Torts 1 Outline PDF

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Outline for Torts. Includes Negligence, and Products Liability...

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INTRODUCTION An Overview of Modern Tort Liability; Introduction to Negligence I.

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TORT LAW I. Civil wrongs recognized by law as grounds for a lawsuit & remedy & constitutes legal injury II. only damages awarded are monetary (no actions) III. breach of contract is not a tort IV. Tort Law v. Criminal Law 1. Some torts are also considered crimes because the wrongdoer can be prosecuted criminally and held liable to the plaintiff for a civil wrong  Example- punch in the nose 2. Criminal vindicated public interest while tort law vindicated individual interests and private harms V. Systems of Thought in Tort Law 1. Corrective justice- hold ∆ liable for harms they caused  Puts the accounts between parties right 2. Social policy- “good-for-all-of-us” view 3. Risk distribution 4. Deterrence 5. Process Values  the values we attach to the process of deciding disputes  practicality; what’s easiest? GOALS OF TORT LAW I. Peaceful means for adjusting the rights of the parties II. Deter wrongful conduct III. encourage socially responsible behavior IV. restore injured parties to their original condition ($) TYPES OF TORTS I. INTENTIONAL TORTS: actions made for intentionally inflicted injury 1. INTENT RULE:  1. Acted with the purpose of producing the consequence/result  2. acted with substantial certainty to the result (Garratt v. Dailey)  The ACT is intentional not the HARM (case with boy kicking other boy at school)  The intent of the ACT is enough to be held liable (Vosburg) II. NEGLIGENCE: actions based on the failure to exercise care. 1. Reasonably Prudent Person  Jury decides what amount of care a reasonable person would give given the circumstances 2. Elements of Negligence:  DUTY  the duty to use reasonable care that a reasonably prudent person would use in similar circumstances  BREACH of reasonable standard of care  CAUSATION  Connection between the breach and the resulting injury  DAMAGE  The injury to interests of another person iii. STRICT LIABILITY: Imposes liability regardless of fault when the damage is caused by an ABNORMALLY dangerous activity  Example: driving while texting→ not a strict liability claim

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STANDARDS OF CARE Negligence Standards of Care – The Reasonable Prudent Person Standard I.

REASONABLY PRUDENT PERSON (R.P.P.): exercises caution that an ordinary person would use under the same circumstances i. Cannot consider what each individual would do under similar circumstances because it’s not plausible (Vaughn) ii. FORSEEABIITY: what is foreseeable is reasonable; what is not foreseeable is unreasonable iii. HOW TO PROVE THE STANDARD OF CARE 1. Expert Testimony → when it’s an expert/prof. standard of care 2. Lay witness testimony/factual witness testimony → for RPP std.  No expert testimony required to prove RPPS when the facts are reasonably known to the ordinary person (Delair) 3. Customs  What is custom in the industry is reasonable  evidence of what should have been done but are not conclusive proof → for the jury to decide (Trimarco) iv. OTHER STANDARDS OF CARE: when RPPS is not applicable 1. Emergency Standard of Care (3)  How the reasonably prudent person would exercise caution in an event unforeseen, sudden, and unexpected. (Cordas)  Exception: if the emergency is created by the negligence of the actor 2. Child Standard of Care (5)  How the reasonably prudent child of the same age, maturity, training, experience, and intelligence would exercise caution under similar circumstances ( Robinson)  exception: The child standard of care is not applied/ the RPP standard IS applied when the child is participating in an inherently dangerous activity 3. Physical Disability Standard of Care  How the reasonably prudent person with ____________physical disability would exercise care in similar circumstances ( Roberts) 4. Mental Disability Standard of Care (2)  How the reasonably prudent person with __________ mental illness/ disability would exercise care in similar circumstances given that the tortfeasor:  1. Did not have prior knowledge of their mental illness AND  2. The tortfeasor’s mental illness is factually relevant to the injury ( Breunig)  Exception: If the tortfeasor had prior knowledge of their mental illness AND if their mental illness is not factually relevant to the injury →they are held to the RPP standard  This deters people from getting medical help for their mental illnesses because managing their illnesses can make them responsible for damages Acts as strict liability for the knowing mentally ill tortfeasors  Reason for the harshness in comparison to physical disability standard  of care is because it’s harder, and costlier to prove

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Negligence Standards of Care – The Professional I.

