Category: torts

What is alternative liability?

Alternative liability is a legal principle that a court may apply in a negligence case when multiple defendants could have  caused plaintiff’s injury but the plaintiff cannot prove which one. Most classes will teach alternative liability as a way to shift the burden of proving causation from the plaintiff to defendants – – each defendant must prove he did NOT cause plaintiff’s injury otherwise defendants are jointly and severally liable to the plaintiff. Some legal scholars will analyze this on a deeper level and question whether it is really tied to causation. The case most commonly associated with alternative liability is...

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What is Negligence?

Negligence is what people in an everyday conversation would call carelessness or an accident. Negligence is a type of tort, called an unintentional tort. Because it is a tort, plaintiffs who have been injured as a result of negligence have the right to recover for their injuries in a civil lawsuit. To prevail in a claim for negligence, plaintiff must prove the four elements of negligence: (i) defendant owed a duty of reasonable care to plaintiff; (ii) defendant breached that duty; (iii) defendant’s  breach of his duty caused; (iv) plaintiff’s damages. Duty By duty we mean that defendant had an obligation to plaintiff...

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What’s the difference between “but for” and “substantial factor” causation?

If you study law, sooner or later you will come across the issue of causation.  That is, a defendant should only be liable for damages that he caused the plaintiff.   For US law students I think the first time they typically encounter causation issues is in torts when studying negligence.  Every student learns that a plaintiff in a negligence lawsuit typically must prove that (i) defendant owed the plaintiff a duty of care;  (ii) defendant breached his duty of care; (iii) causing; (iv) injury to the plaintiff. How do we know whether a defendant’s breach caused the injury?  Two types of tests you will commonly see in the US are the “but for” and the “substantial factor” tests. The “but for” test asks, “Would the plaintiff have suffered the injury if defendant hadn’t acted carelessly?” This is a fairly obvious question.  Let’s say the defendant drops a banana peel on his home’s entranceway and leaves it there.  The plaintiff comes by and slips on the peel.  If the defendant hadn’t left the peel there the plaintiff would not have tripped so we can say that the defendant’s sloppiness was the “but for” cause of plaintiff’s injury.  Done! Sometimes a plaintiff would have gotten damaged even if the defendant did not act carelessly but we still want to hold the defendant responsible.  The classic US case is where a defendant causes one...

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What is strict liability for abnormally dangerous activity?

The general rule in the United States is that a defendant is liable for carelessly causing harm to foreseeable plaintiffs.  The negligence standard tells us that if the defendant acted carefully enough, he should not be held liable. Defendants who engage in abnormally dangerous activity are held strictly liable.  They are liable no matter how cautiously they acted.  The idea behind strict liability is to encourage people to not engage in an activity that is very dangerous, or to engage in the activity somewhere else so no one gets hurt.  Strict liability should encourage people to find alternative, safer ways to do things.   Traditionally, U.S. courts apply multiple factors to determine whether an activity is abnormally dangerous and subject to the strict liability standard.  These factors are: (a) existence of a high degree of risk of some harm; (b) likelihood that the harm that results from the activity will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is uncommon; (e) inappropriateness of the activity to the place where it takes place; and (f) the extent to which the value of the activity to the community is outweighed by its danger.   The most important modern case on this issue is Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990).  In that case...

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