Torts Outline

Torts
Dillbary
Fall 2016
 
General If C
Cost. Conclusion: We want some accidents
 
Non-Delegable Duties:
Roesller v. Novak- VL, Roesller went to the ER and was under the care of Novak, who was a radiologist. They tried to claim that Dr. Lichtenstein was an independent contractor because he was employed by SMH Radiology, not the hospital. Changed the law to non-delegable duties.
When the Principal permitted and appearance of authority, and by doing so justified a third party’s reliance upon the appearance of authority as though it were actually conferred on the agent.
General Rule with regard to IC’s: Rule: Individual who retains an IC is not VL for the IC’s tort. Alternative solutions to get info-Strict VL- Is this your hospital? Yes. Is he injured? Yes. Ok pay me.
Holding- Where a P receives unusual injuries while unconscious during medical treatment, all those Ds who had any control over his body or the instrumentalities which might have caused the injuries may be called upon to meet inference of Neg by giving an explanation of their conduct.
Upate: St. Andrews v. Scalia
Absent proof that a patient entered a hospital’s emergency room seeking treatment from a particular physician rather than the hospital itself, the hospital cannot avoid VL for the physicians Neg on the basis he was an independent contractor. -The # of D’s is not a good reason to deny RIL. [Fireman’s Fund American Insurance- n4 P.107.] Leonard P98- Assume MD1, MD2, MD3 said it was MD3.
Negligence
Elements of Neg Claim
(owed to P by D)
One who created a FR generally owes a duty to all persons who are foreseeably endangered.
Duty to exercise due care
– Was D’s conduct reasonable?
I (In-fact: But for me not doing this, it would not have happened) II (proximate- Question of policy, should you be held liable for everything that happened in the world after your action?) (scope)
(to P). If someone is crouching behind your car you didn’t cause damages. Even if you had looked you wouldn’t have been able to prevent.
Doing what a RP, would not do, or failing to do what a RP would do that in that Circ.
It is the failure to exercise reasonable care. Reasonable care is the care which persons of ordinary prudence would use in order to avoid injury to themselves or others under similar Circs.
 
RP Standard: Adults, Children, Physically impaired & mentally ill? Objective Standard. What did the injurer do? What would RP do? .Mental Illness- You compare the mentally ill to the very healthy person, they get no breaks.
Duty
One who creates a FR generally owes a duty to all persons who are foreseeably endangered. Duty is a legal obligation D owes P to act/refrain from acting. Duty is about creating/increasing risk to foreseeable Ps! Duty is about risk creation!
That an actor realizes/should realize that an action is necessary to another’s aid or protection does not impose a duty
 
Rule: No Duty, Exceptions: Why we should find duty
Exceptions: Contract, volunteer, relationship, increased risk, policy reasons
Cases: Harper, Farwell, Randi, Tarasoff, Strauss
 
The Duty Requirement: General Rule: Whenever a person is placed in a position with regard to another, that everyone of ordinary sense who thought would at once recognize that if he did not use ordinary care and skill in his own conduct, he would cause danger of injury to the person or property of another, a duty arises to use ordinary care to avoid such danger.
Zokhrabov v. Park, Dec. 2011: Guy struck by the flying body of a pedestrian who was struck by a train as he was crossing tracks. Guy sues pedestrian. A person crossing the tracks owes a duty to bystanders to avoid being hit, causing dangerous body parts to fly about. You create a FR when you cross tracks at the w