I have a problem understanding Actual Causation, LAME

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

I have a problem understanding Actual Causation, LAME

Postby Extension_Cord » Tue Nov 29, 2011 8:40 pm

You use the but-for test when if you take away the actors negligent act the damage would not have occurred?

You use the substantial factor test when there are two causes that combined to damage the plaintiff, if you take out the 3rd parties negligence the damage more likely than not would have occurred?

Im having a problem when both the parties are negligent. Say A negligently parks his car on a side walk, right at a corner. B is negligently riding a bike on a sidewalk (just assume). B takes a sharp turn at the corner and because of his speed he wasnt able to stop himself before stricking B's car. C, B's buddy, is pedaling behind B and immediately swerves to avoid the car which results in him running down B who is on the ground.

B v. A for negligence = but-for or substantial factor?
B v. C for negligence (assume it wasn't substancial certainty that he would cause harmful contact) = but-for or substantial factor?

Please explain.

User avatar
Richie Tenenbaum
Posts: 2162
Joined: Wed Dec 31, 2008 6:17 am

Re: I have a problem understanding Actual Causation, LAME

Postby Richie Tenenbaum » Tue Nov 29, 2011 8:59 pm

Some courts apply the substantial factor substitute test when but-for causation breaks down. This isn't that type of situation: A and C are both but-for causes of varying injuries, the question is whether the injury of each can be sorted out.

Now, if B had died upon hitting the car and C is on a motorcycle right behind and ends up driving over B's corpse (let's assume in a way that would've have caused death, if not for B already being dead), does this become a situation where but-for causation breaks down? No. But-for A parking his car neg on the corner, would B have died? No! (b/c we can assume B wouldn't have fallen down then.) But-for C neg following too closely, would B have died? Yes!--he would have still hit the parked car.

Example where but-for actually breaks down: 2 separate fires converging and burning down a house (assume either is sufficient to burn down the house on its own). But-for q leads to two yes answers, meaning neither is a but-for cause, which makes no sense so courts introduce ways around this problem.

Eliyahu7
Posts: 41
Joined: Sat Jun 26, 2010 12:03 am

Re: I have a problem understanding Actual Causation, LAME

Postby Eliyahu7 » Tue Nov 29, 2011 8:59 pm

You use the proximate cause test that is pertinent to the jurisdiction in question.

The element of causation involves two sub-elements, cause-in-fact and proximate cause. Cause-in-fact establishes that the conduct played a role in producing the injury, whereas proximate cause indicates that the conduct is legally relevant. That being said, conduct (even negligent conduct) can be a cause-in-fact without being the proximate cause of the injury.

That being said, the substantial factor test concerns itself with the extent of the cause's effect in producing the harm with relation to other causes and their possible diluting effect. If I am not mistaken, you can review the factors of this test in the Restatement (second) of torts.

target
Posts: 688
Joined: Tue Jul 26, 2011 6:40 pm

Re: I have a problem understanding Actual Causation, LAME

Postby target » Tue Nov 29, 2011 9:08 pm

Richie Tenenbaum wrote:
Example where but-for actually breaks down: 2 separate fires converging and burning down a house (assume either is sufficient to burn down the house on its own). But-for q leads to two yes answers, meaning neither is a but-for cause, which makes no sense so courts introduce ways around this problem.


I think this could also be an alternative causation case like summers v. tice

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: I have a problem understanding Actual Causation, LAME

Postby Extension_Cord » Tue Nov 29, 2011 9:09 pm

Richie Tenenbaum wrote:Some courts apply the substantial factor substitute test when but-for causation breaks down. This isn't that type of situation: A and C are both but-for causes of varying injuries, the question is whether the injury of each can be sorted out.

Now, if B had died upon hitting the car and C is on a motorcycle right behind and ends up driving over B's corpse (let's assume in a way that would've have caused death, if not for B already being dead), does this become a situation where but-for causation breaks down? No. But-for A parking his car neg on the corner, would B have died? No! (b/c we can assume B wouldn't have fallen down then.) But-for C neg following too closely, would B have died? Yes!--he would have still hit the parked car.

Example where but-for actually breaks down: 2 separate fires converging and burning down a house (assume either is sufficient to burn down the house on its own). But-for q leads to two yes answers, meaning neither is a but-for cause, which makes no sense so courts introduce ways around this problem.


Thanks, I believe I was getting them wrong because I assumed concurrent tortfeasors meant more than 1 person acted negligent which resulted in damage. However concurrent tortfeasors is only when they are acting together and cause damage.

