Causation

Gerald injures his arm when he drives his automobile into a tree while trying to avoid Sam's oncoming automobile. Sam was clearly negligent. A bystander calls ABC, a private ambulance service, which quickly arrives and takes Gerald to the hospital. On the way to the hospital the ambulance driver negligently loses control of the ambulance and crashes into some parked cars. Gerald is thrown around in the ambulance and badly injures his leg. A second ambulance arrives and drives Gerald to the hospital. It is determined that he needs emergency surgery on his leg to stop the bleeding. Dr. Henderson, the emergency room surgeon, negligently performs the surgery causing Gerald to lose his leg. Gerald sues Sam and ABC Ambulance Service for loss of his leg. Which alternative best describes the likely outcome? (A) Gerald will likely lose the case against Sam because Sam's negligence did not cause the harm to Gerald's leg. (B) Gerald will likely lose against Sam and ABC because the doctor's malpractice is an intervening cause that cuts off ABC's liability in this case. (C) Gerald will likely win against both Sam and ABC because a subsequent doctor's malpractice is one of the risks that makes an act negligent. (D) Gerald will likely win only if for some reason Dr. Henderson is judgment proof (doesn't have the money or insurance to pay for Gerald's injuries).

Choice A is not correct. While Sam did not directly cause the injury to the leg, but for the accident Gerald's leg would not have been injured. Courts have generally held that negligence by a rescuer (including a Doctor) is not an intervening cause that cuts off liability. Choice B is not correct for the same reason. Choice C is the correct answer. And Choice D is not correct and is totally irrelevant.

Torey is driving drunk after leaving a friend's house. Torey is stopped at a red light, not breaking any other traffic laws, when Erin crashes into her. Erin concedes she was negligent in causing the crash, as she was texting when the crash occurred. But she wants to have her negligence reduced on account of Torey's drunk driving. The jurisdiction allows for comparative responsibility allocations between plaintiffs and defendants when both are negligent. How should the court handle Erin's argument? (A) The court should allow Erin to make the argument to the jury, because drunk driving is negligence per se. (B) The court should allow Erin to make the argument to the jury, because Torey could have injured many people by driving drunk. (C) The court should bar Erin's argument, because Erin was negligent. (D) The court should bar Erin's argument, because Torey's conduct was not an actual cause of the accident.

Even though Torey was driving drunk, on these facts there is no indication Torey's drunkenness contributed to the injury. It was not a but-for cause: if you imagine everything in the fact pattern is exactly the same, but Torey is sober, the accident comes out the same way. For this reason, Choice D is correct. Choice C is incorrect because a defendant's negligence does not prevent sharing responsibility with a negligent plaintiff in a jurisdiction using comparative responsibility. Choice A is incorrect because even if drunk driving is negligence under a statute, the violation of the statute must be causally related to the injury. Choice B is incorrect because responsibility depends upon contribution to the plaintiff's injury, not the potential to cause injury to others.

Gwen works as a security guard at Shopco, a warehouse grocery store. Gwen is supposed to patrol the store for four hours straight and then take a half hour for lunch. Gwen is tired, so she goes into the restroom and takes a snooze in a bathroom stall. While Gwen is sleeping, Robbie the robber comes in to steal money from the cash drawers. In the course of the robbery, Robbie shoots a customer, Mike, who tried to get up and tackle him during the robbery. Mike sues Shopco for negligence, arguing that Gwen was negligent in sleeping on the job (assume Shopco is vicariously liable for Gwen's actions). What is the strongest intervening cause argument Shopco can make against liability for negligence? (A) Gwen falling asleep on the job was a superseding cause which breaks the chain of causation. (B) Robbie robbing the store was a superseding cause which breaks the chain of causation. (C) Mike trying to tackle Robbie was a superseding cause which breaks the chain of causation. (D) Robbie shooting Mike was a superseding cause which breaks the chain of causation.

For an intervening cause to count as a superseding cause to "break the chain of causation" and let a tortious defendant off the hook for liability, the intervening cause must come after the defendant's tortious conduct and be so important and unforeseeable so that a factfinder could conclude it is not fair to hold the defendant liable for plaintiffs' injuries. In this case, Choice A is incorrect because this is the tortious conduct, not something that comes after the tortious conduct. Choices B and D are incorrect because it is entirely foreseeable that there could be independent criminal conduct which could occur if the defendant fails to provide adequate security. The strongest answer, though by no means a certain argument, is that Mike's own conduct in trying to attack the robber should let the defendant off the hook for liability. Choice C is therefore the strongest answer.

