CAS Bar Torts and Negligence 3 — Questions and Answers
Question 1: The 'but-for' test for actual causation asks whether:
- The defendant's negligence was the primary or dominant cause of harm
- Harm would not have occurred but for the defendant's negligent conduct (Correct answer)
- A reasonable person would have foreseen the type of harm that resulted
- The defendant's conduct was a substantial factor in producing the harm
Correct answer: Harm would not have occurred but for the defendant's negligent conduct
But-for causation is established when the plaintiff proves the injury would not have occurred absent the defendant's negligence.
Question 2: California uses the 'substantial factor' test for causation primarily when:
- The defendant denies causing any harm to the plaintiff
- Multiple independent causes each sufficient alone combine to produce an indivisible injury (Correct answer)
- The plaintiff has a preexisting condition that contributed to harm
- Medical causation is disputed between competing expert witnesses
Correct answer: Multiple independent causes each sufficient alone combine to produce an indivisible injury
When multiple independently sufficient causes make but-for causation unworkable (such as duplicative causation), California uses the substantial factor test.
Question 3: California's system of comparative fault is best described as:
- Modified comparative fault with a 50% bar — plaintiff cannot recover if equally or more at fault
- Pure contributory negligence — any fault by the plaintiff bars all recovery
- Pure comparative fault — plaintiff recovers reduced damages even if 99% at fault (Correct answer)
- Modified comparative fault with a 51% bar — plaintiff cannot recover if more than half at fault
Correct answer: Pure comparative fault — plaintiff recovers reduced damages even if 99% at fault
Under Li v. Yellow Cab Co., California adopted pure comparative fault, allowing plaintiffs to recover regardless of their degree of fault, with damages reduced proportionally.
Question 4: Under Proposition 51 (Civil Code §1431.2), a defendant is only severally liable — not jointly liable — for:
- Economic damages such as medical bills and lost wages
- Non-economic damages such as pain and suffering (Correct answer)
- All categories of damages equally between all tortfeasors
- Punitive damages where gross negligence is found
Correct answer: Non-economic damages such as pain and suffering
Proposition 51 abolished joint and several liability for non-economic damages; each defendant pays only their proportionate share of pain and suffering, but remains jointly and severally liable for economic damages.
Question 5: A superseding intervening cause breaks the causal chain when the intervening act is:
- Foreseeable as a natural result of the defendant's negligence
- Negligent conduct by a third party that contributes to the same type of harm
- An act that makes the plaintiff's ultimate harm worse than initially caused
- Unforeseeable and independent such that holding the original defendant liable would be unfair (Correct answer)
Correct answer: Unforeseeable and independent such that holding the original defendant liable would be unfair
A superseding cause must be so unforeseeable that attributing the ultimate harm to the original defendant would be unjust; foreseeable intervening acts do not break the chain.
Question 6: Under the 'loss of chance' doctrine recognized in California medical malpractice cases:
- A plaintiff cannot recover unless the malpractice was the sole cause of the ultimate injury
- A plaintiff may recover damages proportional to the lost probability of a better outcome (Correct answer)
- Courts calculate damages based only on confirmed physical injuries, not statistical probabilities
- Loss of chance claims are available only in wrongful death actions
Correct answer: A plaintiff may recover damages proportional to the lost probability of a better outcome
California recognizes loss of chance, allowing plaintiffs to recover for the diminished probability of survival or a better health outcome caused by a defendant's negligence.
Question 7: Under the alternative liability theory (Summers v. Tice), when two defendants both fired simultaneously and one shot injured the plaintiff:
- Neither defendant is liable because specific causation cannot be proven
- The plaintiff must absorb the loss because causation is inherently uncertain
- The burden shifts to each defendant to prove their conduct did not cause the injury (Correct answer)
- Only the defendant with the greater degree of negligence is held liable
Correct answer: The burden shifts to each defendant to prove their conduct did not cause the injury
In Summers v. Tice, the California Supreme Court shifted the burden of proof on causation to the defendants, requiring each to disprove that their conduct caused the injury.
CAS Bar Torts and Negligence 3
The 'but-for' test for actual causation asks whether: