TORTS, NOAH 2016—first 100
STERILIZATION PROCEDURES GONE WRONG
Many courts have determined that the negligent performance of a sterilization procedure is a tort for which recovery would be allowed
WRITTEN INFORMED CONSENT
Many states have legislation that requires written informed consent for certain procedures More adequate than verbal consent
UNMARRIED COUPLES AND EMOTIONAL DISTRESS
Many states look into the nature and extent of the harm by looking into all the details of the relationship (duration, quality, time spent together, same household, share income, etc) Some states require that the person suing for emotional distress is married to their significant other
ARGUMENT AGAINST GIVING SOMEONE WITH A 75% CHANCE OF FUTURE HARM TO RECOVER 100% NOW
May deplete defendant's coffers, which would mean no money left for those who do ultimately get the disease, plaintiff may spend the money before the disease strikes, statute of limitations starts when the disease is discovered
RES IPSA
Means "the thing speaks for itself" and is only applied n rare instances when no one knows how exactly the accident happened
EXCEPTIONS TO THE FORESEEABILITY REQUIREMENTS OF EMOTIONAL DISTRESS
Mishandled corpses, negligently delivered death or funeral messages, and negligent misdiagnosis of a disease (can sue for own fear)
LIKELIHOOD OF DEVELOPING AN INJURY
Most courts create an exception to the single judgment rule, and require the plaintiff to sue for the second disease when it occurs
ANTICIPATORY DREAD
Most courts have allowed recovery where plaintiff was aware of impeding death or injury even if the period of awareness was very short
LIMITED RECOVERY
Most jurisdictions use this to measure damages. Limited recovery allows compensation for medical expenses, subsequent sterilization procedure, the loss of wages and sometimes emotional distress and loss of consortium to the spouse arising out of the unwanted pregnancy and prenatal care expenses
HIV CASES
Most states have adopted an actual "zone of danger" analysis that requires that the needle be shown to have been infected Other courts don't require a showing of a zone of danger and hold that a plaintiff was entitled to recover damages for serious and genuine distress that would be experienced by a reasonable person of ordinary experience who has a level of knowledge that coincides with the then-current, accurate, and generally available public information about the causes and transmission of AIDs
DRAM SHOP ACTS
Most states have enacted dram shop acts that impose liability on commercial enterprises for harm resulting from intoxication when they serve a person to the point of intoxication or serve an intoxicated person
SOCIAL HOSTS WHO FURNISHES ALCOHOL TO MINORS DUTY
Most states hold that a social host does not owe a duty of care to third persons injured by the intoxicated minor because they are ill-equipped to handle the responsibilities of their guests' alcohol consumption Argument against: social hosts are in the best position to know the ages of the guests they are serving alcohol to
MOTHERS AND EMOTIONAL DISTRESS
Mothers an recover for emotional distress due to medical malpractice resulting in miscarriage or stillbirth
OPEN AND OBVIOUS DANGERS
No duty to warn since the danger was obvious
ROLE OF STATUTES
Noncompliance with a statute is conclusive evidence of negligence (negligence per se, absent an excuse), but compliance only may indicate some evidence of non-negligence
DUTIES OF THERAPISTS WHEN THEY HAVE DANGEROUS PATIENTS
Once a therapist does in fact determine that a patient poses a serious danger of violence to a specific person, he bears a duty to exercise reasonable care to protect the foreseeable victim of danger
NEGLIGENT ENTRUSTMENT
One who supplies directly or through a third party a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting
PARENTAL MALPRACTICE
Parents always owe a parental duty to their minor child. The issue of liability should revolve around whether the parents have breached this duty and whether this breach caused the injury
DOCTRINE OF INFORMED CONSENT
Physicians are obligated to inform patients of consequences of a medical procedure that isn't sufficiently obvious to the patient so as to obviate the need for a warning and to inform patients of medically reasonable treatment alternatives and their attendant probable risks and outcomes, for both invasive and non-invasive procedures
CUFFY GUIDELINES FOR PUBLIC EMPLOYEE CASES
Police (or any public employees) do have a duty (to protect) in cases of "special relationship," the elements which are: (1) an assumption by the municipality through promise or action, of an affirmative duty to act on behalf of the party who was injured (2) Knowledge on the part of the municipality's agents that inaction would lead to harm (3) Some form of direct contact between the municipality's agents and the injured party (4) The injured party's justifiable reliance on the municipality's undertaking
STRICT LOCALITY RULE
Requires that the expert testifying be from the same community as the defendant
TWO DISEASE RULE
