Richard W. Wright

Private Nuisance Law: A Window on Substantive Justice

Richard W. Wright — Tue, 05 Apr 2011 11:43:24 PDT

Proving Causation: Probability versus Belief

Richard W. Wright — Mon, 22 Nov 2010 13:13:23 PST

The NESS Account of Natural Causation: A Response to Criticisms

Richard W. Wright — Mon, 19 Apr 2010 12:03:29 PDT

Causation in Tort Law

Richard W. Wright — Thu, 10 Sep 2009 10:16:55 PDT

Proving Facts: Belief versus Probability

Richard W. Wright — Thu, 10 Sep 2009 10:15:23 PDT

discussed in Federico Stella, Criminal omissions, causality, probability, counterfactuals: Medical-surgical activity

Richard W. Wright — Wed, 18 Mar 2009 12:50:23 PDT

discussed in Federico Stella, The Vitality of the Covering Law Model: Considerations on Wright and Mackie

Richard W. Wright — Wed, 18 Mar 2009 12:40:58 PDT

The Nightmare and the Noble Dream: Hart and Honoré on Causation and Responsibility

Richard W. Wright — Fri, 07 Mar 2008 12:32:49 PST

Liability for Possible Wrongs: Causation, Statistical Probability and the Burden of Proof, in Symposium, The Frontiers of Tort Law

Richard W. Wright — Tue, 05 Feb 2008 08:39:50 PST

Courts around the world are increasingly considering whether liability should exist in various types of situations in which a plaintiff can prove that a defendant’s tortious conduct may have contributed to the plaintiff’s injury, but it is inherently impossible, given the nature of the situation, for the plaintiff to prove that the defendant’s tortious conduct actually contributed to the injury. The problematic nature of the causal issue is usually recognized when the probability of causation is not greater than 50 percent, with courts adopting different views, depending on the type of situation, on whether liability nevertheless is appropriate and, if so, whether liability should be full or only proportionate to the probability of causation. However, when the probability of causation is only slightly higher—greater than 50 percent—many courts do not view either causation or liability as being problematic. Indeed, under the commonly accepted version of the res ipsa loquitur doctrine, liability is assumed to be unproblematic even though the only indication of negligent conduct as well as causation is a mere 50+ percent ex ante statistical probability. The dramatic difference in treatment of situations that are identical except for a trivial difference in statistical probability is due to an unexamined assumption that the usual “preponderance of the evidence” or “balance of probabilities” burden of persuasion in civil cases merely requires proof of a 50+ percent statistical probability. This assumption, which is common among academics as well as courts but is rejected by courts when the statistical rather than case-specific nature of the probability is obvious, has led to inconsistent and incoherent treatment of normatively and descriptively analogous types of situations and even to erroneous denials of proof of causation and liability in some situations in which tortious causation clearly exists. The statistical probability interpretation of the burden of persuasion in civil cases is inconsistent with the traditional understanding of that burden, which instead requires the formation of a minimal degree of belief, based on evidence specific to the particular occasion, in the actual existence of the disputed fact in the particular situation. When the disputed fact is actual causation of injury, there must be a minimal belief that the causal law underlying the allegedly applicable causal generalization was fully instantiated on the particular occasion. General statistics cannot support such a belief; only concrete evidence specific to the particular situation can do so. Only when the burden of persuasion is correctly understood can many currently debated issues regarding the existence and scope of tort liability be properly understood and consistently resolved. When the various types of problematic situations are compared, it turns out that the market share liability principles adopted in Sindell v. Abbott Laboratories and, arguably, Hymowitz v. Eli Lilly & Co., which are highly controversial, are more defensible than the liability principles that are widely employed in the alternative causation cases, the medical malpractice lost-chance cases, the toxic tort cases, and, especially, in the usual formulation of the res ipsa loquitur doctrine.

The Principles of Product Liability, in Symposium, Products Liability: Litigation Trends on the 10th Anniversary of the Third Restatement

Richard W. Wright — Wed, 19 Sep 2007 14:22:41 PDT

The Vitality of Joint and Several Liability: Brief Amici Curiae of American Law Professors in Support of Respondents

Richard W. Wright — Tue, 09 Jan 2007 11:36:59 PST

Tort reform advocates hoped to use a recent case, Norfolk & Western Railway Co. v. Ayers, 123 S. Ct. 1210 (2003), as a vehicle for obtaining a Supreme Court opinion critical of the traditional doctrine of joint and several liability. Under this doctrine, each of the multiple responsible causes of an injury is potentially fully liable for that injury. The specific issue in Ayers was the availability of joint-and-several liability under the Federal Employers' Liability Act (FELA), which employs common-law tort doctrines while excluding some of the traditional defenses. The defendant claimed that the traditional common law used fractional apportionment of liability (proportionate several liability), rather than full (joint and several or several) liability, for all cases other than those involving tortfeasors acting in concert; that this was the state of the law when FELA was enacted in 1908; that FELA incorporates the common law's supposed preference for proportionate several liability; that joint and several liability for independent tortfeasors existed only for a brief period during the middle of the twentieth century; that joint and several liability results in a defendant's being liable for more damages than she caused or for which she is responsible; and that the evolving common law, the Restatements, and just principles of liability all support proportionate several liability. As this paper argues, and the Supreme Court recently unanimously concluded, all of these assertions are clearly incorrect. Under both the common law and federal admiralty law at the time of FELA's enactment, and long before, each defendant who tortiously contributed to a plaintiff's injury was severally fully liable for that injury, regardless of whether other tortious causes of the plaintiff's injury could be joined in the same lawsuit. Full liability was intended and has been consistently employed by federal and state courts under FELA from the time of FELA's enactment. Joint-and-several liability is the universal rule in other countries, and all but a handful of the courts in the United States have consistently stated, even after the adoption of comparative responsibility, that joint-and-several liability is the fairest method of allocating liability among the multiple responsible causes of an injury. The courts note that, under joint and several liability, a defendant generally is only liable for injuries for which it is fully responsible as a tortious, actual, and proximate cause. The Restatement Third, while not adopting any single allocation method, states that the fairest method for allocating liability among multiple responsible causes of an injury is joint-and-several liability with re-allocation of uncollectible shares among the responsible parties, and it strongly criticizes proportionate several liability. Moreover, despite the misleading arguments of the tort reformers, which have resulted in many legislative inroads on the joint-and-several liability doctrine, the doctrine has nowhere been completely eliminated, and it continues to be the primary allocation rule in a majority of the states, especially for environmental, hazardous material, and product-liability claims.

Mineral Facts and Fictions,

Richard W. Wright — Tue, 09 Jan 2007 11:35:46 PST

Causation in Tort Law

Richard W. Wright — Tue, 09 Jan 2007 11:34:59 PST

The Standards of Care in Negligence Law

Richard W. Wright — Tue, 09 Jan 2007 11:32:49 PST

Right, Justice, and Tort Law

Richard W. Wright — Tue, 09 Jan 2007 11:31:29 PST

The Principles of Justice

Richard W. Wright — Tue, 09 Jan 2007 11:30:39 PST

Causation in the Law

Richard W. Wright — Tue, 09 Jan 2007 11:29:30 PST

Substantive Corrective Justice

Richard W. Wright — Tue, 09 Jan 2007 11:28:33 PST

Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts, translated into Italian by Federico Stella

Richard W. Wright — Tue, 09 Jan 2007 11:23:05 PST

Acts and Omissions as Positive and Negative Causes

Richard W. Wright — Tue, 09 Jan 2007 11:21:06 PST