Cause in Fact – Torts

1. Cause in Fact – Facts proving that the defendant’s conduct was the cause of the plaintiff’s harm in a physical or scientific way
   • The court constistantly denies liability in tort when the defendents negligent actions are not the cause of the plaintiffs injury
   • “But for” But for X then Y would not have occured
   • The defendants actions NEED NOT BE THE ONLY CAUSE, just one of the causes
2. Proximate or Legal Causation – Does the defendant have a valid legal argument that the circumstances of the event would prevent him from being liable for damages to the plaintiff

• Defendant supplied water to the plaintiff maintaining two pipelines
  1. Hemlock – Potable drinking water
  2. Holly – For firefighting and Street Cleaning
• Pipes inadvertantly got crossed and the dirty Holly water ended up in townspeople’s homes
• The Holly water contained polluted water not fully cleansed of sewage
• Plaintiff became ill fom Typhoid fever which can be cause by a number of elemnets
  1. Drinking polluted water
  2. Raw fruits and veggies that were grown using human excrement to fertilize the soil
  3. Consumption of shellfish (Not common)
  4. Infected Milk and veggies
  5. Houseflies in certain localities
  6. Contact with infected person
  7. Ice with typhoid bacilli
  8. Fruits Veggies etc washed in contaminated water
  9. UKNOWN vague medical causes
• Important question…Did the plaintiff provided evidence that reasonably establishes his illness was due to the contaminated water?
• Doctors opinion believes the cause of typhoid is the the cause
• Dr. Goler did tests on the water and found increased chlorine, solids, etc. and also talked to people who were sick. From this evidence the Dr concluded that the townspeople go the typhoid from the water, Dr Dodge reached the same conclusion, his tests however did not discover bacteria BUT did find some evidence of it.
• Dr. Brady  (for D) says that’s not how they got typhoid
• • Defendant argues that
    1. Evidence fails to establish
    2. The plaintiff had to prove that his illness was not from any other cause
• 57 witness who drank the water a got typhoid fever
  • Court believes this and doesnt require a witness testimony
• Defense claims interpretation of a Rule that
  1. When there is one or more possible cause plaintiff cannot recover without proving that defendant’s action was, in whole OR in part, the cause
  2. Becasue typhoid is cause by Unknown causes this would essentially force the P to disprove unknown causes, which is obvi impossible.
• Judge does not feel this rule is so inflexible as to require the P to disprove all other causes
  • “If two or more possible cases exist, for only one of which a defendant may be liable, and a party injured establishes facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable the party has complied with the spirit of the rule”
  • It is suficiant for the P to prove with Reasonable Certainty that the direct cause of harm resulted from the D actions
• But for the citys crossing the lines would the P cathc typhoid?
• Reversed and new trial granted

Proportional Liability

• Man falls down, negligently lit dark stairs, and died
• Nothing to show that darkness was a cause of the accident
• Nothing to show that the stairs were being used in the normal manner
• Simply a “conjecture?” that the darkness cause the fall
  • But for the darkness would the P have fell?
• Case dismissed for absense of proof that the P fell because it was too dark (obviously because he was dead)

Hinman v Sobocienski, 808 P.2d 820 (Alaska 1991)

• Tenent found injured at bottom of negligently lit dark stairs
• P proved that the stairs were unreasonably dangerous
• P did not provide evidence that “The condition of the stairway contributed to her injuries”
• Trial court Directed verdict for Defendant
• Supreme Court Alaska 4-1 REVERSED
  • “When a resident is then found injured at the bottom of those stairs, a reasonable inference is that the dangerous condition more likely than not played a substantial part in the mishap”
  • Most likely for policy reasons, landlord in best position to protect harm and distribute losses
    • Expanding liability is a trend, not surprising!

Hypo

• Drunk driver
• Kid darts out in front, gets run over
• D – even a skillful sober driver could not have avoided
• In these cases the Court will go out of its way to uphold a verdict for the P
• Juries will strive hard to even find liability, even when it is a stretch
• Because we have such a strict policy against drunk driving

How about causation?

• JSL occurs when two or more actions cause the harm to the P
  • In contrast to “Independent and Successive” (I/S) liability where two actors actions “neither act in concert or contribute concurrently to the same wrong”
  • Although sometimes I/S can be found to be JSL when the harm is “incapable of any reasonable or practicable division or allocation”
• Traditional Rule
  • If the P damages were found to be $100,000 each D could be liable for the full amount
  • ie if plaintiff A has no money plaintiff B must pay the full $100,000 and vice versa
• Modern Rule
  • Plaintiffs usually pay based on their respective percentages of harm if they are solvent
  • DOES NOT prevent a D from collecting 100% from a D if the other D is insolvent!!!
  • BUT if the split is 25-75% and both parties are solvent then the damages will generally be paid proportionally
• Ravo v. Rogatnick (514 NE2d NY1987)
  • Baby injured at birth by either Obstetrician, Pediatrician OR both
  • Not clear who cause what harm, possibly and I/S –> JSL because :::
    • “The evidence showed that the brain damage was a  single indivisible injury”
  • Jury told to place JSL based on 100%
  • Finds OB 80% PD 20%
  • PD claims he should only have to pay 20% of the damages
    • Court disagrees –> When tortfeasors actions cause a joint harm then for all legal purposes there is a “joint enterprise” liable for the damages
    • EITHER party can still be responsible for 100%
• JSL has come under fire due to unfairness because a 25% responsible party could have to pay 100% if the 75% was insolvent
  • JSL was a side effect of Comparative Negligence because if you can compare the Negligence of P vs D then why not compare D vs D?
• Modern Current Rule fits roughly in these categories
  1. Abolished JSL –> solvent party only responsible for his share
  2. Abolished JSL WHEN the solvent party is less than 50% responsible
  3. A few states (California *cough cough*) keep JSL for economic damages but not for non-economic damages
  4. Handful have abolished JSL when the P is partially at fault (comparative negligence), but retained when P is not at fault
  5. Handful retain JSL but distribute the insolvent losses among other solvent parties based on their percentage of fault
  6. Handful have abolished for some types of torts (like toxic and environmental because a very small party could end up liable for a corporations actions) NY for example retains JSL for auto accidents, recklessness, and some environmental cases.
• Summers v. Tice Supreme Ct CA 1948 933 Cal.2d 80, 199 P.2d 1.
  • Quail hunters both fire shot, P is hit by two pellets, one in the eye one in the mouth
  • Unable to decide who’s shot hit the P the judge found both D liable in JSL
    • Court did not give credence to one D admission to a third party that he shot the injuring pellets
  • Same rules apply in criminal cases (Street racers both JSL for injured pedestrian/damaged property as result of a crash
  • Policy because if one D can escape liability so can the other
  • Found NOT to engage in Concerted Activity because they DID NOT engage in concerted effort to shoot in Plaintiff
  • Court is stuck unless court can prove whose pellet cause the injury
    • You have to link a P injury to the D actions
    • Doctrine in lower court says that both can be liable.
  • Analogous to Ybarra v. Spangard res ipsa loquitur case (unconscious man injures shoulder during surgery)
    • res ipsa loquitur – the mere fact that an accident occurred implies negligence
  • Holding “under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently”
    • Reasons of policy, it doesnt matter that they didnt both engage in an effort in concert to be negligent.