Nick worked at a ship yard during World War II as a welder. He was exposed to asbestos on the job in many different forms and from many different products. Years later, Nick develops asbestosis, a disease one can only get from exposure to asbestos. Nick wants to sue asbestos manufacturers who made asbestos products that might have been in the ship yard during the years he worked as a welder. (Assume all manufacturers selling asbestos at the time could be found negligent and that the claims are not barred by any statute of limitations.) Nick cannot identify who made any of the products he was exposed to, and different products raised different risks of causing asbestosis. He cannot sue all of the manufacturers of asbestos products made at the time because some are out of business. The manufacturers he sues argue that his claim fails on actual causation grounds. How should the court rule on the manufacturers' argument? (A) The court should reject it because Nick can prove causation under the independent concurrent causation test. (B) The court should reject it because Nick can shift the burden using alternative liability. (C) The court should reject it because Nick can prove his case using market share liability. (D) The court should accept it under existing accepted theories of causation.

Nick's case will fail on actual causation grounds. First Nick cannot use but-for causation because he does not know which manufacturer's products caused his injury. He cannot use independent concurrent causation because he cannot show that any single manufacturer's product would have caused his injury. He cannot use alternative liability because he cannot show he has the actual wrongdoer in court. And he cannot use market share liability because the products are not fungible (some created greater risk of asbestosis than others). Nor has he shown that he sued a significant share of the market at the time. This means that Choice D is correct, and the other choices are incorrect.

7 Cynthia was suffering from hypertension and was prescribed 5 mg of the drug Aperol, a highly effective hypertension pharmaceutical but one with some proven side effects. One of those side effects was that it causes some loss of vision in 3% of cases. Cynthia filled her monthly prescription at Superdrug. On one occasion the pharmacist at Superdrug negligently filled her prescription with 50 mg tablets, instead of the prescribed 5 mg. Subsequently, Cynthia developed a significant loss of vision and sues Superdrug. Which of the following expert opinions is most likely sufficient to support her recovery from Superdrug? (A) Aperol causes loss of vision. (B) The larger the dose of Aperol, the greater the incidents of loss of vision. (C) A 50 mg dose of Aperol increases the risk of vision loss to 5%. (D) A 50 mg dose of Aperol increases the risk of vision loss to 7%.

Proof of cause-in-fact requires that the negligent act is more likely to have caused the plaintiff's harm. Here there is a background risk of loss of vision. She must show the negligent overdose caused her harm. The most likely way to get over the more likely than not standard is to show that there is a 51% chance of causation. This can only be done by showing the incidents of vision loss at least doubled due to negligence. Thus, Choice D is correct. None of the other Choices prove cause-in-fact by a preponderance of the evidence.

Megan is about to board an airplane when Caitlyn negligently bumps into her, causing Megan to get some cuts and scrapes. After Megan cleans up, she goes to board her plane, but it has already departed. Megan gets on the next plane, but that plane has a malfunction and crashes, seriously injuring Megan. If Megan sues Caitlyn for negligence, what is the most likely result? (A) Megan will recover for all of her injuries actually caused by Caitlyn's negligence. (B) Megan will recover only for those injuries actually caused by Caitlyn's negligence. (C) Megan is likely to recover for the cuts and scrapes but not for injuries related to the plane crash. (D) Megan is likely to recover nothing from Caitlyn.

The facts tell us Caitlyn was negligent in bumping into Megan. We know that but for the bumping, Megan would not have suffered the cuts and scrapes nor the later airplane-related injuries. The problem for Megan is that the airplane crashing could be seen as so important and unforeseeable as to count as a superseding cause that "breaks the chain of causation." In other words, a jury could well conclude it is not fair to hold Caitlyn liable for the airplane-related injuries. A jury is therefore likely to hold Caitlyn liable only for the cuts and scrapes, making Choice C correct and Choice D incorrect. Choices A and B are incorrect because all of the injuries were actually caused by Caitlyn's conduct but not necessarily proximately caused by Caitlyn's conduct.

