Torts Fall 2007, Professor David Fischer Intentional Interference with Person or Property A. INTENT Definition of Intent

Transcription

1 Torts Fall 2007, Professor David Fischer Intentional Interference with Person or Property A. INTENT Definition of Intent o to establish intent one must either act with the intent/purpose to bring about the consequence (must act intending the consequence) or with a substantial certainty that their action will result in the particular outcome establishing intent for the mentally disabled: the generally accepted view is that as long as it can be shown that a mentally disabled person was capable of forming intent they can be held responsible for their intentional torts (example: McGuire v. Almy; where insane woman threatened, struck and injured her home health aid) transferred intent (applies to battery and assault cases): when you act intending to inflict a harm on someone and you fail, in that you instead inflict harm on a third person, your intent to cause the harm on your target is transferred and it fulfills the intent requirement for the harm you did cause (example: Talmage v. Smith; man throws stick at a group of children on his property and hit a third boy not in the group in the eye; his intent to harm one of the boys in the group transferred to his act on the third boy) o the idea behind this principle is that even if someone misses their mark, they are just as culpable for consequences they intended o The intent can also transfer from one intentional tort to another: if you act intending to commit an assault but instead commit a battery, your intent to commit the assault transfers and becomes your intent to commit the battery o Exception to this rule: if the harmful act you performed was justifiable, as in cases of self defense, then you cannot prove intent. Therefore there is no intent to transfer should you harm an unintended third person B. BATTERY Definition of battery o Restatement 13: battery occurs when someone acts intending to cause a harmful or offensive contact, or the imminent apprehension of such a contact and the harm either directly or indirectly results How do you establish Battery? o Conduct o Intent Intent is established by either showing the intent/purpose to bring about a harmful contact or a substantial certainty on the part of the actor that his conduct will result in a harmful contact Transferred intent (see above in intent section) can be applied in battery cases to fulfill the intent requirement o Harmful or offensive contact Knowing when a contact is harmful: a harmful contact is one which results in bodily harm (any physical impairment, pain or illness) Establishing contact when it is not made directly with the victim s body: the contact requirement is extended to include objects that are considered to be intimately associated with the victim s body; some things are so intimately connected with one s body to be considered part of one s person; the idea is that an offensive contact is a violation of one s personal 1

2 dignity, so unauthorized contact with anything closely connected with one s person can violate this sense of dignity (be offensive) (example: Fischer v. Carrousel Motor Hotel, Inc.; plaintiff had a plate snatched from him and insulting comments thrown at him by a member of the wait staff and the court allowed him to recover for battery based on this idea). Knowing when a contact is offensive: there is a reasonable person standard; if a reasonable person would find the contact offensive (rude, insolent, or offensive) then it qualifies; 19 of the restatement says something is offensive if it offends the personal dignity of a reasonable person Reasonable person standard is an objective way to look at offensive contact; if you used a subjective test and relied on each person s individual perception of what constitutes offensive contact, there would be no way to know if one s actions would be deemed offensive before seeing the other party s reaction Crowded world idea: a certain amount of contact with other people is excepted and unavoidable; it is assumed that one gives their consent to all ordinary contact that is customary and reasonably necessary to the common intercourse of life C. ASSAULT Definition of Assault o Restatement 21: assault occurs when someone acts intending to cause a harmful or offensive contact, or the imminent apprehension of such a contact and as a result puts the other person in that imminent apprehension How do you establish assault? o Conduct o Intent The difference between an assault and battery lies in the imminent apprehension; whereas a contact must exist to constitute a battery, an assault occurs when the victim is put in imminent apprehension that the contact will occur Because of the similarities and differences it can be said that all battery includes assault but an assault does not include a battery Intent is established by either showing the intent/purpose to bring about apprehension of a imminent harmful or offensive contact or a substantial certainty on the part of the actor that his conduct will result in imminent apprehension Transferred intent (see above in intent section) can be applied in assault cases to fulfill the intent requirement o Imminent Apprehension that a harmful or offensive contact will occur For there to be apprehension, the victim must believe that the actor s conduct will result in imminent contact unless some intervening force were to prevent the contact Again there is a reasonable person standard, would the actor s conduct place a reasonable person in apprehension of an imminent contact? Mere words alone cannot establish the apprehension necessary for assault: the actor s conduct must be what places the victim in apprehension of imminent not future contact; the victim must believe that the actor is in the process of committing the contact, or can commit it very quickly thereafter; words can modify the physical warning but words alone generally alert the victim 2

