Torts Final Outline
Negligence – is a duty and a breach of that duty. The elements of a cause of action for negligence are: 1) a duty to use reasonable care, requiring the actor to conform to a standard of conduct for protection of others against unreasonable risks; 2) a breach of that duty. Defendant is not liable if there is no duty to begin with; 3) causation between the conduct and resulting injury; 4) loss or damage resulting to the interests of another.
Courts can set policy decisions. In some cases, as a matter of law there is not negligence as a public policy decision even though all elements may be present. Lubitz v. Wells – golf club left in backyard was not negligence as a matter of law because there were a lot of golf courses nearby and it was to be expected. Leaving a shotgun in the backyard would be negligence.
Extraordinary Circumstances – defendant does not have to consider extraordinary circumstances you should not reasonably forsee as happening. Blyth v. Birmingham – consider what reasonable pipe installer would expect to happen…freak frost was not to be expected. Building a house in San Francisco an engineer would take earthquakes into consideration, but in Philly it would be a freak circumstance precluding liability.
Likelihood of something happening is not enough - the higher the risk of harm, the less serious the injury needs to be for liability…if the risk is very low, the injury would have to be severe. Look at the interests at stake – bodily harm v. flooded basement. Gulf Refining v. Williams – drum of gas exploding. The risk was foreseeable and the injury so severe,it should have been forseen. Liability.
The risk must be reduced to a reasonable one. That is the duty of the defendant – we can concede that injuries and loss of life is okay as long as the defendant reduces the risks to reasonable risks. Make changes in your conduct or else you may pay. Chicago v. Krayenbuhl – train turntable case. If train would have used a locking device on the turntable they may not have been negligent, but they were liable because they did not take proper precautions to avoid serious injury.
Probability and Magnitude of injury should be less than the burden of changing defendant’s conduct to avoid the injury – PxM < Burden. Davison v. Snohomish – county not negligent as matter of law b/c the burden of new guard rail would be too great. Bartlett case – overturns Davison in this jurisdiction and says it is not a matter of law but a question of fact whether a guard rail should be built to withstand the crush of a car. U.S. v. Carroll Towing – bargee off ship, ship sinks; look at likelihood, magnitude of injury, and cost of adequate precautions.
THE STANDARD OF CARE
ORPP – ordinary reasonable prudent person. Objective standard of care relative to where the person is located. Sometimes circumstances may change. Look at what the reasonable person would do under the circumstances. ORPP is the floor, the minimum standard. If defendant has superior knowledge he must use it reasonably under circumstances. When ORPP is acting or failing to act he is always considering PxM v. B. If ORPP passed a purple traffic light, he would not be liable at the first light, but he must make a reasonable inquiry into new situations that he does not understand. Vaughan v. Menlove – being stupid is not a defense, you must act as ORPP would under circumstances, in those days fermented hay was known to catch fire. Defendant is not held to the standard of the best of their ability but to that of ORPP under the circumstances. Delair v. McAdoo – ORPP would know tires are a mess.
If a caveman is in NY crossing the street against traffic, and gets hit…the driver of the car would not be liable because ORPP in NY would know how to cross the street.
Customs and usage – customs can only be used as evidentiary support to prove you acted reasonably under the circumstances. Just because something is custom and everyone does it, that doesn’t mean it is a reasonable custom or that it was reasonable under the circumstances. To use a custom as a defense you must prove three things:
1)prove that ORPP under the circumstances would know about the custom
2)the custom is reasonable
3)in the particular case, is the custom reasonable? Issue is not compliance v. noncompliance, but acting reasonably under the circumstances. This will be the ultimate issue.
Customs evidence is probative, you must still prove that you acted reasonably under the circumstances. Companies will use industry standards as custom in order to show compliances to defeat negligence suits. However, this is only evidence and juries are not bound by it. For example, in a mall elevator case the zoning requirements might not be sufficient if the jury finds a photoelectric eye should be used. Trimarco v. Klein – broken glass in shower door, customs of landlords. Landlord was liable for not installing shatter proof glass in tenant’s shower.
Emergency ORPP – standards are the same. You are judged by how ORPP would act under that particular emergency. Cordas v. Peerless – most emergencies do not require perfect judgment. In this case, cab driver was not negligent to jump out of cab after being held at gunpoint. Less needs to be proven in order to meet the standard under an emergency but you must still act as ORPP. If you swerve to not hit a child, and hit a car instead, you are not negligent because it was an emergency situation. Creating an emergency can be negligent, or sometimes you can be negligent if you do not anticipate an emergency.
