Torts: Going back to hypos on Res Ipsa Loquitor [Slide 19] Hypo 3 Is this a common enterprise for which

each set of parents should be liab le (in a jurisdiction that follows Ybarra)? o Assume you only end up with salmonella if the bird is roasted negligentl y (i.e. it normally doesnt happen absent someones negligence) o You cant treat them as engaged as in a common enterprise when they dont hav e the right to control each others negligence, and unlike Ybarra they are not in the same room together o The critical part underlying Ybarra is that they are all in the room tog ether and the court wants to force them to act like they are a temporary partner ship working to benefit the patient o In this case, nobody is in a position to oversee the food preparation o Smith: there is likely no court that would apply an Ybarra analysis to t his situation Medicine and construction are two very unusual industries (or at least the y have been until now) o They are both industries with non-integrated enterprises o Unlike general motors who is responsible for assembling and testing ever ything they use to produce the final product (highly integrated) o At the opposite end, we have a construction site with independent contra ctors and specialists etc. True of both construction sites and hospitals (ex. Some sections of hospitals ar e entirely subcontracted out) Part of what drives the reasoning in Ybarra is that it is common for thi s type of workforce to be so disaggregated which makes it impossible to know wha t actually happened. o This plays a very important role in how the Ca. court treats the doctors in Ybarra. o Smith: We will treat you as though you are in a partnership arrangement In contrast though, the situation with the parents and the turkey looks totally different. Their ability to control or oversee each other is zero. [Slides 20-22] Hypo 4 The important point here is: the doctor is not in a joint venture with t he lab. o It is particularly easy to say that here because the doctor gives the pa tient the choice of which lab he would like to go to In the exercise of the standard of the profession, doctors are not respo nsible for how the labs are done o But in some cases doctors have labs that they own on the premises, and i n that case our analysis would look a lot different o In that case, it is not so clear that the lab is not a subsidiary of the medical practice, even if the lab does other work as well This is not that different than Hypo 3 with the turkey families. The doctor is not responsible for the negligence of the lab. The doctor is probably off the hook even in Ca. where they allow RIL in medical situations. You may be able to argue RIL, but it depends on the jurisdiction Additionally, you may be able to make a case of negligence without using RIL o Is it possible that the lab missed the jaundice diagnosis in the previou s lab? You might be able to get an expert to testify that if blood work is done properly, you can detect it in the lab results (this would be circumstantial evi dence with an expert but not the kind of circumstantial evidence that we do in R IL) [Slide 24]

In Nevada, they have enacted a statute which would codify an approach eq uivalent to a conservative common law approach [Slide 25] When we need to argue which approach a jurisdiction should take [Slide 26] One of the problems with RIL is that it is very common for juries/judges to confuse the rarity of a phenomenon, as opposed to what its most likely cause is when it does occur o The fact that something rarely occurs, on its own, does not indicate tha t when it happens it happens because of negligence Smith prefers the strict/2nd restatement formulations because they captu re this distinction (rarity is not enough, needs to be accompanied by the proof t hat when it happens it happens because of negligence) [Slide 27] (Important slide) Most RIL cases come up when the causation information is missing However (see slide) Strategically, it is typically not argued contingently because it underc uts -their initial argument (increases risk of losing on both grounds) -Now we move into: Causation and its Next of Kin How do we subdivide this universe? Smith version: Causation = 1. Causation in fact (CIF) + 2. Proximate/Legal Cause Other courts use the second formulation [slide 2] The easiest way to understand the difference between the two formulations is tha t CIF is all about showing that the negligence of the defendant contributed to th e injury of the plaintiff. Proximate or legal cause really is not causation in th at layperson sense at all. Proximate or legal cause is that, assuming CIF (but f or), we need to draw a line at which point we can no longer hold people responsi ble and limit the scope of liability. Today and Monday, we are going to focus on if the P can show that the D had a su fficient causal connection to the harm. [Slide 3] Dont lose sight of the basic fact that CIF will solve 99% of the cases we encounter

(1) CIF is based on a counter factual hypothesis (i.e. but for) A defendant can negate CIF if we can persuade the jury if the accident w ould have happened anywaytherefore there is no causation (Ds often win this way) There is a separate situation called repeatability o The idea that if you repeat the cause again and again, with roughly the same circumstances in place, the accident will result again and again There are a few things that underlie this analysis: o The cause always precedes the effect

o if you didnt do the alleged cause, the effect wouldnt follow o but also, if you do the cause over and over with all other things the sam e, then the harm will follow over and over again(ex: blinking your eyes while dri vingsometimes it can cause an accident, but not always) Michie o Michie is a little unusual because you dont usually have this in a nuisan ce case, but what you do usually have are two (or more) negligent actors which c an each have a but for effect on the result o but for sounds like there is only one negligent cause, but it is very comm on to have more than one negligent actor whose actions combine to cause the harm o This leads us to joint and several liability (from common law) we hold the m both liable and let them figure out how they want to split the damages later ( we should assume joint and several liability for our exam) But this only applies when we cannot apportion the harm and clearly distinguished who caused what Emphasize: Once we get past but for causationeverything else is second best . We only want to apply them when but for does not work properly. (2) Substantial Factor Causation (i.e. overdetermined causation) o Each one on its own would have been sufficient to cause the harm o Do they both get off the hook when they are both negligent? We solve tha t by saying they are jointly and severally liable. (3) Substantial Factor Causation (i.e. underdetermined causation, i.e. alt ernative causation) o Two negligent actors, negligent at the same time o But instead of saying they both did, we know that only one of them actua lly caused the damage but we dont know who o Our solution to this is to say, at minimum your negligence caused the in formation to be missing, and you are jointly and severally liable unless you can prove that it wasnt your negligence that caused the result o This means that at least one will be held liable, and if nobody is succe ssful at blaming the other person, then they will both be liable [Slide 5] Hypo 1 No, they may have malpracticed, but even if they built the wall 8 feet high, the y would not have had to take precautions against the once in a century hurricane under ORC and the wall would have collapsed anyway. [Slide 7] Hypo 2 Having the headlight on or off has nothing to do with the causal role of getting hit from behind. The presence or absence of the state law plays no difference. B ut for the headlight, the accident still would have happened. No CIF means that P aul cannot sue Mary, so Paul is stuck with the loss because the other driver fle d the scene. [Slide 9] Hypo 3 Whether they can establish causation depends on where that bend in the road is, and whether P&P can establish that if the headlight was working, she could have seen them sooner. Most of the time, driving in ORC requires you to be able to st op to avoid an obstacle in the road (not necessarily relevant here because of th e bend). [Slide 10] Hypo 3a? Both are jointly and severally liable to Peter. [Slide case) 11] Hypo 4 Did he fall first? Or did the oil fall first thereby causing his fall? This is a classic missing causal information case (classic slip and fall How courts deal with this varies to some extent

o Conservative courts will say if you dont have a witness to the before situa tion, it would be allowing the jury to purely speculate that there is causation here and wont let the jury consider it o But if you give the court even a little bit of a basis to base the infer ence on, the court will let the jury draw it and the result will likely depend o n the lawyers arguments A host has a duty to social invitees to make sure the store is safe Did the store have time to clean it up? The negligent act itself has to be not responding in a reasonable amount of time [Slide 13] More on multiple causes [Slide ess or 14] The issue here is where we let the jury draw the line on causation But one way we can address this is through testimony of a victim or witn through physical evidence (coming from both sides) - [Slide 15]

[Slides 17-20] The Dillon case talks about successive, independent hazards There is interaction in a case like this between what the damage is, and how we phrase the cause The court labels the causes as sequential, but really they are interventi onal he starts to fall before he hits the wires, even though he continues to fall afterwards The true sequential causation cases are different from the simultaneous causation cases [Slide 21] Smith doesnt think we should think of Dillon as a sequential causation ca se why cant we turn it into overdetermined or underdetermined? (Smith says in re ality we probably can)

[Slides 22-23] Hypo 5 Does it matter if the original fire would have made it to the house with out the second fire merging? Either Bill and Marys fire would have been sufficient to cause thisOR the other fire would have been sufficient o What does this sound like? This is overdetermined because even if we just had Bill and Marys fire without the other one, it still would have burned down the home. Also, if Bill and Mary hadnt set their fire, it also presumably would have burned down the home. So we have a 2 cause overdetermined situation. The fine print/precedent in Summers v Tice looks just like this.