Chapter Five: Cause in fact

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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 2. Joint and
Several Liability

• Joint and several liability
• Each defendant is liable for the entire judgment
• Plaintiff can only recover (satisfy) the
  judgment once.
• Allocation of liability is left to the
  tortfeasors
• -- rights of contribution
• -- rights of indemnity
• Effect Risk of insolvency is placed on the
  tortfeasors!
• Several liability
• Liability is apportioned in some fashion
• Each defendant is liable only for his/her share
• If a defendant is insolvent, the plaintiff cant
  collect that share

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Chapter Five Cause in fact 2. Joint and
Several Liability

• When are multiple defendants jointly and
  severally liable?
• When the negligence of each is a but for cause of
  the injury, the negligent acts combine to cause a
  single injury -- concurrent tortfeasors.
• each has caused the entire harm!
• When they act in pursuance of a common plan to
  commit a tort -- acting in concert.
• each is responsible for the others acts
• When the negligence of each is a but for cause
  of some injury to the plaintiff, and the
  defendants fail to meet the burden of showing a
  basis for apportionment. (no basis for
  apportionment)

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Chapter Five Cause in fact 2. Joint and
Several Liability

• When are multiple defendants not jointly and
  severally liable?
• When the negligence of each causes a distinct
  injury to the plaintiff
• distinct harms
• successive injuries
• apportionable injuries

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Chapter Five Cause in Fact 3. Multiple
Defendants
Summers v. Tice Two defendants each shoot
negligently in plaintiffs direction. Plaintiff
is hit, cannot show which gun fired the shot that
hit him. Are the defendants concurrent
tortfeasors? Did they act in concert? What is the
basis for finding them jointly and severally
liable? Should we reconsider the result in the
high school marching band mothers food
poisoning hypothetical?
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Chapter Five Cause in Fact 3. Multiple
Defendants

• Summers v. Tice
• Two defendants each shoot negligently in
  plaintiffs direction. Plaintiff is hit, cannot
  show which gun fired the shot that hit him.
• Are the defendants concurrent tortfeasors?
• When the negligence of each is a but for cause
  of the injury, and the negligent acts combine to
  cause a single injury -- concurrent tortfeasors.

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Chapter Five Cause in Fact 3. Multiple
Defendants
Summers v. Tice Two defendants each shoot
negligently in plaintiffs direction. Plaintiff
is hit, cannot show which gun fired the shot that
hit him. Are the defendants concurrent
tortfeasors? Did they act in concert?
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Chapter Five Cause in fact 2. Joint and
Several Liability
876 Persons Acting in Concert For harm
resulting to a third person from the tortious
conduct of another, one is subject to liability
if he (a) does a tortious act in concert with
the other or pursuant to a common design with
him, or (b) knows that the other's conduct
constitutes a breach of duty and gives
substantial assistance or encouragement to the
other so to conduct himself, or (c) gives
substantial assistance to the other in
accomplishing a tortious result and his own
conduct, separately considered, constitutes a
breach of duty to the third person.
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Chapter Five Cause in Fact 3. Multiple
Defendants
Summers v. Tice Two defendants each shoot
negligently in plaintiffs direction. Plaintiff
is hit, cannot show which gun fired the shot that
hit him. Are the defendants concurrent
tortfeasors? Did they act in concert? What is the
basis for finding them jointly and severally
liable?
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Chapter Five Cause in fact Multiple
defendants
When are multiple defendants jointly and
severally liable? Alternative liability When
two (or more?) defendants, (all whom are before
the court?), are negligent, but it is uncertain
which one caused the injury, each defendant is
jointly and severally liable for the entire harm
unless the defendant can show his act did not
cause the harm.
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Chapter Five Cause in Fact 3. Multiple
Defendants
Summers v. Tice Two defendants each shoot
negligently in plaintiffs direction. Plaintiff
is hit, cannot show which gun fired the shot that
hit him. Are the defendants concurrent
tortfeasors? Did they act in concert? What is the
basis for finding them jointly and severally
liable? Should we reconsider the result in the
high school marching band mothers food
poisoning hypothetical?
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Chapter Five Cause in fact 3. Multiple
defendants
Note 8, p. 377 Defendant A manufactures drug A.
Defendant B manufactures drug B. Defendant A
should have known drug A can cause blindness and
is negligent for manufacturing it. B also can
cause blindness, but defendant B had no way of
knowing that, and was not negligent for
manufacturing it. Plaintiff takes both drugs,
either of which alone would have caused him to
become blind. Is defendant A liable? Suppose
both defendant A and defendant B were negligent?
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Chapter Five Cause in fact
A cautionary note the substantial factor test
for causation 431 What Constitutes Legal
Cause The actors negligent conduct is a legal
cause of harm to another if (a) his conduct is
a substantial factor in bringing about the harm,
and (b) there is no rule of law relieving the
actor from liability because of the manner in
which his negligence has resulted in harm.
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Chapter Five Cause in fact Multiple
defendants
Restatement, Second, of Torts 432 Negligent
Conduct as Necessary Antecedent of Harm (1)
Except as stated in Subsection (2), the actor's
negligent conduct is not a substantial factor in
bringing about harm to another if the harm would
have been sustained even if the actor had not
been negligent. (2) If two forces are
actively operating, one because of the actor's
negligence, the other not because of any
misconduct on his part, and each of itself is
sufficient to bring about harm to another, the
actor's negligence may be found to be a
substantial factor in bringing it about.
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Chapter Five Cause in fact Multiple
defendants

