CHPT. 3 ACTUAL CAUSATION

Zhu WANG

LLD., Asso. Prof. of Law School of Sichuan University Deputy Director of Institute for Chinese Tort Law of RCCCJ

of Renmin University of China

Email: wangzhu@scu.edu.cn Website: www.qinquanfa.com CC: cc.scu.edu.cn/comparativetortlaw.html TA: chuandaminfa@163.com

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A. INTRODUCTION

1. “But for” Test for actual causation Did the defendant cause the plaintiff's harm?

"But for the defendant having acted at all, would the plaintiff nevertheless have suffered the same harm?"

Negative answer: "No, the plaintiff would not have suffered the same harm if the defendant had never acted at all"

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A. INTRODUCTION

2. Policy objectives of causation requirement

a. Requirement of tort liability

Plaintiffs who succeed in proving it, together with the other prerequisites to recovery, they will recover for the full amount of their actual harm

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A. INTRODUCTION

b. Deterrence to intentional tort Causation requirement may reflect the judgment

in some cases that the strength of the signal to be sent to the defendant, from a deterrence perspective, should be proportional to the harm caused.

In battery cases, "deterrence for its own sake," or even "quasi-criminal punishment" may seem appropriate in light of the intentionally wrongful nature of defendants' conduct.

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A. INTRODUCTION

c. Practical limit of actor's liability Without the actual causation requirement a

negligent factory operator might be held liable for all the harm, accidental or otherwise, suffered by anyone in his town, or in his state, for the period during which he acted negligently.

Note: This may eliminate properly managed factories.

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B. THE DEFENDANT CAUSE THE HARM?

1. General causation & Specific causation a. General (/generic) causation

"Fumes hurt the cattle" case: will fumes from the automobile's exhaust caused cattle to get sick?

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B. THE DEFENDANT CAUSE THE HARM?

Test: whether the activity allegedly engaged in by the

defendant is inherently capable of causing the sort of harm suffered by the plaintiff.

If it is not, the defendant wins on causation as a matter of law.

Note: In most tort cases, this general causation issue is not even presented.

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B. THE DEFENDANT CAUSE THE HARM?

b. Specific causation "Fumes hurt the cattle" case: whether the

defendant was driving the vehicle that harmed the plaintiff’s cattle.

Specific causation is the issue presented in most tort cases involving actual causation.

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B. THE DEFENDANT CAUSE THE HARM?

2. General causation

Case 1 Hoyt v. Jeffers, 30 Mich. 181 (1874)

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B. THE DEFENDANT CAUSE THE HARM?

Cf. Whiteman v. Worley, 688 So. 2d 207 (La. Ct. App. 1997), cert. denied, 694 So. 2d 246 (La. 1997). The defendant's 11-month-old baby jabbed the

plaintiff in the eye with a ball point pen. Ten days after the incident and three days after her corneal abrasion healed, the plaintiff developed a far more serious eye infection, later diagnosed as the sexually transmitted disease chlamydia. Although it was extremely unlikely that the pen was the transmitting mechanism, it was nevertheless possible that the abrasion elevated her risk of infection.

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B. THE DEFENDANT CAUSE THE HARM?

3. Use of statistics in specific causation

Case 2 Smith v. Rapid Transit Inc., 317 Mass. 469, 58 N.E.2d 754 (1945)

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B. THE DEFENDANT CAUSE THE HARM?

Cf. People v. Collins, 438 P.2d 33 (Cal. 1968). The defendants were convicted on the evidence

that the robbery of the victim was committed by two people, a young white woman with blond hair and a ponytail, and a black man with a mustache and beard, who fled the scene in a yellow car. Four days later, the police arrested the defendants, who fit the general description and who owned a yellow car.

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B. THE DEFENDANT CAUSE THE HARM?

At the trial, a mathematics instructor from a state college testified as to the product rule, which is that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur.

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Yellow automobile 1/10Man with mustache 1/4Woman with ponytail 1/10Woman with blond hair 1/3Black man with beard 1/10Interracial couple in car 1/1000

B. THE DEFENDANT CAUSE THE HARM?

There was but one chance in 12 million that any given couple would possess all these distinctive characteristics.

Therefore, there was only one chance in 12 million that the defendants were innocent.

What do you think?

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B. THE DEFENDANT CAUSE THE HARM?

Problem 6

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C. ALTERNATIVE LIABILITY

C. When One of Several Defendants Did It, But We Can't Tell Which One: Alternative Liability

Case 3 Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948).

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C. ALTERNATIVE LIABILITY

Case 4 Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944).

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C. ALTERNATIVE LIABILITY

Cf. Sindell v. Abbott Labs., 607 P.2d 924 (Cal. 1980), cert. denied, 449 U.S. 912 (1980).

a. DES (diethylstilbestrol, a prescription drug) Litigation

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C. ALTERNATIVE LIABILITY

The plaintiffs in these cases are women whose mothers took DES many years earlier, while pregnant, to reduce morning sickness. Reliable expert testimony shows that the drug affected the plaintiffs while in their mothers' wombs, resulting in reproductive tract cancers in the plaintiffs many years later. Hundreds of thousands of women have been involved. Many of the plaintiffs cannot prove which drug company distributed the DES their mothers took. (As many as 300 companies may have produced the generic drug during the relevant period.)

