Quiz #3: Actual Cause and Scope of Liability

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.

(A) Rationale: 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.

Phil takes a job from Dan clearing debris from a roadside after a mudslide. He works for Dan as an independent contractor, not an employee (meaning that workers' compensation rules do not apply). As he begins working, he sees that large rocks are still rolling down the hill. He complains to Dan, who responds: "If you want to be paid, keep working. If not, you can leave." Phil keeps working and is soon hit by a boulder, giving him a concussion. Phil sues Dan for negligence, and the jurisdiction follows traditional rules for assumption of risk. What, if anything, can Phil recover from Dan in his negligence suit? (A) Phil can recover nothing. (B) Phil can recover damages, reduced to account for his negligence. (C) Phil can recover damages, reduced to account for his consent. (D) Phil can recover all of his damages.

(A) Rationale: Under the traditional approach, assumption of risk (consent-like behavior on the part of the plaintiff) is a complete defense. In this case, Phil was aware of the risks and still chose to work in the area with the falling rocks. This will serve as a complete defense, making Choice A correct, and Choices B, C, and D incorrect. The take-it-or-leave-it nature of the job probably won't be enough to defeat the argument that Phil voluntarily encountered this risk.

Andrea is driving, and Allan is a passenger in her car. They collide with a car driven by Bob. Allan sues both Andrea and Bob, and in the course of preparation for trial, Allan settles with Bob's insurance company for $60,000. Andrea's insurance company refuses to settle and the lawsuit proceeds to judgment. The jury determines that Andrea was 60% at fault and Bob was 40% at fault and that Allan's total damages were $100,000. In a pure comparative fault jurisdiction that has abolished joint and several liability between joint tortfeasor and uses a pro rata credit, how much is Allan likely to recover from Andrea? (A) $100,000 (B) $60,000 (C) $40,000 (D) $20,000

(B) Rationale: The normal rule is that a party is bound by a settlement whether it is greater or lesser than what is ultimately attributable to him. In this case, Allan is allowed to recover more than his actual damages. Thus, Choice B is correct. Andrea was determined to be 60% at fault and must pay 60% of the loss, notwithstanding that Allan will be more than fully compensated.

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 but not both. 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.

(B) Rationale: 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.

(B) Rationale: 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 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.

Many hunters are out on the first day of duck hunting season. It is very crowded and Maria, a hunter, is unlucky enough to be shot twice. Alice shoots Maria in the left arm, causing very serious injuries. Janet shoots Maria in the right leg, causing a minor flesh wound. The three people had never met before the shooting. Assume that both Alice and Janet were negligent in shooting Maria, and that Maria was not negligent. Alice has left town and is nowhere to be found. If Maria sues Janet for negligence, she will be able to recover for: (A) The arm injury. (B) The leg injury. (C) Both the arm and the leg injury. (D) Both the arm and the leg injury, but only if Janet was at least as at fault as Maria.

(B) Rationale: Traditional joint and several liability rules apply only when multiple defendants cause a single, indivisible injury. In this case, the injuries are divisible: Alice cause the arm injury and Janet caused the leg injury. In these circumstances Janet is completely responsible for the leg injury and not at all responsible for the arm injury, regardless of the relative fault of Alice and Janet. For this reason, Choice B is correct and the other choices are incorrect.

P is injured in an accident involving A and B. A and B are equally at fault in causing the accident. P settles with B for $1,000 and gives B a release. P sues A in a jurisdiction that has adopted pure comparative negligence. P's damages are assessed at $10,000. If the jurisdiction uses a pro rata credit based on comparative fault, P will recover from A: (A) $3,333 (B) $5,000 (C) $9,000 (D) Nothing

(B) Rationale: Under the pro rata credit system, the remaining defendant pays only that proportion of the damage award for which he or she is proportionately responsible. Thus, P will be able to recover $5,000 from A (50% of 10,000). Thus, Choice B is correct.

Keith and Amy are involved in a boating accident that injures Chris. The jury finds that Keith is 70 percent at fault, Amy is 20 percent at fault, and Chris is 10 percent at fault. The jury finds that Chris suffered $10,000 in damages. Amy has paid Chris $9,000. How much may Amy recover from Keith? (A) $0 (B) $6,300 (C) $7,000 (D) $9,000

(C) Rationale: A tortfeasor who fully satisfies the judgment may seek to recover part of the money paid to the plaintiff based upon the tortfeasors' relative percentage of responsibility. In this case, the tortfeasors together were 90 percent responsible for Chris's $10,000 injury, collectively owing $9,000. After Amy pays $9,000, she can seek 70/90 or 7/9 of what she paid from Keith, or $7,000; Amy remains responsible for 2/9 of the share, or $2,000. Choice C is therefore correct, and the other choices are incorrect.

