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Cause-In-Fact

Page history last edited by abogado 9 years, 7 months ago

torts 

 

Chapter 11

CAUSE-IN-FACT

 

§ 11.01 Overview [201-202]

 

It is generally accepted that tort liability is dependant on proof that the defendant's culpable conduct or activity was the actual cause of the plaintiff's injury.

 

§ 11.02 “But For” Analysis [202-203]

 

The traditional and still dominant test for actual causation is the “but for” test.  For the defendant to be held liable, the plaintiff must establish that but for the defendant's culpable conduct or activity the plaintiff would not have been injured.  [See, e.g., Washington & Georgetown R.R. Co. v. Hickey, 166 U.S. 521 (1897).]

 

§ 11.03 Substantial Factor Test [203-205]

 

The “substantial factor” test requires that the defendant materially contributed to the plaintiff's injury. [See Anderson v. Minneapolis, St. P. & S. St. M. Railroad Co., 179 N.W. 45 (Minn. 1920).]  The substantial factor test is used by many courts as a supplement to the “but for” test when redundant multiple causes would preclude liability under the “but for” analysis. For examples, if A starts a fire on the left side of B's house and C starts a fire on the right side, and both fires merge concurrently and destroy B's house, then neither fire is the “but for” cause of the destruction. In the absence of either fire, B's house would have been destroyed at the same time by the remaining fire. Since both causes are redundant, neither is a “but for” cause, a result that potentially precludes the plaintiff's recovery against either defendant.  In order to avoid this inequitable result, the substantial factor test is allowed as an alternative proof of causation for redundant causes.

 

The Restatement and some jurisdictions utilize the substantial factor test to convey to the jury the requirement of both actual and “legal” causation in all cases.  Nevertheless, the Restatement still requires that, except in redundant cause cases, “but for” should effectively be established.  [See Restatement §§ 431-433.]

 

§ 11.04 Proof Problems in Cause-in-Fact [205-212]

 

[A] Shifting the Burden of Proving Causation

 

Where a small number of defendants have engaged in substantially simultaneous culpable conduct imposing similar risks on the victim, most courts will shift the burden of proof by requiring defendants to prove they were not the actual cause.  [See Restatement § 433B.]  The principle is derived from Summers v. Tice, 199 P.2d 1 (Cal. 1948), where two hunters negligently fired pellets but only one hit the plaintiff's eye. If the defendants are unable to exculpate themselves, as was the case in Summers, both defendants would be found liable as joint tortfeasors. The plaintiff still has the obligation to establish that both defendants breached a duty of care.  Only the burden of proof regarding causation is shifted. Courts have also required that all such wrongdoers be joined as defendants.

 

[B] Market Share Liability

 

Several jurisdictions have extended and modified the principle of Summers v. Tice to create a theory based on market share liability.  This theory pertains to suppliers of defective products where the plaintiff cannot prove which brand of the product she used.  In Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980), cert. denied, 449 U.S. 912 (1980), daughters of women who had used the drug diethylstilbestrol (“DES”) to limit the chance of miscarriage developed various reproductive diseases.  The court held that once the plaintiff had established culpability, the defendant manufacturer had the burden of proving it was not a supplier of the DES the plaintiff's mother ingested.

 

If a defendant manufacturer was unable to disprove causation, that manufacturer would be liable for its percentage of the DES market at the time of the mother's exposure to the product.  Thus, under the “market share” approach, each defendant pays each plaintiff the damages its culpable conduct has inflicted proportional to its share of the market.

 

Significant variations exist among the jurisdictions relaxing causation requirements in DES cases.  Unlike in Sindell, the New York court in Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989), precludes the defendant manufacturers from proving they could not have supplied the drug to a particular plaintiff if the plaintiff is within the defendant's geographic market.

 

Some states have expressly rejected plaintiffs' efforts to relax causation requirements in DES cases. [See, e.g., Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa 1986).] Furthermore, most courts have been disinclined to extend the market share theory to products other than DES.

 

[C] Medical Uncertainty Cases

 

Most courts will only impose liability if the plaintiff can establish that “more likely than not” the defendant's negligence was a “but for” cause of the injury.  In medical malpractice cases some courts will make an exception and relax the “but for” requirement. Under this approach, courts will allow the plaintiff to recover for wrongful death from medical malpractice even if the patient probably would have died at the same time anyway, if the doctor's negligence significantly reduced the patient's chance of beating the odds and surviving.  The jury has discretion to find the medical malpractice “caused” the death and award full wrongful death damages.  [See, e.g., Herskovitz v. Group Health Cooperative of Puget Sound, 664 P.2d 474 (Wash. 1983).]

 

An alternative approach endorsed by other courts is to recognize a new cause of action for “loss of opportunity to survive” in medical malpractice cases.  Under this approach but for causation is not relaxed, but instead loss of a substantial chance to survive is perceived as a cognizable damage for which the victim may be compensated.  The plaintiff is not awarded the full value of a wrongful death claim, but only an appropriate percentage of the full claim which reflects the decrease in chances the patient would have survived if the physician had not acted negligently.  [See, e.g., Falcon v. Memorial Hospital, 462 N.W.2d 44 (Mich. 1990).]

 

 

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