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University of Mississippi School of Law
Percy, E. Farish

Fall 2012
1.      A civil wrong, not based on contract, for which the law provides remedy
2.      Controlled by state law
Sources of tort law
1.      Statutes – state law; occasional, but can be significant
a.       Mississippi Code Annotated
b.      More statutes because of tort reform
2.      Common Law (judicial opinions) – for the most part controls tort law
3.      Restatement – restate what the law is in the majority of jurisdictions; not binding – the court can choose to ignore
General types of torts
1.      Fault
a.       Intentional torts – intentional infliction of emotional distress (assault, battery, false imprisonment, trespass to real property or chattel)
b.      Negligence – plaintiff has to prove fault on the part of the defendant (car or train wreck, medical malpractice,
2.      Without Fault
a.       Strict liability – plaintiff doesn’t have to prove fault; imposes liability without fault (wild animals owners, abnormally dangerous activity, products liability)
1.      Damages – plaintiff must prove what damages were sustained:
a.       Nominal – small amounts, only for certain intentional torts
b.      Compensatory/Actual
                                                              i.      Economic – can put $ figure (lost wages, loss of enjoyment of life)
c.       Injunctive relief – prevent action in the future, not $ damages, these are rare because they are hard to prove
*The plaintiff has the burden of proving duty, breach, causation, and damage by a preponderance of the evidence*
“A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary facts to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm” (RS3§3)
Elements of a Cause of Action
In order to prove negligence, the plaintiff must prove the following elements by a preponderance of the evidence:
1.      A duty to use reasonable care.
a.       Obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks
b.      The reasonable prudent person standard measures reasonable care, which is the care that a reasonably prudent person would use under the same or similar circumstances.
2.      A breach, or a failure to conform to the required standard of reasonable care.
a.       The court must determine whether the P has sufficient evidence of breach.
                                                              i.      If so, the decision goes to jury.
                                                            ii.      If not, the court grants a summary judgment or JNOV for D
                                                          iii.      If there is unquestionable evidence, the court grants a JNOV for P
b.      The P must show that D failed to use reasonable care by failing to do something a reasonable person would have done or by doing something a reasonable person would not have done.
3.      Causation, or a reasonably close causal connection between the conduct and the resulting injury.
a.       Causation in fact
b.      Legal or “proximate” causation between conduct and the resulting injury
4.      Actual loss or damages resulting to the interests of another.
A Negligence Formula
1.      Duty
a.       A reasonable jury would have found leaving a golf club in one’s yard non-negligent. (Lubitz v. Wells)
b.      Extreme conditions aren’t foreseeable. Negligence is failure to do something a reasonably prudent person would have done in the same or similar circumstances. (Blyth v. Birmingham Waterworks Co.)
                                                              i.      Demurrer – motion fails to state a claim (reason claim was dismissed)
c.       When a duty is breached and that breach is the proximate cause of the injury, one is held liable. (PIpher v. Parsell)
                                                              i.      Proximate – legal cause, not actual cause; a foreseeable accident that could occur from the action
                                                            ii.      Judgment as a matter of law – given to a jury, judge hears case and decides it is clear, so the judge gives his ruling
2.      Risk
a.       Must be foreseeable, not necessarily probable or likely.
b.      Learned Hand’s Formula – duty is a function of 3 variables (United States v. Carroll Towing Co.)
                                                              i.      P – probability of loss; L – gravity of harm that will result if loss occurs; B –  burden of cost/prevention
1.      Expected damage is the PL compared to B
2.      Liability should be imposed if prevention is cheaper than loss
                                                            ii.      Criticisms:
1.      Doesn’t consider the possibility that a safety device could case additional risk or decrease utility
2.      It assumes total risk utility
                                                          iii.      Just because risk is foreseeable doesn’t mean liability; utility must outweigh risk.