3 to some possibility of a future, not imminent contact; words must come along with some action in order to lead to the apprehension Knowing when a contact is harmful: a harmful contact is one which results in bodily harm (any physical impairment, pain or illness) Knowing when a contact is offensive: there is a reasonable person standard; if a reasonable person would find the contact offensive (rude, insolent, or offensive) then it qualifies; 19 of the restatement says something is offensive if it offends the personal dignity of a reasonable person Reasonable person standard is an objective way to look at offensive contact; if you used a subjective test and relied on each person s individual perception of what constitutes offensive contact, there would be not way to know if one s actions would be deemed offensive before seeing the other party s reaction Difference between criminal assault and tort assault: for criminal assault no apprehension is needed; the actor need only make an attempt to batter the victim (example: you throw something at someone with the intent to hit them and you miss, but they do not see you throw the object, therefore they did not apprehend the harmful contact you intended; in tort law this would not be an assault, but it would be a criminal assault because your act was an attempted battery) Privileges A. CONSENT Definition of consent o Willingness in fact for conduct to occur In consent cases, the person is generally consenting to the contact and is assuming the risk of any potential side effects o Consent can be treated as an element of the tort in that the plaintiff can argue lack of consent in their complaint; lack of consent can be part of a prima facie case for battery o Consent can also be treated as an affirmative defense and can be raised and argued by the defendant if they claim that they had the plaintiff s consent How can you tell if someone has consented? o To show consent does not always require some spoken consent; words, gestures, or conduct can all demonstrate consent in a manner that will hold up in court (example: O Brien v. Cunnard; woman consented to vaccination on a cruise ship even though she did not explicitly state verbally that she consented; the court assumed her consent based on evidence of her behavior and mannerisms) o For minor children, the consent of a parent is necessary except in cases of medical emergencies Informed Consent o in cases of medical professionals obtaining consent from patients for procedures informed consent says that the doctor must notify the patient of the risks of the proposed procedure. If the doctor is aware of the risks, fails to notify the patient, gains consent, and then the risk becomes a reality, the doctor may be liable for damages. The doctor is responsible for informing the patient of definite risks to avoid liability; the liability in these cases is for battery If the doctor fails to inform of a possible side effect of the procedure then he may be liable for negligence, not battery o If neither party knows of the existence of a particular risk if this is the case and the patient has consented to the procedure, then the doctor cannot be liable for harm that result related to this risk; in consenting, the patient bears the risk of any bad results which neither they nor the doctor were aware of 3

4 Medical Caregivers and Consent o Medical caregivers are allowed to act in the absence of consent when: the patient is incapable of giving consent (intoxicated, mentally ill, incompetent, unconscious) there is a risk of serious bodily harm (danger to life and limb) if the doctor does not act (emergency doctrine) if beforehand the patient has informed the doctor that there is some procedure that they specifically refuse even in the case of emergency, then the doctor must abide by this in cases of religious objections the doctor will not be liable for following the patient s order not to act; if the doctor does act, they may be liable but the damages are likely to be small under the circumstances, a reasonable person would consent to treatment under the circumstances, the doctor has no reason to believe the patient would not consent o in cases of surgery, consent is generally viewed as consent for the surgeon to do whatever he feels is necessary during the course of the procedure o medical mistakes generally, mistakes are seen as no excuse (example: Gill v. Selling; doctor performed procedure on the wrong patient and was held liable for battery because he did not have the consent of the patient for the procedure he performed); however, if the mistake is induced by the plaintiff then the defendant is not liable Gaining consent by fraud o in cases where consent is gained by fraud, the fraud must relate to the nature of the touching in order to invalidate the victim s consent; you have to look at whether or not the touching would have been offensive to the reasonable person had the truth been known; additionally, would the truth have mattered to the reasonable person (would the reasonable person have consented knowing the truth?) (example: DeMay v. Roberts; the doctor failed to notify the patient that the man he brought with him when he delivered the plaintiff s child was his friend and not his medical assistant; the man held the woman s hand during labor and she was able to recover for battery) Consent by fraud brings up the following considerations: how much information should the defendant offer? What if the plaintiff asks no questions? Is the defendant expected to be forthcoming with information? With these issues where is the line between what is not enough and what is enough information to constitute valid consent? How much has to be known to make the consent valid? Invalidating consent when the defendant has violated a criminal statute o Example: person consents to engage in an illegal prize fight and dies in the fight. Can the person who threw the fatal blow argue consent as an affirmative defense? Several consideration can go into making that decision (a) the idea of denying compensation to someone who is an intentional wrongdoer and may have committed a crime himself and been injured as a result (b) the effect of deterring such a person, and others like him if he is denied recovery (c) the effect of liability in deterring the defendant and people like him (d) the idea that when there is equal guilt the position of the defendant is stronger In states where consent to an illegal act is considered valid, courts will still allow recovery to the plaintiff in cases where the statute was meant 4