• Factors to consider in determining whether the
  defendants conduct is a substantial factor in
  causing harm
• the number of other, contributing factors
• whether the force is active or merely sets the
  stage for harm
• lapse of time
• Restatement, Second of Torts, 433

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Chapter Five Cause in fact Multiple
defendants

• When are multiple defendants jointly and
  severally liable?
• concurrent tortfeasors (single harm, as opposed
  to divisible,
• successive or apportionable harms)
• inability to apportion
• acting in concert
• other vicariously liable defendants
• alternative liability (Summers v. Tice)
• alternative liability / twin fires scenario

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Chapter Five Cause in fact Multiple
defendants
Hymowitz v. Eli Lilly Market Share
liability Where 1) manufacturers act in a
parallel manner 2) to produce an identical,
generic product 3) which causes injury many years
later 4) and the legislature has created an
expectation that recovery will be available by
creating an exception to the statute of
limitations liability will be apportioned even
though the plaintiff cannot show which
manufacturer produced the product that harmed her.
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Chapter Five Cause in fact Multiple
defendants
What is the basis for apportionment? National
market share or local market share? Is liability
joint or several? Can the defendant prove out
by showing It did not manufacture DES for
pregnancy use? It did not manufacture the DES
the plaintiff took?
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Chapter Five Cause in fact Multiple
defendants

• When are multiple defendants jointly and
  severally liable?
• concurrent tortfeasors
• inability to apportion
• acting in concert
• other vicariously liable defendants
• alternative liability (Summers v. Tice)
• alternative liability / twin fires scenario
• market share liability

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Chapter Five Proximate Cause
Duty Breach Causation Defendants act must be
both An actual cause, or cause in fact of the
plaintiffs injury And a proximate cause of the
injury. Damages
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Ch. V Proximate Cause The Texas City Disaster
Nearby ships, high risk of fire damage
Docks, small but foreseeable risk of fire damage
People and property near the docks
People and property several miles from the docks
People whose jobs were destroyed
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Chapter Five Proximate Cause An Approach

• 1) What category of cases does your case fall
  into?
• Unforeseen Harm
• Unforeseen Manner
• Unforeseen Plaintiff
• Practice tip Your theory of the case -- duty,
  breach, cause in fact -- determines this!
• Practice tip Any given case may have more than
  one possible theory, with different proximate
  cause implications!

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Chapter Five Proximate Cause An Approach
2) What rule -- doctrine -- applies to this
particular category? Practice tip For some
categories, different jurisdictions -- or
different cases within a jurisdiction --may
follow different rules!
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Chapter Five Proximate Cause An approach
3) Apply the rule you settle on to the facts
you have. Practice tip Outcomes will depend on
evidence and argument they are not
obvious! Practice tip Pay attention to the
roles of judge and jury!
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Chapter Five Proximate Cause

• What are the doctrinal options?
• Defendant has a duty to this plaintiff, has been
  negligent, and his negligence has in fact caused
  harm. Should his liability extend
• to the foreseeable results of his actions, and no
  further?
• 2) to all the results of his actions,
  foreseeable or not?
• 3) to some, but not all of the unforeseeable
  consequences of his actions?

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Chapter Five Proximate Cause
In Benn, which characterizes the courts
approach Defendant has been negligent, and his
negligence has in fact caused harm. Should his
liability extend 1) to the foreseeable results
of his actions, and no further? 2) to all the
results of his actions, foreseeable or not? 3)
to some, but not all of the unforeseeable
consequences of his actions?
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Chapter Five Proximate Cause
Does the defendants liability extend 1) only
to the foreseeable results of his actions, and no
further? 2) to all the results of his actions,
foreseeable or not? Eggshell skull rule liable
for full extent of harm when preexisting
condition causes physical injurys extent to be
unexpected. 3) to some, but not all of the
unforeseeable consequences of his actions?
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Assignment
Monday 412-434 Tuesday 435-452 Thursd
ay 460-489