c.       Risk utility – cost of the precaution in relation to the risk; degree to which utility is decreased by the fix; degree to which safety precaution creates new risk (if at all)
                                                              i.      The risk must be foreseeable and have an affordable precautionary measure in relation to the risk. If an affordable precaution exists, that does not outweigh the risk, and is not taken, a party may be held negligent. (Chicago, B. & Q.R. Co. v. Krayenbuhl)
                                                            ii.      If safety measures are too expensive in relation to the risk of injury, negligence does not exist. (Davison v. Snohomish County)
The Standard of Care
1.      The Reasonable Prudent Person
a.       The standard of care is not individualized, it is objective; it is whatever a reasonably prudent person would do in the same or similar circumstances. (Vaughan v. Menlove)
                                                              i.      The reasonable prudent person must be measured against an objective standard. This is important because:
1.      Everyone knows what is required under a consistent uniform standard.
2.      The jury doesn’t have to consider intellect or actual knowledge
3.      People are encouraged to conform to a higher standard
                                                            ii.      If it was measured against a subjective standard, people might take advantage because they could say they simply didn’t know better.
                                                          iii.      The standard of care requires that drivers know that driving with bad tires is dangerous. (Delair v. McAdoo-bald tires case)
1.      Judgment not withstanding the verdict (JNOV) – no reasonable verdict could have made this verdict.
b.      Industry Standard/Customary Practice: If the custom is reasonable, it is admissible, but not conclusive.
                                                              i.      Negligence can be established when proof of customary practice is paired with proof that the custom was ignored if the jury decides the industry standard is reasonable. (Trimarco v. Klein-glass shower case)
                                                            ii.      One cannot be found innocent for simply complying with industry practice and one cannot be found negligent for simply not complying – industry practice must be measured against reasonableness.
c.       Emergency Situations
                                                              i.      One is only required to conform to a standard reflecting what is reasonably expected in an emergency unless the defendant created the emergency.
                                                            ii.      The emergency situation is part of the circumstance, so the standard of care is still what a reasonably prudent person would do. (Cordas v. Peerless Transportation Co.-cab driver case)
1.      To qualify as an emergency the situation must be sudden, unforeseeable, and not caused by the defendant
2.      Some states don’

                                                                                                                                    ii.      Cons: medical education has been standardized; systems of national accreditation; experts would have to come from same community as accused dr./not likely to find anyone willing to testify against dr.
b.      Same/Similar Communities
                                                                                                                                      i.      Pros: solves expert problem
                                                                                                                                    ii.      Cons: adds problem of determining what is similar and keeps problems of the locality rule
c.       National Standard (modern movement)
                                                                                                                                      i.      Court adopts, at least for hospitals, dr.s and labs that are board certified and hold themselves to be nationally certified providers
                                                          iii.      Mississippi’s Standard:
1.      National standard of care, taking into account the same specialty or general field and the same general facilites, services, equipment, and options. (Hall v. Hillburn-MS standard)
2.      Requires the dr. to be “minimally competent,” not “reasonably prudent.”
                                                          iv.      A dr. has a duty to disclose all material risks or risks a reasonably prudent person would want to know. (Scott v. Bradford-hysterectomy with complications)
1.      There are 3 guidelines that jurisdiction choose from when deciding what exactly a dr. has a duty to disclose:
a.       What most doctors typically disclose:
                                                                                                                                      i.      Traditionally has been determined according to other (local) dr.s; court says no, local dr.s should not dictate what is required.
b.      All material risks
                                                                                                                                      i.      But what is material?
c.       What a reasonable patient wants to know
                                                                                                                                      i.      This is a public policy question. Be able to show what you would choose and why.
2.      The patient must prove Lack of Informed Consent Malpractice (Negligence, duty, breach, and causation must be proved)
a.       Subjective: If there had been proper disclosure, I would not have had surgery. This is the best way to protect P’s right to make decisions with their body. This is the only option that really allows P’s to decide for themselves.
b.      Objective: If there had been proper disclosure, a reasonable patient would not have had surgery. This is the majority view.
3.      Exceptions/Dr.’s defenses:
a.       P knew or should have known the risks (but if expert testimony is required to prove causation, how can a layperson (P) be able/expected to know?)
b.      Full disclosure would be detrimental to P’s best interest (if P is emotionally unstable, etc.) (But should P still get to decide?)