18: Limited-Purpose Substitutes for the But-For Test 117-127
Tuesday, February 14, 2012
5:23 PM
Sanders v. American Body Armor
Mavroudis v. Pittsburgh-Corning
June v. Union Carbide
Reading Notes:

TITLE, PAGE AND CITATION OF CASE:
Sanders v. American Body Armor and Equipment, Inc.
COA Florida, 1995
Page 117
Judge/Justice: Lawrence
FACTS: A police officer wearing a bullet-proof vest is killed when a bullet strikes an unprotected
part of the vest. Another bullet strikes him in the abdomen below the level of protection.
PROCEDURAL HISTORY: Jury concludes that officer would have died from bullet to abdomen
anyway, so bullet entering vest's unprotected area was not proximate cause of death
ISSUE: Is the defendant absolved from liability because the identical harm would still have occurred
without it?
RULE: If two causes concur to bring about an event, and either one of them, operating alone, would
have been sufficient to cause the identical result, some other test is needed.
HOLDING: No
REASONING:
Dissent:
DEFINITIONS, STATUTE LANGUAGE, DICTA, ETC.:
Notes:
Class Notes:


Trial court directs the verdict because the bullet was not the "but-for" cause
Appeals court: but-for causality test fails when we have 2 causes that would simultaneously
fail the but-for test. As a result we need a new one
Reading Notes:

s
TITLE, PAGE AND CITATION OF CASE:
Mavroudis v. Pittsburgh-Corning Corp
COA Washington, 1997
Page 119
Judge/Justice: Kennedy
FACTS: Mavroudis works on ships that have asbestos, including USS Wright. Gets mesothelioma.
Unable to determine which specific contact caused the mesothelioma. Sues for strict liability for
selling a product not reasonably safe as designed, lack of warnings on product, negligence in failing
to warn.
PROCEDURAL HISTORY: Mavroudis wins on warning and negligence theory with single damages
award
ISSUE: Could jury use "substantial factor" instruction?
RULE:
 Substantial factor: P does not need to prove "but-for" test, but must only show that D's
negligence or product was a substantial factor in bringing the injury
o Even if it would have occurred without it
o Where one of two possible causes could have caused the harm
HOLDING: affirmed
REASONING:
 Because P could not say which exposure caused the harm, this is exactly the kind of situation
that calls for application of "substantial factor" test
Class Notes:




There were multiple manufacturers of asbestos which the decedent was exposed to
o What would have happened without the other two manufacturers? You would have butfor causation.
The difference between this case and the officer is that the bullet would have killed the officer
on its own, whereas the asbestos may not have if the decedent was exposed only to
Pittsburgh-Corning products
o Plaintiff's negligence would have been a but-for cause had it been a singular event
o We can't prove that
Still, only 10% of the actual exposure could have caused the disease
Also, only asbestos causes mesothelioma
Reading Notes:
TITLE, PAGE AND CITATION OF CASE:
June v. Union Carbide Corporation
UC COA 10th Circ. 2009
Page 121
Judge/Justice: Hartz
FACTS: Company owns and operates a uranium and vanadium mine in Colorado. Builds a support
town nearby, which is evacuated at closure as part of environmental disaster. 27 people sue after
getting nonthyroid cancer or thyroid disease.
PROCEDURAL HISTORY: Plaintiffs fail "but-for" test, and summary judgment awarded to
Defendant
ISSUE: Did the radioactive emissions over the course of decades contribute to the diseases in a
manner that warrants a "substantial factor" test?
RULE: Restatement can only apply substantial factor test when the actions of the tortfeasor would
have been a factual cause if the other competing cause had not been operating
HOLDING: Affirmed
REASONING:
 Conduct must be a necessary component of the causal set of circumstances that led to the
injury (but-for)
 A defendant cannot be liable to the plaintiff unless its conduct is either
o A but-for cause of the plaintiff's injury; or
o A necessary component of a causal set that (probably) would have caused the injury in
the absence of other causes
 Defendants living at the site would have been subjected to high background radiation and
exposure from nuclear testing in Nevada independently of emissions from the mine
Dissent: Evidence was close enough to demonstrate that emissions could have caused the diseases,
which should have allowed P's to survive summary judgment
DEFINITIONS, STATUTE LANGUAGE, DICTA, ETC.:
Notes:



General vs. Specific Causation in toxic-tort-causation
o General: Drug or chemical is capable of causing the type of harm from which the plaintiff
suffers
o Specific: The drug or chemical caused the instant harm the P suffers
o Often, these are proven with the same evidence in NON-toxic tort cases
 A car accident as the general and specific cause of a neck injury
 It's not as easy in toxic-torts
Policy problems: But-For test links liability for causation to causation in fact; subtantial factor
test allows for liability for an injury the D had nothing to do with
o Liability without causation
Policy Support: No one person caused the injury, but the injury occurred, and the conclusion
that no one caused it is false. Therefore, where two people could have individually caused the
injury, they both did.
Class Notes:


D's claim that P's can't show that it was the negligence of the company that caused the
exposure to radiation given how many other sources they were exposed to
o Difference between this and asbestos - asbestos was the only cause of mesothelioma,
whereas here there are lots of different sources of radiation
o Also, the exposures were concurrent in asbestos case - he was constantly exposed to
asbestos at the same places at the same time from all three manufacturers
o Here, the exposures were serial
The judge appears to be trying to place a limit on this type of liability (not widely accepted)
o Judge doesn't agree with the liability theory in the first place