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a.- The injury would not have occurred but for the actions of the defendant.b.- Must be more likely than not to have caused the injury in that i can not only be possible but must be probable. Must offer some evidence that is probably gave rise to the injury. -c.- this is a very broad test which is only mitigated by proximate cause.2.- Multiple Necessary Cause Test The secondary way to establish actual cause when two negligent actions give rise to a injury neither could have on its own.a.- When there are two negligent acts both function as necessary conditions giving rise to an injury, each is deemed as a actual cause. the existence of one does nothingto undermine the liability of the other.b.- This comes from McDonald v. Robinson: two cars crash and slide as one mangled piece into the plaintiff.c.- “Joint and Severely Liability”: Both party's are liable up to 100% of the damages.3.Substantial Factor Test (or sufficient cause test)a.- A sufficient cause is one that is able to bring about the injury by itself.b.- When there are multiple sufficient causes, than neither one can be determined to be a “but for” cause, yet the existence of one sufficient cause does not alleviate liability. Each is deemed to be an actual cause.c.- Once again though, the plaintiff must show that it was not just probable but possible. (somultiple possible sufficient cause)13
d.- Substantial Cause Test is often confused due to the name it is given. IT DOES not reduce the burden of causation but only seeks to fill a gap caused by multiple sufficient causes.4.Burden Shiftinga.-Two defendants both acting identically carelessly toward plaintiffb.- Only the carelessness of one caused the injuryc.- No suggestion that any one is involvedd.- Inability to prove which Defendant cause injurye.(can be used to with more than two but gets increasingly harder)5.Other ways to spread liability:a.Vicarious Liabilityb.Aiding and Abettingc.Conspiracyd.Concert of Actione.Industry Wide Liabilityf.Market Share Liabilityiii.-Proximate cause ( an investigation of the relationship between actual cause and injury)1.- The Directness Test: (Polemis pg 274)a.(the old standard- Not used anymore) proximate cause was not an issue if one could find a direct cause between the cause and injury. Based on relative time and space to the injury2.-Scope of Risk Test: (pg 286)a.“[a]n actor’s liability is limited to those physical harms thatresult from the risks that made the actor’s conduct tortious”This rule speaks to the foreseeability of the injury as the “TYPE” of injury which was reasonably foreseeable. NOT the extent or exact injury. (similar to wagon-mound)14
b.Comes from the Child & Man hole case - pg 2863.-Superseding Cause a.- When a third party intervenes and some how transforms the danger present from an earlier negligence. In this case the superseding cause gets the burden of sole liability ( and the earlier negligence is relieved of liability).