Proximate Cause Flow Chart?

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mbutterfly
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Proximate Cause Flow Chart?

Postby mbutterfly » Wed Dec 01, 2010 5:09 pm

Hi, some quick questions:

In answering proximate cause:

We ask:

1. Is type of harm foreseeable?

2. Is plaintiff foreseeable?

3. Manner of harm foreseeable?

4. Extent of harm foreseeable?

Do we ask it in that order? I understand that extent and manner are not required if type of harm is foreseeable (i.e. rat catching on fire when guy is cleaning with gasoline). However, when do we ask the "zone of danger versus "direct consequences" question (from Palsgraf)? Is it under plaintiff or type?

Thank you for your help in advance!

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Doritos
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Re: Proximate Cause Flow Chart?

Postby Doritos » Wed Dec 01, 2010 9:36 pm

My understanding is that you figure out foreseeable plaintiff and then ask if the negligent conduct increases the risk of the bad thing that happened actually occuring. Then you look @ manner and type and see if they are outrageous enough to say no proximate cause.

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GoodToBeTheKing
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Re: Proximate Cause Flow Chart?

Postby GoodToBeTheKing » Wed Dec 01, 2010 10:01 pm

i don't think there is any order that you ask the questions in, rather, you ask yourself each at the same time.

I also think that you would be selling your analysis short if you didn't talk about manner or extent once you possibly conclude that a type of harm was foreseeable.

mbutterfly
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Re: Proximate Cause Flow Chart?

Postby mbutterfly » Wed Dec 01, 2010 11:23 pm

thanks! when do i ask if something is the "direct consequence" or "unbroken, natural sequence"? do i always ask that too? or only if the foreseeability fails?

for example, a classic example:

the water heater breaks in your house, a son boils water to bathe, slips, and spills it in an electrical socket, causing an electrical fire and burning the weekend-guest

I had trouble with this one since i argued the type of harm the type of harm was not foreseeable, but the plaintiff may be foreseeable since they are in the scope of the house.
but then i argued this is both a direct consequence of the negligence (of failing to maintain heater) and natural, unbroken sequence.

anyone help me with this?

kxz
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Re: Proximate Cause Flow Chart?

Postby kxz » Wed Dec 01, 2010 11:40 pm

I always ask myself this: was A a foreseeable consequence of B?

If I'm injured in a car accident, it's foreseeable that I would go to a hospital. It is also foreseeable that malpractice may happen at that hospital, etc..

I think your chain stops at slippage or at spilling on the electrical socket. I don't see how slipping is a foreseeable consequence of boiling water. Maybe I'm wrong. Who knows.

Melkaba
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Re: Proximate Cause Flow Chart?

Postby Melkaba » Thu Dec 02, 2010 12:17 am

I usually ask myself these questions.
1. Was it natural, direct, and/or immediate? If so, problem solved, move on to damages and defenses.
2. If no to question number one (probably a counter that it was too remote or something), was it foreseeable? If so, problem solved and move on. If not, re-frame the issue as generally as possible so you can make it foreseeable (or make it as specific as possible if you have to argue from the other side).

I forget which case it was, but I'm pretty sure that if natural/direct/immediate and foreseeability bump heads, foreseeability has to win out. Of course, you could just skip straight on to foreseeability, but this is just my own method on tackling it.

Also, if you have to make arguments for both sides, I usually just treat Proximate Cause as the "blame game section". Opponent would probably say something else was the superseding cause and the one bringing the negligence claim would say that it was an intervening act that didn't cut off the causal chain.

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gwuorbust
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Re: Proximate Cause Flow Chart?

Postby gwuorbust » Thu Dec 02, 2010 12:34 am

not to hijack, but here is a hypo I just did. So A is an ER doc at a hospital. Doesn't admin treatment to B b/c he is too lazy(assume he knows he should admin it, he just choose not to). Treatment may have saved B, but the chance that B would be cured it less than 10%, greater than 1%. A would be negligent in not admin'ing the treatment, but can negligence for the death be established? Causation is the key issue.

Melkaba
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Re: Proximate Cause Flow Chart?

Postby Melkaba » Thu Dec 02, 2010 1:07 am

gwuorbust wrote:not to hijack, but here is a hypo I just did. So A is an ER doc at a hospital. Doesn't admin treatment to B b/c he is too lazy(assume he knows he should admin it, he just choose not to). Treatment may have saved B, but the chance that B would be cured it less than 10%, greater than 1%. A would be negligent in not admin'ing the treatment, but can negligence for the death be established? Causation is the key issue.


Since that's one of the situations where the But For test breaks down and "substantial factor" kicks in, I'm curious to this question too. I would think that Herskovits v. Group Health is especially applicable here but I'm fumbling in the dark on this one, since that case actually showed that the doctor's negligence decreased his chances of survival and not concerning a "chance of getting cured." True, there may be a 1-10% chance of curing it, but what if the ailment itself only had a 1% chance of killing the patient? Or is the hypo implying that the treatment itself is the only factor to consider here? Ugh, brain is fried.

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Cosmo Kramer
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Re: Proximate Cause Flow Chart?

Postby Cosmo Kramer » Thu Dec 02, 2010 1:17 am

gwuorbust wrote:not to hijack, but here is a hypo I just did. So A is an ER doc at a hospital. Doesn't admin treatment to B b/c he is too lazy(assume he knows he should admin it, he just choose not to). Treatment may have saved B, but the chance that B would be cured it less than 10%, greater than 1%. A would be negligent in not admin'ing the treatment, but can negligence for the death be established? Causation is the key issue.


Peep the lost chance doctrine. Going off of memory (so I'm probably a little off on the calculation part) plaintiff calculates the percentage of "lost chance of survival" and then can get that percentage of the damages of death. However, it must be a significant loss of chance (i.e. Can't argue his negligence lowered my rate of survival from 10% to 8%, most likely because all these percentages are fairly speculative so the margin of error would make it possible there was no loss of chance at all)

kxz
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Re: Proximate Cause Flow Chart?

Postby kxz » Thu Dec 02, 2010 1:40 am

Yup, depending on your jurisdiction, loss of chance doctrine would apply. Isn't it the % loss of chance multiplied by the total amount for damages (I think)? So 9% x $100k (assuming that is what it would cost for full damage) = 9k for loss of chance.

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gwuorbust
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Re: Proximate Cause Flow Chart?

Postby gwuorbust » Thu Dec 02, 2010 2:01 am

yeah, loss of chance + Herskovits + %(damages) is what I wrote for my answer to the hypo. but it's good to have confirmation. once again TLS saves the day.

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GoodToBeTheKing
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Re: Proximate Cause Flow Chart?

Postby GoodToBeTheKing » Thu Dec 02, 2010 6:43 pm

mbutterfly wrote:thanks! when do i ask if something is the "direct consequence" or "unbroken, natural sequence"? do i always ask that too? or only if the foreseeability fails?

for example, a classic example:

the water heater breaks in your house, a son boils water to bathe, slips, and spills it in an electrical socket, causing an electrical fire and burning the weekend-guest

I had trouble with this one since i argued the type of harm the type of harm was not foreseeable, but the plaintiff may be foreseeable since they are in the scope of the house.
but then i argued this is both a direct consequence of the negligence (of failing to maintain heater) and natural, unbroken sequence.

anyone help me with this?


I think you should not be asking yourself if is a direct consequence but, rather, that it is a foreseeable consequence.

Yes. This is a proximate cause, scope of the risk because it is foreseeable that one who doesn't have heated water will have to heat their water in a different way. One of those foreseeable ways is by boiling the water. Here, it does not matter what manner the act occurred in, rather, it only matters that it foreseeably could happen that one could be injured from having to boil water because of their lack of heat.

However, none of this would apply if the landlord were not negligent in failing to provide heat. If there was a statute then maybe they would have a duty, although this may only be one element in establishing what the duty is to the tenant. Also, the landlord may defend that they were unaware of the heat being out, were not notified of it, and so the tenant should be comparaitvely negligent for doing what they did without giving time to the landlord to at least try and fix the problem.

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GoodToBeTheKing
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Re: Proximate Cause Flow Chart?

Postby GoodToBeTheKing » Thu Dec 02, 2010 6:49 pm

gwuorbust wrote:not to hijack, but here is a hypo I just did. So A is an ER doc at a hospital. Doesn't admin treatment to B b/c he is too lazy(assume he knows he should admin it, he just choose not to). Treatment may have saved B, but the chance that B would be cured it less than 10%, greater than 1%. A would be negligent in not admin'ing the treatment, but can negligence for the death be established? Causation is the key issue.



I think that if you could prove that A was negligent for failing to perform surgery because he was lazy this may be within the scope of the risk. That is, one of the foreseeable consequences of A not performing surgery was that the patient could not become cured, whether 50%, 10% or 1%, it was still foreseeable and still within the scope of the risk that by not performing the surgery because of negligent lazyness the patient wouldn't be cured.

This is similar to a case where a tank of gas explodes because it was hit by a car. That is, there is probably a very very low chance that an accident will occur with a tank of gas, but it still did and it was foreseeable consequence of a negligent act that a car crash could be with a tank of gas.

Thus, A is both a substantial factor because his negligence is a cause and in some jurisdictions also a material cause of B's death. And, it was within the scope of the risk that failing to provide care could result in the death of the patient. Thus, he should be held liable.




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