5 to specifically protect the group that person is in (example: statutory rape, even if the girl consents, her consent in invalidated and consent cannot be used as a defense) B. SELF DEFENSE Definition of Self Defense o All individuals are privileged to use reasonable force to defend themselves from a threatened battery o Self defense is used as an affirmative defense and places the burden of proof on the defendant who must demonstrate the existence of the privilege The judge makes the determination as to whether or not a self defense instruction to the jury is warranted by the facts of a particular case Reasonable Belief o The privilege of self defense exists where the defendant reasonably believes that he must use force to protect himself from a battery o In self defense cases, a reasonable mistake can protect the defendant from liability if they used reasonable force (example: the defendant ejected a drunk man from a dance and was later told that the drunk man was outside collecting bricks to attack him with; the defendant went to the doorway looking for the drunk man, as he did so, he saw someone running up the dimly lit stairs toward him; thinking this was the drunk man, he knocked the person down the stairs; because he made a reasonable mistake he was not held liable for the injuries he inflicted on the plaintiff) Amount of Force o The privilege limits the use of force that this which is or reasonably appears to be necessary to protect oneself from a battery Things to consider in determining reasonable force are differences in age, size, and strength between the defendant and plaintiff o Inflicting death or grievous physical injury is only acceptable if you yourself are in danger of meeting one of these fates Same applies to use of a deadly weapon to defend oneself o The defendant has the burden of proving that their use of force was reasonable In some jurisdictions this is reversed if the defendant is a police officer; in these cases the plaintiff must demonstrate a prima facie case of battery where the force used was unreasonable Retreat o If a plaintiff can retreat without any additional danger to himself, should he do so rather than stay and use deadly force? The plaintiff should stay and use force if in staying he can use force that is not likely to cause serious injury Based on the common law rule that rather than cause death or serious injury to his assailant one should retreat to the wall This rule is generally not applied when the assault is occurring within ones own home; a higher value is placed on individual dignity and honor The plaintiff can stay and defend themselves even if they must kill their attacker If there is even the slightest reasonable doubt that the defendant may not be able to safely retreat, he can stay and use deadly force Provocation o Generally insults, verbal threats, or offensive language (provocation) do not justify battery No privilege of self defense exists where there is only verbal provocation 5

6 o However, if the verbal threat, insult, or offensive language comes along with some threatening act which warrants apprehension of some imminent bodily harm then the defendant may be privilege to defend himself with force Retaliation o The idea is defense of self against a threatened battery not retaliation o When one is no longer in threat of a battery the privilege of self defense no longer exists; at this point the victim can be liable for battery should he attack his original attacker Even if an individual started out as the aggressor in a given situation, they can act in self defense if once they have retreated, they are attacked by the person they initially attacked (if the aggressor has retreated he is no longer a threat to the original victim and any attack at this point coming from the victim will constitute battery) Injury to a third person o Transferred intent applies because the intent behind your action was self defense; the privilege of self defense is transferred to the harm against the third person and the defendant is not liable This is assuming that there is no negligence against the third person; in determining whether there was some negligence, the emergency, and the need to defend oneself are considered C. DEFENSE OF OTHERS Definition of Defense of Others o The privilege of defense of others is similar to self defense except that it refers to the defense of third persons Is usually used in situations where members of the same family are protecting each other Reasonable Force o The defendant must use reasonable force necessary to protect the third person If they use excessive force they have exceeded the scope of the privilege Reasonable Mistake o it is sometimes held that when you step in to help a third person, you are basically taking their place and are only privileged to use force when they themselves would be privileged to act in self defense in this case, if you have made a mistake and stepped in to assist the aggressor you are liable for this mistake because the person you aided was not privileged to use the force you exercised o reasonable mistake is also approached from the perspective that you are privileged to use reasonable force to defend another even if you are mistaken in your belief that your intervention is necessary for this to hold your mistaken assumption of necessity for intervention must be reasonable D. DEFENSE OF PROPERTY Definition of Defense of Property o The privilege to defend your property against intruders is limited to defending it against unlawful intruders As a result the privilege does not carry to allow you defend your property against those who are authorized to enter yet you do not want to enter Reasonable Force o The use of force to defend property is limited to the use of force that is reasonably necessary to the situation as it seems to the defendant; you must use the minimum level of force the situation requires 6