Frank runs Frank's factory, which makes leather goods. The factory spews smoke, which contains a chemical that some people claim increases the risk of lung cancer. According to epidemiological statistics, 10 people in the neighborhood around Frank's factory are expected to contract lung cancer, but there are 13 cases of lung cancer there. If any of the 13 people with lung cancer sue Frank in tort for their cancers based upon the smoke from Frank's factory: (A) Each plaintiff would have to prove that the chemical in the smoke from Frank's factory can cause lung cancer. (B) Each plaintiff would have to prove, assuming the chemical can increase the risk of lung cancer, that the chemical in the smoke from Frank's factory caused the plaintiff's lung cancer. (C) Each plaintiff would have to prove both A and B. (D) Assuming Frank's spewing of the smoke was tortious, each plaintiff could get damages equal to 3/13ths of his or her injuries.

The plaintiffs must prove both general causation (that the substance can cause plaintiff's injury) and specific causation (that the substance caused the injury in this plaintiff). For this reason, Choice C is correct and better than Choices A or B, which are both also right. Choice D is wrong because we require matching: we do not let all of the plaintiffs (the majority of whom likely were not injured by Frank's smoke) to recover absent proof that but for Frank's conduct, they never would have contracted lung cancer.

Careful Chemical Company negligently allows a flammable chemical to escape from its container situated on the Company's property but near a public roadway. Sarah Smith was parked nearby waiting to pick up her husband. Al Norden drove by the site and, as was his custom, flipped his cigarette butt out the window. It came into contact with the chemical causing an explosion that injured Sarah and damaged Sarah's car. Sarah sues Careful Chemical. Which of the following is the most likely outcome? (A) Sarah is likely to lose her case against Careful Chemical because Al was an intervening cause that cuts off Careful's liability. (B) Sarah is likely to lose her case against Careful unless she can prove Careful should have prevented Al's conduct. (C) Sarah is likely to win her case because Al's conduct was one of the risks that made Careful negligent. (D) Sarah is likely to win her case if she can prove Al was not negligent.

The question is whether Al's conduct is such as to cut off the liability of Careful. Risk analysis would suggest that one of the risks associated with negligently spilling flammable liquid is that someone will accidently ignite it. Thus Choice A is not correct. Choice B is not correct because it suggests again Al's conduct is an intervening cause unless Careful is negligent in failing to prevent it. Choice C is correct. Indeed, the reason why it is negligent to spill flammable liquid is someone might accidently ignite it. This would include persons who might be negligent in igniting it, so Choice D is not correct.

Timmy, age 8, was swimming in a motel swimming pool while traveling with his family through Louisville, Kentucky. A city ordinance of Louisville requires that motels with swimming pools have a clearly marked life preserver hanging on a post near the deep end of the pool. Timmy, while swimming in the deep end, had a stomach cramp and started to flail in the water yelling for help. John, another patron of the motel, was walking by the pool on his way to breakfast. John could not swim. He looked around for something to throw to Timmy. He saw a pole with a hook for a life preserver, but no life preserver was available. John then hurriedly searched for something else to use. Failing this he ran to the edge of the pool but by that time Timmy had drowned. Timmy's father sues the motel for negligence, claiming that they did not have a life preserver available as required by the ordinance. Assuming the absence of the life preserver was negligent, which alternative below most accurately describes the likely outcome? (A) Timmy's father is likely to lose because the cause of Timmy's death was the stomach cramp for which the motel is not responsible. (B) Timmy's father is likely to lose unless he can introduce evidence that proves that John would have been able to reach the life preserver in time if it had been present. (C) Timmy's father is likely to win only if he can show that, if a life preserver had been present, John would have been able to reach it, throw it to Timmy, and Timmy would have caught it and saved himself. (D) Timmy's father has a good chance to win even if he can't show specifically how an available life preserver would have saved Timmy's life.

The question poses the problem that a "but for" test for causation is difficult to apply when the negligence alleged is an act of omission. Choice A is not correct because the purpose of the life preserver would be to save persons in this situation. Choices B and C are incorrect because they both assume that specific evidence must be introduced in negligent omissions cases to prove causation when inevitably such cases involve hypothetical questions. Choice D is correct because courts now generally require only proof in such cases that the negligent failure substantially increased the risk that occurred.

