Sufficient:Substantial Factor Test. MINORITY: determine if the negligence was a substantial factorin causing the harm; very muddy. If yes, send to jury Muckler (fell down stairs) Takes case-by-case approach and combines cause-in-fact with proximate cause (judicial economy) Good for P But-for Test Adjustments or Exceptions.❏Greatly Multiplies Risk. Can’t prove factual cause for sure, but maybe neg. greatly multiplied/increased risk,” can infer causation; send to jury. Reynolds (stair lights)❏Uncertainty– send to jury.Good for P.❏Speculation/Conjecture: Judge takes away from jury when unclear. Bad for P. Grimstad (couldn’t swim)❏Asymmetry of informationleading to uncertain but-for test, shift burden to D and send to jury. ❏Strong causal link: b/w negligence and harm, then permissible inference. Burden shifts to D. Zuchowitz (Danocrine overprescription). Bad for D- no jury ❏Multiple Causes. 2 or more tortfeasors BOTH caused harm. Joint/severally liable- treated as 1. Fails but-for, so burden shift to Ds. (look below) ❏Sufficient: 2 neg causes, each of which would produce injury regardless of the other. Held jointly liable- impossible to distinguish Kingston(two fires). Still need to prove each on own would have been sufficient to cause harm Ford Motor(out of luck) ❏Necessary Together: neither is the “sufficient” cause, but both are a necessary cause and concur in neg Ford Motor(asbestos trooper exposure) USE SUBST STEP ❏Alternative Liability. 2 possible tortfeasors, but only ONE caused the harm. Fails but-for, so burden shift to Ds. Smoke out evidence. Otherwise, joint/severally liable. Summers(quail hunting)❏Lost Chance: D decreases chance of survival (or increases risk of death). Even ifP had <50% chance of survival, can get partial recovery. (Maj: If 10% decrease, Pgets 10% of normal win; min: on hook for all). Only in med mal; Harm = lost chance. Herskovits; Falcon Memorial (delayed diagnosis)Send to jury. Good for P ❏Concert of Action. All companies liable when Ds purposefully collude. Hall(blasting caps) RARE❏Market Share. (1) Fungible; (2) All named Ds must be neg; (3) P not at fault for ID prob; (4) Most Ts are named Ds. (5) Exculpatory opportunitySindell(DES). Hymowitz(NY rule-cant exculpate no matter what)❏Defense:(lead paint). Too long of time period (may not have been negligent way back then) and arguably not fungible. PROXIMATE CAUSERuleEven if D f/actually caused P’s harm, is it so remote, unforeseeable, bizarre, or so outside scope of liability that D is not legally responsible? Is it morally close enough?Harm Within the Risk. Is the harm caused the reason why D’s action is considered neg? Is it why we want to discourage such actions? Harm must have been foreseeable Berry v. Sugar Notch (tree falling on speeding train)FORSEEABILITY: must be within the realm of foreseeability that a harm could occurAdjustments/Exceptions: ❏Unforeseeable P. The person harmed had to be foreseeable; zone of danger.