Cause in fact (Christian's Edit) | Jonathan Zittrain | June 06, 2011


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Cause in fact (Christian's Edit)

Original Creator: jrogers Current Version: Jonathan Zittrain Show/Hide

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.


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  1. 1 Show/Hide More "The Speeding Train"--Perkins v. Texas and New Orleans Ry. Co.
    Original Creator: jrogers Current Version: Jonathan Zittrain
    This case provides an introduction to the concept of cause in fact. Harm definitely happened, and it definitely occurred because a speeding train collided with a car. But, was the accident likely to occur even if the train did not speed? If so, can speeding still be the cause in fact of the harm?
  2. 2 Show/Hide More "Multiple Causes of Lung Cancer"--General Electric Co. v. Joiner
    Original Creator: jrogers Current Version: Jonathan Zittrain
    This case presents an example of a situation where there are too many possible causes in fact. Plaintiff was exposed to hazardous chemicals due to the design of defendant's product. However, it is unclear if the chemicals were “more likely than not” to have caused the plaintiff’s cancer because he smoked and his family had a history of lung cancer. Furthermore, the Supreme Court affirmed the District Court's holding that there was insufficient scientific evidence to support a link between the hazardous chemical and plaintiff's lung cancer. Thus, this case is also an example of a court using its discretion to exclude expert testimony for lack of support, thereby preventing an issue from ever reaching a jury.
  3. 3 Show/Hide More "Two Fires"--Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co.
    Original Creator: jrogers Current Version: Jonathan Zittrain
    This case involves a situation where the harm caused by the defendant is subsumed by an event of unknown origin. Two fires damaged a plaintiff's property and one of the fires was caused by the defendant. The issue was whether the defendant still had liability if a larger, later fire combined with the defendant's to overwhelm plaintiff's property. In addressing the issue, the Supreme Court of Minnesota considered jury instructions given by the court below and doctrinal alternatives from other states.
  4. 4 Show/Hide More "Firework Belonging to One of Two Defendants"--Litzman v. Humboldt County
    Original Creator: jrogers Current Version: Jonathan Zittrain
    Firework that harmed the plaintiff necessarily belonged to one of the two defendants. If there is insufficient evidence to prove which specific defendant was at fault, both defendants may be held joint and severally liable. This shifts the burden of proof on the defendants, who are in the best position to know and prove who was actually at fault. Defendants who are non-negligent have incentive to prove the negligence of co-defendant(s) because it discharges their liability.
  5. 5 Show/Hide More "Market Share Liability" Skipworth v. Lead Industries Association
    Original Creator: jrogers Current Version: Jonathan Zittrain
    This case presents an alternative theory of liability—“market share liability”—which may relax the requirements of causation in the context of harmful commercial products. Although the Pennsylvania court recites and considers the “market share liability” theory, the court concludes that the theory is inapplicable in the instant case because it would grotesquely distort liability. More specifically, the theory would force liability upon manufacturers who did not sell any product to the plaintiff, and that products from different manufacturers posed non-identical risks of harm.

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May 21, 2013

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