Torts Question-HELP!!

[brandy4k]

what's concurrent cause?
I know the definition that "2 or more independent defendants release forces which later join together and bring about the harm together. Here, use substantial factor test. Ask if D’s negligence was substantial to bring about the harm. If so, every D is held liable and they’ll be jointly and severally liable."

however, seriously how do you spot it from the fact pattern?

I have this fact pattern that says there are 3 defendants and the plaintiff sustained injury of drawning from the pool. 1st defendant(doctor) failed to warn about his heart condition, 2nd defendant(pool owner) failed to provide a life guard, and 3rd defendant(friend) failed to stop him from diving even though he knew about danger of diving. are these concurrent causes? so are we supposed to apply 'substantial factor' test here? how do we determine if each defendant's act was a substantial factor? how do you define substantial?

[conrad42]

I think you only rely upon substantial factor when each D isn't a clear but-for cause, e.g. two fires combining. From that fact pattern, it sounds like each is just a but-for cause, making them all jointly and severally liable, unless you can get them off on proximate cause.

If dr. had warned, decedent wouldn't have swam.
If lifeguard had been present, decedent wouldn't have drowned (lack of lifeguard substantially increases rsik of drowning, thus it can be viewed as a but-for cause)
If friend had stopped him, decedent wouldn't have drowned.

Of course, each of the above have counter arguments, like did friend or dr. have a duty to warn him? Did the pool owner have a duty to have a lifeguard present? Would decedent have listened to friend or dr if warned?

Please, someone correct me if any of this sounds wrong.

[Jumboshrimps]

The substantial factor rule is a substitute for the plaintiff's burden of proving causation. As you said, it allows the plaintiff to hold multiple defendants jointly and severally liable where no single cause for the injury can be shown. I don't know how popular that rule is, though. I doubt most jurisdictions subscribe to it.

Contrast this with "concerted action" theory, where multiple defendant act in concert to cause the plaintiff's injury, and there is no way to prove which defendant actually caused the injury. Example: 3 guys shoot bird shot simultaneously toward the plaintiff, who is hit in the eye by a pellet. P can't prove which one shot the pellet. Some jurisdictions will then allow the burden to prove the absence of causation to shift to each of the defendants. Any defendant who cannot meet this burden is held liable for the entire injury.

The obvious difference between the two theories of liability is that, with concerted action theory, the defendants are all engaged in the same activity, hence "acting in concert."

[ShakedownStreet]

I think you only rely upon substantial factor when each D isn't a clear but-for cause, e.g. two fires combining. From that fact pattern, it sounds like each is just a but-for cause, making them all jointly and severally liable, unless you can get them off on proximate cause.

If dr. had warned, decedent wouldn't have swam.
If lifeguard had been present, decedent wouldn't have drowned (lack of lifeguard substantially increases rsik of drowning, thus it can be viewed as a but-for cause)
If friend had stopped him, decedent wouldn't have drowned.

Of course, each of the above have counter arguments, like did friend or dr. have a duty to warn him? Did the pool owner have a duty to have a lifeguard present? Would decedent have listened to friend or dr if warned?

Please, someone correct me if any of this sounds wrong.

all 3 of the defendant's conduct were but-for causes of the plaintiff's injury.  The next step is determining whether any of the defendant's conduct was a proximate cause of the plaintiff's injury.  The substantial factor test is simply one way of determining proximate cause.  The substantial factor test has nothing to do with whether the conduct was a but-for cause. 

[abcdefg]

I think you only rely upon substantial factor when each D isn't a clear but-for cause, e.g. two fires combining. From that fact pattern, it sounds like each is just a but-for cause, making them all jointly and severally liable, unless you can get them off on proximate cause.

If dr. had warned, decedent wouldn't have swam.
If lifeguard had been present, decedent wouldn't have drowned (lack of lifeguard substantially increases rsik of drowning, thus it can be viewed as a but-for cause)
If friend had stopped him, decedent wouldn't have drowned.