Handicapped ORPP – hold handicapped person to the standard of ORPP with that handicap. Take people as you find them. Roberts v. Louisiana – blind man not liable for injuring man’s hip because he was acting reasonably under his circumstances.. Sometimes physical challenges like height may be taken into consideration, like if you can’t see over your blown up hood to avoid hitting a car. Seizures or heart attacks are treated either as emergencies or physical challenges.
Standard of care for children (objective test) – three ways to deal with kids:
1)majority of courts hold children to the standard of care of the reasonable child of the same age, maturity, intelligence, and experience
2)some courts follow the rule of seven – age zero to seven no liability; age seven to fourteen incapable, but it could be shown; age fourteen to seventeen presumed capable but could be proven not liable.
3)Hold child to the adult standard of care when they engage in inherently dangerous activities. Some courts hold differently when children are held to adult standards and say when children engage in activities that normally only adults engage in. Robinson v. Lindsay – child driving snowmobile is liable because driving is inherently dangerous activity.
4)Some scholars suggest that when the child is a defendant you should always hold him to the adult standard because he risks harm to others; but when he is the plaintiff and exposes himself to harm, hold him to the child standard.
Standard of Care of insane people – General rule is that insanity is not a defense. Black letter law is that you hold insane people to standard of ORPP under the circumstances. In a sudden onset of insanity, you must prove two things:
1)it was a sudden onset or delusion
2)it affected your ability to understand your duty or standard of care. Breunig v. American Family – woman seeing God suddenly properly left to the jury because if it can be proven it was a sudden onset that impairs your ability to understand your duty, liability might be cut off.
Retarded people – not many cases where retard people are sued for negligence. Lack of assets, could sue their caretakers.
Lynch v. Rosenthal – said consider circumstances of retarded person.
Court overrules in different case saying this would be a slippery slope to consider everyone’s mental capacity and not good for policy reasons.
Seizures – if you have sudden one, maybe not liable but if you know you have them you will be help to the standard of ORPP under the circumstances.
Gould case – dealt with Alzheimer’s. Court ruled it was not a physical impairment but a mental one.
THE STANDARD OF CARE FOR PROFESSIONALS
We hold professionals to the standard of a member of that profession under the circumstances in good standing. Restricted to what courts actually consider a profession. Heath v. Swift – pilot could be held to the standard of the ORPP pilot.Three ways a professional can be negligent:
1)you must have necessary skill and training (even if falsely pretending to be a member of that profession)
2)must exercise your skills with due care (use that skill)
3)must use discerning judgment to a reasonable degree of a professional in good standing. Hodges v. Carter – lawyer serving process to insurance co. was not negligent because he acted as ORPP lawyer under the circumstances.
Legal malpractice – plaintiff must show that if the attorney wouldn’t have deviated they would have won the case and show what damages would have been. Must be a credible damage figure. Some courts say that even if judgment would have been for a certain amount, the damages would have been uncollectible or only some of it would have been collectible. Legal malpractice in two circumstances: 1) blowing the statute of limitations; 2) cannot reject settlement offers, because client has that right. Often times an expert witness will be needed to prove what the reasonable lawyer would have done.
Medical Malpractice – five factors:
1)contract not necessary – it is common law
2)you could get a contract but a breach of the contract is not necessarily malpractice
3)you need an expert to prove what a member in good standing would do unless the MALPRACTICE IS SO OBVIOUS EVEN A LAY PERSON WOULD RECOGNIZE. Boyce v. Brown – expert witness did not prove what doctor should have done so no malpractice was proven.
4)a bad result is not enough
5)you can still show that a member in good standing would do more, following customs may not be enough if not reasonable under the circumstances.
Locality rule – traditional standards were hold Doctor to ORPP doctor in that locality under the circumstances. Led to conspiracy of silence and substandard care in rural areas. Morrison v. McNamara – says hold doctors and medical professional to a national standard of care. However, most courts say hold doctors to standard of care of a same or similar locality. Not a national standard in all courts as of yet.
Customs evidence is given more weight in medical malpractice cases. Three cases where court rejects customs of medical professions (more and more courts are starting to let triers of fact question the reasonableness of customs):
1)Helling v. Carey – 23 year old with glaucoma was not tested because standard was not to test until 40 – court held negligence as a matter of law. Which legislature overturned.
2)U.S. v. Quantas – plaintiff received tainted blood, and was allowed to show that customs were unreasable.
3)Incolligno v. Ewing – custom of prescribing drugs over phone is unreasonable
Two Schools of thought doctrine – minority and majority approach. So long as defendant shows evidence that his procedure was something a member of good standing in that school of thought would follow, court should not question. Defendant must be judged by the ORPP doctor that follows that same school of thought. Judge them according to their area of profession such as acupuncture, psychiatrist, etc.
