Torts: Section 2 Fall, 2002

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Duty
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Chapter Five Cause in fact
Duty Breach Causation Actual cause, or cause in
fact Proximate cause Damages
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Chapter Five Cause in fact

• Why is cause-in-fact necessary in order to claim
  compensation through the tort system?
• When are there problems in establishing
  cause-in-fact?
• What does it take to satisfy the burden of proof
  on cause-in-fact?

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Chapter Five Cause in fact
Plaintiff, a sailor on Defendants boat, falls
overboard and disappears immediately. Ds
lifeboat is lashed to the deck instead of being
suspended so it will drop easily, and has only
one oar. Is the defendant liable for the
sailors death because it is negligence not to
have a properly equipped lifeboat?
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Chapter Five Cause in fact
The plaintiff must show that but for the
defendants negligence, the harm s/he suffered
would not have occurred.
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Chapter Five Cause in fact
Glass falls from a transom in defendants
building, hitting plaintiff and cutting
plaintiffs forehead. Later, a skin cancer
appears at the precise point of the cut. Is the
defendant liable for the medical expenses
associated with the treatment for the skin
cancer? Sine qua non? Or the fallacy of post
hoc ergo propter hoc?
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Chapter Five Cause in fact
Generic, or general causation a cut in the skin
can lead to cancer sewage contamination in water
can cause typhoid fever. Individual, or specific
causation this plaintiff cancer was caused by
the cut, this plaintiff got typhoid fever from
the contaminated water and not some other source.
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Chapter Five Cause in fact

• 1) Burden on the plaintiff
• 2) In a civil case, that means more likely than
  not
• 3) Need not disprove all possible scenarios
• Test is whether, based on the evidence, the
  finder of fact is reasonably certain that among
  all the possible alternative causes, the
  defendants negligence caused the harm.
• Fact that the defendants conduct increased the
  risk of specifically this type of harm may meet
  the burden of producing evidence. See n. 5,n. 6
  p. 358

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Chapter Five Cause in fact

• Alberts v. Shultz
• Plaintiff may recover damages for a lost chance
  of a better outcome by showing, to a reasonable
  medical probability, the defendants medical
  malpractice caused the loss of a chance, and the
  harm that might have been avoided in fact
  occurred.
• Recovery is measured by the percentage value of
  the plaintiffs chance for a better outcome