Of course, each of the above have counter arguments, like did friend or dr. have a duty to warn him? Did the pool owner have a duty to have a lifeguard present? Would decedent have listened to friend or dr if warned?

Please, someone correct me if any of this sounds wrong.

all 3 of the defendant's conduct were but-for causes of the plaintiff's injury.  The next step is determining whether any of the defendant's conduct was a proximate cause of the plaintiff's injury.  The substantial factor test is simply one way of determining proximate cause.  The substantial factor test has nothing to do with whether the conduct was a but-for cause. 

The above is the most correct response.  There are 2 types of causation u need to prove.  Factual (but-for) and Proximate (substantial factor test).  Also, look at superceding causes - whether a specific defendant's action relieves another defendant from liability (I think it's easier to use a foreseeability test in place of substantial factor).  For example, if you eat at a restaurant and get sick and throw up and patron slips on your vomit can patron sue the restaurant for serving you bad food? Serving bad food is a factual cause (but-for) but probably not proximate cause (substantial factor) in patron slipping and falling (we learned foreseeable harm/victim test which might be easier to apply).  The superceding cause is you vomiting all over the floor.  Restaurant serving bad food seems a bit removed from patron's slipping and falling... not a substantial factor to injury suffered.         

[jaimeblt]

I think the analysis of the hypo forgets to start by analyzing if there was a breach of a duty. Looking to proximate cause first can be like putting the cart before the horse, and can just leave you ending up confused.
The closest analogy to that hypothetical is Palsgraf, where the (possible) tort to one person could not form the basis for a finding of a breach of duty to third person. So, a restaurant serving Patron A bad food is not a breach of its duty to Patron Z (unless A and Z are married (or parent and child, etc.) and Z sues to get loss of consortium). However, the possible exception would be if it was foreseeable that the tort to the one person would harm others. You could argue that the restaurant should have foreseen that the sick patron would throw up and cause the premises to become unsafe. (Of course, it would have to be a tortious act, and serving bad food is not always a tort).
The hypo could end up with the restaurant liable for the slip-and-fall damages, though, even without finding that it was foreseeable that the person would create a dangerous condition by throwing up. People/businesses owe a duty to invitees (which the patron would be), and part of that duty is to keep the premises safe. If the restaurant had actual or constructive notice of the dangerous condition on the floor (the vomit), then there would be a breach of that duty, and that breach could easily be the proximate cause of the injuries.
That sound right?

"The above is the most correct response.  There are 2 types of causation u need to prove.  Factual (but-for) and Proximate (substantial factor test).  Also, look at superceding causes - whether a specific defendant's action relieves another defendant from liability (I think it's easier to use a foreseeability test in place of substantial factor).  For example, if you eat at a restaurant and get sick and throw up and patron slips on your vomit can patron sue the restaurant for serving you bad food? Serving bad food is a factual cause (but-for) but probably not proximate cause (substantial factor) in patron slipping and falling (we learned foreseeable harm/victim test which might be easier to apply).  The superceding cause is you vomiting all over the floor.  Restaurant serving bad food seems a bit removed from patron's slipping and falling... not a substantial factor to injury suffered."   

[abcdefg]

Hmm.... you do have to look of breach of duty but I think the way courts apply foreseeability is under proximate cause.    In Palsgraf Cardozo applies the foreseeability test to breach of duty but the other judge, Andrews talks mainly about proximate cause.  Courts presently use Cardozo's foreseeability test but apply it under Andrews' proximate cause theory.  Foreseeability can definitely be used to determine breach of duty though.  If we look at your exception that restaurant could be liable for injuries if it had notice of dangerous condition of vomit on the floor then the duty and breach change.  The original duty and breach would've been not serving bad food and then serving bad food,  but if it had notice then the duty and breach would have been cleaning up w/ notice and failure to clean it up w/ notice. 