Chloe is crossing the street when she has a sudden seizure. She collapses in the crosswalk. Barbara is driving down the street and is not paying attention to the road as she talks on her cell phone. Barbara runs over Chloe, causing Chloe serious injuries. Barbara concedes her conduct was negligent but argues that Chloe cannot prove actual causation saying, "If I didn't run Chloe over, someone else would have eventually." Is a factfinder likely to find that Barbara's conduct was an actual cause of Chloe's injury? (A) Yes, because Chloe would eventually have been run over by someone. (B) No, because Chloe would have eventually been run over by someone. (C) Yes, because but for Barbara's negligence, this injury to Chloe would not have occurred. (D) No, because even with Barbara's negligence, an injury to Chloe would have occurred.

The usual test for causation is the "but for" test: but for the defendant's tortious conduct in doing whatever it is that the defendant did tortuously, the injury would not have occurred. In this case, but for Barbara's driving, Chloe would not have been run over in this accident. It does not matter that she might have been run over in a different accident. The question is what the world would be like if everything were exactly the same, if Barbara did not engage in negligent driving. Because the answer is that this accident would not have occurred, Barbara's conduct is a but-for cause of Chloe's injury. Choice C correctly states this principle, and Choices A, B, and D incorrectly state the but-for test.

Sammy, age 9, found a vial of liquid lying on the ground while walking to school. The vial's label read: "DANGER. POISON. Do not inhale." Sammy kept it in his jacket pocket and showed it to his friends during recess. Joking around, they were playing catch with it when a teacher asked them what they were doing. The teacher examined the vial, and asked Sammy about it. Sammy told her it was something he made in art class. He took it home and left it on his bedroom cabinet for several days. His mother saw it but thought it was just something Sammy concocted himself. A week later Sammy gave it to Betty, a 4-year-old neighbor, who opened it. Some fumes escaped causing Betty to become very ill. It was discovered the vial had been negligently dropped by Herman, a driver for ABC Medical Delivery, while delivering a number of the vials to a local hospital. Betty's parents sue ABC Medical Delivery for Betty's injuries. Which of the alternatives best describes the likely outcome? (A) Betty's parents are likely to win because ABC's negligence was the cause of the harm. (B) Betty's parents are likely to win unless ABC can prove the teacher or Sammy's parents were negligent. (C) Betty's parents are likely to lose because too many unexpected things happened between ABC's negligent act and Betty's injuries. (D) Betty's parents are likely to lose because Betty shouldn't have opened the vial.

This case raises issues of proximate cause. Choice A is not correct because negligence with cause is not sufficient. Proof of proximate cause is essential. Choice D is not correct because there is no evidence that Betty was contributory negligence or that a child of her age could be held to any standard beyond a 4 year old. There are several potential intervening causes here, so the choice would be between Choices B and C. There is no requirement an intervening cause needs to be negligent as long as it is unexpected. Thus, Choice C is the better answer.

Careful Chemical Company negligently allows a flammable chemical to escape from its container situated on the Company's property but near a public roadway. Sarah Smith was parked near the spill waiting to pick up her husband. Al Norden had just been fired from his job at the local newspaper. Angry and seeing the spilled liquid and recognizing it to be gasoline, he flipped his cigarette butt out into the liquid on purpose as he drove quickly by. It came into contact with the chemical causing an explosion which injured Sarah and damaged Sarah's car. Sarah sues Careful Chemical. Which of the alternatives best describes the most likely outcome? (A) Sarah will lose her case against Careful Chemical because Al was an intervening cause that cuts off Careful's liability. (B) Sarah will lose her case against Careful unless she can prove Careful should have prevented Al's conduct. (C) Sarah will win her case because Al's conduct was one of the risks that made Careful negligent. (D) Sarah will win her case because Al's anger was understandable.

This is a similar case to Question 17 but raises the question as to whether the intentional act of igniting the spilled liquid would be considered an intervening cause. It can be argued that while one might expect an accidental or negligent igniting of the liquid, the intentional act would be so unexpected as would constitute an intervening cause. Thus, Choice A is correct and Choice C is not correct. Choice B is not correct because it suggests again Al's conduct is an intervening cause unless Careful is negligent in failing to prevent it. And Choice D is not correct because while the anger might be understandable from Al's point of view, it would be unexpected from Careful's point of view.

