cnoob

Loss of Opportunity: Need definition and criteria for proof

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Thanks, DocPC. I came across that information during the websurfing that devil21 assumed I hadn't done on my own.

These didn't help much though because the first is centered on malpractice and the second in UK law. I don't want to rely on those examples, because they're so specific.

All I'm looking for is a general definition and textbook criteria for proving it. I guess that would come from an attorney or someone who's recently covered it in law school. Or maybe I'll just have to call an attorney and ask him or her to explain it.

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Well, I believe the context DOES matter. It could be proven or disproven in different ways for different types of cases.

The Doctrine of Lost Opportunity - also known as "Lost Chance" appears to refer mostly to Tort law:

The antithesis of proximate cause is the doctrine of lost opportunity. The lost opportunity doctrine allows a plaintiff to recover when the defendant’s negligence possibly, i.e., a probability of 50 percent or less, caused the plaintiff’s injury.

3 approaches to the lost opportunity doctrine:

1.Pure lost chance approach

2.The proportional approach

3.the substantial possibility approach

Each approach lowers the standard of causation with the effect that a plaintiff is allowed to recover without establishing cause in fact.

I also found this:

In this regard,

Weymers v Khera, 454 Mich 639, 649; 563 NW2d 647 (1997)

considered the “doctrine of lost opportunity,” that allows for

recovery when a defendant’s negligence “possibly” (i.e. with a

probability of fifty percent or less) caused the plaintiff’s

injury. The Court ultimately held that no cause of action exists

for the loss of an opportunity to avoid physical harm less than

death, id. at 649, in the process stating that it refused “to

discard causation” in negligence actions of the type there

presented, id. at 653.

If you search on 'doctrine of lost opporunity' you'll get more hits that are relevant.

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Well, I believe the context DOES matter. It could be proven or disproven in different ways for different types of cases.

*snip*

I found those examples also.

I think I finally hit on what I was looking for (to some degree) with this:

There is also another category of compensatory damages called general damages. These damages are in addition to the direct provable physical or economic financial loss, which the law presumes to follow naturally and necessarily from the tortious act of the defendant. The plaintiff is not held to the strict standards of proof because the law recognizes that certain types of damages are not capable of being proven and quantified. For public policy reasons, in an attempt to balance the equities on both sides, the law essentially presumes that certain consequences can reasonably be expected to flow from certain proven conduct.

An example of this is libel and slander where the plaintiff need not show proof of damages, because the law recognizes that damage reputation caused by defamation may not always lend itself to proof by objective evidence. This type of damages includes such things as loss of opportunity which may be known; damage to reputation; or damage to a person's business or career. These damages may not be capable of being accurately measured, and can be more substantial and real than those which can be proved and measured accurately by a dollar standard.

....

This conduct must in itself be the proximate cause, meaning the direct, natural and probable cause of the damage. In determining whether it is the natural consequence, the trier of fact must use logic and common sense; public policy as to rational limitations of liability from unforeseeable consequences frames the determination.

What I take from this is:

1. Loss of Opportunity is categorized as a "general damage".

2. Strict proof is not required for "general damages". You need only show that resulting "damage" or "injury" from the other parties act was foreseeable.

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