I think the analysis of the hypo forgets to start by analyzing if there was a breach of a duty. Looking to proximate cause first can be like putting the cart before the horse, and can just leave you ending up confused.
The closest analogy to that hypothetical is Palsgraf, where the (possible) tort to one person could not form the basis for a finding of a breach of duty to third person. So, a restaurant serving Patron A bad food is not a breach of its duty to Patron Z (unless A and Z are married (or parent and child, etc.) and Z sues to get loss of consortium). However, the possible exception would be if it was foreseeable that the tort to the one person would harm others. You could argue that the restaurant should have foreseen that the sick patron would throw up and cause the premises to become unsafe. (Of course, it would have to be a tortious act, and serving bad food is not always a tort).
The hypo could end up with the restaurant liable for the slip-and-fall damages, though, even without finding that it was foreseeable that the person would create a dangerous condition by throwing up. People/businesses owe a duty to invitees (which the patron would be), and part of that duty is to keep the premises safe. If the restaurant had actual or constructive notice of the dangerous condition on the floor (the vomit), then there would be a breach of that duty, and that breach could easily be the proximate cause of the injuries.
That sound right?

"The above is the most correct response.  There are 2 types of causation u need to prove.  Factual (but-for) and Proximate (substantial factor test).  Also, look at superceding causes - whether a specific defendant's action relieves another defendant from liability (I think it's easier to use a foreseeability test in place of substantial factor).  For example, if you eat at a restaurant and get sick and throw up and patron slips on your vomit can patron sue the restaurant for serving you bad food? Serving bad food is a factual cause (but-for) but probably not proximate cause (substantial factor) in patron slipping and falling (we learned foreseeable harm/victim test which might be easier to apply).  The superceding cause is you vomiting all over the floor.  Restaurant serving bad food seems a bit removed from patron's slipping and falling... not a substantial factor to injury suffered."   

[ShakedownStreet]

another way to look at whether there was a foreseeable duty that was breached is by asking, 1) Did the defendant's conduct create a foreseeable zone of risk? and 2) Was the plaintiff's harm within this zone of risk created by the defendant's conduct?

[santropez]

Hmm.. I was under the impression that you use Substantial Factor to determine factual causation.  I'm pretty sure it is used as a test when But-For doesn't work.  For instance, in a multiple-sufficient cause scenario (two fires burning the woods) but-for won't work because even if one fire had not occurred, the other one would have done the same amount of damage.  As such, you would use substantial factor in order to show 'factual' causation.

I haven't ever seen substantial factor discussed in relation to proximate cause.... proximate cause is more of a matter of public policy/duty than it is about actual causation.  Even with the intervening superseding causes, the idea isn't to determine whether the intervening actors are substantial factors, but rather if their actions were so unforeseeable/extraordinary that liability should be cut off.   

I haven't seen substantial

[ShakedownStreet]

Hmm.. I was under the impression that you use Substantial Factor to determine factual causation.  I'm pretty sure it is used as a test when But-For doesn't work.  For instance, in a multiple-sufficient cause scenario (two fires burning the woods) but-for won't work because even if one fire had not occurred, the other one would have done the same amount of damage.  As such, you would use substantial factor in order to show 'factual' causation.

I haven't ever seen substantial factor discussed in relation to proximate cause.... proximate cause is more of a matter of public policy/duty than it is about actual causation.  Even with the intervening superseding causes, the idea isn't to determine whether the intervening actors are substantial factors, but rather if their actions were so unforeseeable/extraordinary that liability should be cut off.   

I haven't seen substantial

yes substantial factor is used in mutliple sufficient causes where the but-for test would fail.  In our torts class we learned 3 approaches to proximate cause:  1) directness (whether there were any intervening acts between the defendant's conduct and the plaintiff's harm, if so--no recovery) ; 2) foreseeability (whether the defendant's conduct created a zone of risk, from which the plaintiff's harm resulted; 3) substantial factor (when comparing the defendant's conduct to other causes, was the extent of the defendant's conduct a substantial factor in the plaintiff's injury)

We read cases where different jurisdictions applied each one of these tests for proximate cause.  I am sure how cause-in-fact and proximate cause are taught varies greatly with the school.