Clara is walking across the street when she is struck by an automobile negligently driven by Wallace. Her left leg and right arm are severely injured. As she lay in the street waiting for an ambulance, she is run over by Turner who is also negligent. Her left leg is further injured by this second accident. Clara brings suit against Wallace and Turner as joint tortfeasors. The jurisdiction permits contribution between joint tortfeasors. The jury renders a special verdict which awards Clara $100,000 compensatory damages for the injury to her leg and $20,000 for the injury to her arm. What is the most likely outcome? (A) Either Wallace or Turner can be required to pay $120,000. (B) Turner can be required to pay no more than $100,000. (C) Wallace can be required to pay no more than $20,000. (D) Neither Wallace nor Turner can be required to pay more than $60,000.

This question illustrates how cause-in-fact works in assessing damages. In multiple tortfeasor cases, where damages can be divided by causation they can be attributed to the specific cause. When damages are indivisible, they are the responsibility of the multiple tortfeasors. Here the two injuries to the leg are indivisible but the damage to the arm is attributable to Wallace alone. Thus, Wallace would pay his share of the damages to the leg but would be wholly responsible for damages to the arm. Turner on the other hand would not be responsible the damages to the arm but would be jointly liable for the damages to the leg. Choice B is thus the correct answer. Turner is responsible for the leg but not the arm and thus his liability is capped at $100,000. Choice A would wrongly require Turner to pay for injuries to the arm, and Choice C is not correct because Wallace is liable for injuries to the leg. Choice D is not correct because they are both joint and severally liable and thus could be forced to pay the full amount of the damages they caused.

Frank runs Frank's factory, which makes leather goods. The factory spews smoke, which contains a chemical that causes some people to contract a rare lung disease. Barney, Frank's competitor, runs a nearby factory making the same type of leather goods and spewing the same smoke which contains the same chemical that can cause the rare lung disease. Roger, who lives near Frank's and Barney's factories, contracts the rare lung disease, and there is no question that Roger got the disease from the smoke emitted from one of the factories. An expert testifies that Roger got sick either from Frank's factory smoke or Barney's factory smoke. The expert cannot tell which one. Assume both Frank and Barney were negligent in spewing this smoke. Barney argues to the court that he cannot be liable because Roger cannot prove actual cause. How should the court rule? (A) The court should agree with Barney because it is not more likely than not that the smoke came from Barney's factory. (B) The court should agree with Barney because Barney's actions were not a but-for cause of injury, and the alternative liability doctrine is inapplicable on these facts. (C) The court should disagree with Barney and hold Barney liable unless he can prove it is more likely than not that the smoke from his factory did not cause the injury. (D) The court should disagree with Barney because he was negligent to spew the smoke.

This question is a classic application of the alternative liability theory of Summers v. Tice. Here you know you have two wrongdoers in court, and you know that one of the wrongdoers committed the negligent act, but you don't know which one caused the injury. In such circumstances the burden shifts to each defendant to prove he or she did not cause the injury. Choice C correctly states this standard and Choices A and B do not. Choice D is wrong because it is not enough to be negligent; there must be proof of actual causation (either through but-for causation or an alternative) for Barney to be liable.

Frank runs Frank's factory, which makes leather goods. The factory spews smoke, which contains a chemical that causes some people to contract a rare lung disease. Barney, Frank's competitor, runs a nearby factory making the same type of leather goods and spewing the same smoke which contains the same chemical that can cause the rare lung disease. Roger, who lives near Frank's and Barney's factories, contracts the rare lung disease, and there is no question that Roger got the disease from the smoke emitted from the factories. An expert testifies that Roger got sick either from Frank's factory smoke or Barney's factory smoke. The expert cannot tell which one. Assume Barney was negligent in spewing the smoke but Frank was not. Barney argues to the court that he cannot be liable because Roger cannot prove actual cause. How should the court rule? (A) The court should agree with Barney because it is not more likely than not that the smoke came from Barney's factory. (B) The court should agree with Barney because Barney's actions were not a but-for cause of injury and the alternative liability doctrine is inapplicable on these facts. (C) The court should disagree with Barney and hold Barney liable unless he can prove it is more likely than not that the smoke from his factory did not cause the injury. (D) The court should disagree with Barney because he was negligent to spew the smoke.

This question is a variation on application of the alternative liability theory of Summers v. Tice. The doctrine does not apply in this case because one of the parties that may have caused the injury, Frank, was not negligent. Nor can Roger prove but-for causation because it is equally likely the smoke came from Frank's factory. For this reason, Choice B is correct and the other choices are incorrect.