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C. ALTERNATIVE LIABILITY

b. Market-share theory When a plaintiff joins the manufacturers of a

substantial share of the relevant DES market, the burden shifts to each defendant to prove it did not produce the drug that her mother ingested. Those companies that do not carry this burden are held liable to the plaintiff for the percentage of damages approximating their individual share of the relevant DES market.

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C. ALTERNATIVE LIABILITY

Problem 7

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C. ALTERNATIVE LIABILITY

Problem 8

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D. MULTIPLE CAUSES

D. When Two or More Causal Agents Would, Independent of Each Other, Have Caused Plaintiff's Harm? 1. Concurrent Causation

Case 5 Dillon v. Twin State Gas & Electric Co., 85 N.H. 449, 163 A. 111 (1932).

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D. MULTIPLE CAUSES

2. Successive Causation

Case 6 Kingston v. Chicago & N.W. Ry., 191 Wis. 610, 211 N.W. 913 (1927).

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D. MULTIPLE CAUSES

Cf. In Baker v. Willoughby, [1970] 2 W.L.R. 50, [1969] 3 All E.R. 1528 (H.L.) The defendant negligently struck the plaintiff with

his automobile, causing severe injury to the plaintiff's left leg and ankle. Some time later, but before trial, the plaintiff was shot in the already-disabled left leg during a robbery at his place of employment. As a result of the gunshot wound, the already disabled left leg had to be amputated. At trial, the defendant argued that he should be liable for the plaintiff's damages due to his disability only up to the time of the shooting.

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D. MULTIPLE CAUSES

Problem 9

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E. VICARIOUS LIABILITY

E. Relationship Between Actual Causation and Vicarious Liability Vicarious liability applies: 1. the servant's conduct must be tortious; 2. the master must control, or have the right to

control, the servant's harmful behavior. The master need not be shown to have been at

fault. Merely empowering the servant with the means and opportunity to cause harm suffices.

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E. VICARIOUS LIABILITY

1. Masters & Servants Rule (Respondeat Superior) Restat 3d of Agency Chapter 2. Principles Of Attribution Topic 3. Respondeat Superior § 2.04 Respondeat Superior An employer is subject to liability for torts

committed by employees while acting within the scope of their employment.

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E. VICARIOUS LIABILITY

Restat 2d of Agency § 219 When Master Is Liable for Torts of Servant (1) A master is subject to liability for the torts of

his servants committed while acting in the scope of their employment.

(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:

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E. VICARIOUS LIABILITY

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or (c) the conduct violated a non-delegable duty of the

master, or (d) the servant purported to act or to speak on behalf

of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

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E. VICARIOUS LIABILITY

2. Distinguishing Servants from Independent Contractors Restat 2d of Agency § 2 Master; Servant; Independent Contractor (1) A master is a principal who employs an agent

to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.

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E. VICARIOUS LIABILITY

(2) A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.

(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent.

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E. VICARIOUS LIABILITY

§ 220 Definition of Servant (1) A servant is a person employed to perform

services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

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E. VICARIOUS LIABILITY

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

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E. VICARIOUS LIABILITY

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

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E. VICARIOUS LIABILITY

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

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E. VICARIOUS LIABILITY

3. Relationship Between the Servant's Conduct and the Scope of Employment Restat 2d of Agency § 229 Kind of Conduct Within Scope of

Employment (1) To be within the scope of the employment,

conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.

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E. VICARIOUS LIABILITY

(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:

(a) whether or not the act is one commonly done by such servants;

(b) the time, place and purpose of the act;

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E. VICARIOUS LIABILITY

(c) the previous relations between the master and the servant;

(d) the extent to which the business of the master is apportioned between different servants;

(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;

(f) whether or not the master has reason to expect that such an act will be done;

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E. VICARIOUS LIABILITY

(g) the similarity in quality of the act done to the act authorized;

(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;

(i) the extent of departure from the normal method of accomplishing an authorized result; and

(j) whether or not the act is seriously criminal.

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E. VICARIOUS LIABILITY

4. General Rule of Nonliability of Independent Contractors and Eceptions Restat 2d of Torts §409 General Principle Except as stated in §§410-429, the employer of an

independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.

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E. VICARIOUS LIABILITY

Exceptions to the General Rule of Nonliability: (1) the employer is negligent in selecting,

instructing, or supervising the independent contractor;

(2) the duty of the employer, arising out of some relation to the public or to the particular plaintiff, is nondelegable;

(3) the work is specifically, peculiarly, or inherently dangerous.

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E. VICARIOUS LIABILITY

Cf. Restat 3d of Torts, Liability for Physical and Emotional Harm, Chapter 10. Liability Of Those Who Hire Independent Contractors

Topic 1. Direct Liability In Negligence

Topic 2. Vicarious Liability

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