Date: Tue, 24 Feb 2004 08:43:31 -0500

From: Jason Neyers

Subject: Loss of a Chance et al

Dear Ken,

I am not certain that I agree with you that Walker and Hollis are clear examples of multiple sufficient causes that one could apply the NESS test to. In order to use NESS, at least how Wright explains it, one has to first decide if the causes were overlapping over pre-emptive (i.e. NESS does not say that a poisoner is a cause if the person was shot before the poison could take effect even though the poison would have killed -- it was pre-empted). In his newest work, Wright argues that: (1) the distinction between overlapping vs. pre-emptive causation also applies to multiple omissions; & that (2) cases like Walker and Hollis are situations of pre-emptive causation where the possible negligence of the defendants is pre-empted by the failure of the third-party to have acted (see Wright, "Once More Into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility" (2001) 54 VAND. L. REV. 1071).

Sincerely,

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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