Fall 09 Outline-TORTS- a wrongful act or infringement of a right leading to legal liability The damage has been done; Someone

has to pay. Proof For torts, more likely than not (51%) Intent Establishes culpability; Substantial certainty good enough Transferred Trying to hit A, hitting B instead; Battery but just assault Motive Irrelevant Differs from intent Not required Incompetence Children/Mentally ill can commit torts Judgment Proof Court can order payment even if has no $ (kids) Types of torts- Oblique (not an injury to a person, real property or chattels- ex. fraud, nuisance) Lineal Torts- direct connection to physical injury of person or property - 2 types: INTENTIONAL and ACCIDENTS 1.) Intentional- req. an overt act, intent and causation see wypadki/ 2.) Accidents- negligence and strict liability 7 INTENTIONAL assault, - battery -false imprisonment -outrage (IIED)- trespass to land - trespass to chattels -conversion Liabilities for People (specific standards of care) Professionals: General: Custom of locals; Specialist: Custom of nation Kids: Like age, intelligence; Not under 4; Exception: Kids engaged in adult activity Bailor: Gratuitous: Must inform of known, dangerous defects; For Hire: Must inform of known, reasonably discovered defects Bailee: Sole benefit of bailor: Low standard; Mutual benefit: Ordinary care; Sole benefit of bailee: High standard Owners/Occupiers of land: See table; Infant Trespassers: Attractive nuisance doesnt have to lure; You know kids would like this and are possible around here (do cost/benefit analysis) ACCIDENTS- 1) Negligence: has to show was careless 2) Strict Liability: Liable careless or not Ultra-hazardous activities **NEGLIGENCE Elements:** 1.) DUTY: General owed to foreseeable s Specific: Duty to Rescue: If you created the peril (Rescuers can sue, danger invites rescue) Special relationships (Carrier-passenger, innkeeper-guest, school-student) very high degree of care Undertaking to Act & Reliance: Traditionally, once you start, cant leave them worse off; Now obligated to act reasonable once you start (Duty where others dont help b/c you are, you prevented others from helping, relied on aid you promised) Contract: Lifeguard/babysitter Specific but rare: Unborn/ Unconceived Kids (wrongful birth, wrongful life) Duty to Control: Usually no duty; Special relationship doesnt always trigger duty; Duty: Taking control of mental patients/criminals and they escape Duty to Protect: Usually no obligation except when: makes efforts to protect so cedes the ability, and undertakes to protect and relies (landlord, sometimes; business, reasonable efforts not guarantee; police, no duty) Learned Hand Calculus B < or > or = P x L Liability depends upon whether Burden (B) is less than Loss (L) multiplied by Probability (P). P and L measure cost of taking risky action. B measures the cost of reducing or avoiding the risk of harm. B is the cost (burden) of taking precautions, and P is the probability of loss (L). L is the gravity of loss. The product of P x L must be a greater amount than B to create a duty of due care for Boyd v. Racine Currency Exchange Robber shot customer when agent didnt comply Illinois says no duty to anticipate criminal acts unless its reasonably foreseen Complete compliance may not have saved Boyd South v. Amtrak 2nd Restatement of Torts adopted by ND Anyone who has reason to know they caused an accident (innocent or not) has a duty to provide mitigating care Conductor left injured man out in cold, so hes liable for the proximate harm caused by his inaction Foreseeability: US v. Carroll Towing Bargee left ship which broke away from its moorings, damaged other ships, and sank BPL analysis Custom matters Circumstances (time of war, few workers available) matter

Preponderance of the Evidence: Daubert v. Merrell Dow Pharmaceuticals Bendectin babies must be more likely than not to have birth defects Ct says they didnt prove it Special Relationships: Dobson v. Dobson - Mother injures unborn from her negligence in car accident. Court held that Mother was not liable because it infringes on the rights of the mother and negligence would be pursued by unborn kids. 2.) STANDARD OF CARE- the measure of duty owed the care that would be exercised by a reasonable person under similar circumstances; an objective standard; mental deficiency & inexperience are irrelevant; physical disabilities are taken into account (ex. blind person is held to standard of a reasonable blind person; ASK: Were you careful enough? (see specific standards under liabilities for people) NOTE: Owners and Occupiers of Land:
Duty Owed 1. unanticipated trespasser 2. reasonably anticipated trespasser 3. licensees 4. invitees Condition No duty Warn or make safe man-made death traps (known concealed, artificial, dangerous) Warn or make safe known traps natural or artificial Same as above + duty to inspect; Affirmat. duty to render assistance Activity Reasonable care