THE PROFESSIONAL STANDARD OF CARE (GENERAL) i. How the reasonably prudent professional would exercise care in similar circumstances 1. This is an industry directed standard of care in that only members of the specific profession will set the standard  Professional: “one who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care” (Heath) ii. LAWYER STANDARD OF CARE (3) 1. She possesses the requisite degree of learning, skill, and ability necessary to the practice of her profession and which other similarly situated ordinarily possess; AND 2. She will exert her best judgement in the prosecution of the litigant entrusted to her; AND 3. She will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of her knowledge to her client’s cause ( Hodges) iii. DOCTOR/MEDICAL PROFESSIONAL STANDARD OF CARE 1. One licensed to practice medicine is presumed to possess the degree of skill and learning which is possessed by the average member of the medical profession in good standing in the community in which he practices, and to apply that skill and learning with ordinary and reasonable care to cases which come to him for treatment.  Exception: If he does not possess the requisite skill and learning, or if he does not apply it, then he is guilty of malpractice. (Boyce→ x-ray Dr.) 2. National Medical Standard of Care: health care professionals who are trained according to national standards and hold themselves out to the public as such. 3. Local Medical Standard of Care: standard of conduct expected of other members of the medical profession in the same locality or the same community.  Exception: if nationally certified then will be held to the national medical standard of care

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Informed Consent I.

INFORMED CONSENT: permission granted in the knowledge of the possible consequences, typically that which is given by a patient to a doctor for treatment with full knowledge of the possible risks and benefits i. Genre of negligence ii. Elements of informed consent: 1. (duty/breach) failed to inform of a material risk 2. (Causation) if informed, then would not have consented 3. (damages) adverse consequence manifests iii. Subjective patient standard of care: the patient has a higher understanding because it is happening to the patient specifically 1. Strength: (above) 2. Weakness: more individualized std. of care which is not plausible and lower amount of authenticity because speaking in hindsight (“what I would have done”) iv. Reasonable (objective) patient standard of care: what the reasonable an ordinary patient would be concerned with in regards to giving consent 1. Weakness: Every patient has different concerns 2. Strength: more broad/general = plausible std. to hold people to v. Reasonable physician standard of care: Dr. knows best 1. Weakness:  hard to prove (other drs. as expert witnesses)  drs. Have medical limitations  paternalistic b/c not inclusive of cultural and demographic differences

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Negligence Per Se – Applicability of Statute I.

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NEGLIGENCE PER SE: negligence as a matter of law due to a violation of the law that results in injury that the specific law was enacted to prevent. i. The reasonable standard of care is proved by the statute/ordinance/regulation that is violated 1. Duty→→→→(law determines) 2. Breach→→→ (law determines) 3. Causation 4. damages ii. Not a cause of action but a method to prove a standard of care iii. In order to admit a statute/regulation/ordinance Negligence per se rule: 1. Class→ the class of people that was harmed that the law was enacted to protect; AND 2. Harm→ that the law was enacted to prevent; AND 3. Whether the statute is otherwise appropriate→→→ this is where the ∆ will make strongest arg.  The judge determines the admissibility of a statute/ordinance/ regulation = decides the standard of care and then instructs the jury decides the causation & damages part of the negligence  If fail to get statute admitted then Π can still try in civil court under regular negligence iv. Strict liability with public safety laws EFFECTS OF NEGLIGENCE PER SE i.

