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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Thursday, April 22, 2010

10 – Negligence – Causation (Cause in Fact)

10 – Negligence – Causation (Cause in Fact)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

In the last torts session, I gave you a quick introduction to causation. Now, let’s talk specifically about cause in fact – actual cause. It might help you to remember by viewing this topic as “actual factual” cause.

Remember that there are two tests for cause in fact; the “but-for” test and the “substantial- factor” test.

For the “but-for” test, plaintiff must prove that “but-for” the defendant’s act, plaintiff would not have been injured. For the “substantial-factor” test, plaintiff need only prove that defendant’s act was a substantial or a material factor which caused plaintiff’s injury.

When to use the tests? First, you don’t have to use them both, so look at it this way: If there is but one cause of plaintiff’s injury apply the “but-for” test. If there's more than one cause of plaintiff’s injury, apply the “substantial factor” test. Let’s try a couple of hypotheticals:

A breaks his leg in an automobile accident. The ambulance arrives and the paramedic negligently treats the injury causing A to suffer a head injury. Since there is just one cause for the head injury (caused by the paramedic), use the but-for test. “But for the act of the paramedic, A would not have received the head injury.”

A starts a fire on her property and B starts a fire on his property, both for the legitimate purpose of clearing out dangerous brush. The fire spreads due to negligent acts of A and B, and burns down a barn on C’s property. You can’t use the “but-for” test here because C could not prove that “but-for” fire set by A, his barn would have burned since it could have been caused by the fire set by B. The proper test, because there is more than one cause, is the “substantial-factor” test. Now you have to determine if the act of A or the act of B is a substantial factor – or a material factor – of the damage C has suffered.

Notice, we don’t ask whether or not A’s act is “the” substantial factor of C’s loss, but rather is it “a” substantial factor. Do you see the difference? To determine if it were THE substantial factor may be impossible. The fires were set at the same time for the same purpose and the same negligent act. On the other hand, it IS possible to prove that EITHER fire was A substantial factor.

That wraps up cause in fact. Next time in torts, we’ll look at proximate cause.

Professor Doug Holden
© 2010. Douglas S, Holden. All rights reserved.

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