Tort Law: Proximate Cause
Proximate Cause differs from cause in fact, although together they make causation for purposes of negligence. Courts will also interchange phrases. In order to prove proximate cause, the plaintiff has to show that the causal relationship between the defendant’s conduct and the plaintiff’s injury was not too attenuated, remote, or freakish to justify imposing responsibility on the defendant.
There are six tests used in establishing proximate cause:
- The “But-For” Test – is used in cases involving a single defendant. Present the facts in the framework of, “But-for the defendant’s negligence, the plaintiff would not have been injured” or “The plaintiff would not have been injured, but for the defendant’s negligence.” When using the but-for test, you must boil down the fact pattern to it’s essence.
- Substantial Factor Test - used in cases involving multiple defendants who have engaged in a redundant behavior. In the framework of this test, each defendant must have materially contributed to the plaintiff’s injury and each defendant must have caused the plaintiff’s harm by his or herself. An example would be if a person was shot in a hunting accident, and two hunters simultaneously fired their guns at the time the plaintiff was injured.
- Alternative Liability Theory – is used most often when two or more tortfeasors simultaneously commit independent acts of negligence, and only one act results in injury, the plaintiff is relieved from the burden of proof with respect to causation, and may sue both tortfeasors without direct proof of causation. The burden thus shifts to the defendant to exculpate themselves. Otherwise, defendants will be held joint and severally liable. Note that the alternative liability theory has a very limited application, and is only used if all possible wrongdoers have been brought before the court. If the plaintiff fails to join all possible defendants, plaintiff will be precluded from recovery under the alternative liability theory. Court’s have recognized alternative liability as a burden-shifting device, but it’s application is limited to breached of duty that are “substantially concurrent in time and of a similar nature.” One possible defense is if a defendant can produce evidence that they are not at fault, or are much less liable than the other. Also, the more defendant’s, the less likely the court will apply alternative liability.
- Concerted Action Theory is a form of vicarious liability and stems from the criminal law concept of aiding and abetting. An underlying idea of this theory is Conscious parallelism, which is an unspoken agreement by a business of a competitor’s action, such as changing prices without the active conspiracy between business rivals. Conscious parallelism consists of “coincidental” activity that would violate anti-trust laws. Here, proof of a common plan, design, or express agreement alone will not enable recovery under this theory. For concert of action liability to apply, the plaintiff must demonstrate that the defendants participated in acts of a tortious character in the implementation of the plan or agreement – such as street racing.
- Market Share Theory – similar to alternative liability theory, marker share liability operates on the underlying philosophy that, as between negligent defendants and an innocent plaintiff, the former should bear the cost of the injury. Although market share liability embodies the concept of alternative liability, it eliminates the prerequisite of contemporaneous negligent acts and the requirement of joining all possible tortfeasors.
- Loss Opportunity Doctrine – allows a plaintiff to recover where there is a 50% or less possibility that the defendant’s negligence caused a plaintiff’s injuries. The loss opportunity doctrine can be seen as allowing a patient to succeed in a malpractice claim, where the malpractice denied the plaintiff an opportunity to avoid the injury, but the opportunity to avoid the injury was 50% or less. Meaning that chances were the person would have been injured anyway. This doctrine is not recognized in most states and only pertains to medical malpractice. Furthermore, bringing a claim under the loss opportunity doctrine requires extensive expert testimony.
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