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Torts II
University of Dayton School of Law
Gerla, Harry S.

            Elements of negligence
Negligent act or omission-silent element
Duty owed
Breach of duty-GERLA calls it “falling below standard of care”
cause in fact
Proximate cause
How can you tell if someone acted unreasonably?
-restatement second of torts
-allows the determination of reasonable behavior
-what risks does that create for other people and their property?
-what are the good things
-Any time question comes about reasonableness of actions = weighing good things of action and the bad things of the action
-Risk utility is key to determine breach of duty, falls below standard of care or acting unreasonably
-how much benefit does this bring? Costs in terms of money? (Spending money isn’t a good thing) are there other goods which are non-monetary? Yes, winding roads, aesthetic beauty.
-restatement approach in reasonable and reasonable=something is unreasonable if the risks (threat to safety and integrity ) it creates outweighs the utilities of the actors actions —RISK UTILITY
-Risk utility=bad things about what the peson or thing does, and the good things about what the person or thing does
-good vs bad
-Person acts unreasonabl when Risks outweigh the utility
-Not cost benefit analysis in determing breach of duty b/c cost benefit analysis must have all things must be translated into money–risk utility doesn’t have to be translated into money
            -risk utility–weighing it as a human being would–not into money
-TIME=The amount of time person has to make a risk utility analysis is considered in determining breach—thus the restatement phrase “under the same or similar circumstances”
                        -First element in negligence for GERLA=
-Negligent act or omission on part of Δ–Silent element
-What exactly Δ did what they were suppose to do, or what did the Δ not do that they were suppose to do
-without knowing negligence act or omission was, you coldn’t do a risk utility analysis of their behavior
            CAUSE IN FACT
                        -Cause in fact-did or what the person didn’t do, make a difference in the harm
-did it make a different-but for causation
-Proximate cause-policy limit-little to do with caustion–got to draw the line somewhere in bringing a person liable
            RES IPSA LOQUITAR      
                        -Res ipsa-2 requirements
-not type of action happens without negligence
-exclussive control (more likley than not Δ actions than Π)
-Res ipsa-Π can’t point to negligent act of part of Δ, therefore, no risk utility can be accomplished-thus res ipsa is incorporated
-if you can point to act on part of Δ, then res ipsa not needed
Expert testimony = expert testimony is required to determine whether negligence cn be inferred from happening of the accident
– Is court states they acted unreasonably-what evidence can be shown that they did act unreasonably?
-Must be obvious to a reasonable person–JURY is the person that must be shown to be reasonable.
-Is using a particular material like titanium in the common knowledge of the common juror
–NO, therefore, they must have an expert come in and show the jury this.
-custom plays different role in medical community than other communities under the negligence community
-to rebut custom, as a P they bear the burden of proof for standard of care, producing evidence, sufficient for a reasonable juror to define
-healthcare is different sort of animal. Medical malpractice is different–custom is in general dispositive, determinative, Custom is determinitive in a medical mal
-if you are following custom, you are generally safe from liability.
-Are there some customs which shouldn’t be followed?
-cutting off wrong legs, leaving things in the perosn, you don’t need an expert to testify about this. Generally from medical malpractice cases, custom is determinative.
-custom at one hospital, doing it one way, doens’t make a change since it was at one hospital—wouldn’t go to jury, hasn’t shown what is the customary position of hospitals and dr community
-if expert testitfies that he has been a dr at many hospitals and he claims that at all the hospitals they do it this way–this will likely go to the jury.
-Claim during delivery, dr. didn’t or did something that led to injury and malpractice by dr acting unreasonable. dr. presents evidence by what he did right thing, P shows why they did wrong thing.
            -what to look at
                                                            -what was nature of tesetimony
-what dr did in the type of hospital–whose custom controls
-do they look at customs in just the hospital where it took place, larger hospital?
-court looks at community or other like communities
-the original standard was practicioners and facitilites in the area was the custom
-problem is that if there is one physicain or facitiliey, then that now becomes the custom
-Courts have moved away from the same community and chose Modified locality rule
                                                                        -modified locality rule = –

-a dr doesn’t treat everything he suspects a patient might have
-need for expert testimony
-just b/c you prove dr acted negligently, you must also prove that it would have made a difference (causation still has to be proved) exception to the standard of care required to be shown by an expert
1) so obvious that even a lay person can tell
-leaving things in body, cutting off wrong body part, not taking sanitary conditions
-merely b/c outcome is bad, doesn’t mean person rendering treatment acted unreasonably
-reasonable medical treatments have bad outcomes.
-reasonable medical treatments have outcomes worse that what they are being treated for.
-bad outcome doesn’t automatically bring the fact that medical care was innapropriate
                                    EXPERT TESTIMONY
                                                -is there a different rule under res ipsa then other cases?
-exclusive control rule
-doesn’t mean exclusive control-reasonable for finder of fact to make inference –don’t know if there is a fire when we see smoke coming from building–inference
-res ipsa is an inference the jury must make
-can p in normal res ipsa case bring in expert testimony enough to convince finder of fact, to infer this is not type of accident that occurs without negligence?
-res ipsa used whenever P cannot point out what D did wrong, or didn’t do that was wrong (negligent act or omission)
-Expert testimony may be used to help the jury BRIDGE THE GAP between members own knowedge and the common knowledge of a physician.
-expert opinion does not negate the juries responsibility as being a finder of fact to draw the necessary conclusion for liability.
-the ultimate purpose of an expert is to enlarge the juries understanding on an issue it must decide
                                    RES IPSA—UNKNOWN ASSAILANT
YBARRA v. Spangard
-P couldn’t point to person who caused harm
-when it comes to suing for malpractice, P has problem
-who did it?
-Supreme Court states that each action can go forward against all of them, and D must present evidence that it wasn’t them