Cause In Fact Outline

Cause-in-Fact

Did the violation actually cause harm?

1. But-For Causation

   1. Rule

      1. RTT: when a single Δ is potentially liable for Π’s harm, Δ caused-in-fact the harm if the harm would not have occurred but for the negligence or liable conduct.

         1. The burden is generally on the Π and is a preponderance of the evidence standard (more likely than not) (Grimstad);

            1. exception: when Δ’s negligence prevented / destroyed evidence that would suggest causation (“insult to injury”), rebuttable presumption of causation (burden shifts to Δ) (Haft).

   2. Analysis

      1. But-For Causation

         1. The relevant causation is heavily dependent on underlying liability; if Δ is liable because drove truck where it didn’t belong, Π must prove weight was enough to harm pipes. But if Δ is liable because drove truck exceeding max weight, Π must prove the excess weight caused harm.

      2. Burden Shifting

         1. The “insult to injury” rule is designed to “stick it to the breacher”; if the Δ’s negligence is the reason why Π can’t prove causation, the Δ should have to.

         2. Posner in Indiana Harbor Belt notes that destroyed evidence may lead to strict liability.

   3. Cases

      1. N.Y. Cent. R.R. v. Grimstad (2d Cir. 1920, 451): Π drowned and wife saw him drowning but boat did not have life buoy on board; no but-for causation, since no guarantee Π would more likely than not have survived with one.

      2. Squibs

         1. But-For

            1. Ford v. Trident Fisheries (Mass. 1919): Δ not liable for not having accessible lifeboats since no proof boat would have saved Π in time.

            2. Kirincich v. Std. Dredging Co. (3d Cir. 1940): whether Δ is liable for inadequate lifesaving equipment is question for jury.

            3. Reyes v. Vantage Steamship Co. (5th Cir. 1980): question of fact whether, had Δ had rocket-powered line thrower (in line with statute), Δ would have saved drowning sailor; since only 15% chance it would have saved Π, Δ not liable.

         2. Burden Shifting

            1. Haft v. Love Palm Hotel (Cal. 1970): Δ has burden to prove no causation when Π drowned in pool without lifeguard, since the lifeguard would have at least witnessed how Π died.

            2. Schuabe v. Custer’s Inn Ass’n (Mont. 2000): Δ had a sign warning that pool had no lifeguard, but no CPR-trained personnel nearby as required; still, burden does not shift, since Π was underwater for long time and CPR-trained personnel would not have saved him anyway.

2. Substantial Factor Test

   1. Rule

      1. California / Minority Rule: cause-in-fact satisfied if the liable conduct was a substantial factor in the injury:

         1. if Δ’s act was wrongful because it increased the risk of a harm, and that type of harm occurred (e.g. negligence per se or Herzog) there is at least a permissive inference of causation (Zuchowicz).

            1. The opinion could also be read to provide in strong cases for a rebuttable presumption of causation and burden shift to Δ to disprove causation (Shugerman).

      2. Manufacturing defects: the product departs from the intended design.

         1. If the malfunction is ordinarily a result of a defect and not due to the Π or other causes (similar to res ipsa), there is an inference of causation (RTT:PL § 3).

   2. Analysis

      1. The “substantial factor” test is generally used when there is uncertainty; may be a supplement for the but-for test and function as a risk multiplier, e.g., if Δ’s conduct was a substantial factor in multiplying the risk of Π falling, Δ may be liable. (Reynolds; FFTL 104).

      2. California uses this rule instead of the but-for test because the but-for test is overly prejudicial to Πs.

      3. Shugerman believes this should replace all but-for causation because it is less formalistic and overcomes the problems with multiple Δs.

   3. Cases

      1. Zuchowicz v. United States (2d Cir. 1998, 455)(Calabresi): Δ violated FDA regulation concerning “overdose” that aimed to prevent risk of harm that resulted; permissive inference of causation (no direct evidence needed).

      2. Reynolds v. Tex. & Pac. Ry. (La. 1885): 250-lb Π fell down unlighted staircase; Δ might have but-for caused fall by not lighting stairs, but certainly multiplied risk (substantial factor).

3. Lost Chance

   1. Rule

      1. When Δ is a doctor who increased Π’s risk of harm, and harm occurred (lost chance) Δ is proportionally liable for the change in Π’s odds of survival if the change is below 50 percent (Pearson concurring, Herskovitz);

         1. common rule: calculate change by subtracting new chance from old chance.

            1. if it is not more likely than not that but for the negligence, Π would not have been harmed (e.g. chances fall from 85% to 61%), Π gets proportionate damages (e.g. 24%);

            2. if it is more likely than not that but for the negligence, Π would not have been harmed (e.g. chances fall from 85% to 20%), Δ responsible for 100% of damages;

               1. minority: Π always gets proportionate damages (65% here)(Fennell).

         2. Shugerman / FFTL rule: calculate change by dividing change in odds due to negligence by Π’s new odds of harm;

            1. if it is not more likely than not that but for the negligence, Π would not have been harmed (e.g. chances fall from 85% to 71%, or negligence is responsible for [14/29]% or 48.3% of the harm), Δ responsible for proportionate damages (e.g. 48.3%).

            2. if it is more likely than not that but for the negligence, Π would not have been harmed (e.g. chances fall from 85% to 20%, or negligence is responsible for [65/80]% or 81.2% of the harm), Π gets 100% damages.

   2. Analysis

      1. The idea behind the lost-chance doctrine is it give doctors an incentive to administer quality care to critical patients, since even though patients may already be more likely than not to die without the doctor’s help, the doctor will be liable if this percentage increases due to their negligence (Holton v. Memorial Hospital (Ill. 1997)).

      2. Generally does not apply to non-medical contexts; if the non-existent lifesaver in Kirincich would have increased Π’s survival odds from 0% to 33%, Δ would still not be liable.

   3. Cases

      1. Herskovitz v. Group Health Cooperative (Wash. 1983, 470): Π was negligently treated for tumor and chance of survival...

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