Connor works as a substitute school teacher. One day Connor gets a call to be a substitute teacher in a kindergarten classroom. Connor, who also makes fireworks as a hobby, brings a box of powdered explosive materials into the classroom so it will not get stolen from his car. If dropped the box could easily explode. Connor leaves the box on the desk of the kindergarten classroom. A few children are playing during recess near the box, and one of them knocks the box over. The powdered materials in the box spread all over the floor, and Joan, a child in the classroom, slips on the materials and breaks her elbow. Fortunately, there is no explosion. Joan sues Connor for negligence in a jurisdiction which follows the Third Restatement's approach to scope of liability/proximate cause. Which statement is true about Joan's case? (A) Joan cannot prove that Connor's bringing the box into the classroom was an actual cause of her injury. (B) Joan has a stronger case based upon bringing a slippery substance in the classroom than bringing explosives in the classroom. (C) Joan's slipping was a harm within the risk of bringing explosives into the classroom. (D) Because Joan can prove negligence and actual cause, she will necessarily prove her entire prima facie case.

This question raises a proximate cause problem: the harm within the risk of bringing explosives into the classroom is that they will explode, not that they might lead someone to slip. To the extent Joan premises her case on this negligence, she will lose. A stronger argument is based on negligence in bringing a slippery substance into the classroom. For this reason, Choice B is correct. Choice A is incorrect because but for Connor bringing the explosives into the classroom, Joan's injury would not have occurred. Choice C is wrong because slipping is not a harm within the risk of bringing explosives in the classroom. Choice D is wrong because plaintiff also must prove proximate cause.

Connor works as a substitute school teacher. One day Connor gets a call to be a substitute teacher in a kindergarten classroom. Connor, who also makes fireworks as a hobby, brings a box of explosive materials into the classroom so it will not get stolen from his car. If dropped the box could easily explode. Connor leaves the box on the desk of the kindergarten classroom. A few children are playing during recess near the box, and one of them knocks the box over. The powdered materials in the box spread all over the floor, and Joan, a child in the classroom, slips on the materials and breaks her elbow. Fortunately, there is no explosion. Joan sues Connor for negligence in a jurisdiction which follows the directness approach to proximate cause. Which statement is true about Joan's case? (A) Connor will win because the type of harm that occurred was unforeseeable. (B) Connor will win because Joan was the actual cause of injury. (C) Connor will lose because teachers have an absolute responsibility to keep their children safe. (D) Connor will lose because the injury was close in time and space to his negligence.

Under the directness test, Joan can prove proximate cause if the injury is close enough in time and space. For this reason, Choice D is correct. You can also get there by the process of elimination. Choice A is incorrect because it prevents the alternative foreseeability of type of harm. Choice B is incorrect because actual cause is not enough to win the case; it is also necessary to prove the other elements, including proximate cause. Choice C is wrong because this is an incorrect statement and it ignores the proximate cause issue.

Frank runs Frank's factory, which makes leather goods. The factory spews smoke, which contains a chemical that causes some people to contract a rare lung disease. Barney, Frank's competitor, runs a nearby factory making the same type of leather goods and spewing the same smoke which contains the same chemical that can cause the rare lung disease. Roger, who lives near Frank's and Barney's factories, contracts the rare lung disease, and there is no question that Roger got the disease from the smoke emitted from the factories. An expert testifies that both factories alone emitted enough smoke to give Roger this disease, and he is no worse off having been exposed to smoke from both factories. Barney argues to the court that he cannot be liable because Roger cannot prove actual cause. How should the court rule? (A) The court should agree with Barney because two people can never both be actual causes of the same injury. (B) The court should agree with Barney because Barney's actions were not a but-for cause of injury and the independent concurrent causation doctrine is inapplicable on these facts. (C) The court should reject Barney's argument because Barney's actions were a but-for cause of injury. (D) The court should reject Barney's argument because even though Barney's actions were not a but-for cause of injury, a jury could find causation under the independent concurrent causation doctrine.

Under these facts, neither factory's smoke is a but-for cause of the injury: if Frank's smoke did not cause the injury, then Barney's would have, and vice versa. Choice C is incorrect. But once one concludes that but-for causation does not work, one should consider alternative approaches to causation, including independent concurrent causation: when there are two independent causes, either one of which would have been enough to cause the same indivisible injury to the plaintiff, both defendants are liable for the damage. That works in this case. Therefore, Choice D is correct, and choices A and B are incorrect.