1. Causation Review Dr. Steiner Torts I

2. Elements of Causation Cause in Fact Cause in Fact Sine qua non or “but for” cause; Sine qua non or “but for” cause; substantial factor Examines the cause and effect relationship between tortious conduct and injury Examines the cause and effect relationship between tortious conduct and injury Proximate Cause Proximate Cause Determining whether liability will be cut off even though cause in fact has been established Determining whether liability will be cut off even though cause in fact has been established Policy decision based on justice, fairness, or expediency Policy decision based on justice, fairness, or expediency

3. Post Hoc Ergo Propter Hoc After this, therefore because of this: a logical fallacy that because one event follows another chronologically it was caused by the first event After this, therefore because of this: a logical fallacy that because one event follows another chronologically it was caused by the first event Just because event B follows event A doesn’t mean that A caused B Just because event B follows event A doesn’t mean that A caused B A difference between possibility and probability A difference between possibility and probability

4. Concurrent Cause When separate acts of negligence combine to cause a single injury, each tortfeasor is responsible for the entire result When separate acts of negligence combine to cause a single injury, each tortfeasor is responsible for the entire result Concurrent cause also includes conduct that combines to cause injury where either alone would have been sufficient Concurrent cause also includes conduct that combines to cause injury where either alone would have been sufficient Courts use “substantial factor” test when two or more causes combine to bring about result Courts use “substantial factor” test when two or more causes combine to bring about result Possibility of apportionment (Dillon) Possibility of apportionment (Dillon)

5. Loss of Chance/Loss of Opportunity “The antithesis of proximate cause is the doctrine of lost opportunity” “The antithesis of proximate cause is the doctrine of lost opportunity” Some jurisdictions allow for recovery for loss of chance or reduced chance of survival even though plaintiff can’t prove that it is more likely than not that defendant’s negligent conduct caused injury Some jurisdictions allow for recovery for loss of chance or reduced chance of survival even though plaintiff can’t prove that it is more likely than not that defendant’s negligent conduct caused injury Some jurisdictions don’t relax causation or recognize cause of action Some jurisdictions don’t relax causation or recognize cause of action

6. Loss of Chance/Loss of Opportunity Where doctrine recognized, jurisdictions have taken three different approaches: Where doctrine recognized, jurisdictions have taken three different approaches: Pure lost chance: full recovery of damages even though more likely than not plaintiff would have suffered injury if defendant hadn’t been negligent Pure lost chance: full recovery of damages even though more likely than not plaintiff would have suffered injury if defendant hadn’t been negligent Proportional approach limits recovery to percentage of chance lost multiplied by total damages Proportional approach limits recovery to percentage of chance lost multiplied by total damages Substantial possibility approach allows full recovery where defendant’s negligence was less than loss of 50%, but was a “substantial possibility” Substantial possibility approach allows full recovery where defendant’s negligence was less than loss of 50%, but was a “substantial possibility”

7. Science and Proof of Causation Causation - more likely than not to have caused injury- can be proved by scientific evidence (expert testimony) Causation - more likely than not to have caused injury- can be proved by scientific evidence (expert testimony) Statistical evidence must show more than a doubling of relative risk Statistical evidence must show more than a doubling of relative risk Daubert test: Daubert test: 1.Whether expert testimony is “good science” (peer review/publication; independent research) 2.Whether proffered testimony is relevant (fit between testimony and issue in case)

8. Proximate Cause “A tangle and a jungle, a palace of mirrors and a maze” “A tangle and a jungle, a palace of mirrors and a maze” – Prosser on proximate cause Proximate cause, or legal cause, addresses whether liability is to be imposed Proximate cause, or legal cause, addresses whether liability is to be imposed Draws lines where liability stops Draws lines where liability stops

9. Approaches to Proximate Cause Direct causation (Polemis): Direct causation (Polemis): negligent conduct was proximate cause of the injury even though defendant couldn’t have foreseen it negligent conduct was proximate cause of the injury even though defendant couldn’t have foreseen it if act was negligent and some damage could be anticipated, doesn’t matter that actual damage caused was unexpected if act was negligent and some damage could be anticipated, doesn’t matter that actual damage caused was unexpected unforeseeability of damage immaterial as long as damage is “directly traceable” to the negligent act and not because of independent causes unforeseeability of damage immaterial as long as damage is “directly traceable” to the negligent act and not because of independent causes Foreseeable risks (Wagon Mound): proximate cause is to be tested by the reasonable foreseeability of that type of risk Foreseeable risks (Wagon Mound): proximate cause is to be tested by the reasonable foreseeability of that type of risk

10. Palsgraf: Cardozo Proximate cause extends liability to those whose conduct injures persons within the zone of the reasonably foreseeable plaintiff Proximate cause extends liability to those whose conduct injures persons within the zone of the reasonably foreseeable plaintiff “The risk reasonably to be perceived defines the duty to be obeyed and risks imports relation; it is risk to another or to others within the range of apprehension.” “The risk reasonably to be perceived defines the duty to be obeyed and risks imports relation; it is risk to another or to others within the range of apprehension.”

