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Multiple Causes and Apportionment: But-For Causes Two Persons Causing Separate or Divisible Injuries: Causal ApportionmentoAs long as the injuries caused are separate, liability can be apportioned by causation. Each tortfeasor is only liable for the harms they caused. Evidence of the other harm by another is admissible as relevant to factual causation oTwo Persons Causing a Single Indivisible Injury: Fault ApportionmentWhen the negligent acts of both tortfeasors are but-for causes of the plaintiff’s single injury, both are subject to liability. Must decide between application of two rules:Joint and Several Liability (with possible contribution)Proportionate Fault Liability (comparative fault) oLiability for Aggravation of a Preexisting Injury:If the tortfeasor aggravates the plaintiff’s preexisting disability, the tortfeasor is ideally liable only for the aggravation (causal apportionment) Apportionment is made by jury, often requiring expert medical testimony If can’t separate the aggravation from preexisting injury, joint liability or several liability might apply. (might be liable for whole)oLiability Without But-For Causation:Respondeat Superior Liability: When, as a matter of policy, an employer isheld liable for their employee’s harmful tortious actions. Also applies to accomplices: When parties act in a conspiracy or “in concert” to cause harm, they are all liable for the harm caused, even though only one of the conspirators is a direct cause of harm. At least one person’s conduct must be a but-for cause of harm.
TORTS OUTLINEThe amount of liability is determined by which rule the JX appliesProblems with the But-For Test: Landers v. East Texas Saltwater Disposal Co. Facts:oPlaintiff sued defendants (Salt / Sun Oil) for damages, alleging the companies were jointly and severally liable for polluting a Texas lake (with salt water) that plaintiffs owned and had stocked with fish at considerable expense. oOn the defendants’ petition and over plaintiff’s objection, the trial court severed the cases against each of them. Plaintiff appealed and trial court granted, but he did not file a new pleading, so the new trial judge dismissed the casePlaintiff appealed. Issue:oWhether multiple defendant can be held jointly and severally liable for an indivisible injury allegedly caused by their independent tortious acts Rule:oMultiple defendants may be held joint and severally liable for an indivisible injuryallegedly caused by their independent tortious actsAnalysis:oYes. Texas rule permits joint and several liability pleadings only when the plaintiffalleges concerted action or unity of design among all defendants A plaintiff must proceed separately against each defendant, but the nature of an indivisible injury is such that a victim cannot prove each wrongdoer’s individual contribution to the wrong. Thus, this rule may deprive plaintiffs of any realistic hope for judicial remediation for damages.