Torts Negligence Causation - MBE
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Cause in fact is also called what?
The cause-in-fact element does what?
ties the D's breach of duty to the P's injury
What happens if the cause in fact element isn't proven?
What must the P show regarding cause in fact when there is a single cause?
more likely than not, but for the D's negligence, the P wouldn't have been injured
When there are multiple causes, what test is used for determing cause in fact?
substantial factor test
What is the substantial factor test regarding cause in fact?
D's conduct was a substantial factor in bring about the injury
When must the substantial factor test be used to determine cause in fact?
when the condut of 2 or more D results injury to the P and each individual D's conduct, taken alone, would have been sufficient to directly cause the injury
What does joint and several liability mean?
P can sue one, all, none, or any other combination of parties he wishes to for the full amount of damages and then the D can sue the others for contribution to the recovery P was awarded
In many jurisdictions the P needs to show what for loss of chance?
more likely than not but for the doctor's negligence, the P wouldn't have lost a % chance of survival
What are the factors for application of hte alternative liability theory?
- (1) small number Ds
- (2) each of whom acted negligently
- (3) all are present in court
Under the alternative liability theory the BoP shifts to the D to show what?
that they weren't the cause
What is the result under the alternative liability theory if the Ds can't show that they weren't the cause of the injury?
all the Ds are jointly and severally liable
What is market share liablity?
- generic product and P thru no fault of her own can't show which of a large group of D who is the responsible party
- P can sue all those who were negligent and may have caused her harm
Under market share liablity, each D is on the hook for his share of the harm unless what?
he can show that he was not in fact responsible
Is joint and several liabilty used in market share liability?
no just several liability
What is proximate cause also called?
What is the rule regarding unforeseeable extent of harm in the proximate cause context?
doesn't matter that P has suffered more harm the one could reasonably foresee and the D is liable for the full extent of the harm
What is the eggshell skull rule in the proximate cause context?
D is liable for the full consequences of P injury, even though, due to the P peculiar susceptibility to harm, those consequences are more severe then they would have been in a normal person
take the P as you find them
When dealing with an unforeseeable type of harm in the proximate cause context, what rule is used?
rule of foreseeability or risk rule
What is the risk rule for an unforeseeable type of harm in the proximate cause context?
was the type of harm risked the type of harm suffered
What is a superseding cause?
an unforeseeable, intervening cause that breaks the chain of causation b/t the initial wrongful act and the ultimate injury, thus relieving the original tortfeasor of any further liability
The more culpable the intervening cause is, the more likely it is to be what?
a superseding cause
Is subsequent negligent conduct so unforeseeable that it cuts off liability?
Is the original tortfeasor usually held liable for the ordinary negligence of the P's treating physician or nurse?
With proximate cause, liability doesn't go on forever and you must look to what to cut of liability?
the passage of time
In the proximate cause context, if the injury is foreseeable, what is the effect?
chain of proximate causation is unbroken and the original D remains liable
In the proximate cause context, if the injury is unforeseeable, what is the effect?
chain of proximate causation is broken and the original D's liability is cut off for the consequences of antecedent conduct
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