11. Palsgraf: Andrews If act unreasonably threatens the safety of others, defendant is liable for injuries that result, including those thought to be outside the “radius of danger” If act unreasonably threatens the safety of others, defendant is liable for injuries that result, including those thought to be outside the “radius of danger” Proximate cause is “practical politics” Proximate cause is “practical politics” Factfinder should consider such “hints” as whether there is a natural and continuous sequence between cause and effect, whether the cause is likely to produce the result, etc. Factfinder should consider such “hints” as whether there is a natural and continuous sequence between cause and effect, whether the cause is likely to produce the result, etc.

12. Cardozo v. Andrews Causation wasn’t presented Causation wasn’t presented Case resolved by issue of duty; no duty was owed to plaintiff Case resolved by issue of duty; no duty was owed to plaintiff Duty is relative concept, which is owed to foreseeable plaintiffs Duty is relative concept, which is owed to foreseeable plaintiffs Causation was the issue Case resolved by proximate cause; negligence was a substantial factor in producing result Duty is owed to the world at large

13. Proximate Cause in Texas Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998) Proximate cause consists of two elements: cause-in- fact and foreseeability. The cause-in-fact element of proximate cause is met when there is some evidence that the defendant's act or omission was a substantial factor in bringing about injury without which the harm would not have occurred. The other element of proximate cause is foreseeability. In the context of proximate cause, foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission Foreseeability in the context of causation asks whether an injury might reasonably have been contemplated because of the defendant's conduct.

14. “Danger invites rescue” Rescue doctrine permits injured rescuer to sue the party who caused the danger that required rescue Rescue doctrine permits injured rescuer to sue the party who caused the danger that required rescue Considered foreseeable that a rescuer will come to aid of person affected by tortfeasor’s actions Considered foreseeable that a rescuer will come to aid of person affected by tortfeasor’s actions Disallows claim that rescuer assumed risk Disallows claim that rescuer assumed risk

15. “Eggshell Skull” Plaintiffs Applies to personal injury cases Applies to personal injury cases “Defendant takes plaintiff as he finds him” “Defendant takes plaintiff as he finds him” Defendant is liable for aggravating preexisting illnesses and conditions despite lack of foreseeabilty (liability is limited to aggravation only) Defendant is liable for aggravating preexisting illnesses and conditions despite lack of foreseeabilty (liability is limited to aggravation only)

16. “Eggshell Skull” Plaintiffs (con’t) Most courts have included psychological injuries if there has been some physical impact Most courts have included psychological injuries if there has been some physical impact Factfinder can adjust for possibility that preexisting condition would have resulted in harm to the plaintiff even without tort Factfinder can adjust for possibility that preexisting condition would have resulted in harm to the plaintiff even without tort

17. Intervening Cause When an intervening cause cuts off liability, it’s a superseding cause An intervening act of third person will interrupt causal link if it’s extraordinary, or independent, or far removed from the defendant’s conduct An intervening act will not interrupt the causal chain if the intervening act is the normal or foreseeable consequence of defendant’s negligence

18. Intervening Intentional Acts An intervening cause that is negligent is not a superseding cause if foreseeable When an intervening act is intentionally tortious or criminal, it is more likely to be considered superseding

19. Intervening Criminal Acts Criminal conduct no longer automatically interrupts causal link Criminal conduct no longer automatically interrupts causal link Intervening criminal act not superseding: Intervening criminal act not superseding: Defendant is under duty to protect plaintiff from criminal conduct Defendant is under duty to protect plaintiff from criminal conduct Defendant’s act destroys or defeats plaintiff’s protection from crime Defendant’s act destroys or defeats plaintiff’s protection from crime Defendant places someone likely to commit crime in plaintiff’s path (e.g., security guard with criminal record) Defendant places someone likely to commit crime in plaintiff’s path (e.g., security guard with criminal record)

20. Public Policy Courts will draw lines based on fairness and public policy Courts will draw lines based on fairness and public policy Some lines will narrow liability (New York’s fire rule) to prevent ruinous liability and make liability manageable Some lines will narrow liability (New York’s fire rule) to prevent ruinous liability and make liability manageable Other lines will broaden liability to ensure that plaintiff is compensated for loss Other lines will broaden liability to ensure that plaintiff is compensated for loss

21. Judge and Jury Duty is a law issue, and can be determined as a matter of law Duty is a law issue, and can be determined as a matter of law Proximate cause ordinarily is a fact question and goes to a jury Proximate cause ordinarily is a fact question and goes to a jury Proximate cause may be determined as a matter of law when defendant’s actions are too remote or liability cut off for policy reasons Proximate cause may be determined as a matter of law when defendant’s actions are too remote or liability cut off for policy reasons

22. Summing Up Some aspects of causation are fairly clear and predictable (e.g., eggshell skull; rescue doctrine) Some aspects of causation are fairly clear and predictable (e.g., eggshell skull; rescue doctrine) Proximate cause has two general approaches: direct cause and the risk rule Proximate cause has two general approaches: direct cause and the risk rule Be able to analyze fact patterns and present different approaches on causation Be able to analyze fact patterns and present different approaches on causation