Torts Outline

Fall 2014 – Professor Noah – Torts Outline

Respondeat Superior Doctrine- Where employer is held liable for tortuous acts committed by employees during scope of employment. Liability imputed where 1) the act committed is the kind he is employed to perform 2) occurs substantially w/in time and place of employment 3) it was done at least in part for the benefit of the employer.

Apparent Agency—An independent contractor may be considered an “employee” for VL purposes where 3 elements are proven:

1. Principle (hospital) by its conduct

2. Caused him (patient) to reasonably believe that the punitive agent (doctor or nurse) was an employee or agent of the principal and

3. That he or she (patient) justifiably relied on the appearance of agency (employer/employee relationship)

Exceptions:

a. Contractor engaged in inherently dangerous activity (blasting)

b. Duty is non-delegable b/c of public policy (duty to keep premises safe)

Negligent Selection

– Not actually VL, but direct liability—employer may be liable for her own negligence in selecting servant/contractor

Parents

– Generally, not liable for torts of their children, unless the tort is intentional or parent knew or should have knew child would act negligently

Duty(to exercise ordinary care)+Breach(negligence)+Causation+Damages=Liability

Standard of Care

Negligence- doing something a reasonably prudent person wouldn’t do or failing to do something a reasonably prudent person would do under similar circumstances to those shown by evidence

Ordinary or Reasonable Care- that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under similar circumstances

The Hand Formula- Elements: B= burden (cost of precaution), P=probability of injury, L= Injury (magnitude of loss) B

Reasonable Person Standard

The RPS is an objective standard, in which, a person’s conduct is measured against the reasonable ordinary, prudent person

(person of average physical ability, average mental capacity, with same knowledge as the average member of the community)

Standard of Conduct

Professionals- required to possess/exercise knowledge/skill of a member of their profession (Doctor has to disclose enough info. For patient to make informed conset to treatment)

Children- required to conform to a std. of care of a child of like age, education, intelligence and experience

Exception: Child engaging in adult activity (driving) must conform to adult std. i.e. Dellwo v Pearson- held 12 y/o to adult std for driving a boat

Common Carriers and InnKeepers- required to exercise heightened degree of care toward their passengers/guest- ordinary for others

Automobile Driver to Guest- only duty is to refrain from wanton or willful misconduct

Emergency Situation- a person must act as a “reasonable” person would in the same emergency

Role of Judge and Jury

Summary Judgment- granted by judge if there’s no genuine dispute as to material fact and movant is entitled to judgment as matter of law

Judgment as matter of law—granted by judge when there’s no legally sufficient evidentiary basis for reasonable jury to hold for nonmovant

Jury- decides “what a reasonable person would do under the circumstances” (fact finders- std. set by jury is flexible and changes w/ time)

Judge- decides issue of law when facts are clear enough for prima facie case- more rigid standard- gatekeeper role

Custom and Tradition

Standard of care is set by industry- the appropriate way of doing things within the industry (usually)

Failure to live up to industry: not conclusive evidence of non-negligence- some customs may be obsolete, lax, dangerous, or unreasonable

Customary practices- not subcategorized for smaller members of the industry- there is a minimum level or “reasonable” company std.

Two uses – Inculpatory (offensive) some evidence of forseeability, feasibility and affordability

– Exculpatory (defensive) some evidence of lack of above

Statutes

Standard of care is legislated by elected officials

Compliance with statute doesn’t alleviate responsibility where a “reasonable person” would have done more to avoid damages

Some Exceptions: where compliance is dangerous (walking on other side of road to avoid heavy traffic), impossible (car breaks down in middle of road and unable to move it), emergency (speeding to take someone to hospital), causation (irrelevant where breach didn’t cause accident), and age (Not Exception customs or Ignorance)

Note: “Negligence per se” exists when a violation of a relevant safety statute occurs (one designed to prevent the accident)

– Where Judge/Jury has limited ability to understand “tradeoffs” for a particular area- they may rely on regulatory agency of statutes that hold optimal safety standards (i.e. they submit to the experts—in certain areas b/c they don’t know what is best

