Shell Outline Cause in Fact

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Causation-in-Fact

I. Causal Connection - An injured plaintiff can recover damages from a negligent defendant only if there is a causalconnection between the negligence and the injury.

A. Tort law considers two kinds of causation issues:

(1) One asks whether there is a cause-in-fact or historical causation link between the defendantsconduct and the plaintiffs harm. This is referred to as but-for causation.

(2) The other is proximate cause, an inquiry that asks whether the cause-in-fact connectionbetween a defendants conduct and a plaintiffs injury is close enough to justify imposing a legalremedy.

II. Multiple But-For Causes - An event can have many but-for causes.

A. Many events may satisfy the but-for test for cause-in-fact with relation to a single injurious event.

III. Multiple Sufficient Causes - In some unusual cases, multiple acts are causes of an injury, but the but-for test

would not treat them as causes-in-fact.

A. In cases of this kind, courts treat cause-in-fact as established if it seems as though each act is asignificant cause of the harm.

(1) This approach is called the substantial factor test.

IV. Concurrent Causation - Unlike the situation in which two wrong acts combine to inflict a harm on aplaintiff, there can be situations where two or more defendants act unreasonably, a plaintiff suffers aninjury, and there is no possible way to believe that each defendant inflicted an injury.

A. The primary example of this circumstance involves two hunters who each fire a weapontowards a third person. The third person suffers a wound, but there is no way to identify whichhunters shot harmed the third person.

B. Many courts apply the doctrine of alternative liability in this situation. This doctrine makeseach hunter liable unless he or she can prove the he or she did not inflict the harm.

V. Market Share Liability - Many state courts have adopted market share liability to deal with a kind ofconcurrent causation case where the number of actors is very large.

A. The doctrine was established in the context of injuries suffered by large numbers of plaintiffsbecause of use of identical prescription drugs produced by hundreds of companies.

VI. Loss Of A Chance Liability - In medical cases, if a doctor acts unreasonably but the patient was very

likely to die even with good treatment, under the but-for causation test the doctors conduct is not a causeof the death. The patient would likely have died even with good treatment.

A. To respond to this circumstance, many jurisdictions change the question.

(1) Instead of asking whether the doctors conduct caused the bad outcome, they askwhether the doctors conduct deprived the patient of some identifiable chance ofachieving a successful outcome.


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(2) If evidence supports a finding that the patient did have some chance, then a plaintiff isallowed to show that the defendant doctors negligent conduct was a cause-in-fact of theloss of that chance.

VII. Damages in Loss of a Chance Cases - Since all a plaintiff proves in a loss of a chance case is thatthe defendants conduct caused loss of a chance of a better outcome, courts use a special rule fordetermining damages.

A. Courts ask what amount of money would be the proper amount of damages if the patientsultimate condition (such as death) had been entirely the result of the defendants conduct.

(1) They then require the defendant to pay only a percentage of that amount. Thechance of better result that the defendants conduct took away from the defendant is thepercentage used to determine the damages owed.


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Shell Outline Cause in Fact