Actual causation - Next Generation Bar Exam

1. What burden of proof applies to actual causation?

   A preponderance of the evidence. The plaintiff must show the defendant's conduct more likely than not caused the harm.

2. When is the substantial factor test used for actual causation?

   When two or more independent forces combine and each alone would have caused the harm. Each defendant whose conduct was a substantial factor is a cause, even though neither is a but-for cause.

3. What is market share liability?

   Liability apportioned among manufacturers of a fungible product by their market shares when the actual producer cannot be identified.

4. What is the loss-of-chance doctrine?

   Recovery for a reduced chance of a better outcome caused by negligence, usually in medical malpractice. Jurisdictions adopting the doctrine typically award damages proportional to the lost chance.

5. What is the distinction between general and specific causation in toxic tort cases?

   General causation asks whether a substance can cause the harm; specific causation asks whether it caused this plaintiff's harm. Both are typically proved by expert testimony.

6. What is the effect of a defendant's negligence on actual causation when the harm would have occurred even with reasonable care?

   Actual causation is not established, because the harm would have occurred without the negligence. The negligence must make a difference to the outcome.

7. Two hunters negligently fire toward the plaintiff, and a single pellet from one of them strikes him. He cannot prove which hunter fired it. What is the likely result?

   Both hunters are liable unless one proves he did not fire the pellet. This is the alternative liability rule of Summers v. Tice.

8. What is the but-for test for actual causation?

   The harm would not have occurred without the defendant's conduct. It is the default test for factual causation.

9. Two campers negligently start separate fires, each sufficient alone to burn the plaintiff's cabin. The fires merge and destroy it. What test establishes causation?

   The substantial factor test. Each fire alone would have caused the harm, so the but-for test fails for both.

10. A motorist negligently speeds and hits a child who darted into the road so suddenly that even a careful driver at the limit could not have stopped. What element is missing?

    Actual causation. The harm would have occurred even without the speeding.

11. Under Summers v. Tice, what is the effect when two negligent defendants each could have caused the harm but only one did?

    The burden shifts to each defendant to prove it did not cause the harm. Absent that proof, both defendants are jointly and severally liable.

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