Substantial factor = only when 2 or more actors cause harm TOGETHER that if one didn't act the harm would still occur. I dont think this should have cause me as much difficulty as it did, lol.

User avatar
Extension_Cord
Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

Re: I have a problem understanding Actual Causation, LAME

Postby Extension_Cord » Tue Nov 29, 2011 9:11 pm

target wrote:
Richie Tenenbaum wrote:
Example where but-for actually breaks down: 2 separate fires converging and burning down a house (assume either is sufficient to burn down the house on its own). But-for q leads to two yes answers, meaning neither is a but-for cause, which makes no sense so courts introduce ways around this problem.


I think this could also be an alternative causation case like summers v. tice


I dont think so. In summers, if you took out the act of one of the negligent parties the harm had a 50% chance of occurring (we know for certainty only one party actually caused the damage). In the fire scenario, it it more likely than not that either actor caused the damage.

User avatar
Richie Tenenbaum
Posts: 2162
Joined: Wed Dec 31, 2008 6:17 am

Re: I have a problem understanding Actual Causation, LAME

Postby Richie Tenenbaum » Tue Nov 29, 2011 9:16 pm

Extension_Cord wrote:
Richie Tenenbaum wrote:Some courts apply the substantial factor substitute test when but-for causation breaks down. This isn't that type of situation: A and C are both but-for causes of varying injuries, the question is whether the injury of each can be sorted out.

Now, if B had died upon hitting the car and C is on a motorcycle right behind and ends up driving over B's corpse (let's assume in a way that would've have caused death, if not for B already being dead), does this become a situation where but-for causation breaks down? No. But-for A parking his car neg on the corner, would B have died? No! (b/c we can assume B wouldn't have fallen down then.) But-for C neg following too closely, would B have died? Yes!--he would have still hit the parked car.

Example where but-for actually breaks down: 2 separate fires converging and burning down a house (assume either is sufficient to burn down the house on its own). But-for q leads to two yes answers, meaning neither is a but-for cause, which makes no sense so courts introduce ways around this problem.


Thanks, I believe I was getting them wrong because I assumed concurrent tortfeasors meant more than 1 person acted negligent which resulted in damage. However concurrent tortfeasors is only when they are acting together and cause damage.

Substantial factor = only when 2 or more actors cause harm TOGETHER that if one didn't act the harm would still occur. I dont think this should have cause me as much difficulty as it did, lol.


Actual causation can actually be a bitch. There's a lot of holes still in our explanations of causation. The substantial factor test is a bit of a cop out response. Particularizing but-for can handle some of the issues (though it introduces it's own issues). NESS test handles most of the problems really well, but even then it seems to break down in some situations.

All this to say: actual causation will ussually be an easy thing to show, but when it gets dicey--it can get really dicey.

User avatar
PinkCow
Posts: 786
Joined: Wed Oct 13, 2010 2:03 am

Re: I have a problem understanding Actual Causation, LAME

Postby PinkCow » Tue Nov 29, 2011 9:22 pm

Extension_Cord wrote:You use the but-for test when if you take away the actors negligent act the damage would not have occurred?

You use the substantial factor test when there are two causes that combined to damage the plaintiff, if you take out the 3rd parties negligence the damage more likely than not would have occurred?

Im having a problem when both the parties are negligent. Say A negligently parks his car on a side walk, right at a corner. B is negligently riding a bike on a sidewalk (just assume). B takes a sharp turn at the corner and because of his speed he wasnt able to stop himself before stricking B's car. C, B's buddy, is pedaling behind B and immediately swerves to avoid the car which results in him running down B who is on the ground.

B v. A for negligence = but-for or substantial factor?
B v. C for negligence (assume it wasn't substancial certainty that he would cause harmful contact) = but-for or substantial factor?

Please explain.



Yeah I think you're conflating cause-in-fact and proximate cause. Cause-in-fact is the mechanical, physical "but-for" test and incorporates basically anything when the counterfactual dictates.

But, for liability, you also have to prove by preponderance proximate liability, which is basically just a subset of cause-in-fact. In order to show proximate cause, different jurisdictions emphasize different tools, which include foreseeability, directness, and,...substantial factor.

Upshot - It always has to be the but-for cause in fact, then you move on to the proximate analysis.

