Torts: class 16

Transcript

1. CLASS 16 •Cause-in-fact wrap-up •Can’t get to 50% scenarios •Increased risk of (unlikely) future harm •Loss of chance •Proximate cause •Introduction •Tests •Direct cause •Foreseeability
2. CAN’T-GET-TO-50% CASES •Risk of future harm •Loss of chance doctrine
3. 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.
4. 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).
5. 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.
6. 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.
7. PROXIMATE CAUSATION •Introduction •Palsgraf v. Long Island Railway Co.
13. TESTS FOR PROXIMATE CAUSATION •Direct cause •In re Polemis •Laureano v. Louzoun •Foreseeability •Tieder v. Little •Crankshaw v. Piedmont Driving Club