. efficiency. corrective justice(a) Nine potential causes (p. 335)(b) Background rate/percentage1) rate not clear from case, though cases after contamination are clearly above background rate (p. 336–337)2) n. 6, p. 339. If 10 (background) and 58 (while contaminated), then all 58 or 48/58? If the background rate were 38, would each plaintiff get 20/58?(c) Different juries might disagree on result (n. 4, p. 338)b. Modification of traditional rule is common, partly because with comparative fault, successful plaintiff may not be blameless. Six methods (with variations within each method) are used to change (See p. 367).(1) For final exam, you should note that there are multiple methods for addressing the issue, but you will only need to be able to apply from memory:(a) the traditional rule (with contribution) and(b) the approach of the Uniform Comparative Fault Act on the final exam. (The Uniform Act will be covered in chapter on defenses.)(2) For final exam, you also need to be aware of the issues discussed at Part II-B-3-e of the Defenses to Negligence Outline.d. Indemnity B total payment(5) contractual (agreement)(6) legal B example: master/servant vicarious liability (See n. 6, p. 23; n. 3, p. 444)a) nationalb) probably whole time – “overall culpability” (see p. 377)c) P loses – several liability only (p. 377)d) P loses – several liability only (p. 377)e) irrelevant; defendant liable (See p. 377, “overall culpability”)(c) Wagon Mound (1) (p. 402); Wagon Mound (2) (n. 10, p. 407) (See Ab-(1)@ below)c. What must be foreseen?(1) The exact consequences (or chain of events) do not have to be foreseen. (nn. 5–6, p. 416)(2) However, there may be a difference in the nature of what was foreseeable and what occurred. See a-(2) above; (n. 6, p. 406 (risk of disease vis-à-vis drowning); n. 7, p. 406 (compare safety statute’s purposes – see Negligence Outline Part III-B; III-C-1))c. Again: What must be foreseen? (See 1.c. above)4. Examples of terms that are used widely even though they are extremely vague:a. foreseeableb. highly extraordinary/outrageous/appalling5. Examples of terms/tests that have been used by some but have been rejected by most because of lack of objective measures:a. direct cause/remote causeb. substantial factorc. superseding or supervening causeCAUSAT’N.13Torts Outline -- HubbardTOPIC: CAUSATIONI. IntroductionA. Two aspects of causation analysis1. Cause-in-fact2. Proximate Cause[Note: Usage of terms in “world” not always the same as in class.]B. Both aspects involve some degree of policy1. Cause-in-fact: Examples:a. burden of proof and sufficiency of evidence necessary to withstand motion for directed verdictb. loss of opportunityc. risk of injury in future 2. Proximate cause: policy as to “responsibility” often at issueII. Cause in factA. Introduction1. Examples B pp. 333–3342. Policy bases for requirement. efficiency. corrective justice3. NOTE: Must show that defendant=s negligence (not just defendant=s conduct) caused injury. B. Tests for use in jury instructions1. but-for test: But for defendants’ negligence, there would have been no harm to plaintiff.Page 1 of 192. other - - examples:a. substantial factor test. (See p. 342) (1) Restatement (Second) uses this test, which is basically the Abut for@ test with possibility of liability even if another force is also sufficient to cause harm - - e.g., in a case of two fires burning a house (See Part II-E below). Note: The use of the term Asubstantial@ in this test suggests a Aweighing@ or Ameasuring@ of causal factors in order determine the most substantial; however, the Restatement (Second) does not provide an objective measure of Asubstantial.@ Because of this lack and the potential to mislead, Restatement (Third) does not use the test. (See n. 5, p. 351) However, the term is used in many cases, so it is necessary to be familiar with it. Remember though, as indicated above, substantial factor test is basically the same as the but-for test. (2) Exam tip: Do not use substantial factor test unless you have a case like the two-fires example. More specifically, donot ever use test: (1) to say that one cause-in-fact is more substantial than another and thus the other cause[s] is/are not liable; or (2) to analyze a proximate cause issue. Because some courts use “rough apportionment” for divisible injury cases with proof problems of cause-in-fact (See n. 8, p. 370), this use of “substantial” should be mentioned where relevant.b. loss of opportunity (See D-2-a-(2) below)C. The burden of proof and the roles of judge and jury1. Reason for placing burden of proof on plaintiff ? (n. 1, p. 338)2. Application of tests in terms of ruling on such motions as motion for directed verdict. In dealing with questions concerning sufficiency of evidence, court’s ruling may be affected by fairness dimensions. More specifically if plaintiff has shown that defendant is wrongdoer, court may place initial burden as to causation on plaintiff, but be lenient in: (i) application; and (ii) adoption and application of exceptions to usual rule imposing burden on plaintiff.D. Single wrongdoers. Wrongdoing could be “sufficient”1 to cause injury, but 1 “Sufficient” means: “sufficient, given certain background circumstances that are taken as given.” See infra, Part II-E.Page 2 of 19not necessary, because other factors could also be sufficient: Result – Not clear which is but-for cause. 1. “But for” test-- Issue: Sufficiency of evidencea. Exposure to harmful substances cases – Exposure at t, harm occurs (if at all) at t2(1) Stubbs, p. 334(a) Nine potential causes (p. 335)(b) Background rate/percentage1) rate not clear from case, though cases after contamination are clearly above background rate (p. 336–337) 2) n. 6, p. 339. If 10 (background) and 58 (while contaminated), then all 58 or 48/58? If the background rate were 38, would each plaintiff get 20/58? (c) Different juries might disagree on result (n. 4, p. 338)(2) Other exposure cases(a) Recovery in “window” between t1 and t2 (See 2-b below; Duty Outline, Part IV-C-2)(b) nn. 6–7, p. 339b. Other cases(1) Security measures (n. 9, p. 341)(2) Use of “but for” test to deny liability (See Garcia, n.3, p. 370)c. Two points concerning cause-in-fact(1) Sufficiency of evidence is a fact-based contextual issue. Courts may not agree. (Compare Trial Court and Appellate Division rulings holdings in