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Mixing Oil And Water: Reconciling The Substantial Factor And Result-Within-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Mixing Oil And Water: Reconciling The Substantial Factor And Result-Within-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Cleveland State Law Review
Most recently, however, the courts—the entities mandated to apply proximate cause during the course of the analysis of liability for negligence—appear to have brokered a peace between the dueling conceptualizations of proximate cause. As applied, the proximate cause analysis grounded in substantial factor appears to be yielding the same results with respect to liability as the proximate cause analysis grounded in foreseeability. It is the thesis of this Article that such a peace has, in fact, been brokered; whether approached from the means of substantial factor or result-within-the-risk, the end is the finding of common ground for the purpose of …
Alternative Liability And Deprivation Of Remedy: Teaching Old Tort Law New Tricks, Adam L. Fletcher
Alternative Liability And Deprivation Of Remedy: Teaching Old Tort Law New Tricks, Adam L. Fletcher
Cleveland State Law Review
The problems presented by “tortfeasor indeterminacy” are perhaps the greatest remaining point of contention in the otherwise generally overlooked requirement of cause-in-fact. The issue is deceptively simple; several defendants have breached a duty to the plaintiff and one of their breaches is the cause-in-fact of plaintiff's injury, but it is impossible to tell which one. As a result, the plaintiff cannot meet his evidentiary burden on the element of cause-in-fact and is unable to recover. In response to the plaintiff's dilemma, courts have developed the doctrines of “alternative liability” and “market-share liability.” Yet many courts and commentators have rejected these …