Proof of Negligence

The P has the burden of proving D’s conduct fell below the standard of care. Requires (1) P show proof of what happened (either real or circumstantial evidence) and (2) show, from facts, that D acted unreasonably

– Constructive Notice- a fiction that a person got notice even though actual notice was not given to them

– Some states don’t require constructive notice where “business practices” create reasonable foreseeable risk of harm to invitees (self-service)

o P not required to prove notice if the proprieter could reasonably anticipate that a hazardous condition would regularly arise

o P is thus freed from burden of discovering and proving a 3rd persons actions

Res Ipsa Loquitor- shifts burden to D to prove non-negligence or no control

o Gives weight to indirect proof of negligence- where facts are such that strongly indicate P’s injuries resulted from D’s neg.

o Requirements: 1) P must show accident would not ordinarily occur without someone’s negligence

2) D must have exclusive control over agent or instrumentality of harm

3) P must not have contributed to the accident

o Consequences:

§ Permissible Inference- Jury decides if “preponderence” of evidence falls “for” or “against” the D

· Burden of production shifts to D- but D doesn’t have to present any evidence for defense

§ Rebuttable Presumption- If D can’t provide evidence of due care, P may get “judgment as a matter of law” without regard to what a particular jury may have decided- b/c D didn’t meet his burden of production

· Burden of production shifts to D- must present evidence of due care to support relevant excuses or face losing judgment

Note: Court will allow you to focus on a specific agent of damage while claiming res ipsa. Be sure to involve all potential parties (med mal)

Request for Res Ipsa Loquitor:

A. Denied- D would be entitled to directed verdict. To get Res Ipsa- P must meet its 3 requirements

B. Granted (Permissible inference)- judge could submit to jury, even if D chooses not to present evidence, b/c verdict for either party supportable

C. Granted (Rebuttable presumption)- P may be entitled to directed verdict unless D responds to shifted burden production. If P argues “neg. per se”, D would have to present evidence rebutting- else lose judgment. If D makes no effort to respond, P may get directed verdict- w/o regard to what jury would decide

Medical Malpractice

Requires specialized knowledge and skill of D be taken into account

– Expert Testimony essential in proving standard of care applicable to D, unless lack of care is so obvious its in layman’s common knowledge

Standard of care

– P must affirmatively prove D departed from recognized standard of medical care exercised by other physicians (show w/ expert testimony)

– Specialist are held to general standard of care required of all physicians in the specialty (this goes to show custom)

– Two schools of thought – doctors will be protected if there are two accepted schools of thought on an issue

– Hospitals may be negligent for failing to select or retain competent physicians to serve on staff

– “National” standard of care for physicians used (Sheeley v. Memorial Hospital)

– Blatant malpractice – ex. Leaving sponge in patient

Res Ipsa: can be used when P cannot tell who is responsible for injury from treatment (multi- D)

Informed Consent – Even in the absence of malpractice, a physician can still be liable for treatments causing injury if there was no informed consent from the patient. The doctor has a duty to inform the patient of all medically reasonable alternatives and their risks, even for non-invasive procedures and even for non-treatment

o Earlier consent may be withdrawn while there is still time to adopt an alternative course of action

Two standards:

o Reasonable Patient Standard: Provide patient with information a reasonable patient in the situation would wish to know, which includes special concerns (Most courts use this)

o Reasonable Physician Standard: only malpractice when the known standards dictated the physician should have informed the patient.

Introduction

– Duty is 1st element in a “cause of action” for negligence; Negligence often conceived of as a “breach of duty”

– Current trend- recognize a general duty of care

Duty to Others

– A duty may exist if:

o A special relationship (common carriers/innkeepers, possessors of land, custody)

o Voluntary rescue- when aiding a victim- must leave them in NO worse condition than before assistance behind

o A catalyst- where your negligence places another in peril or causes a dangerous situation

o Gratuitous promise to assist or inform (must be relied upon)

– No duty exists where:

o Intergenerational claims- generally not recognized b/c D would get no repose (peace of mind) and may create conflict of interest for doctor (treating pt vs. minimizing possible tort liability to future generations)

§ Exception: A court may extend a duty if the victim is clearly foreseeable to doctor

o Bystander claims- freedom of choice (liber