A. Elements Necessary for a Cause of Action

TORTS I

Fall 1996

I.   NEGLIGENCE

A.   Elements Necessary for a Cause of Action

1.   Duty - to use reasonable care. This requires actor to conform to certain standards of conduct for the protection of others against unreasonable risk

2.   Breach of duty - a failure to conform to the required standards.

3.   Causation - a reasonably close causal connection between the conduct and the injury. Two types of causation:

·  Causation in fact

·  Proximate cause

4.   Damages - an actual loss or damage to the interest of another

5.   Succinct definition of negligence - conduct which falls below the standard of care established by law for the protection of others against the unreasonable risk of harm

B.   Standard of care

1.   Reasonably prudent person:

·  All states recognize the “reasonably prudent person” as the standard to determine if there was a duty of care

·  There is a duty to act (or refrain from acting) if there is an existence of some likelihood of injury great enough that a RPP would take precautions

·  A custom can be used to establish a standard of care. This is particularly true when talking of industry custom

·  However, jury must decide

1.   reasonableness of custom

2.   whether D had a duty to abide by custom

·  MS has abolished “sudden emergency doctrine” b/c it added nothing to jury instructions

·  In MS, D in an emergency is expected to act as a RPP and jury will take into account circumstances on their own

SPECIAL CIRCUMSTANCES:

1.   People w/ disabilities(blind, deaf.etc.): person w/ a disability should be held to the standard of care of a RPP with that disability.

2.   Standard of care of Children:

·  In ordinary situations:

a.   MS uses “rule of 7’s”:

n  < 7 = incapable of neg.

n  7-14 = presumed to be incapable of neg., but may be proved capable

n  14> = presumed capable of neg. but may be proved incapable

·  Child in engaged in dangerous activity

n  If a child is engaged in a dangerous adult activity, the child should be held to the standard of care of a RPP adult.

n  Examples: operating a motor vehicle, shooting guns, etc.

3.   People w/ mental illness:

·  Cts usually make no special allowances for people w/ mental illness who are D’s in tort cases

·  They are held to the standard of care of a RPP

·  Policy basis for holding a permanently insane person liable for a tort:

1.   Where one of two innocent persons suffers a loss, it should be borne by the one who caused it

2.   To induce estate of insane person to restrain him

3.   Fear that people would abuse insanity defense

4.   Mental retardation:

·  Ct is more inclined to give retarded person a little more leeway as to duty of care if he is the P.

·  If retarded person is the D, he will probably be held to the standard of care of RPP.

2.   Professionals

·  General rule: Professionals (doctors, lawyers, pilots, etc.) are expected to adhere to the standard of care of a RPP employed in that profession

·  Most actions for tort against a professional will require expert testimony

·  The expert witnesses (for both the P and the D) will:

1.   testify as to what the standard of care is for that profession

2.   testify as to whether or not D met this standard of care

·  Attorneys:

n  if an attorney acts in (1) good faith and (2) with belief that his acts and advice are well founded in the law, he is not held liable for mere error

·  Doctors:

n  MS recognizes a NATIONAL STANDARD OF CARE

n  This allows P (or possibly D) to bring in expert witnesses from anywhere in country to testify as to the standard of care

n  this overturned “locality rule”

n  Hall v Hilver: MS recognizes a national standard of care for knowledge, skill and care of doctors. BUT they also recognize that there is a difference in resources in different localities

n  a doctor in a small town could not be expected to have access to all the latest test and treatments that are available to a doctor working in a major medical center

·  Informed consent

n  What should doctors disclose to their patients?

n  MS recognizes the “reasonable patient rule”

n  MS reasonable patient rule: says that doctor MUST disclose enough to allow a patient to make a decision as to whether or not to consent to tx.

n  at a minimum, doctors in MS must disclose:

1.   diagnosis

2.   nature and purpose of tx.

3.   material risks of tx.

4.   probability of success of tx.

5.   alternatives w/ material risks

6.   risk of no tx.

n  material risk: risk is material if it would likely effect patients decision

n  Doctor has privilege NOT to disclose if:

1.   no need to disclose - should be obvious to patient or patient already knows

2.   full disclosure would be detrimental to P’s care

3.   emergency situations: P is in no condition to determine for himself tx. options or to give consent

n  If a patient sues claiming he would not have consented to tx. if he had known risks, after doctor has exercised one of his privileges above, the patient is held to the following standard:

·  Would a reasonable patient have foregone tx. if risks had been disclosed?

n  if patient has signed a consent form, there is a presumption that patient was informed and consented

·  Common carriers: Common carriers (buses, planes, etc.) are expected to observe the highest standard of care. This is a standard of care greater than RPP.

C.   Rules of law

·  Several ways the standard of care of the RPP can be established:

1.   legislative enactment or agency regulation that deals w/ issue directly

2.   adoption of leg. enactment or an agency reg. that does not deal w/ issue directly

3.   judicial decision (highest ct)

4.   is determined by TC or jury if NO enactment, regulation, or decision exists

D.   Violation of statute

1.   Applicability of statute

·  Violation of a statute is negligence per se.

·  Negligence per se: negligence as a matter of law, so that breach of duty is NOT a jury question.