User avatar
NeighborGuy
Posts: 119
Joined: Mon Oct 11, 2010 4:51 am

Re: I have a problem understanding Actual Causation, LAME

Postby NeighborGuy » Tue Nov 29, 2011 9:26 pm

Extension_Cord wrote:Substantial factor = only when 2 or more actors cause harm TOGETHER that if one didn't act the harm would still occur. I dont think this should have cause me as much difficulty as it did, lol.


In my state, as a general rule:
Single cause of single injury uses "but-for" test. The law isn't clear on whether the substantial factor test may be substituted (again, in my state).
Multiple causes of single injury uses "substantial factor" test.

The substantial factor test is used when there is only one negligent actor and another non-actor cause. There was some case where a guy lost an eye to a bacterial infection after a doctor negligently failed to treat the shard of metal in his eye. The doc tried to say it was the bacteria that caused the loss of the eye and so there was no actual cause under the "but-for" test. The court called bullshit and said that because there was multiple causes, the substantial factor test applied.

Again, that's my state. Your laws my vary.

truevines
Posts: 198
Joined: Fri Jun 20, 2008 6:16 pm

Re: I have a problem understanding Actual Causation, LAME

Postby truevines » Tue Nov 29, 2011 10:55 pm

NeighborGuy wrote:
Extension_Cord wrote:Substantial factor = only when 2 or more actors cause harm TOGETHER that if one didn't act the harm would still occur. I dont think this should have cause me as much difficulty as it did, lol.


In my state, as a general rule:
Single cause of single injury uses "but-for" test. The law isn't clear on whether the substantial factor test may be substituted (again, in my state).
Multiple causes of single injury uses "substantial factor" test.

The substantial factor test is used when there is only one negligent actor and another non-actor cause. There was some case where a guy lost an eye to a bacterial infection after a doctor negligently failed to treat the shard of metal in his eye. The doc tried to say it was the bacteria that caused the loss of the eye and so there was no actual cause under the "but-for" test. The court called bullshit and said that because there was multiple causes, the substantial factor test applied.

Again, that's my state. Your laws my vary.


If there are more than 2 tortfeasors, the substantial factor test might not work.
This is because the probability that one of the tortfeasors are the actual tortfeasor is 1/3 or less, which is less than 50%. It does not meet the standard of "more likely than not."

User avatar
NeighborGuy
Posts: 119
Joined: Mon Oct 11, 2010 4:51 am

Re: I have a problem understanding Actual Causation, LAME

Postby NeighborGuy » Tue Nov 29, 2011 11:23 pm

truevines wrote:
NeighborGuy wrote:
Extension_Cord wrote:Substantial factor = only when 2 or more actors cause harm TOGETHER that if one didn't act the harm would still occur. I dont think this should have cause me as much difficulty as it did, lol.


In my state, as a general rule:
Single cause of single injury uses "but-for" test. The law isn't clear on whether the substantial factor test may be substituted (again, in my state).
Multiple causes of single injury uses "substantial factor" test.

The substantial factor test is used when there is only one negligent actor and another non-actor cause. There was some case where a guy lost an eye to a bacterial infection after a doctor negligently failed to treat the shard of metal in his eye. The doc tried to say it was the bacteria that caused the loss of the eye and so there was no actual cause under the "but-for" test. The court called bullshit and said that because there was multiple causes, the substantial factor test applied.

Again, that's my state. Your laws my vary.


If there are more than 2 tortfeasors, the substantial factor test might not work.
This is because the probability that one of the tortfeasors are the actual tortfeasor is 1/3 or less, which is less than 50%. It does not meet the standard of "more likely than not."


Not quite. The "more likely that not" jury standard is asking if any of the tortfeasors are more likely than not a substantial cause of the injury, not the cause. A jury could find that a defendant was more likely than not 5% at fault, and presuming that the plaintiff was not at all negligent, that defendant would be on the hook for 5% of the damages.

Edit: or were you thinking of a situation in which there was only one possible cause of the injury, >2 negligent actors that were the possible cause and we're not sure which? In that case, my state holds them all jointly and severally liable if they were acting in concert. Not sure what happens if they were all independent actors.

User avatar
shepdawg
Posts: 477
Joined: Thu Sep 10, 2009 8:00 pm

Re: I have a problem understanding Actual Causation, LAME

Postby shepdawg » Wed Nov 30, 2011 12:17 am

Seems like a but for can be used in most of those. Use substantial factor if the butfor doesn't work.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: pvnyc, Yahoo [Bot] and 16 guests