Vaughn v. Menlove Hayrack burnt down neighbors cottage Care of prudent man rule Dangerous behavior near neighbor makes you liable 3.) BREACH OF DUTY- General: Issue for jury Special: Res ipsa loquitor (Accident wouldnt occur w/out negligence) Res ipsa may occur if: (i) b/c of neg by someone in the s position; (ii) the instrumentality causing the injury must be within the exclusive control of and; (iii) the injury must not be due to any voluntary action or contribution by Res ipsa cases: Byrne v. Boadle Barrel fell from window SOME negligence for sure Ybarra Problem: using res ipsa to smoke out evidence from defendant: 2 factors must be met: 1. 1 or more s must actually have useful knowledge about cause of injury and; 2. If 1 is met, the must be willing to lie at deposition but tell truth at the trial Negligence per se: two prong test: 1.) CLASS OF PERSONS 2.) CLASS OF RISK (determination of unreasonableness) - Law meant to protect these particular people from this particular harm (ie. if falls in (1) and harm falls in (2) then has a cause of action for negligence per se Case Ex.) Wawanesa Mutual Ins. Co. v. Matlock- boys playing with cigarettes drop one in pile of logs and cause fire father held liable for willful misconduct of a minor statute in place to protect sale of tobacco to minors but says nothing about fire prevention in this case: Is fire the class of risk that legislature wanted to protect against? No. Respondeat Superior- Acts of employee are acts of employer Walter v. Wal-Mart Pharmacist was careful guy who made a mistake Only Wal-Mart sued then Someone still responsible for negligence Duty of Psychiatrist: Tarasoff Psychiatrist didnt warn girl mental patient was going to kill her- had a duty to use reasonable care in warning the victim of the danger 4.) ACTUAL CAUSATION- aka Cause in Fact - must show that it is more likely than not the s conduct was the cause of s injury; Causing sequence of events But for test (Lack of but for matters less than actually causing it) must establish by preponderance of the evidence that but for the s conduct, would not have been injured (for to be held liable) Merrel Dow Pharm. children sued for birth defect allegedly caused by birth control pill rule: causation can be proven even when we dont know how the damage occurred if there is sufficient compelling proof that the agent caused the damage somehow

 Joint causes & Burden Shifting Problems in Cause-in-fact: Summers v. Tice- burden shifting- hunters, shotguns- who shot ? -Rule- burden shifts to to prove they were not the one who caused s injury; Held: got damages from both s b/c neither could prove it wasnt them Multiple Necessary Causes (when each of the multiple careless acts is necessary to cause injury- ie. heaver & lobber) each is considered an actual cause of the injury (AN actual cause) Multiple Sufficient Causes (when each of the discrete careless acts committed by diff multiple actions, by itself, cause the injury that resulted- ie. chemical companies) neither meet the but for causation on their own, both can be held liable Substantial factor test: Any actors conduct alone could have done this; if 2 ppls or multiple actions were substantial factors in causing the injury, both or any actor whose conduct as a substantial factor in bringing about the injury can be held liable Beswick v. Carestat Have to show actual AND proximate; Sindell v. Abbott Laboratories Drug during pregnancy caused cancer No way to tell which company manufactured THE drug her mother took- Rule: each liable for the portion of the judgment represented by its share of the market unless they can prove their co. did not manufacture the product that caused the s injuries - s required to join together 5.) PROXIMATE CAUSATION- aka Scope of Liability - aka the scope of liability or legal causation - Foreseeability- whether should have foreseen their conduct causing injury to - The Harm-Within-The-Risk Test: right harm has to occur; used to sharpen the foreseeability test for prox. cause; recall: prox. cause=issue of fact (jury)& duty=law issue (judge) - What must be foreseeable? Is there liability despite foreseeability in cases where something unforeseen occurs? Ex.) 1. Unforeseeable s no proximate cause 2. Types of harm- case by case 3. Extent of harm- not subject to foreseeability limitations 4. Manner of harm- an unforeseeable manner does not preclude recovery unless extraordinary - Direct test: Are there any intervening forces that are nec. to join w/ s conduct to cause the injury? largely discarded Palsgraf v. Long Island RR Passengers package of fireworks went off causing scales to fall on another passenger Not foreseeable because nothing indicated the packages contents were dangerous 6.) DAMAGES- Compensatory: Hospital bills, lost wages; Personal Injury, Property damage; Not mere economic damages, reputation- Pecuniary Injury (physical injury) & NonPecuniary Injury (mental distress) Punitive: To punish ; Conduct must be wonton, willful, reckless, malicious; pre-requisite are compensatory damages Nominal: and court wants acknowledgment; not for negligence Duty to mitigate: Cant sit in pain then sue for it Collateral source rule: Award not reduced because has insurance or because a charity has helped them; Cases: McDougald v. Garber surgery=brain damage and a coma- Does a person need cognitive awareness of their loss of enjoyment in order to recover? No. State Farm v. Campbell award of punitive damages was reversed by SC- due process violation