·  If person violates a statute and another person is injured b/c of it, the legislature has determined that he is guilty of negligence

·  Judge in case must determine if statute is applicable to facts of case

·  Judge does this by looking at 2 things to determine the legislative intent:

1.   was statute designed by legislature to protect the class of people (P) who were injured?

2.   was statute designed by legislature to prevent the type of behavior that caused injury?

2.   Effect of statute

·  MS treats a violation of a statute as negligence per se.

·  However, a person violating statute may have an adequate excuse for violating a statute and may have been found to have acted as a RPP.

·  Example: D has to swerve on to wrong side of road to avoid hitting child who ran into road. D is in violation of statute by driving on wrong side of road, but has adequate excuse

·  There are certain types of laws that are interpreted to make a D liable w/out regard to any excuse:

1.   child labor laws

2.   pure food acts that prohibit the selling of adulterated food

3.   Federal Safety Appliance Act

4.   Acts setting safety standards for factory workers

5.   OSHA violations

6.   “safe place” statutes (requiring lights and other safety devices in public areas)

7.   statutes prohibiting firearms to minors

·  MS, process of dealing w/ negligence per se in a lawsuit:

1.   Interject relevant statute into complaint or answer

2.   Person invoking statute must prove that it was in effect

3.   Judge decides if statute was applicable to case AFTER evidence. Looks at intent of law:

·  Who intended to protect?

·  What actions to prevent?

4.   If facts are NOT in dispute, ct instructs jury that there was a violation, and that violation constitutes negligence

5.   If facts ARE in dispute, jury decides if Dviolated the statute, based upon the facts of the case. If jury decides D violated the statute, D is negligent.

6.   If there is evidence of an ADEQUATE EXCUSE, ct can let jury decide if person in violation of statute was nevertheless acting reasonably

7.   Causation must be shown. Violation of statute must be shown to have been cause of injury

E.   Proof of negligence

1.   Circumstantial evidence

·  D does NOT have a duty unless P proves that D knew or should have known of a dangerous situation

·  Constructive notice: notice presumed by law to have been acquired by a D. D, through due diligence, SHOULD HAVE known.

·  Notice requirement for a storekeeper: storekeeper is allowed a reasonable time to correct a dangerous situation unless situation was a direct result of an employee’s action

·  P must show that a D had notice of a dangerous situation (i.e. something slick on the floor), UNLESS manner of business is such that a dangerous situation is continuous or easily foreseeable.

2. Res ipsa loquitir

·  Res ipsa - “the act (thing) speaks for itself”

·  Explanation: in some circumstances the fact that an accident occurred raises an inference of negligence so as to establish a prima facie case of neg.

·  Res Ipsa is the ultimate in circumstantial evidence

·  Prima facie: “on the face” rebuttable presumption

·  P has NO evidence as to what D did

·  MS cts criteria for res ipsa:

1.   D had exclusive control of instrumentality that caused harm

2.   accident is the type that does NOT occur w/out negligence

3.   P did not cause accident

4.   P must NOT have information as to proof of D’s neg.

·  Importance of res ipsa is to allow P to withstand a motion for directed verdict and allow the case to get to the jury

·  If P can show above 4 criteria, should be able to w/stand motion for directed verdict

·  D then has to show that he was NOT negligent; that he was using due care and accident happened anyway

II.   CAUSATION IN FACT

A.   Sine qua non

·  “Without which not” - Something on which something else necessarily depends

·  Causation in fact is determined by the “but for” test

·  D’s action is the factual cause of injury IF the injury would not have occurred “but for” (w/out) D’s negligence

·  D’s action is NOT the cause IF the injury would have occurred without D’s negligence

B.   Proof of causation

·  Two general tests to determine causation in fact:

1.   But for

2.   Substantial factor test - when proof shows that even though more than 1 event produced injury to P, if the neg. of D was a substantial factor in causing injury, then D may be held liable.

·  D can raise all possibilities that he wants to as to cause of P’s injury, but if trier of fact determines that P’s injury would not have occurred but for neg. of D, the D is liable

·  P must show that action of D was more probable than not the cause of injury. P cannot merely show that it is possible that D caused injury.

·  P must deal in probabilities; D can offer possibilities to rebut P’s evidence

·  MS does NOT allow recovery for “lost chance of survival” IF D did not have at least a 51% of survival. P must show that it was more probable than not that victim would have survived if not for neg. of D.

C.   Concurrent causes

·  Joint tortfeasors: parties whose acts combine to produce a single injury

·  Joint tortfeasors are said to be joint and severally liable

·  Joint and several liability:

may be apportioned:

1.   among the two or more parties responsible for injury

2.   to only one of the parties, at the discretion of P

·  If there are concurrent causes of an injury, the “but for” test will fail

·  If there are concurrent causes, use the “substantial factor” test.

D.   Problems in determining which party caused harm

·  In tort actions, P bears burden of proving who(which D) caused him injury

·  In some cases with concurrent causes, it will impossible to prove who caused injury

·  Summers v Tice: D’s were hunting and shot at same time. One of the shots hit P, injuring him. There was no way to prove who caused injury

·  BOTH D’s held liable for P’s injury.

·  D’s have the opportunity to prove that they did not cause injury; if they cannot, both are liable

·  Reason for above: When an innocent P is injured, he should not have to bear burden of injury

·  Enterprise liability: industry wide liability for defective products