Cause/Negligence question

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Cause/Negligence question

Postby minnie7 » Thu Dec 06, 2012 9:35 pm

Trying to understand how these all work together and when to use which.

For Factual Cause-

There's but-for, which works also when there's multiple necessary causes. Then there's "substantial factor" test which you apply when there's multiple sufficient causes, where but for fails.

Then there's Joint and Sev Lib, Alt Lib, Market Share lib. Are these all ways of allocating liability once you've proven factual cause?

Proximate test-
Foreseeability-harm within the risk?
Polemis/Direct- harm direct result of negligence?
Are these basically the only 2 you may use?
Eggshell rule just tells you how liable you are, to what extent basically?
Palsgraf, uses foreseeability/duty, to say some P's aren't foreseeable, therefore no duty to them? right? and that you can reframe a cause question to a duty question, mainly to take the case away from the jury?

Is that right?
How does one determine whether something was a "substantial factor"?
What's the difference between Polemis/direct harm and But for causation? seems like it's the same thing. Can anyone give me an example to help me understand the difference please.

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Joined: Mon Jun 27, 2011 8:49 pm

Re: Cause/Negligence question

Postby cmartin5970 » Thu Dec 06, 2012 10:30 pm

We did not go into as much detail as you it seems like, but we did discusses the substantial factor test. In the case we discussed, a man worked with asbestos for over 20 yrs and smoked. He died from asbestos and his wife was suing a company he had worked for for only 9 months. The court ruled that this asbestos was a substantial factor and they were still liable, because substantial enough to cause damage even if it were not for his other asbestos exposure. The test we used was that more likely than not, it was sufficient to independently cause the cancer.

Hopefully this helps because substantial factor comes up in multiple ways, if not I can try to clarify

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