Cause of action for lack of informed consent Scott v. Bradford – hysterectomy making her leak urine. (very controversial):
1)doctor must tell you:
a) all material risks
b) all alternatives
c) all risks to alternatives
d) risks and dangers of doing nothing
2) must be damages
3) you have to show you would have acted differently if you had been properly advised.
Exceptions to lack of informed consent cases:
a) if it is an emergency
b) if it is not in the best interests of the patient
c) when the patient should know
- informed consent very controversial. The doctor may feel he did nothing wrong in the procedure. In some states like Georgia informed consent is only used in fraud cases. In Pennsylvania, informed consent can be tried as part of a battery case. This is significant because if done this way, the need for a patient to testify that they would have done something different and the ORPP requirement are both gone. The Cassels case held this. This is extremely controversial.
A doctor has a duty to disclose to personal interests to his patients, such as possible economic or research plans connected to patient’s treatment. Moore v. Regent – hairy cell leukemia being used for research. Falls under informed consent – would patient consent to the procedure if they knew an underlying motive existed? Doctor should have told patient he planned to do the research because that may have affected plaintiff’s decision.
1980s – doctors were complaining about too many malpractice suits. At the same time, insurance companies were saying premiums were too low. Patients were claiming too much incompetence. Doctors got insurers to add a clause to say that they could no longer settle without the doctor’s approval. Doctors also began practicing defensive medicine by ordering millions of tests to avoid malpractice. Insurance companies raised rates tremendously, and the legislatures responded. 4 different pieces of legislation were passed:
1)legislators acknowledges crises. They enacted statutes and put a cap on damages first. The cap was on pain and suffering, and all damages. In some jurisdictions the all damages part was struck down.
2)Went after attorneys and cut the % of fee each time the amount gets higher.
3)For medical malpractice rewards, insurance companies did not have to put up the full check, they could give the money per term. That way, if the person died, the estate could not collect, the insurance company was allowed to stop paying.
4)Legislatures created a board with medical experts, legal experts, and other professionals. The case would have to be tried before them. Kept these cases out of the court system. It was challenged in PA and went to the PA Supreme Court. The court said in view of the evidence that it took 7 years to reach the panel, it was justice delayed being justice denied. This system was struck down in PA.
Negligence as a matter of law
Judgment as a matter of law says that ORPP would always or ORPP would never. Very difficult to determine. When something is held as negligence as a matter of law, the judge can:
1)uphold it
2)overrule it – things may change
3)say we are not bound to follow it, it was only dictum.
Courts formulate rules to regulate standard of behavior, but they are sometimes too inflexible, which is why they can be either upheld or overruled. Pokora v.Wabash – the rule to stop look and listen was ridiculous, so it cannot be held as negligence as a matter of law.
Ways to determine standard of care:
1)matter of fact for the jury – most negligence cases follow here
2)rules of law (rare)
3)legislature/statutes determine standard of care
4)negligence per se – legislature does not say this is what the standard of care should be, but the court says that the statutes says what the standard of care should be. The judge determines the intent of the statute. Judicial inquiry looks at two things:
a)was plaintiff in the class of persons that the statute was enacted to protect?
b)Is this one of the risks that they had in mind when the statute was enacted? Osborne v. McMasters – poison bottle violated statute and it is negligence when statute imposes duty and the duty is breached.
- sometimes regulations can be used to determine negligence per se such as in Stachniewicz v. Mar cam with drunken Indians where a regulation that was designed to protect bar patrons was used to prove negligence per se.
- two different interpretations of a statute does not matter. You must look at the intent of legislation 1) legislative history; 2) events that led to the enactment of the legislation; 3) legislative history in other jurisdictions. It is up to the judges discretion. Ney v. Yellow Cab – public safety v. traffic regulation not important, must look at intent of the statute which was for public safety not to leave keys in car.
Perry v. S.N. & S.N. – statute criminalizing the failure to report child abuse if you are made aware of it. In this case, there is no common law duty to report. This case proves that using statutes as the standard of care is up to judicial discretion. It is up to the judge to decide whether or not the statute will be adopted as the standard of care. Factors the court looked at to reject this statute as the standard of care: 1)statutes merely restate what is already established and how to meet duties of care, but in this case there was no common law duty; 2)this would impose negligence on those who fail to act, and most negligence cases are based on acting wrongly; 3)this is an unclear definition; 4) court worried about negligence out of proportion for what they did or did not do.