Cause in fact is a prerequisite for torts liability. It must be more likely than not that but for a liable person’s action/omission, the harm would not have occurred. If we cannot prove this “more likely than not” standard, then in most cases the causation linking the defendant’s conduct to the harm is too uncertain for a court to impose liability.

However, this standard is problematic in two situations: first, when the standard is not met, yet our intuition and morality suggest that the defendant’s conduct was still wrongful; and second, when too many wrongful acts were involved and we are unable to sort out which wrongful act/actor was the cause in fact.

This playlist attempts to lay out a basic doctrine of cause in fact without yet worrying about problems of foreseeability. It first looks at Perkins v. Texas and New Orleans Ry. Co., a case where causation problems prevented recovery despite clear negligence and obvious harm.

General Electric Co. v. Joiner and Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. present situations where there are multiple causes of harm. In the first case, the district court found as a matter of law that expert testimony was not reliable enough to make one specific cause more likely than not. In the other case, the court gave the jury very detailed (perhaps incomprehensible?) instructions about how different causes could combine to create tort liability.

In Litzman v. Humboldt County and Skipworth v. Lead Industries Association, we look at causation when harm is clearly caused by at least one of multiple defendants, but the specific defendant responsible cannot be identified. Litzman explains the generally accepted theory of alternative liability, in which two defendants—who both acted negligently but could not both have caused the harm—can each be held liable for 100% of the harm, then left to sort the proper share of responsibility amongst themselves. Skipworth explains the much more controversial theory of market-share liability, which nearly does away with proving causation in situations where many companies negligently place something harmful into the stream of commerce.

Edit playlist item notes below to have a mix of public & private notes, or: