary and not a risk arising from the type of harm that would have arisen from Ds negligence 

Dissent disagrees and says RP could disagree so the question should be for the jury

Intervening

Subsequent act by 3rd party is normal, foreseeable consequence of situation created by original D’s negligence and does not break chain

Superseding 

Subsequent act by 3rd party is extraordinary, unforeseeable, and removed from D’s original negligence so it DOES break the chain 

Derdiarian v. Fleix

Failure to put up safeguards around the worksite risked a person driving into the worksite and causing harm, which is exactly whaat happened when the 3rd party had a seizure even though the manner of Ps harm was wild, the type of harm was within the risk expected and did not break the causal chain

3rd party and D not multiple sufficient causes b/c needed both for harm

Intervening + superseding causes + criminal intent

Usually a question for the jury

Does not automatically break the causal chain; question of whether objective RP could foresee issue (like bartender serving person w/keys in hand)

Depends whether D can guard against the type of harm

Watson v. Kentucky 

R.R. could not have foreseen that 3rd party Duerr would purposefully light the gasoline on fire, even if the fire itself was foreseeable and they couldn’t have guarded against Duerr’s intentional act w/ signs/warnings/etc. 

Damages

Money claimed by P, or ordered to be paid to P, as compensation to tort victim

Required in every negligence claim, but not all intentional torts) Pu

Purpose of Damages

Compensation

Corrective Justice

Deterrence

Procedure for awarding damages 

Must be proven by preponderance of the evidence 

Set by jury based on expert testimony 

Single recovery 

Pros of single recovery

P gets to move on and feel whole

D gets repose

Courts don’t get backed up w/ multiple suits from same issue

Cons of single recovery

Hard to predict future costs

P must conserve money for future losses

Cannot adjust award later to be more accurate

Trial Strategy Considerations

• D may claim liability so that trial focus is on damages and jury is not emotionally moved when setting numbers  

• D may move for bifurcated trial so that evidence relating to damages only comes after a potential finding of liability  

Tort Reform (but often challenged based on constitutionality)

Some states have cap on pain and suffering awards (disincentivizes attorneys, unfair to young P)

Statutory modifications on CSR (make is admissible, require reduction)

Some jurisdictions do not allow ponies or re-allocate them (but disincentivizes lawyers)

Money damages

All losses to be recovered by means of the jury verdict; must be translated into dollar and centsN

Nominal damages 

De minimis (usually $1) to symbolize/vindicate Ps rights and facilitate judgement preventing D from acquiring prescriptive right; anchor ponies 

Compensatory damages

Make P whole again

Special/Economic/Out-of-pocket

General/Non-economic/Hedonic Pu

Punitive Damages

Punish D and create deterrence

Equitable Relief 

Injunction 

Disgorgment 

Medical Expenses (Special)

• Includes other physicians (like psychiatrists), medications, assistive devices, diagnostic/monitoring tests, travel 

• There can be dispute about nexus/reasonableness/necessity  

• Future Medical Expenses  

• One expert for future care needed  

• Another expert for cost of that care  

• Courts differ on recoverability for future risk monitoring/injury not yet manifest (but slight majority permits) 

• BUT recovery for fear allowed 

Lost Earnings (specials)

• Must provide expert on duration of disability  

• Another expert needed for future earnings  

• Jury w/ expert help may consider background, education, trajectory, etc.  

• Lifetime earnings require accurate estimate of life (or work-life) expectancy  

• May include education, environment, profession, lifestyle, and habits  

• Courts differ in whether discriminatory factors are allowed in analysis (sex, race, etc.) 

• Jury can assume raises and promotions and when a P might have left the workforce, but courts differ regarding speculation surrounding future earning potential  

• EX: HS BBall player couldn’t recover as professional  

Financial Considerations 

• Time value of money: lump sum makes you better off b/c of return rate 

• So most jurisdictions require lump sum to be reduced to present value  

• Inflation decreases value of lump sum 

• So most jurisdictions allow for adjustment for future inflation  

• Personal injury damages are not taxed 

• B/c lump sum is not itemized, so no way to figure out what was allocated for lost earnings and what was for medical expenses, etc.  

• Jury usually not told this b/c spec. of tax rates and b/c it is againstCongresses plan  

• But some jurisdictions require P to produce number for “net income”and juries are allowed to adjust damages accordingly  

• Punitive damages ARE taxed! 

Interest 

• P’s losses generally start at moment of injury, but recovery takes time  

• Pre-judgment interest: calculated based on time of the injury to P  

• B/c of time value of money  

• Discourages delays by D 

• Returns P to whole 

• Post-judgment interest: accrues from entry of judgment until payment 

• Discourages D from delay  

• Returns P to whole  

• Interest IS taxable! 

Non-Economic Losses (General)

• Mainly pain and suffering award 

• If wrongful death suit, must prove that tort victim was conscious at some point  

• Can recover for impaired bodily functions and physical disfigurements  

• Some jurisdictions consider loss of enjoyment as its own category while others combine with pain and suffering  

• Per-diem argument: breaks pain and suffering down to cost and time units and multiples  

• Some courts don’t allow this b/c it gives the illusion of precision  

• Also, pain isn’t constant as intensity diminishes over time 

• Some argue pain and suffering awards are subjective and uncertain so they disincentivize settlements and lead to overdeterrence  

• Result is judicial and legislative control of damages  

Judicial and Legislative Control of Damages

• Maximum recovery rule: comparues jury award to maximum reasonable award  

• Other tests include whether award “shocks the conscience”, is “grossly excessive”, “inordinate,” or “outrageous” 

• Anderson v. Sears → Judge uses maximum rule test and considers past and future physical and mental pain, future medical expenses, lost earning capacity, and disability/disfigurement and finds that 2.2 mil award was reasonable 

• Judges can order a new trial based solely on damages  

• But usually do whole new trial b/c of concern of jury’s influences  

• Judges also have option of additur or remittitur  

• Tort reform has led to caps  

• But disincentivizes attorneys  

• Disproportionately impacts young Ps  

Avoidable consequences rule

P has duty to use reasonable efforts to mitigate loss

• Traditionally failure to mitigate does not bar recovery unless P’s fault as great as D’s 

• EX: If P and D both negligent, no recovery BUT if P negligent and D intentional, then P recovers 

• Today, avoidable consequences are considered in light of comparative fault and contributory negligence  

• A claim that P should have taken better care of themselves prior to injury does NOT bar recovery b/c eggshell P 

Collateral Source Rule (Majority!)

Payments to P from sources other than D are not credited against D/must be excluded from the evidence to the jury/judge cannot consider 

Means D is responsible for gross loss, not just net loss

EX: health/medical/life/diability insurance, sick leave/vacation time, governmental benefits, gratuitous gifts 

Purpose of CSR

Deterrence

Corrective justice

Arguments against CSR

None really allow for corrective justice/deterrence 

Double recover

Reverse Egg-Shell Plaintiff (D should get to take insured P as is)

Could just have D pay Ps insurance premiums

Insurance asymmetries + time lags may prevent CS from getting repayment (goes to double recovery)

Information Asymmetries Examples

• Insurance company may not know when medical treatment was covered by D whom they can recover from 

• Recovery may be years after insurance company pays, and insurance company may not know about ongoing litigation  

• Insurer may not know that the treatment was paid for from prior lawsuit years ago as “future treatment”

Double Recovery Concern Justifications/Showing of Under Compensation

• Allowing CS evidence would allow D to get off the hook and diminish deterrence/corrective justice  

• CS is usually a result of Ps efforts of getting insurance and paying premiums, not Ds efforts  

• Keeps P from being undercompensated  

• Some CS are limited (like sick days), so Ds payment replenishes  

• Sometimes CS is contractually entitled to repayment from award 

• Subrogation: in some cases, the insurer steps into shoes of P to sue tortfeasor for insurance provided  

• Not always possible, so only worth it in cases of large payouts 

• Even w/ information asymmetries + time lags, lump sum is not itemized so unknown what is “paid” for that insurance might also pay for  

• Ps are not always getting maximum recovery + most cases settle at way less  

• Ps must pay attorneys  

Litigation Costs and Attorney’s Fees 

• American Rule = each party bears the cost of its own litigation including attorney's fees 

• Some exceptions apply like fee-shifting provisions in statutes and court rules  

• A P may be able to recover attorney’s fees from a different lawsuit against a different party as consequential damages necessitated by the tort caused by D 

• Contingency fee: attorney’s who represent the P in personal injury litigation take percentage of recovery IF successful  

• Range from 25% to 40%  

• Hourly rate: D’s attorney’s charge an hourly rate 

• D’s insurance carrier often pays for D’s lawyers b/c of indemnification contract (insurer agrees to compensate insuree for losses or damages)  

• Jury not made aware of fee arrangement  

• May also result in under compensation b/c not likely to be factored in  

• That the lawyer’s take a chunk of P’s recovery justifies “overcompensation” through  

• Pain and suffering award 

• CSR double recoveries 

• Punitive damages  

• Enables injured parties w/ limited financial resources to vindicate their rights in court  

Physical Harm to Property

• Typically based on market value at time and place of the harm 

• If property destroyed → replacement cost on open market  

• Some courts may permit recovery based on sentimental value  

• If property damaged → difference in value before and after  

• Cost of repairs admissible, but not conclusive  

• If temporary dispossession → rental value for duration  

• Consequential damages can be recovered  

• EX: loss of sales b/c deprived of inventory  

• Courts are willing to make special considerations for pets in terms of economic damages even when they exceed fair market value 

• EX: cost of medical care 

• BUT no recovery for ED/non-economic damages due to harm to pets 

Purpose of punies

Punishment

Deterrence

Use of punies 

• Extremely blameworthy conduct where Ds pretty much should have known, or intended, harm would occur  

• B/c compensatory damages not enough deterrence  

• Not required  

• When looking at constitutionality, ration of punies to compensatory damages often the focal point, but severity fo conduct relevant too 