Effect of the statute: effect of the statute once it is entered as jury instructions to the jury 1. Mere evidence rule → jump ball to the jury box  Example of mere evidence jury instructions: “violation of this statute/ordinance/regulation is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that (∆ claimed to have been negligent) violated this statute/ ordinance/ regulation, you may consider that fact, together with the other facts and circumstances, in deciding whether such person was negligent.” 2. Unexcused violation is conclusive proof in a breach in the std. of care = negligence (majority rule)  Example of a conclusory proof jury instructions: “violation of this statute/ordinance/regulation is negligence…” “ if you find from the evidence that a person has violated any of these laws, then that person is negligent…” 3. Rebuttable presumption→ requirement for the ∆ to produce evidence of an excuse for violating the statute  if the ∆ can’t produce an excuse for violating the statute then→ conclusive proof  if ∆ does produce an excuse for violating the statute then → mere evidence  example of rebuttable presumption jury instructions: “… you must decide whether the violation was excused…”  Include: Must offer an excuse of why they violated the statute.

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Proof of Negligence-Circumstantial Evidence I.

if negligence cannot be proved without 1. Expert testimony 2. Lay testimony 3. Custom 4. Statute/ordinances/ regulations (negligence per se) then negligence cannot be proved without circumstantial evidence. (all the banana peel cases) a. circumstantial evidence rule→Π must prove that ∆ had a duty and that it was breached by proving that the ∆: i. Had actual/ constructive notice of the injurious condition 1. Π must prove that the dangerous condition existed for a least a sufficient period to supplement a finding that ∆ had constructive notice and time to correct the dangerous condition (banana peel cases when the banana was fresh or could’ve just been dropped) ii. Condition posed an unreasonable/unforeseeable risk of harm 1. Sometimes notice need not be proved if the danger was easily foreseeable (Jasko v. Woolworth → pizza served on wax paper on slick floor with customers standing) iii. Did not exercise reasonable care to reduce/eliminate the risk 1. If ∆ took precautions (and can prove such) then no proof of negligence (H.E. Butt v. Resendez → grape display had non-slip mats, and railing around the display) iv. Failure to use such care cause injuries

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Proof of Negligence – Res Ipsa Loquitur I.

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Res Ipsa Loquitur → “the thing speaks for itself”; principle that the occurrence of the accident implies negligence (common sense) (WILL NOT BE ON THE EXAM) a. the event could not have happened without some sort of negligence (Byrne v. Boadle→ bag of flour fell on his head when he was walking down the street) b. this doctrine allows Π to get over an evidentiary obstacle c. Π is desperate with a weak case/ R.I.L. is the weakest case of negligence d. Feels more like strict liability v. negligence e. ∆ wants to file directed verdict because the Π has produced no evidence f. at this point in civil procedure, both parties have presented their cases and the Judge must decide if she will instruct the jury on R.I.L. or not. g. R.I.L Test: i. Must have been an accident AND ii. Happened thru instrumentality of the ∆ AND iii. Doesn’t ordinarily happen BUT FOR negligence 1. If the Π can prove this then it goes to the jury 2. If the defendant cannot prove this, then the case is dismissed Civil Procedure with Circumstantial Evidence & R.I.L.

^mo. 4 directed verdict Complaint→answer→discovery***→ Π’s case***→ ∆’s case→ jury instructions→ jury verdict ^mo. 4 summary judgement

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CAUSATION IN FACT Causation In Fact I.

Causation→ in general a. The Π has the burden to prove causation by a preponderance of evidence (more likely than not) b. 2 types of causation i. Factual ii. Legal (proximate) c. Where the cause cannot be proven, speculation is not sufficient to defeat a motion of summary judgement d. Must depend on the testimony of experts where the issue is beyond the experience of the layman (typical jury member) (Kramer Service→ cut on the head and cancer could not be proven by medical experts or common knowledge) e. Sine qua non: a thing that is absolutely necessary f. A negligence claim cannot be maintained if the negligence is not a cause in fact of the harm g. BUT-FOR Causation: injury would not have occurred without/but-for the ∆’s negligence i. Is the type of causation to always start with ii. Example: Reynolds→ fell down unlit stairway; ∆ argued she would’ve fell regardless because she’s fat but ∆’s negligence of not lighting the stairs greatly multiplied the possibility of her accident. h. A substantial factor: negligence of the ∆ greatly multiplies the chances of accident i. Allows for other contributing factors leading to injury ii. Move to this std. of causation when the ∆ prevents evidence that allows for other contributing factors leading to injury i. Loss of chance: in a wrongful death action, proof that the ∆’s conduct increased the risk by decreasing the chances of survival of a Π is sufficient as to the issue of proximate cause UNLESS the ∆ had a less than 50% chance of survival i. Breach→failure to diagnose (Herkovits) ii. Damages→ death iii. Causation→ Π’s argument = the decedent would not have died of cancer BUT FOR ∆’s negligence/ failure to diagnose 1. ∆ argued that the decedent was going to die anyway 2. Ct. found that the ∆ was more likely than not going to die anyway iv. Jurisdictional splits for loss of chance doctrine (4): 1. Soften causation (let it pass that Π cannot prove causation)& plead for death→adjust damages for medical expenses 2. Plead for death and soften causation requirement→recover for death 3. Injury decreased the likelihood of survival and not the death so only→recover for the decreased likelihood of survival 4. Less than 50% survival then→ case dismissed because Π cannot prove causation

