Torts Outline – GWU – Turley – Fall 2006 – 1

This outline consists of 39 pages and is from Professor Turley’s fall 2006 torts class at the George Washington University. You will immediately be sent an email containing links that will allow you to download this outline in both .doc and .pdf format.

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1. Actual Cause – Cause in Fact

After finding that there has been a breach of duty consider actual cause.

Several tests exist:

a. But for test: but for the defendant’s conduct would the injury have occurred?

The “but for” test applies where several acts combine to cause injury but none alone would have been sufficient.

b. Substantial Factor Alternative: Where several causes concur to bring about an injury-and any one alone would have been sufficient to cause the injury—it is sufficient if D’s conduct was a “substantial factor”. A cause can be a substantial factor without satisfying the “but for” test.

c. Alternative Cause Test: two defendants both acted negligently but only one party could have been responsible and the responsible party cannot be determined. The burden of proof shifts to the defendant to prove who is responsible and therefore liable. See Summers v. Tice.

d. Lost Chance Doctrine: A defendant can be held liable for a lost chance of survival. A doctor is liable if her misdiagnosis causes the patient to have a reduced chance of survival.

e. These cases often involve a battle of experts offering conflicting scientific evidence. Judges function as “gatekeepers” to ensure validity of evidence. However, it gives them power to determine outcome by restricting which experts are allowed to testify. See General Electric Co. v. Joiner.

3. Legal Causation or Proximate Causation

In addition to being a cause in fact, the defendant’s conduct must also be a proximate cause of injury. Not all injuries “actually” caused by the defendant will be deemed to have been proximately caused by his acts. Thus proximate causation is a doctrine that limits liability and deals with liability for unforeseeable or unusual consequences of ones acts.

a. General Rule: Defendant is liable for all harmful results that are the normal incidents of and within the increased risk cause by the acts. The test is based on foreseeability.

Foreseeable Harm

a. Snapshot theory: If you take a snapshot right before accident occurs, who is in this snapshot and who is foreseeably in danger? Is the original danger over?

(1) Foreseeable: Liable (Majority)

(2) Unforeseeable: Not liable

(3) Wagon Mound: The ship Wagon Mound pulled into port and a latch was left open. Leaking oil caused a fire. If the eventual harm is not in the snapshot at time of act, liability can be cut off. This rule limits liability based on the notion that it is unfair to hold parties accountable for consequences that are unforeseeable.

b. Direct Cause Case (In re Polemis):

(1) Polemis – Directness Test: A plank fell causing a fire which destroyed the ship. Where there is an uninterrupted chain of events from the time of the defendant’s negligent act to time of the plaintiff’s injury, and no external intervening force, it doesn’t matter whether results are foreseeable or not.