Cause in Fact – Torts

Top 4 Supplements for 1L Torts:

We need to consider two factors in Tort Liability
  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
Stubbs v. City of Rochester
Ct App NY 1919
  • 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
The rule in Stub would require the D to pay for all 58 cases, and this is UNFAIR 🙁
How can we address this?

Proportional Liability

Suppose that Rochester could show that of the 58 infected with typhoid 10 would have gotten it anyways without drinking the water
Under proportional liability each Plaintiff would recover 48/58ths of the awarded damages.

Wolf v. Kaufmann, 227 App.Div. 281, 237 N.Y.S. 550 (1929)
  • 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!
Which interpretation is better? Both have reasons, the policy in the 1991 case is better in this day and age of expanded liability


  • 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?

  • Class of cases now, where the P fears there will be future harm
    • Exposed to espestas
    • You have minor disease that indicates maybe canser
  • Traditionally courts say no, you can only recover slightly
  • But you have to come back later to recover for cancer
  • MODERN – if you have a better than 50% chance of getting cancer
    • THEN you can recover now 100%
  • This would be a good time to use Probabilistic amount: 20% chance of cancer –> 20% recovery

Loss of the chance cases

Hymowitz v. Eli Lilly & Co. 1989 Ct. App. NY 73 NY2d 487
  • Involves daugheters, whose mothers wanted to prevent miscarriage by taking a drug
  • Mothers took the drug DES, 1000s of women were prescribed this. 200 Manufacturers marketed the product for miscarriage, show to casuse cancer
  • Now the daughters are older and suing
    • They were born presumably healthy
    • But then developed cancer in their 20s
      • Included by the DES
      • AND the DES was useless in preventing miscarriages
  • Over 200 manufacturers of DES
    • Each manufacturere moved for summary judgement
      • Because you cant prove which manufactuer made the drug your mom took
  • Women couldnt prove which drug manufacturer made the particular DES that harmed them
  • Pharmacies had no records back then
  • No way to prove cause in fact 🙁
    • Trial Ct SUMMARY JUDGEMENT for D 🙁
    • says no liability because :fairness disapears with the decreasing probability that any one of the D actually cause the injury
    • Also statute of limittions has run
  • Legislature said in this case the ordinary SofL should be waved in a case like this
  • Summers v Tice Alternative Liability
    • Doesn apply because it rests on the notion that there was a small number of D and the probability that one D injured the P is high, NOT THE CASE HERE (also in AL Defendant has better access to the facts, here the manuf are too old to have evidence)
    • Not fair to use Alternative liability becasue the chances  are 1/200 that the D caused harm
  • Concerted Action Doctrine – “having an understanding, express or tacit, to participate in ‘a common plan or design to commit a tortious act’” (Speed Racers)
    • Here there is no common plan for to commit a tortious act
    • They are competitors, of course no common plan 🙁 concerted action fails
  • Ct App. we need to “overcome the “inordinately difficult problems of proof” so that the P arent required to bear losses
    • But we are going to push the borders, we dont want to go any further
      • because the product generic, that caused injury many years later
      • Lets look to MOSS opinion in Sindell
      • If there is a substantial share of the Miscarriage marketing then you are liable in this case
      • Whats the market? WHat is a substantial share?
        • Well market is notailanl, but substantial still not clrear.
      • Is there joint and several liability
      • NY/CA adopt same anser to JSL–> Several Only
      • NY/CA both say National Market Share
        • AND say IT IS ONLY SEVERAL (10% market –> 10% share, not liable for any insolvent parties)
          • CALIFORNIA Must SUE a substantial share OF THE MARKET, but adds all D up, if they have 1% sue all 100 for 100% “share”
            • CA If you prove its not your pill then you are off the hook
          • NEW YORK – DOES NOT REQUIRE substantial share of the market BE SUED IN THE ACTION
  • NOTE – An award based on JSL would be fine here because any manufacturers still around should have to bear FULL costs proportionally to cover 100% and pay the portion of now insolvent manuf
    • Ct disagrees becasue the manufacturers are Several only (not JSL)
Therefore they are responsible for their % of market share only, leading to a less than 100% recovery for the P
  • Market Share Theory
  • Ct adopted Sindell approach manufacturers liable based on % of market share
    • After Sindell the CA court held in Brown v Superior Court that manufactures were SEVERAL only not (Joint and Several)
    • Therefore they are responsible for their % of market share only, leading to a less than <100% recovery for the P
    • Market share based on National Market Share
  • Manufacturers are several only and not liable to cover for 100% (also only manuf who marketed to pregnant women are liable)
  • Defendant was known to act in concerted activity
  • BACKGROUND – Handout
    • McCreery v. Eli Lily & Co
    • Sindell v Abbot
    • henderson and Twerski