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).

(C) Rationale: 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.

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.

(C) Rationale: 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.

Miriam agrees to go skydiving with Skyco. Before going, Mary signs a form stating that she understands the risks of skydiving and agrees not to sue Skyco for negligence in the event of an accident arising out of the skydiving. Mary is injured on her first dive because of the negligence of Skyco in dropping her too close to the ground in time for her parachute to fully deploy. Assume that the contract Miriam signs is enforceable under state law. Miriam sues Skyco for negligence. What result? (A) Miriam will recover all of her damages from Skyco. (B) Miriam will recover some of her damages from Skyco, depending on her negligence. (C) Miriam will recover no damages from Skyco because she expressly assumed the risk. (D) Miriam will recover no damages from Skyco because she consented to sky dive.

(C) Rationale: The facts here indicate that Miriam contracted her right to sue Skyco for negligence. This is an express assumption of risk, and it completely bars Miriam's case if the contract is enforceable. (Many courts, under the Tunkl doctrine, hold that such exculpatory contracts affecting the public interest, such as for food or shelter, are not enforceable.) The facts tell us this contract is enforceable under state law, and therefore Mary's claim is completely barred. Choice C is therefore correct and Choices A and B are incorrect. Choice D is incorrect because consent to sky diving is not the same as agreeing not to sue for negligence.

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.

(C) Rationale: 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 be outside the scope of liability. 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.

(C) Rationale: 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.

(C) Rationale: 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.

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.

(C) Rationale: 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.

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.

(C) Rationale: 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.

Ron and his friends arrange a drag race in a quiet part of town late at night. Everyone has been drinking and they are driving erratically. Ron asks Cynthia if she would wave a flag to start the race and declare a winner by standing in the middle of the road in front of the two cars. Cynthia knows it is dangerous to be standing out there after seeing all the swerving cars, but she figures it would be fun. Soon after the race starts, Ron accidentally swerves into Cynthia, knocking her over and breaking her bones. In a jurisdiction that has folded assumption of risk into the comparative responsibility analysis, what should the jury compare in Cynthia's negligence case in assigning shares of responsibility? (A) The jury should compare Ron's negligence with Cynthia's negligence. (B) The jury should compare Ron's negligence with Cynthia's consent. (C) The jury should compare Ron's negligence with Cynthia's negligence and consent. (D) The jury should not compare, if Ron was more at fault than Cynthia.

(C) Rationale: Under modern comparative responsibility principles in which assumption of risk has been folded into the comparative responsibility allocation, the jury comes up with a comparison of responsibility that compares the defendant's negligence on the one hand, with plaintiff's negligence and consent on the other. Choice C correctly states this standard, and Choices A and B are incomplete and therefore incorrect. Choice D is incorrect because even in a jurisdiction using impure comparative responsibility, there should be a comparison when the defendant is more at fault than the plaintiff.

Alexandra is driving cross country to visit her best friend. She is in a hurry and is driving even while she is sleepy. Alexandra is so tired she decides to pull over. Unfortunately, she pulls over on the railroad tracks. Paula is the train conductor. She sees Alexandra's car on the tracks, not moving, but assumes Alexandra will move the car. Once the train is very close to the car, and after it is too late to stop the train, Paula blows the train horn. Alexandra wakes up, but it is too late for her to move the car, and she suffers serious personal injuries. Can Alexandra prevail in a lawsuit against Paula and the train company for negligence in a jurisdiction which has adopted the 49% modified comparative negligence rule? (A) Yes, and Alexandra is likely to recover all of her damages. (B) Yes, but Alexandra will recover all of her damages only if the jury determines she is less at fault than Paula. (C) Yes, but Alexandra will recover only some of her damages, and only if the jury determines she is less at fault than Paula. (D) No, even though Paula was also at fault because the last clear chance doctrine has been abolished