ASSUMPTION OF RISK: implied and express unavailable in the following: common carriers, public necessities, charitable immunity, firefighters cannot sue b/c they assume risk Cases: Li v. Yellowcab- should a system of contributory neg. give way to a system of pure comparative neg. which assesses liability in direct proportion to fault? Yes. Murphy v. Steeplechase- the flopper case- assumption of risk? Yes. Volenti non fit injuria- you take part, you accept obvious dangers

Medical Malpractice and Health Care Torts

MEDICAL BATTERY- An intentional tort The elements of battery: Act Intent Causation (actual and proximate) Touching Harmful or offensive -- Damages are not necessary to make out a case for battery. Thus, the patient who is not injured, and is in fact better off because of the touching, still has a case. Note: A harmful touching for purposes of battery is not necessarily one that causes harm. Consent for emergency treatment is implied by law for public policy reasons PROFFESSIONAL NEGLIGENCE reg. malpractice case against physician. The elements of negligence: Duty Breach ** standard of care is key difference Actual causation Proximate causation Damages The standard of care is dictated by custom. Good results are not guaranteed. New physicians are judged by the same standard as experienced physicians. Can result from negligent diagnosis or treatment. Must cause damages. Many states have statutory reforms or limitations. Standard of Care: Custom (a.k.a. accepted practice) is dispositive Traditional rule: General practitioners standard: Minimal qual. G.P.s in the comm. (or similar). Specialists standard: Minimal qual. specialists in the nation. Problem with traditional rule: hard to find experts to testify against neighbor to establish comm.. standards. New Trend: national standard for G.Ps Damages are limited to cost of denied benet. Only applies to employer-provided insurance. Campbell v. Pitt County Memorial Hospital- Breech baby delivered regularly instead of by c-section, baby gets cerebral palsy. Issue is whether followed custom of profession. Rule: Dr held to local standard, acted against custom here- But-for causation; If the nurse had gone up the chain of command, this wouldnt have happened INFORMED CONSENT counts as negligence action (same elements) Typical facts for suit: a complication of treatment arises about which the patient was not told about ahead of time May also be applied to: lack of disclosure about treatment alternatives or lack of disclosure of risks of forgoing treatment - the standard of care for the breach element has two approaches: 1. Physician Rule- it is custom among physicians to disclose the risk? criticized for being paternal-should a dr. decide what you should and shouldnt know? 2. Patient Rule- is the undisclosed risk or alt. course of treatment material info? 2 Approaches for Materiality: 1. Objective, 2. Subjective - no liability for failure to disclose where justified: emergency or patient requests it (dont tell me the results doc, I dont want to know) - Therapeutic Privilege some states justifies non-disclosure where disc would have a detrimental effect on patients physical or mental well-being - Actual causation is a barrier in many suits. The patient must show that BUT FOR the lack of disclosure about the risk, the patient would have refused treatment

**DEFENSES TO NEGLIGENCE:** CONTRIBUTORY Neg.: conduct on part of which falls below the standard of conduct to which he should conform for his own protection & which is a legally contributable cause cooperating with the neg. of the in bringing about the s harm = complete bar to recovery rejected in favor of comparative neg. in most jurisdictions COMPARATIVE Neg.: (1) PURE comparative neg.- s award reduced by % of s fault and; (2) PARTIAL comparative neg.- s award is contingent on meeting certain threshold % of fault (award reduced by % of fault)- aka as Modified Comp Neg. and is more difficult for a jury JOINT AND SEVERAL LIABILITY: multiple s held joint and severally liable- ex.) =40%, 1=35%, 2= 25%. Does still recover? YES.