7 The question of what constitutes reasonable force is left to the determination of the jury although there are some recognized limits When the invasion is peaceful and the property owner is present, the use of any force would be unreasonable unless a request for the invader to depart was made first a request is not required when the actions of the intruder would suggest to a reasonable person that a request would be neither effective nor safely made in time o Use of Indirect Force When using indirect force, you can still be liable if the indirect force represents an amount of force that you would not have been privileged to use had you been present on the premise to inflict the harm yourself Using Force Calculated to Cause Death or Serious Injury o the preservation of life and limb is so important to society that unless you yourself are threatened with danger to life and limb by the intruder, the rights of the intruder outweigh your own as the property owner and you are not privileged to use deadly force o when the intruder threatens the personal safety of the defendant or his family, deadly force may be used if it is necessary under the circumstances; usually applies to nighttime invasions o when using reasonable force to prevent the commission of a crime, the allowed force is usually of a higher degree Reasonable mistake for example, in stopping the commission of a burglary (a serious felony), the level of allowable force is greater and may even be deadly there is an idea that the use of deadly force can be used to protect the right to peaceful habitation some states modify the idea that deadly force cannot be used: if defendant gives clear notice of the warning (in a case where a trap is set or there is some kind of danger on the property meant for invaders; not serious danger) (example: vicious guard dogs; barbed wire can serve as its own warning, mechanical devices meant to cause some injury that is not serious) o however, even posted warning signs will not protect the owner if the sign warns of dangers that represent an amount of force the defendant is not privileged to use example is the use of mechanical devices installed for the purpose of seriously harming the intruder; even if there are warning signs, you are still not privileged to use that level of force (Katko v. Briney) the property owner may also be limited from ejecting the invader from his territory if doing so will pose some sort of danger to the invader (example: a teenager trying to ride on the back of a train cannot be thrown off when the train is traveling at 30mph) o however, if the invader s presence threatens the life of the owner or other people in the premises then the privilege of self defense and defense of others may justify the ejection unlike self defense and defense of others, there is no allowance for mistakes The only way you may escape liability for using force to defend your property under a reasonably mistaken belief that the privilege existed is 7

8 if the intruder in some way misled you as to their true identity or authorization to be on the property Recovery of Property o The privilege to use force to recover one s property is usually recognized in cases where the interruption in possession has been very brief, in these cases it is seen as if the person is actually defending his property rather than attempting to interfere with the property of another this privilege is also extended to cases where someone had been dispossessed of their property by fraud or force and the thief has taken flight; you are then allowed to use force to get it back as long as the pursuit is fresh Fresh Pursuit: in cases where the dispossession is discovered promptly after it occurs and the owner uses prompt and persistent effort to get it back; in this early stage defense of property allows for self remedy of the crime that has been committed against you o If there is an undue lapse in the time where the dispossession is not occurring or has stopped then the owner of the property no longer has the privilege to use force to regain his property; his only recourse now is the law, the right to use self remedy no longer exists o Use of Force As with the other privileges the use of force is limited to the use of force that is reasonable under the circumstances Force meant to inflict serious bodily harm is not reasonable in cases where you are trying to recover or protect property If the person who has taken your goods resists you may use the force reasonably required to protect yourself against them Resorting to force will not be justified unless you have first made a demand that the thief return your property o This demand is not necessary when it reasonably appears that such a request would be useless or dangerous o Conditional Sale of Goods Cases where the buyer has purchased goods on an installment plan, has taken the goods home and defaulted on the payments Since the title to the property is still in the name of the seller he has the right to repossess it o If he can do so peaceably he is allowed to take it without liability With respect to the use of force, the goods have been willingly surrendered to the defaulting buyer so the owner has no privilege to use force to regain it o If the buyer will not hand over the property the only recourse is legal; self remedy is not allowed in these cases 8

9 Negligence Negligence Duty There is a foreseeable (PxL) and unreasonable (B<PxL) risk of harm Majority: foreseeable risk to anybody (Andrews) Minority: foreseeable risk to this plaintiff Breach of Duty Failure to take precautions to prevent the risk from occurring Causation Cause in fact But for (unless two forces, each sufficient) Proximate Cause Majority: type of harm must be foreseeable (Wagon Mound) Minority: chain of events must not appear extraordinary in hindsight (when there is no independent intervening cause) (Andrews) if there is an independent intervening cause Intervening Cause Independent- foreseeability test (you wouldn t have to see the intervening cause just the type of harm) Other Criminal- more restrictive scope of liability; unless you can foresee the intervening cause there is usually no liability FOR THESE CASES Rescue- in the case of rescuers, you will be liable for the rescuers injury if they YOU USE HINDSIGHT are aiding in an injury that you caused Subsequent illness or accident Subsequent negligent medical treatment A. A NEGLIGENCE FORMULA - the traditional formula for negligence include three elements which cannot be considered independent of one another - Elements in the traditional negligence formula o Duty of reasonable care: an individual has a duty to use reasonable care and must conform to a certain standard of conduct to protect others against reasonable risk o Breach of that duty: failure to conform to the standard of conduct encompassed by duty; referred to as a breach of duty (acted negligently) o Causation: there must be a reasonably close causal connection between the negligence of one party and the resulting injury upon another (two types of causation: causation in fact and proximate causation) o Resulting Damage: there must be actual loss or damage to the interests of another person; there is an issue with assessing what constitutes damage - to recover for a negligence claim a plaintiff must prove the existence of all four elements - negligence is used in two ways: a defendant can act negligently in that they failed to exercise the standard of due care (breach of duty; second element of the tort of negligence) without being liable for the tort of negligence (not all of the elements have been satisfied, for example: the defendant acts negligently but the plaintiff does not suffer damages as a result) 9