(C) Rationale: Under modern comparative responsibility principles, the jury comes up with a comparison of responsibility between plaintiff and defendant when both are negligent. The ameliorative doctrines such as last clear chance do not stand on their own, but the facts related to last clear chance (in this case, that Paula had the last clear chance to avoid the accident) are relevant to the allocation. For this reason, Choice D is incorrect. In addition, the facts tell you that the jurisdiction has adopted the 49% modified rule of comparative responsibility, meaning plaintiff can only recover defendant's share of responsibility if the defendant is found to be equal or more responsible for the injury than the plaintiff (i.e., if the jury finds the defendant to be at least 50% at fault for the injuries). Only Choice C correctly states this principle. Choice B incorrectly states that if Paula is more at fault, Alexandra gets all of her damages; in fact, they are reduced by her share of responsibility. Choice A is incorrect because it ignores the rules of comparative responsibility.

P is injured in an accident involving A, B and C. All three parties are equally at fault in causing the accident. P's damages are $10,000. P settles with B for $1,000 and gives B a release. P sues C in a jurisdiction that has adopted pure comparative negligence. If the jurisdiction uses a pro tanto credit, P will recover from C: (A) $3,333 (B) $5,000 (C) $9,000 (D) Nothing

(C) Rationale: Under the pro tanto credit system, the remaining defendant will get a credit for the amount of money paid by the settling defendant against the amount determined to be owed at trial. Thus, C will be able to recover $9,000 from C ($10,000 - $1,000). Thus, Choice C is correct. C may be able to sue A for contribution.

Todd and Aaron are involved in a biking accident which injures George. George sues both for negligence. The jury finds that Todd was 60 percent at fault, Aaron was 20 percent at fault, George was 20 percent at fault, and that George's damages were $10,000. The jurisdiction uses a pure comparative negligence rule and a modified joint and several liability rule which provides that all parties, including plaintiffs, share responsibility for bankrupt defendants' portion of responsibility, based upon each of the remaining parties' percentage of fault. Aaron is bankrupt. What is the most that George may recover from Todd? (A) $4,000 (B) $6,000 (C) $7,500 (D) $10,000

(C) Rationale: Under this modified joint and several liability rule, Todd is responsible for his share (60 percent of $10,000, or $6,000) plus a portion of Aaron's share of $2,000 (20 percent of $10,000). The $2,000 Aaron share is divided between Todd and George based on their relative share of responsibility. Their responsibility is 60 percent Todd to 20 percent George, which is 60:20 or 3:1. In this case, Aaron's share is divided $1,500 for Todd (bringing his total including his own $6,000 share to $7,500), while George's additional share is $500 (meaning he will end up bearing $2,500 of the total responsibility). This means Choice C is correct and the other choices are incorrect.

Alexandra is driving cross-country to visit her best friend. She is in a hurry and is driving even while she is sleepy. Alexandra is so tired she decides to pull over. Unfortunately, she pulls over onto some railroad tracks. Paula is the train conductor. From a distance she sees Alexandra's car on the tracks, not moving, but assumes Alexandra will move the car and takes no action. Once the train is very close to the car, and after it is too late to stop the train before hitting Alexandra, Paula blows the train horn. Alexandra wakes up, but it is too late for her to move the car, and she suffers serious personal injuries. Can Alexandra prevail in a lawsuit against Paula and the train company for negligence in a jurisdiction which has maintained traditional contributory negligence rules and its traditional ameliorative doctrines? (A) No, if the jury believes Alexandra was negligent in stopping her car on the tracks (B) No, because Alexandra was the actual cause of the accident (C) Yes, even if the jury believes Alexandra was negligent in stopping her car on the tracks (D) Yes, because a plaintiff's negligence is irrelevant in a negligence suit

(C) Rationale: Under traditional contributory negligence principles, a plaintiff's own negligence is enough to bar a negligence lawsuit, even if the plaintiff is negligent. This fact makes Choice D incorrect. That rule can be harsh, and therefore certain ameliorative doctrines such as "last clear chance" work to allow plaintiff to recover even when negligent. Here, the defendant had the last clear chance to avoid the accident, and therefore Choice C is correct and Choice A incorrect. Choice B is incorrect because the last clear chance doctrine can apply even if plaintiff's conduct is an actual cause of the injury.

