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Cause in Fact element of Tort Liability

16. What is “Causation in Fact”?

In a negligence action, the defendant’s conduct must have caused the injury to the plaintiff. Causation in fact presents the question, “but for” the act of the defendant, would the injury have occurred? This is the broadest aspect of causation, as any number of causes together could have contributed to the injury. The jury must determine whether the defendant’s conduct is a “substantial, material factor in bringing about the injury”. If there are multiple defendants, each individual defendant can be held jointly and severally liable for the collective actions of the group.

•    Discussion: Can you think of a situation where an individual is a contributor to an outcome, but the outcome would have occurred regardless of the individual’s involvement? Should a person be held liable if a particular damage would have occurred regardless of her involvement in a tortious activity? Why or why not?

•    Practice Question: Jessica and 5 friends are jumping up and down on a trampoline. Terry falls while bouncing, but the other friends continue to bounce. Terry is thrown from the trampoline by the force generated by the other bouncers. Is Jessica’s conduct the cause in fact of Terry’s injury?

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