• Usually anchored by nominal damages 

• Mere negligence not enough for punies award NEED subjective awareness of risk and consequences  

• Conduct must be “actual malice”, “recklessness”, or “conscious indifference” 

• Higher standard of proof → clear and convincing evidence, not preponderance of the evidence  

Arguments against ponies

Should do to state instead of overcompensating P like criminal cases

If like a fine, why no safeguards or set amounts

Justifications for ponies

Deter evil motives

Help compensate Ps attorneys w/o sacrificing Ps compensations

Incentives using court instead of self help

Cheathem v. Pohle 

Court decides that P has no property interest in ponies and therefore statute staying P gets 25% of ponies and state gets 75% is not unconstitutional taking 

• No property interest b/c statute gives right and congress can take away at any time  

• In criminal cases victim have no right to criminal penalties  

• Punies are fundamentally different from compensatory damages  

• Can’t claim that statute that gives right to punies also takes away right  

Joint and Several Liability

2 D’s responsible for Ps harm are each liable to P for the entirety of P’s damages J

J+S liability Use

• P can only recover for total amount of damages  

• P can only recover the remaining balance from one D if other D pays some, or nothing from one D is other D pays all  

• Traditionally, there was no re-adjustment btwn Ds and whoever P chose to pursue was how matter stayed  

• This makes sense when Ds are working as a team (working in concert or vicarious liability) 

• Today we have rights of contribution  

• Also applied to independent/concurrent tortfeasors whose actions contributed to indivisible harm  

• Consequences typically not instructed to jury 

Pros of J+S liability 

P has more chances to recover from a D 

Helps P if one D is judgment proof or unknown 

Cons of J+S Liability

One D may become bag holding D even if didn’t play a big role

Other Ds bore risk of unidentified/insolvent D

Types of harm

Indivisible

Distinct

Successive injuries

Divisible harm

Indivisible harm 

no reasonable way to divide/apportion damages; one harm 

Distinct harms

If 2 Ds who are not working together cause two different injuries to P at the same time

Successive injuries

Injury caused by another person arises out of original Div

Divisible harm

Easy to apportion harm done by each D

EX: branded cow example 

Fractional Share Contribution

• Rights of contribution: D left holding the bag can seek reimbursement  

• Traditionally, contributions were per capita (50/50, 33.33, 33.33, 33.33)  

• Today comparative negligence allocates % responsibility btwn Ds  

J+S Liability + Comparative neg + 2nd Restatement

Keeps both comparative fault and J+S liabilityP

Pros of both JS and Comp

• D is burdened, not injured P  

• Retention of Joint and Several will rarely matter b/c usually Ds are not unknown/insolvent  

Cons of keeping both JS and Comp

• This means that D 1% responsible may be responsible for100% of damages  

Bartlett v. N.M. Welding Supply Co

• Considers whether joint and several liability should be abolished and says that they are not persuaded by indivisibility or facilitating Ps recovery justification for joint and several liability b/c fault is apportioned already so indivisibility obsolete and facilitating Ps recovery weird argument b/c when 1 D it doesn’t matter if D is insolvent or not, so abolishes Joint and Several liability and burden is on P 

• Court acknowledges that comparative negligence statutes exist in other states too, but b/c statutes differ they might not be helpful in deciding case  

Insolvent/Unknown Ds 

• Majority approach permits assigning shares of fault to non-parties  

• Courts split on what to do about insolvent/immune Ds 

• Immunity  

• Sometimes depends on nature of immunity  

• Insolvent/bankrupt  

• P can wait to enforce judgment until D has money  

• D may seek to discharge obligation through bankruptcy proceedings  

• Only allowed when bankrupt D was negligent NOT when they were intentional/strictly liable  

• Some jurisdictions divide up insolvent Ds share  

Comparing fault between intentional tortfeasor and negligent tortfeasor

• Jury likely to assign most responsibility to intentional D 

• Consequences w/o J+S 

• Reduce neg. Ds incentive to prevent intentional harm in first place  

• Consequences w/ J+S 

• Neg D could be left holding the bag b/c intent D more likely to be insolvent  

• Consequences if no comparison  

• Neg Ds just as liable as intent D  

J+S Liability + 3rd Restatement

• does not take a position modification of J+S liability  

• No overall pattern or tend  

• Some states have abolished entirely  

• Some retain J+S (MA) 

• Some modify  

• Issue w/ comparative negligence and J+S not a problem when Ds are acting as a team!  

When does keeping of both comparative negligence and J+S liability not matter

When all Ds are known 

When Ds working as a team (concerted effort, vicarious liability)

Reflections on foreseeability

• Can appear in duty, breach, or proximate cause  

• General trend is duty to everyone all the time and then jury decides breach and proximate cause (3^rd restatement!!!) 

• Some have combined hand formula (which is a breach formula) w/ foreseeability in Duty question and leaves less for jury to consider  

• Some argue this is b/c foreseeability is used as a “smoke screen” to insert controversial policy decisions