Topic 7: Causation (Factual)

How is causation established?

Step 1:
Cause in Fact/Factual Causation: Use the but for test.
1a. If but for doesn’t work with multiple sufficient causes, use substantial factor test.

Step 2: Proximate Cause (Policy Question) (Umbrella of Theories):
Common Law: Direct Causation Theory: (Unbroken sequence?) Was there an unbroken sequence of actions with no intervening causes?
Palsgraf Dissent: (Fair?) Is it fair to hold D liable for this harm?
Restatement 3rd: Risk Standard Theory/Scope of Liability: (Foreseeable?) How foreseeable was the harm for Defendant?

2a. Is there an act?
Intervening Act: Was there a foreseeable consequence from D’s negligence? If yes, chain is intact and D is liable.
Superseding Act: Were there unforeseeable or extraordinary intervening events that cut off liability? e.g. criminal act. If yes, chain is broken and D is not liable.

2a(i). Subsequent Medical Injury Doctrine:
A later negligent actor (doctor, EMT, hospital, rescuer) does NOT break the chain. The original tortfeasor remains liable since it’s foreseeable. Rationale: Make it easier for victim to recover.

2a(ii): Rescue Doctrine:
Danger invites rescue and rescuer was a foreseeable consequence. Chain is intact. D is liable.

2a(iii): Criminal Doctrine:
Original tortious conduct led to the criminal act: still liable since it’s foreseeable. (e.g. hotel failed to fix lock, guest got robbed).

If proximate cause fails, no causation.

What is but-for causation?

Asks, “Was there more than a 51% chance that the harm would occur absent the conduct?”

When is the substantial factor causation test used?

When but for can’t be satisfied; e.g. when multiple sufficient causes act independently.

You still can’t prove but for cause, so you go to Lost Chance Causation. What is the Lost Chance Causation test?

Plaintiff recovers for the substantial lost chance of a better medical outcome (substantial = 1-51% depending on jurisdiction)

Plaintiff seeks care at ABC Hospital. The hospital has employed a newly licensed doctor who diagnoses A with cancer. The doctor suggests the patient to “Just relax. It will go away on its own. Let me give you some Tylenol.” The patient agrees. 3 months later, she visits Golden Hospital and they tell her, “If you had done chemo 3 months ago, there was a 40% chance you would have fully recovered by now. Now, you may never recover.” Plaintiff’s full recovery damages amount is set at $1M. Plaintiff sues the hospital for Lost Chance Causation. How much in damages can she get?

$400K

What is Preemptive Causation?

Defendant 2’s conduct prevented Defendant 1’s intent to cause harm from occurring. Defendant 1 is not liable.

Defendant 1 poisons Mr. A’s tea. Mr. A would have died if they took a sip. Defendant 2 shoots Mr. A before they drink the tea, causing death via the gunshot wound. Was there causation? Is Defendant 1 liable? What concept is this?

No. Preemptive Causation.

When is the burden of proof shifted from P to D?

MOPA:
Multiple Ds were negligent;
Only one D caused the harm;
P cannot identify which D caused the harm;
All potential tortfeasors are before the court

Three people are quail hunting. Two defendants negligently fire their shotguns toward the plaintiff at the same time. One pellet strikes the plaintiff, but it's impossible to know whose gun fired that pellet. Plaintiff proves both defendants were negligent. Causation is uncertain but one definitely caused the harm.

1. Who has the burden of proof?
2. What must they prove?
3. What happens if neither can disprove causation?

1. Each of the Defendants

2. To prove the other D caused the injury

3. Both are held jointly and severally liable

What is Market Share Liability?

P sues a substantial share of the market.
Defendants can be dismissed if they can prove they didn’t cause P’s injury.
If it D cannot prove lack of liability, D is severally liable.

Ms. A took a pregnancy medication in 1980 when she was pregnant with Jack. The medication was produced by multiple identical-formula producers.
30 years later, it was discovered that if the medication is taken while pregnant, it can cause asthma for the baby later in life. Jack is experiencing asthma, but has no idea which medication his mom took 30 years ago. Jack sues the entire industry. What concept is this?

Market Share Liability