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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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Monday, April 19, 2010

9 – Negligence – Causation (Introduction)

9 – Negligence – Causation (Introduction)

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, we looked at the res ipsa loquitur test for breach of duty. Now we move away from breach of duty and look at the next element, causation.

There are two types of causation, cause in fact (actual cause) and proximate (legal cause). Here is a quick summary:

Cause in Fact (Actual Cause): Actual cause is only concerned with WHETHER the plaintiff's injury resulted from the defendant's conduct. P's harm must have the required nexus to D's breach of duty. Actual cause is established if the D's act was either a but-for cause or a substantial factor of the injury.

Under the “but-for” test, plaintiff must prove that “but-for” the defendant’s act, plaintiff would not have been injured. Under the substantial factor test, plaintiff need only prove that defendant’s act was a substantial or a material factor which caused plaintiff’s injury. If there is but one cause of plaintiff’s injury apply the “but-for” test. If there's more than one cause, apply the “substantial factor” test.

Proximate Cause (Legal Cause): Proximate cause is always determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent. Proximate cause examines HOW the plaintiff's injury resulted from the defendant's conduct. If the plaintiff's injury is sufficiently unexpected or bizarre, then the defendant is not liable – the proximate cause analysis cuts off liability. The prevailing view is whether the D should have reasonably foreseen, as a result of her conduct, the general consequences or type of harm suffered by P. In other words, proximate cause is satisfied when the plaintiff's injury is a foreseeable result of the defendant's breach and there are no superseding, intervening causes of the plaintiff's harm. Stated another way: Under proximate cause a defendant will only be liable where the injuries sustained by plaintiff were reasonably foreseeable and there were no intervening forces which might break the chain of causation.

We will expand on causation when we return to torts.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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