10 - when determining whether or not one should act, the reasonable person should take certain things into consideration; the utility of the conduct in which one is going to engage must be weighted against the gravity of the harm which may result from their conduct (we are not sure what harm will result so essentially it is an estimation of the harm; must ask what the reasonable person could reasonably foresee happening) (illustrated below utility of the conduct versus the gravity o f the harm) Utility of Conduct Social value of D s interest Plus Whether conduct protects the interest Negligence Gravity of Harm Social value of interest to be protected Plus Probability of harm threatened Whether there is a safer way to protect the interest (are there alternatives to this conduct) Gravity of harm threatened - Learned Hand Formula: formula from United States v. Carroll Towing Co. which is designed to help determine how the reasonable person weighs the above factors when contemplating whether or not to follow through on their conduct and what conclusion is reasonable based on a specific set of facts o Possibility that the injury will result is (P), injury is (L), and the burden to guard against the injury is (B); formula is B<(PxL), so it B is less than (PxL) the defendant is liable for the harm (B) is thought of in terms of weighing and actual monetary cost to determine what is reasonable; will result in the reasonable person not taking every precaution but only those that make sense economically (is the cost of the precaution going to be more than the cost you would ultimately incur from the resulting injury?) - Pros and Cons of the formula: those who support the formula generally do so because they take an economic approach to negligence law and they see it as regulating conduct as a way to promote efficiency; those who criticize the formula do so because they find difficulty is assigning value to the different variables (how do you value loss known or unknown, how do you predict the likelihood that something will happen?), and see it as being void of moral considerations o Despite this, Hand never meant the formula to be a mechanical way to determine liability. It is a way to highlight the factors the reasonable person weighs when making choices about what conduct to pursue - Restatement 291 (Unreasonableness; How determined; Magnitude of Risk and Utility of Conduct): where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. B. THE STANDARD OF CARE - the idea behind the standard of care is that we owe people a duty to exercise reasonable care in our conduct; does not require that we avoid all potential injury to others but that we protect them from our own carelessness a. A REASONABLE PRUDENT PERSON - the standard instruction in negligence cases has always been an objective standard; the jury is to consider what a reasonable man of ordinary prudence would do under like conditions or circumstances 10

11 o the subjective standard of looking a the judgment of each individual defendant is not used because it would result it inconsistent verdicts rather than a standard basis for liability; would lead to trying a cases on someone s intelligence and character rather than their conduct; although some individual characteristics are considered to be part of the conditions or circumstances applied when determining what is reasonable - difference between the specific and general standard of care: the specific standard of care refers to the specific precaution the defendant failed to take, whereas the general standard of care is the accepted standard for determining negligence (that of the reasonable person) - Personal and External Circumstances & the Reasonable Person o proof of a custom or common practice: proof of a common practice can be submitted as evidence that the defendant did not act in accordance with the practice and therefore was negligent (did the defendant act as other customarily do in like circumstances?); the jury can determine the reasonableness of the standard and based on this whether or not the defendant should have followed it; from there they can carry on with the usual estimation of negligence; the jury does not have to accept the common practice or can determine that it is unreasonable (the existence of a common practice is not automatic proof that such a practice is reasonable) o the reasonable person & the emergency situation: (example: Cordas v. Peerless Transportation Co. where the cab driver jumped out of his cab after a violent mugger got in; the cab veered and hit a woman and her children; court applied the emergency doctrine and found the cabby not liable); when a person is presented with a sudden emergency situation (situation which is unforeseen, sudden, and unexpected), the reasonable person standard no longer applies so what would be negligent under normal circumstances may not necessarily be negligent in an emergency; if the emergency is created by the actor then the emergency doctrine does not apply. It is not the negligent action that occurs after the emergency that is inexcusable but the action that caused the emergency o disabled individuals and the reasonably prudent person: the commonly accepted and applied approach is that when determining matters of negligence in cases involving individuals with handicaps, the model of the reasonable man takes on the disabilities of the person in question. The standard then becomes a matter of what a reasonable person with the infirmities of the one in question would be expected to do. o standard for children: normally the standard for children charged with negligence is that of what it is reasonable to expect from a child of like age, intelligence, and experience; however, as established in Robinson v. Lindsay, when a child is engaging in an adult activity, or an inherently dangerous activity, the more suitable standard is the adult standard Restatement: when a child engages in an activity which is normally undertaken only by adults, and for which adult qualifications are required, the child standard should not apply the reasonable child standard leads to a higher standard for children of superior intelligence; the child s intelligence is an objective standard but in cases where an adult s negligence is in question intelligence would be subjective example: Vaughn v. Menlove the defendant argued that he has exercised his judgment to the best of his ability but that he should not be held liable because his judgment wasn t good enough, this sort of thing is not considered in cases of adult negligence because the standard is the reasonable person what constitutes an adult activity generally varies from jurisdiction to jurisdiction, depending on common practice 11

