Hale Timeline
Bushes blocking sidewalk
Looks into street
Decides to leave sidewalk
Trips over concrete
Salinetro Timeline
MD no ask if
pregnant/when last period
P terminates
pregnancy/fetus was dead
X-rays
Hypo
Having overslept, Diane feared she would be
late for her torts class. In her rush to get to
class, she quickly backs out of her driveway,
failing to check her review mirror. Tragically,
Diane backs over Penny, her neighbor’s 3 year
old daughter, who was playing in Diane’s
driveway. Penny suffers serious injuries. Had
Diane looked in her review mirror she would not
have seen Penny. Is Diane’s negligence a factual
cause of Penny’s injuries?
Hypo Timeline
Runs over child
Does not check rearview
mirror
Backs-up car
Factual Cause and Res Ipsa Loquitur
Sponge found in stomach
Surgery
Stomach pain
Factual Cause and Res Ipsa Loquitur
Plaintiff gets stomach
cancer
Surgery
Sponge found in stomach
Hypo
D negligently constructs
stairs
P falls and is injured
Scenario #1 (Divisible Harm)
Action
Injury
D1’s Negligence
Broken Leg
D2’s Negligence
Broken Arm
D1 liable for broken leg and D2 liable
for broken arm
Scenario #2
Tree falls on plaintiff
D1 knocks down tree
D2 crashes into tree
Scenario #2 (Indivisible Harm)
Action
Injury
D1’s Negligence
Broken Leg and Arm
D2’s Negligence
D1 and D2 both liable for broken leg and arm
Scenario 3
D1 runs red light
Strikes P
D2 runs over P
P breaks leg
P breaks arm
Scenario #3
Action
Injury
D1’s Negligence
Broken Leg
D1 and D2’s Negligence
Broken Arm
D1 liable for broken leg. Both D1 and
D2 liable for broken arm.
Scenario #4
Scenario #1, but don’t know what harm
each defendant caused
D1 and D2 both liable for full loss (Landers v.
East Texas)
Scenario 5
D negligently starts fire
Fires combine
Other fires raging
P’s property burned
Scenario #5
Scenario:
• (1) Either 2 or more negligent defendants or 1
negligent defendant + other force
• (2) Neither is a but-for cause
– In absence of D’s negligence, other defendant/force would
have caused same harm (and vice versa)
• (3) Each is a sufficient cause
– In a world without other defendant/force, D’s negligence
would have caused P’s harm (and vice versa)
D’s negligence is a cause of P’s injury if a substantial
factor (Anderson)
If both D1 and D2’s negligence are considered a
substantial factor, both are jointly liable
Revised Anderson Facts
Fire negligently set by D
reaches P’s property
Fire of unknown origin
reaches P’s property
Burns down P’s house
Scenario 6
Two defendants acted negligently, but only 1
caused harm to P. Don’t know which one
caused the harm. (Not acting in concert.)
Each D’s negligence considered a cause of P’s
injury (unless a defendant can prove otherwise)
(Summers v. Tice)
Summary – When 2+Tortfeasors
• When divisible injury (Scenario #1):
– Apportion damages based on causality, with each D liable only
for injuries it alone caused
• When indivisible injury:
– Both Ds liable
– “Indivisible” when:
(1) Single injury and each D a but-for cause (Scenario #2),
(2) Single injury and D was a substantial factor (Scenario #5),
(3) Divisible injury, but don’t know which D caused what injury
(Scenario #4, Landers)
– As between Ds, apportion liability based on comparative fault
• When unknown which negligent defendant caused harm:
– Ds jointly liable. Apportion liability based on comparative fault.
(Scenario #6, Summers)
Mohr Timeline
Plaintiff suffers
permanent brain damage
Plaintiff in car accident
Negligent neurological
assessment results in
delayed treatment
Lost Opportunity
Approach #1: But-For Test
• Harm: actual injury
• Causation: P deprived at least 50+% chance more favorable outcome
(but-for test)
• Damages: recover for full loss
Approach #2: Substantial Factor Test
• Harm: actual injury
• Causation: D’s negligence increased P’s harm/destroyed a substantial
possibility more favorable outcome (substantial factor test)
• Damages: recover for full loss
Approach #3: Lost Chance
• Harm: lost opportunity more favorable outcome
• Causation: D’s negligence reduced possibility more favorable outcome
(but-for test)
• Damages: value of lost opportunity
* Calculation: (value full loss) x (% reduction in chance of recovery)
Lost Chance/Future Risk of Harm
Scenario
Scenario #1 (Mohr):
• P had pre-existing risk of injury
• D’s negligence lowers chance of recovery
• P does not recover
Legal Rule
Three approaches :
• But-for test
• Substantial factor
• Lost chance (Mohr)
Scenario #2:
No liability
• P had pre-existing risk of injury
• D’s negligence lowers chance of recovery
• P recovers
Scenario #3:
Two approaches:
• P had pre-existing risk of injury
• Allow recovery for reduced chance of
• D’s negligence lowers chance of recovery
recovery
• Don’t know yet whether P will recover
• Require present injury – no liability
Two approaches:
Scenario #4 (Dillon):
• P did not have a pre-existing risk of injury • Allow recovery for increased risk
(Dillon)
• D’s negligence creates risk of future
• Require present injury – no liability
injury
• Don’t know yet whether injury will
happen