H2O

This is the old version of the H2O platform and is now read-only. This means you can view content but cannot create content. You can access the new platform at https://opencasebook.org. Thank you.

XV. Causation

Original Creator: Jonathan Zittrain Current Version: Scott Soloway Show/Hide

There’s no tort of “attempted negligence.” In order for ultimate liability to accrue, a defendant must not only breach a duty owed to a harmed plaintiff, but that breach must be the cause-in-fact of the harm. Someone speeding through the pedestrian stop light in Harvard Square isn’t held responsible for harm done a few minutes later when a carefully driven car just so happens to independently get into an accident with a pedestrian, even though it was mere fortuity that the careless driver didn’t hurt anyone.

If I carelessly spill oil on the floor and wander away, and you fall as you turn the corner, causation is pretty clear. But what if you were running so quickly over the area that I can show you would have taken a spill irrespective of the oil? That’s not so easy to prove, but in theory it could defeat causation, just as a negligently maintained dam collapsing in a big storm could be thought of as mere “accident” if the storm were so large that even a well maintained dam would have buckled. Causation can be tricky to prove in other contexts, such as establishing that a particular chemical causes cancer. To what level of certainty must a causal link be determined? Again, the usual answer is “more likely than not,” but other formulations might better capture the moral instinct that requires causation, and even small changes in phrasing can affect a jury’s deliberations.

Once we understand that causation is a required element, there are still questions about what exactly it means to say that X caused Y. Should the presence of other causes matter? One common formulation, good enough for most purposes, is “but-for” causation: without the defendant’s negligence, the harm would not have arisen. But what happens when there are two negligent parties, with each party’s act sufficient to cause the harm? Can each point the finger at the other, since one alone is sufficient to have harmed, and therefore neither is a “but for” cause? Not to bury the lede: the answer there tends to be “no”; we can’t allow a surfeit of negligence across multiple parties to perversely result in no liability. When else might “but-for” causation be loosened?

When there is more wrongdoing than there is harm to go around, the law runs into the issue of how to allocate liability among defendants. One simple route is “joint and several liability,” where each wrongdoer can be found liable for up to 100% of the harm, and the plaintiff may elect from whom to collect what, so long as no overcollection takes place. Should this be the rule, for example, when intentional and negligent acts combine, such as an assailant hurting someone thanks to a hotel’s negligently maintained lock?

EDIT PLAYLIST INFORMATION DELETE PLAYLIST

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

MAKE ALL NOTES PUBLIC (4/4 playlist item notes are public) MAKE ALL NOTES PRIVATE (0/4 playlist item notes are private)
    1. 1.1 Show/Hide More Howard v. Wal-mart Stores, Inc.--"The 'More-Likely-Than-Not' Standard for Causation"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should courts hold that a defendant cannot be proved to “cause” the harm, if the evidence merely supports that it was “more likely than not” that the defendant caused the harm?
    2. 1.2 Show/Hide More Stubbs v. City of Rochester--"The Sewage in the Drinking Water Case"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      When there are multiple possible causes of the plaintiff’s harm—only some of which the defendant is responsible for—should the plaintiff be required to disprove all other possible causes in order to prevail?
    3. 1.3 Show/Hide More Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. "The Multiple Fires Case"
      Original Creator: jrogers Current Version: Scott Soloway
      Should courts regard a defendant’s conduct as a liable cause of the plaintiff’s harm if the harm would have occurred irrespective of the defendant’s conduct?
    4. 1.4 Show/Hide More Brown v. Wal-Mart -- "The Phantom Tortfeasor"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should a defendant’s liability be excused if the action of an unknown intervening party seems to be a more substantial cause of the plaintiff’s injury?
    1. 2.1 Show/Hide More Summers v. Tice--"The Simultaneously Negligent Shooters"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      If several defendants act negligently and one among them must have caused the harm, but the plaintiff is unable to prove which defendant did so, should courts hold the defendants liable?
    2. 2.2 Show/Hide More Garcia v. Joseph Vince Co.--"Two Manufacturers, One Sabre"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      When the wrongful act must have been committed by one defendant in a group of defendants, but there is no evidence proving that all members of the group acted negligently, should courts refuse to hold the group liable?
    3. 2.3 Show/Hide More Ravo v. Rogatnick--"The Indivisible Brain Damage"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      If each member of a group of defendants negligently contributes to an indivisible injury, should courts impose liability upon the entire group?
Close

Playlist Information

March 09, 2018

Author Stats

Scott Soloway

business lawyer practicing law

Boston

Other Playlists by Scott Soloway

Find Items

Search below to find items, then drag and drop items onto playlists you own. To add items to nested playlists, you must first expand those playlists.

SEARCH
Leitura Garamond Futura Verdana Proxima Nova Dagny Web
small medium large extra-large