Factual cause (must do this first in an essay) Π must establish a link between the breach and the injury suffered. The breach was a factual cause, not the Δ.
- “But for” test: whether but for the breach, the accident would have been avoided. Focus on the breach.
- However, when there are Multiple Δ’s:
- Multiple Δ’s and merged causes – (Al and Bill forest fire hypo) “Substantial factor” test – was the breach of each Δ a substantial factor contributing to Π’s injuries. If the answer is yes as to both, we’ll hold them both jointly liable.
- Unascertainable causes – (Summers v. Tice: bird hunting accident, the breach of one of the other hunters caused his blindness, and the breach of the other hunter caused nothing; we don’t know who breached that caused the problem. In order for Moe to hold Larry liable in negligence, he has to show that more likely than not that Larry’s breach put out his eye.). Shifting the burden of proof from Π to Δ to show that their breach was not the cause. If they cannot satisfy the new burden of proof, they’ll have to pay. If neither of them can satisfy the newly shifted burden of proof, then both Δ’s are held jointly liable.