Nikki and Karen are involved in an automobile accident which injures Sima. Sima sues both of them for negligence. The jury finds that Nikki was 80 percent at fault and Karen was 20 percent at fault, and that Sima's damages were $100,000. The jurisdiction uses traditional joint and several liability rules. What is the most that Sima may recover from Karen? (A) $20,000 (B) $80,000 (C) $100,000 (D) $100,000, but only if Nikki refuses to pay her fair share

(C) Rationale: Under traditional joint and several liability rules, a plaintiff can recover all of her damages from any one defendant, until full satisfaction of judgment. In this case, it means that Sima may look to Karen to pay all of her damages, even though Karen was found by the jury to be only 20 percent at fault. There is no requirement for Sima to first try to get some funds from Nikki. For this reason, Choice C is correct and the other choices are incorrect.

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 negligent conduct was not an actual cause of the accident.

(D) Rationale: 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.

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 of each manufacturer as concurrent causes. (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.

(D) Rationale: 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 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.

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%.

(D) Rationale: 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.

Carla is running late, trying to catch a ferry to attend a July 4th picnic. She is carrying a box of fireworks for celebration that evening. The box is clearly marked as fireworks and it says in big red letters "DANGER! EXPLOSIVE." Carla arrives just as the ferry is about to pull away from the dock. One ferry worker pulls her on the ferry while the other pushes her from the dock. In doing so, Carla drops the package of fireworks, which explodes. Therese, who is just arriving at the dock in her car, gets injured as the wood slats on the dock buckle from the explosion. Therese sues the ferry company for negligence (assume the ferry company is responsible for the actions of its employees). The ferry company responds by stating it owes Therese no duty. How should a court following the analysis of Justice Cardozo in Palsgraf rule on the duty question? (A) The court should rule that the ferry company owes no duty to Therese if it concludes that the employees used reasonable care to avoid a reasonably foreseeable risk. (B) The court should rule that the ferry owes a duty to Therese because its employees failed to use reasonable care when they shoved the woman with fireworks on the ferry. (C) The court should rule that the question of the ferry company's duty is a factual one to be decided by the jury. (D) The court should rule that the ferry company owed a duty to Therese.

(D) Rationale: The difference between the actual facts of the famous Palsgraf case and this hypothetical is that in the actual case, the train station employees did not know and had no reason to know that the man being pushed onto the train was carrying explosives. In this question, the ferry company employees either knew or should have known of the fireworks, given the prominent warning on the box carried by Carla boarding the ferry. The relevance of that warning to the duty question is to expand the "zone of danger" to more plaintiffs. Though shoving a person carrying newspapers onto a train creates a small zone of danger (confined to the man and the people immediately around him), shoving a person knowing they are carrying explosive materials endangers more people and creates more foreseeable plaintiffs. Under the facts of the hypothetical, Choice D is the correct choice: The court should rule that the defendant owes a duty to Therese because she is a foreseeable plaintiff. Choice A is incorrect because it confuses the question of duty with the question of breach: Whether or not the ferry company failed to use reasonable care is a breach question, not a duty question. Choice B fails for the same reason. Choice C misunderstands the nature of the duty inquiry. The court is not deciding facts when it considers duty; it is making a policy choice.

Pavel is riding his bike when Dino negligently hits Pavel with his car. Pavel breaks a rib. Dino calls an ambulance to take Pavel to the hospital. Alvin the ambulance driver picks up Pavel to take him to the hospital, but negligently crashes the ambulance, causing Pavel to get a concussion. If Pavel sues both Dino and Alvin for negligence: (A) Both parties are jointly and severally liable for the rib injury and concussion. (B) Dino is responsible for the rib injury and Alvin is responsible for the concussion. (C) Both parties are liable for both injuries depending upon their relative share of responsibility. (D) Dino is solely responsible for the rib injury, while Dino and Alvin are jointly and severally responsible for the concussion.

(D) Rationale: This case involves two distinct injuries, and so it would appear that each defendant would be liable for the injury he caused: Dino for the rib injury and Alvin for the concussion. There is not a single indivisible injury. However, subsequent negligent medical care (in this case, the crashing of the ambulance) is a foreseeable consequence of negligently getting into an accident, and so the injury caused by the ambulance is an injury for which both Dino (the original wrongdoer) and Alvin (the ambulance driver) are jointly responsible. Choice D correctly states this rule, and Choices A and B are incorrect. Choice C is incorrect because this division does not depend upon shares of responsibility.

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 each factory 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. (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 multiple sufficient cause doctrine.

(D) Rationale: 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 multiple sufficient 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.