Causation approach

When used? Always start w/ this

BUT-FOR A SUBSTANTIAL FACTOR LOSS OF CHANCE

Allows for other contributing factors leading to injury Very specific Less than 50% chance to live

Definition Injury would not have happened BUTFOR ∆’s negligence Negligence of the ∆ greatly multiplies the chances of accident in a wrongful death action, proof that the ∆’s conduct increased the risk by decreasing the chances of

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Policy rationale

Exam triggers

Reynolds→ fell unlit stairway The doctor faces no consequential action for the negligence Tort sys no longer

Herskovits→ didn’t diagnose patient in a timely manner but he had less than a 50% chance to live

Only applies to death

survival of a Π is sufficient as to the issue of proximate cause UNLESS the ∆ had a less than 50% chance of survival

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protects you once you’re likely to die or have terminal illness

Class 12, Sept. 20: Causation In Fact Reading (14 pages): PWS 282-296 Class 13, Sept. 25: Causation In Fact: Concurrent Causes Reading (12 pages): PWS 299-311 PROXIMATE CAUSE Class 14, Sept. 27: Proximate or Legal Cause Reading (14 pages): PWS 313-327 Class 15, Oct. 2: Proximate or Legal Cause Reading (17 pages): PWS 327-344 Class 16, Oct. 4: Proximate or Legal Cause – Intervening Causes Reading (15 pages): PWS 344-359 Class 17, Oct. 9: Proximate or Legal Cause – Public Policy Reading (16 pages): PWS 359-375 Class 18, Oct. 11: Review and Application Reading (5 pages): PWS 379-384 In Class: Issue Spotting Client Representation for Causation

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JOINT TORTFEASORS Class 19, Oct. 16: Joint Tortfeasors – Liability and Joinder of Defendants Reading (11 pages): PWS 385-396 In Class: Issue Spotting Client Representation for Joint Tortfeasors (group work) Class 20, Oct. 18: Joint Tortfeasors – Contribution and Indemnity Reading (13 pages): PWS 409-422 SPOTLIGHT ON EXAM READINESS Class 21 and 22, Oct. 23 and 25: NO CLASS MEETINGS THIS WEEK Due by Tuesday at 5:00 p.m.: (1) Review Exercise 9 of 12: Standard of Care Multiple Choice Questions; (2) Review Exercise 10 of 12: Causation Multiple Choice Questions – timed 20 minutes (on Blackboard) (complete independently before class). Send your numeric scores so I can provide the class with an average. You will only be recorded on a binary Complete or Incomplete. The answer key will be posted on Blackboard. Due by Thursday at 5:00 p.m.: Review Exercise 11 of 12: Practice Essay Question Optional Reading: Glannon Torts Exam Excerpt (on Blackboard) Class 23, Oct. 30: Review and Application In Class: Discuss practice problems DAMAGES Class 24, Nov. 1: Damages Reading (20 pages): PWS 541-561 Class 25, Nov. 6: Damages Reading (17 pages): PWS 561-578 Class 26, Nov. 8: Damages – Punitive Damages Reading (13 pages): PWS 578-591 In Class: Review Exercise 12 of 12: Issue Spotting Damages in Client Representation Class 27, Nov. 13: Exam Review Class 28, Nov. 15: Exam Review

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