Professor S. Raeker-Jordan
Spring 2012
TORTS II
NEGLIGENCE: The failure to act as a reasonable, careful, and prudent person would under the same or similar circumstances. You were supposed to take a certain level of care; you didn’t, so you breached your duty. If you didn’t cause damage, you’re not liable to anyone for your negligence.
Determining if you were negligent (NEED Damage)…
I. DUTY
II. BREACH: “You didn’t take the precaution that a reasonable person would take”
…Determining if you are liable for your negligence.
III. CAUSATION: spin what was foreseeable to benefit your client
IV. DAMAGES
***Causation and Duty are very similar/closely related***
You have a grab bag of tools for arguing:
· Regular Negligence
· Professional Negligence (if the situation involves a professional)
· Negligence per se (when a statute applies to the situation)
*You can argue more than one, just in case one fails (i.e. Negligence per se –if it’s decided that the purpose of the statute doesn’t apply, then argue the reasonable person standard)*
-Theories developing the negligence doctrine:
1.) Encourage employers to practice less risky behavior, higher level of care. **Think: Why is there a connection between the development of Negligence doctrine and the Industrial Revolution?**
2.) A lot of injury = liability of employer = stunts growth/progress of the Industrial Revolution, capitalism, etc. Must show fault/direct injury on the part of the employer – that the employer didn’t take proper precaution.
I. DUTY and II. BREACH
***There is a relationship between how big the risk is and the precaution/level of care required of us – the bigger the risk, the more care you have to use***
1. RISK:
-“obviously and intrinsically” dangerous [i.e. NOT just leaving a golf club in the yard…(Lubitz v. Wells)]
-not necessarily probable, just a sufficient amount of possibility
-Determining what risk is:
1. Foreseeable harm to the Plaintiff in the zone of danger/range of apprehension: ***SEE CAUSATION NOTES ON FORESEEABLE PLAINTIFF’S BECAUSE THE ELEMENTS OF NEGLIGENCE COME FULL CIRCLE***
1. Plaintiff argues a large zone of danger
2. Defendant argues a very small zone of danger
3. Ability to predict that something will happen if I don’t take some precaution; the more severe the harm/consequence, the higher the risk (i.e. the driving around a curve v. walking)
4. Accident: no one is responsible if all precautions were taken
5. If all precautions were not taken, then negligence
6. Sort of a defense: no risk to be foreseen, but if there was any risk to be foreseen, it would have to be in the range of apprehension.
7. Can’t say, “I didn’t know it was dangerous.” (i.e. – driving on bad tires because the hazard is too great)
2. Likelihood (and Amount of Harm both help you recognize foreseeability and what the risk is)
3. Amount of Harm:
1. Plaintiff argues a broad type of harm
2. Defendant argues a very narrow type of harm
***Burden of Precaution: In light of the above risk, what precautions would a reasonable person take?***Consider: cost, technical feasibility, and the negative effect on the utility***
2. GENERAL STANDARD OF CARE: Reasonable person and the Hand Formula are the same, one just has a formula
a. REASONABLE PERSON
OR
b. THE HAND FORMULA: determines what a reasonable person should do under the circumstances
a. REASONABLE PERSON
1. Recognizing risk
2. Taking precautions
STEP 1: Calculate Risk
1. Size of Risk
a. If it’s a BIG risk and a tiny precaution to avoid it, you should’ve taken the precaution, when the risk outweighs the slight expense or inconvenience.
2. Foreseeability:
a. Chicago, B & Q Railroad Co. – turntable 7 feet from pathway where children walk. Risk/Amount of Harm = it’s a big piece of heavy equipment so, injury to others, slicing child’s foot off… Precaution = locking it.
b. after it happens once, it’s foreseeable and a duty is created (i.e. Blyth v. Birmingham Waterworks Co. – first frost like this; if it happened every 10 years, higher risk and increased duty)
(i.e. Pipher v. Parsell – foreseeability and duty were created after she grabbed the steering wheel the first time.)
***It doesn’t matter if it’s more likely than not, it has to just be likely, or some probability***
STEP 2: Calculate Level of Care/precaution required
1. Courts consider the BURDEN OF PRECAUTIONS: Precaution must be a smaller burden than the risk
a. Tec
· The specialist must be held to a standard of care greater than that required of the general practitioner (§32)
a. Standard of conduct/care: Professional should not be judged on his own particular experience, but should be held to the MINIMUM standard generally applicable to all members of that profession; Doctors and Lawyers are not responsible for “mere error of judgment”
i. Possession of Knowledge or Skill of an ordinary member of the profession in good standing in the community
ii. Exercise of Best Judgment/knowledge/learning ßapply these skills
iii. With the Use of due care
***Causation is key in malpractice***
(i.e. – But for the attorney’s failure to file within the statute of limitations, the case would have been successful.)
EXPERT TESTIMONY
+
weight of CUSTOM EVIDENCE
(Customary of the profession in a similar community under similar circumstances [some – is controlling, not persuasive)
+
SIMILAR COMMUNITY (more accepted; some jurisdictions compare to national std. rather than similar community
INFORMED CONSENT – under Medical Malpractice
depends on jurisdiction whether you use Reasonable Dr. std. or Reasonable patient std.
a. Duty
i. to disclose the Nature, Consequences, Risks AND Alternatives of the procedure
1. (Majority rule) use Reasonable Doctor standard
a. Customary Disclosures; Medical Custom; What is customarily told to the patient
b. Need expert testimony
2. (minority rule) use Reasonable Patient Standard –
a. What the reasonable patient would want to know
b. disclose “material” risk: likely to affect the patient’s decision
c. Policy: Autonomy
d. Vasectomy example: P(small likelihood of pregnancy – 2%)L(large amount of harm – pregnancy, a kid) = B (so a reasonable patient may want to know this)
