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 harm is too uncertain for a court to shift liability from where it fell.

However, this standard begins to run into problems in two situations. First, when the standard falls short, yet our intuition and morality tell us that something is clearly wrong. And second, when too much evil occurs and we're unable to sort out which wrong act 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 basic case with clear negligence and obvious harm, but where causation problems prevents recovery.

General Electric Co. v. Joiner and Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. present situations where there are multiple different causes. In the first, 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, the court sent it to the jury with very detailed (perhaps incomprehensible?) instructions about how different causes could combine together.

In Litzman v. Humboldt County and Skipworth v. Lead Industries Association, we look at causation when there are multiple defendants and it is not possible to identify which one of them was responsible for the harm, yet harm clearly happened due to the negligence of at least one defendant. Litzman explains the generally accepted theory of alternative liability in which two defendants who both acted negligently but could not both have caused the same harm can each be held liable for 100% of the harm, then left to each other to sort the proper share of responsibility. Skipworth explains the much more controversial theory of market-share liability, which nearly does away with causation entirely in situations where many companies all negligently placed something harmful into the stream of commerce.

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