Torts Readings 10:11 PDF

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Torts Readings...

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Torts Readings 10/11 Kramer Service, Inc. v. Wilkins -Facts:  Π cut his head on glass in hotel (clear hotel’s negligence was cause of harm, notice)  Later skin cancer developed at point of injury -History:  Π sued for both injuries and won at trial (∆ appeals)  Court affirmed liability -Issue:  Was the hotel’s negligence the actual cause (proximate cause) of the skin cancer? -Holding:  Π must prove an element of negligence cause of action that ∆ negligence was actual cause of the harm done to the π -Logic: 

Herskovits v. Group Health Cooperative of Puget Sound -Facts:  ∆ negligently fails to diagnose π’s cancer on first visit to hospital and proximately causes 14% reduction in survival chance (“loss of chance” case)  Π had less than 50% chance of survival at ALL times -History:  TC grants s.j. for ∆  WA SC reverses (reinstating π’s claim) -Issue:  Can patient with less than 50% survival chance bring cause of action against ∆ when they are negligent and cause survival chance to drop? (YES) -Logic:  In typical torts case, “but for” test is used (here ∆’s act or omission failed in duty to protect against harm from another source)  Fact finder MUST consider not only what did occur but what might have occurred too  Once π has demonstrated ∆’s acts increased risk of harm, evid. Furnishes basis for jury to make determination whether such increased risk was a substantial factor in harm  NOT required that π must have had 51% chance of survival before negligence  Reduction from 39 to 25% is sufficient evidence to allow proximate cause issue for jury  Damages should be awarded to injured party based only on damages caused directly by premature death, such as lost earnings and additional medical expenses...