12 o standard for insanity: liability for negligence based on insanity depends on the kind and nature of the insanity. The insanity must impair the person s ability to understand and appreciate their duty, if the insanity does not do this it must affect their ability to control what they are doing. Additionally, the insanity must occur without notice or forewarning. Renders permanently insane people liable for their negligence. Policy behind this: (1) when innocent people suffer some sort of loss it should be the person who caused it who bears the cost (2) to force the people in charge of the insane person to control them (3) to avoid false insanity claims being used as a defense b. THE PROFESSIONAL - To apply the professional standard, the reasonable person takes on the profession of the actor and an objective standard is applied. o requires one to act with the knowledge, training and skill (or ability and competence) of an ordinary member of their profession who is in good standing. This is not a higher standard of care it is a standard that is relevant to the person s circumstance as a professional. It is still the objective reasonableness standard o Professionals contract with individuals to render service, but suits are usually brought for negligence. The law imposes a duty to exercise normal skill. Service provider is usually liable for negligence because the service does not specify a result. However, is the contract specifies a result the suit will be for breach of contract not a tort. - a specialist within a profession is held to a higher standard than a general practitioner within that profession o doing so keeps the standards objective and avoid imposing different standards on each individual person - the standard is not modified for pro bono work. Whether or not someone is paying for the services of a professional, that professional is still held to the same standard of care - Customary Practice o expert testimony: because the practices of professional require knowledge that is not considered common knowledge, the plaintiff must provide expert testimony informing the jury of the standard of care for that profession (what a reasonably prudent professional would do); the only way expert testimony may not be necessary is if the negligence is so obvious that it is within common knowledge and experience of the average juror the expert testimony will not be valid if the expert testifies as to what they personally would have done. Must establish that the defendant s conduct was in violation of the standard of care o evidence that one has complied with the customary practice is admissible and influential. In most cases of medical malpractice, once compliance has been proved the plaintiff very rarely recovers - Medical Malpractice and Informed Consent o Informed consent in negligence cases is differentiated from medical battery in that in negligence case the question is whether the doctor was negligent in failing to disclose the nature, consequences, risks, and the alternative to the procedure. An expert witness is needed in these cases (not needed in medical battery though) to testify as to what the customary care is Standard is usually no longer what the reasonable physician would disclose but what the reasonable patient would want to know. The reasonable patient standard is not always used, can be set aside if the plaintiff would not have made the reasonable persons decision. o Patient suing under informed consent must prove: 12

13 The physician failed to properly inform the patient of the material risks (those likely to change the patient s decision about the procedure) before getting consent If the patient had been informed of the risks, he would not have consented to the procedure The consequences the patient was not informed of did occur and resulted in an injury o As defenses, the physician can argue The patient knew of the risk, the risk was so widely known that most people and very likely the patient already knew about it Full disclosure would have been detrimental to the patient s interests The situation was an emergency situation and the patient was not in a position to decide for themselves o Locality rule: you must also look at where the person practices their profession (applies for all professional negligence cases). What is reasonable in one place may not be reasonable in another because of availability of resources. (example: the standard at a wealthy hospital is different from that at an impoverished hospital because of lack of resources). Looks at what the standard of professional competency is in a particular locale Most places have abandoned the locality rule and now ascribe to national standards of care; some refer to similar communities rather than the community o Problems with medical malpractice and informed consent: in these cases, the physician is liable for negligence even if the actual care and treatment was not administered negligently. It is entirely based on the fact that the patient would have made a different choice has the doctor not negligently failed to inform them of the risks c. AGGRAVATED NEGLIGENCE - degrees of care o the care required under the reasonable person standard varies according to the level of risk. The more dangerous the activity you are engaged in, the more care you are expected to exercise. o In the case where one has taken on a special duty to others (example: common carriers), they are expected to exercise care in accordance with that duty. In many cases, this level of care has been referred to as the highest degree of care. This standard has been viewed as incorrect because there is no legally recognized degree of care. Instead it is viewed as greater or less care than that taken by the reasonable person under similar conditions. Some situations require a greater amount of care not a greater degree. - degrees of negligence o an attempt to divide negligence into different degrees: slight (failure to use great care), ordinary (failure to use reasonable care), and gross (failure to exercise even slight care) o the distinctions have been met with a lot of criticism because it is hard to set lines distinguishing them from one another o gross negligence is often used as a synonym for recklessness - willful, wanton, and reckless conduct o There has also been an attempt to distinguish types of negligence based on the mental state of the defendant. The result is that there is a class of torts between negligence and the intentional torts. Characterized by the deliberate and conscious disregard for a known high degree of probability of harm to another; requires more awareness than negligence does This is usually the threshold for the recovery of punitive damages and particular causes of action 13

