Torts
Gilles
Fall 2012
Negligence
Prima Facie Case
Ø P has suffered an injury
Ø A owed a duty to a class of person including P to take care not to cause an injury of the kind suffered by P
Ø A breached that duty of care
Ø A’s breach was the actual and proximate cause of P’s injury
Duty (Obligation to protect another against unreasonable risk of injury)
Ø Inquiry
o Whether the defendant owed a duty of care?
o What is the scope of the duty? (the standard by which the jury will determine whether the defendant breached its duty.)
Ø Default Duty
o The defendant owes a duty of reasonable care.
o Objective Test: Reasonable, ordinary, prudent person. Knowledge of an average community member. (Physical disabilities= what is reasonable for a person with those disabilities. Mental disabilities still held to reasonable prudent person standard.) **Vaughan v. Menlove; Martin v. Evans
Qualified Duties of Care
Ø Duty of Common Carriers
o Insurers of safety of passengers and cargo. Higher degree of care. **Jones v. Port Authority of Allegheny
Ø Duty of Children
o Massachusetts Rule
§ Level of conduct of a reasonable person of that age/experience/education/intelligence.
§ If child engaged in adult activity, then held to standard of care that a reasonable adult doing that activity would exercise. Generally no capacity below age 4. Appelhans v. McFall [Note: Parents not responsible for child’s negligent acts.]
o Tender Years Doctrine (Minority)
§ Children under seven are conclusively incapable of committing negligent acts.
· Incapable of recognizing and appreciating risk
· Child’s immaturity limits liability regardless of whether, as a litigant, he is the plaintiff or the defendant
Ø Duty of Professionals
o 1. Duty to use the skill, knowledge and care of a practitioner in a similar community
o 2. Held to a standard that takes account of their superior knowledge **Myers v. Heritage Acres, Inc, The T.J. HOOPER (professional custom)**
o Meyers v. Heritage Enters., Inc.: positions that require minimal training are not considered professional positions and require only an ordinary standard of negligence
Ø Duty of Medical Professionals
o National or locality (older) standard: Judged by the knowledge of those practicing in the same or a similar community **Johnson v. Riverdale Anesthesia Assoc.
o INFORMED CONSENT DOCTRINE
§ Doctors have a duty to disclose relevant information about benefits and risks inherent in proposed treatment, alternatives to that treatment, and the likely results if the patient remains untreated.
§ Majority- Patient POV of Relevant Information (Prudent Patient Standard)
· Warn of the dangers lurking in the proposed treatment, and
· To impart information that the patient has every right to expect, and
· Have a duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved.
· Scope of disclosure is determined by patient’s need. The need is the information required to make a decision.
· Material Risk = when a reasonable patient, in what the physician knows or should know to be the patient’s position, would be “likely to attach significance to the risk or cluster of risks” in deciding whether to forego the proposed therapy or to submit to it
· **Largey v. Rothman
§ Minority- Doctor POV of Relevant Information (Professional Standard of Care)
· A physician is required to make such disclosures of risks that a reasonable physician in the community, of like training, would customarily make in similar circumstances
Ø Duty regarding a Special Relationship Harmer
o If the defendant has some relationship with the person who does the harm, courts may use that to recognize an affirmative duty to use due care to avoid the harm.
o Victim needs to be readily identifiable.
o Due care varies with each case. If a patient poses serious danger, you have to act accordingly. Reasonable care given the circumstances.
Ø Duty of Emergencies
o Affirmative Duties to rescue and protect. Duty to act as a reasonable person would under sudden and unexpected circumstances. Unavailable if emergency is self created.
Ø Duty of Land Occupiers Determined by Reasonable Person Standard (Minority View)
o Duty to take precautions regarding unreasonably dangerous conditions. (Rowland v. Christian places no distinction between categories)
Ø Duty of Land Occupiers (Majority View)
o Trespasser
§ Enters land without permission
§ Undiscovered Trespasser
· No duty except to refrain from willfully and wantonly injuring that person
§ Discovered Trespasser
· Duty to exercise reasonable care 1) to warn the trespasser of, or make safe, artificial conditions that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover, and 2) in carrying on all activities that involve any risk of harm. Leffler v. Sharp
§ Child Trespasser
· Attractive Nuisance Doctrine: Imposes a special duty of care on a land occupier with respect to conditions on the land that involves a risk of harm to children unable to recognize the danger involved. **Jolley v. Sutton London Borough Council
· EX: unattended vehicles, machinery, explosives
o Licensee
§ Enters land with permission for their own purpose and is conferring no benefit on the land occupier or on any use to wh
s
Ø Res Ipsa Loquitur (the thing speaks for itself)
o If an act or failure to act is unknown, try Res Ipsa Loquitur (the mere fact the incident occurred supports an inference that is was a result of the defendant’s negligence. “The thing itself speaks.”
o Requirements:
§ 1.The event must be of a kind that ordinarily does not occur in the absence of someone’s negligence
§ 2. It must be caused by an agency or instrumentality within the exclusive control of the defendant.
§ 3. It must not have been due to any voluntary action or contribution on the part of the plaintiff. [Evidence must simply support that it is “more likely than not” that the injury was caused by the defendant’s negligence. Infer.] ** Byrne v. Boadle; Kambat v. St. Francis Hosp.
Ø Industry/Professional Custom
o Compliance with custom is relevant and probative of reasonable care. Some courts make custom controlling. Others make custom persuasive. (TJ Hooper) Some courts hold custom completely irrelevant.
§ Exception: Medical. For certain professions Court will look to respective standard practice rather than rely on standard reasonable care. Johnson v. Riverdale Anesthesia.
§ Exception: informed consent claim. Prudent patient standard accepted over professional standard of care. Disclose to patient all material risks & benefits of proposed treatment.
§ Largey v. Rothman
Ø Negligence Per Se
o Statute must be clear and unambiguous. It must specify exactly what conduct or duty is required, of whom it is required, and what constitutes a breach of the duty.
o The legislature must have been seeking to prevent the particular type of injury involved in the current tort action and to protect the particular class of plaintiff involved in the current tort action.
o Legally Acceptable Excuses:
§ Tender years, physical disability, or physical incapacitation
§ Defendant neither knows nor should know o the factual circumstances
§ Violation is due to the confusing way in which the statute’s requirements are explained to the public
§ Defendant exercised reasonable care to comply with the statute
o If prima facie showing of violating, then negligent as a matter of law.