1977 Cause in Fact review

Helped the student clerking for the Judge in 1978 Sindell Apellate Opinion
But for test is not mechanical
The D action clearly could have caused the injury
BUT something else possibly could have caused it too
How far does the plaintiff have to go in disprooving other casues
Only prove with reasoanable certainty.
Drunk drivers jury and court will stretch to prove cause in fact
In 1929 the court says mere conjectiure low laight casued falle
1991 they changed their opinion and said it was likely that the low light did cause the faill
Alternative test for causation BUT FOR breask down, 2 forest fires merge SO netihtert is a but for casue both are sufficiant causese
Courts then use the SUBSTANTIAL FACTOR
IF D1 and D2 are both substantial factors in bringing the result then BOTH ARE “BUT FOR”
What is one fire was caused by nature?
Likely to use the SUBSANTILA FACTOR HERE TOO person sitll liable
Summers v Tice
Joint and several liability each defendant is liable for the full amount from either defendant
What rights do D have among them selves? well in CA we keep JSL only for economic loss not for pain and suffering
Two hunters, you cant use the reasonable certainty because it is 50/50, so you cant use stubbs aproach
Ct chifts bruden of proof to the dfefentafdt,
Concerted Actione theyre was a commmon plan to participate in a tortious act
BUT policy should make them liable for damages wheter they are concerted or not, reasons of fairness say that they should be liable.
California shifts the burden of fact for policy reasons.
  • Statute says lifeguarde OR sign
  • Liability of products has now been expanded  to burden of proof
    • SPREAD THE LOSS by imposing on enterprise
    • Generalizing to force the Hotel to have one or the other, liable simply for not following statute
  • Court aggressivly using policies to shift the burden of proof


  • a case with 200 manuf who knew or shiould have kno wn it wsa useless to rpevent miscarraiage
  • manuf says you can t prove who dunnit
  • CA Supreme coourt wont let this happen
  • BeCAHSUE tis is a products liebility case, the court has just spend years expanding liability to make oroduct manuf liable striclty

Hunters (Summers v. Tice?)

  • 2 hunters shoot teacher (in supplement)
  • Court shifts burden of proff to the defendent
    • Cant use reasonable certainty because its 50/50

Haft v Lone Palm Hotel 1970

  • Drowning at a hotel by father and son
  • Swimming late at night
  • No lifeguard and no sign saying no lifeguard.
    • Cause in fact?
  • Statute says lifeguard or sign
    • Defendant will argue no “But For Causation”
    • Hotel says well it was closed there would have been no lifeguard anyways
    • No cause in fact?
  • How does the court solve this problem in the 1970s?
    • The only way the P can recover is if the court shifts the burden of proof
    • CA will shift burden of proof based on policy
    • Wants to shift burden to those who can prevent the risk
      • This is a court who enacted strict products liability AND abolished the landowner immunity rules
      • They wont like that the Hotel was negligent
        • Very Plaintiff friendly court
      • Even with the burden of proof the D will have the argument that they would have drowned even with a sign in place
    • Now the Hotel has to prove that they wouldnt have drown if there was a lifeguard
      • Of course they wouldnt drown if there was a lifeguard
  • HOLDING hotel is liable, because they failed the burden of proof, in the area of premises liability. Measuring the duty that they should have had a lifeguard
    • They are negligent per se for violating the statute. Because NO SIGN ACCORDING TO THE STATUTE MEANS THERE WAS A LIFEGUARD

Joint and Several liability (JSL)

  • 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.

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