14 C. RULES OF LAW - example: Pokora v. Wabash- there was a previous rule that did not allow the determination of negligence to go to the jury. The rationale was that failing to follow certain precautions was so negligent that the decision need not be taken to the jury because no one would even find it not negligent. The determination of negligence was then made by the judge o The court in this case puts forth the general idea that standards of behavior should not be made into rules of law. In any given situation there are a variety of factors which must be taken into account to determine whether or not the person acted appropriately. D. VIOLATION OF STATUTE (NEGLIGENCE PER SE) - although the general negligence standard is that of the reasonable person and courts cannot come up with their own standards, legislatures can enact statutes that establish standards of care for common situations o violations of these statutes will offer proof that the defendant was violated the second element of negligence, breach of duty - Negligence per se: In statutory negligence, a statute fixes negligence so a violation of the statute results in conclusive evidence that negligence has occurred, this is negligence per se o when there is a statute or some ordinance that establishes a duty that is meant to protect of benefit other people, failure to carry out the established duty results in liability. Whether the duty arises from a statute or common law principles does not matter. If derived from common law principles, the principle is used to measure the duty - When a statute or regulation defines reasonable conduct or a standard of care, the decision as to whether the statute s standard of care should be adopted is at the discretion of the court. - For the standard of care set forth in a statute to apply, the court must look at the appropriateness of the standard as a measure of care. Most statutes establish a small criminal penalty and may not always be appropriate for use in tort law. Once the appropriateness has been established you must then consider that o Under negligence per se theory, the statute must establish a standard of care relevant to the circumstances. To do so it must meet the following requirements: The party seeking damages is in the class of people the statute intends to protect The harm that occurred was the type of harm legislature was trying to prevent with the statute o If the defendant successfully demonstrates that these two requirements are not satisfied, the plaintiff s claim of violation of statute will not have a per se effect. The plaintiff will not lose his case but will have to prove that the defendant was negligent based on the usual reasonable person standard of negligence. - Most courts take the approach that when a statute applies to the facts of the case, an unexcused violation of the statute is negligence per se, but the defendant can offer evidence of excuse or justification. The only way the violator will not liable is if the violation is excusable. (sometimes when the violation is undisputed and inexcusable, the court will take the issue away from the jury and will declare negligence as a matter of law) o What constitutes an excusable violation? If an emergency arises that is not of the person in questions creation, the actor s incapacity prevents him from following the statute, doesn t know or shouldn t know that he must comply, he is unable, after exercising diligence and reasonable care to comply, compliance would cause a greater risk of harm than non compliance (sometimes it is more reasonable to disobey the statute than to follow it) This list of excuses if from the restatement (second) of torts 288A and is not meant to be exclusive; defendants can offer proof of other excuses The jury must determine whether the defendant acted reasonably under all circumstances, including his violation, and reason for noncompliance 14

