Torts: class 15

Transcript

1. CLASS 15 •Actual causation •Review & set-up: the but-for test & what to do when it breaks •Problem: Multiple parties inflicted harm AND circumstances undermine π’s ability to get to 50%+ •Problem: Can’t ID specific ∆ that caused harm •Alternative liability •Modified alternative liability (market share) •Problem: can’t get to 50% •Risk of (unlikely) future harm •Loss of chance
2. WHEN THE BUT-FOR TEST BREAKS •Multiple sufficient independent causes •Kingston v. Chicago & Northwestern Railway •Alternative liability •Summers v. Tice •Burke v. Schaffner
5. MSIC & ALTERNATIVE LIABILITY Adrian and Brin are military buffs who entertain themselves by training like real soldiers. As they pack their gear for an exercise, they both carelessly grab real hand grenades instead of fake “dummies” used for training. During their exercise, each simultaneously lobs a grenade at the feet of their comrade, Chloe. An explosion ensues. Chloe dies.
6. SCENARIO 1 Both grenades explode. Your experts conclude that the explosion of either grenade alone would have killed C.
7. SCENARIO 2 Your experts determine that only one grenade exploded; the other was a dud. But they cannot tell whether A’s grenade or B’s grenade was the one that exploded.
8. BUT-FOR SCENARIOS Scenario 3: Both grenades explode. Your experts conclude that neither explosion alone would have killed C, but the combined force of the two blasts caused the death. Result: negligence of both A & B are but-for causes of the indivisible injury to C. Scenario 4: Both grenades explode, but C doesn’t die. A’s grenade explodes in the air and injures C’s left shoulder. B’s grenade explodes on the ground and injures C’s right leg. Result: A & B are but-for causes of distinct injuries. A is liable for the injury to the shoulder; B is liable for the injury to the leg.
9. MODIFIED ALTERNATIVE LIABILITY: MARKET SHARE •Sindel v. Abbott Labs •Note: minority approach
10. CAN’T-GET-TO-50% CASES •Risk of future harm •Loss of chance doctrine
11. RISK OF (UNLIKELY) FUTURE HARM SCENARIO ChemCo negligently causes Akil to be exposed to Chemical X. Akil suffers minor chemical burns as a result of the exposure. But his biggest concern is this: such exposure greatly increases the risk of developing esophageal cancer. Generally, 4 in 100,000 (.004%) of Americans develop esophageal cancer. But 1 in 3 (33%) of persons exposed to Chemical X develop the disease.
12. THE DILEMMA IN RISK-OF-FUTURE-HARM CASES: •π might be constrained by limitations/repose statute; cannot wait for future harm to arise •If chance of future harm is not >50%, π runs into a conceptual causation hurdle (if chance is 50%+, many jurisdictions allow recovery) •Majority rule (reflected in Carter): no recovery, at least without assurance of probability •Minority rule: see note 3 p. 264 (Illinois follows).
13. LOSS OF (UNLIKELY) CHANCE TO IMPROVE In June 2017, Akil develops symptoms that lead him to think he has esophageal cancer. He visits Dr. Dre, who diagnoses Akil with acid reflux disease. Akil is relieved. But Akil actually has esophageal cancer, and Dr. D violated the professional standard of care by failing to diagnosis this. Akil learns in December 2017 of his true condition. Akil’s cancer was at Stage 1 in June; were he treated then, he would have stood a 43% chance of recovery. By December, the cancer reached Stage 4; he has a 1% chance of recovery.
14. THE CONCEPTUAL PROBLEM IN LOSS-OF-CHANCE CASES •Dr. D’s negligence did not give A cancer. The harm A suffered is the loss of a more favorable outcome. •But had D diagnosed A correctly, A’s chances of a more favorable outcome were <50%. A cannot establish as a matter of probability that D’s malpractice caused the harm. •Traditional approach: All-or-nothing; probability-driven. If π can prove deprivation of >50% chance, π recovers full value of harm. •Reactionary all-or-nothing approach: If π proves a loss of chance (some jxs: any; others: substantial) caused by D’s negligence, π recovers full value of harm •Value-of-lost-chance approach (emerging majority): π recovers even if <50% chance of better outcome, but only receives the value of the lost chance.