15 o How is this different from the regular negligence standard? Its not really clear, it is very similar For this approach and (1), the burden of proof stays on the plaintiff to show that the defendant was negligent. If the defendant offers proof of an excuse, the burden is still on the plaintiff to show that despite the evidence offered by the defendant, the defendant did not behave as a reasonable person would have Some statutes are designed so that they do not allow for excusable violation: child labor acts, food safety act, etc. These are essentially strict liability - The states that don t follow this either (1) take the violation of the statute as presenting the presumption of negligence which will become negligence per se unless the presumption if refuted by showing an excuse of the violation (because it requires an excusable violation, its essentially the same thing as the majority negligence per se rule) (2) some view the violation as being evidence of negligence which the jury can accept of reject even in the absence of evidence from the defendant rebutting the plaintiff s allegation of negligence o (2) differs from the majority approach and (1) in that in those approaches, if the defendant does not present proof of an excuse, the judge will instruct the jury to find him negligent is they find that he violated the statute E. PROOF OF NEGLIGENCE a. COURT AND JURY: CIRCUMSTANTIAL EVIDENCE (DEALING WITH STANDARDS OF PROOF) - circumstantial evidence versus direct evidence o direct evidence is a direct assertion speaking to the thing we are talking about; an example of this is direct witness testimony o circumstantial evidence is evidence of facts from which the jury can infer negligence requires you to ask if the evidence is relevant, which is must be if it is relevant then the fact you are trying to prove is either more or less likely than it was when you introduced a certain piece of evidence the evidence must also be sufficient to prove what you are trying to establish by a preponderance of the evidence o example: banana peel cases- the plaintiff s who slipped and fell on banana peels do not have direct evidence to prove that the banana was on the floor long enough for the store employees to have noticed it. Instead they must rely on circumstantial evidence relating to the condition of the banana to show that it was one the ground long enough for the store employees to have noticed it (constructive notice). Thus, allowing the jury to infer that they were negligent. b. RES IPSA LOQUITER - Res ipsa loquiter (the thing speaks for itself it): permits but does not compel an inference of negligence. Res ipsa loquiter is not really a separate principle of negligence but a form of circumstantial evidence. The idea is that from some facts you can infer other facts. o Even though the plaintiff cannot offer direct or circumstantial evidence or exactly what caused his event that led to his injury he should be allowed to go to the jury on the issue of negligence by showing that the circumstances bespeak negligence even without showing, more specifically the chain of events - For the plaintiff to get to the jury, he can t just invoke res ipsa loquiter. There must be reasonable evidence for an inference of negligence, where the plaintiff must show that (1) the accident is one that would not, in the ordinary course of events, have occurred without negligence, and that (2) the negligence, if any, is more likely than not attributable to the defendant. A corollary to this second requirement is that the instrumentality causing the injury must have been under the exclusive control of the defendant at the time of the injury (however the rule is not applied so strictly that res ipsa is barred in cases where it is logically applicable) 15

16 These are the two basic requirements for res ipsa loquiter but some jurisdictions add the requirement that the event cannot have been brought about by the actions of the plaintiff. even if this is the case, the evidence can still support an inference that the defendant was negligent - The plaintiff is not required to eliminate with certainty all other possible causes or inferences. All that is required is evidence from which a reasonable person can say that it is more likely than not that there was negligence associated with the cause of the event that occurred - In res ipsa loquiter there is no direct evidence of the specific standard of care and the evidence does not show any specific negligence. o There is circumstantial evidence as to some general negligence because you know that some negligence has occurred. You are inferring some negligent act on the part of the defendant from the circumstantial evidence. o Based on the evidence the jury might not be able to recreate the sequence of events but they might be able to infer that whatever occurred was the result of the defendant s negligence - three different ways courts can apply res ipsa loquiter: (1) it will warrant an inference of negligence which the jury may or may not draw (2) raises the presumption of negligence that will require the jury to find negligence if the defendant cannot provide evidence to show that he wasn t negligent (3) raises the presumption but also shifts the burden of proof to the defendant to show that he was not negligent o (1) is the general approach to res ipsa loquiter taken by most courts - Effect of pleading negligence of res ipsa loquiter: jurisdictions take different approaches to how res ipsa loquiter should be treated if the plaintiff has pled some specific act of negligence. The various ways of treating res ipsa loquiter are that the plaintiff (1) cannot use it at all (2) can use it as long as the inference of negligence supports the allegations (3) can use it only if the specific pleading also includes a general allegation of negligence (4) it is available regardless of the nature of the pleading o Similar approaches have been taken toward the introduction of specific evidence of negligent conduct and the use of res ipsa loquiter - medical malpractice cases & res ipsa loquiter: some examples of malpractice are thought to be within common knowledge and you can get a case of res ipsa loquiter, others require expert testimony to make the case - special rule for common carriers: generally if there is an accident involving two cars, there is no case of res ipsa loquiter against either of them. If the accident involves a common carrier, and injury is suffered by the passenger of the carrier, then there is a res ipsa loquiter case against the common carrier because of his duty to the passenger Causation in Fact A. SINE QUA NON - causation in fact: must ask if there is a physical cause and effect relationship between the defendant s act and the plaintiff s harm - Negligence is not actionable unless you can show that the negligence was a cause in fact of the harm that occurred. If the accident would have happened even without the defendant s negligence then he is not a but for cause. o But for test: must show that the injury would not have occurred but for the defendant s conduct - A defendant s negligence need not be the only but for cause of the injury, but must be a but for cause (this applies whether the two negligent acts happen at the same time or are separated) o Example: Telephone Company negligently attaches a transformer to a utility pole. It is screwed on loosely. A driver hit the telephone pole and the transformer falls injuring a 16