The plaintiff can recover only for the first disease and can recover for the second, more serious disease only when it occurs (can also sue for emotional harm for second disease, but only after the disease develops) But some courts permit plaintiff to obtain compensation for a future injury that is not reasonably certain to occur if there's an increased risk of future injuries, but the compensation should reflect the probability
AFFIRMATIVE OBLIGATIONS FOR LETTERS OF REC
The writer of a LoR owes to third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the third persons *If you volunteer information, you are obligated to complete the picture by disclosing material facts regarding charges and complaints*
BUSINESS OWNER DUTIES
There is generally no duty to protect others from the criminal activities of third persons
DETRIMENT OF SAME/STRICT/SIMILAR LOCALITY RULES
They may legitimize a lower standard of care and help doctors with their conspiracy of silence
ZONE OF DANGER
Those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct or who are placed in immediate risk of physical harm by that conduct are permitted to recover for physical injury (exposure IS NOT a physical impact)
TRESPASSER DEFINITION AND DUTY OWED
Trespassers are all entrants to land that do not have permission to enter Generally, the duty is simply not to willfully or wantonly harm trespassers
TRADITIONAL APPROACH TO LANDOWNER DUTIES
Trespassers, Licensees, and Invitees all have differing levels of owed duties
CONSTRUCTIVE NOTICE
a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it
REASONABLE PARENT TEST
a parent's conduct is judged by whether the parent's conduct comported with that of a reasonable and prudent parent in a similar situation
PRIOR SIMILAR INCIDENTS TEST
a past history of criminal conduct will put the landowner on notice of future risk (Courts have held that this is too arbitrary)
SOME COURTS HAVE HELD THAT IN THE PRESENCE OF A PRESENT PHYSICAL INJURY OR ILLNESS, DAMAGES FOR FEAR OF CANCER MAY BE RECOVERED ONLY IF THE PLAINTIFF PLEADS AND PROVES THAT:
(1) As a result of the defendant's negligent breach of a duty owed to plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer and (2) the plaintiff's fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the cancer in the future due to the toxic substance
DAUBERT FACTORS
(1) Can be tested with scientific method? (2) Subject to peer review and publication? (3) Known or potential rate of error? (4) Generally accepted? (but this is not a dispositive list!)
DISCRETIONARY FUNCTION TEST
(1) Does any federal statute, regulation, or policy specifically prescribe a course of action for the employee to follow? (If employee does not follow this course of action, then state is open to liability) (2) Doe the basic inquiry challenge the discretionary acts of a government employee that are of the nature and quality that Congress intended to shield from tort liability? (Under the FTCA, you are not allowed to sue for choices if they are "susceptible to policy judgment" and involve an exercise of "political, social or economic judgment."
VL CRITERIA (3)
(1) Employee must be acting within the scope of employment, (2) Must be substantially within the hours and ordinary business boundaries of employment, and (3) conduct must be motivated in part by the purpose of serving the employer's interest
THERE IS A LESSENED DUTY OF CARE FOR:
(1) People with physical disabilities, (2) people with a clear mental disability, (3) children, and (4) emergencies (but must still act like a reasonable person would in an emergency)
FACTORS THAT DETERMINE WHETHER AN EMOTIONAL INJURY WOULD BE COMPENSABLE BECAUSE IT WAS "FORESEEABLE"
(1) Plaintiff was located near the scene of the accident, (2) the shock resulted from a direct emotional impact upon plaintiff from observance of the accident, (3) Plaintiff and victim were closely related, and (4) the physical injury to the victim was serve enough to cause emotional distress is the plaintiff
STANDARDS FOR DETERMINING HOW MUCH THE DEFENDANT SHOULD HAVE TOLD THE PATIENT
(1) Professional-based standard: would a reasonable medical practitioner under similar circumstances made the same decision? (2) Patient-based standard: the physician's obligation is to provide information that a reasonable patient would want
APPARENT AGENCY CRITERIA (3)
(1) Representation by the purported principle, (2) Reliance on that representation by a third party, and (3) change in position by the third party in reliance on the representation
LOCALITY RULES
(1) Same or similar locality (2) Strict locality (3) National standard
THERE IS A HEIGHTENED DUTY OF CARE FOR:
(1) Unnecessary acts, (2) dangerous instrumentalities, (3) people with superior attributes, and (4) common carriers (but moving towards RPS)
WHEN IS THERE AN AFFIRMATIVE OBLIGATION TO ACT?
(1) When there is a special relationship, (2) When there has been an undertaking, (3) when there has been a non-negligent creation of risk, and (4) when a statute has imposed a duty to rescue
THE FEDERAL TORTS CLAIM ACTS
(1) any action against the US will be tried without a jury (2) The US not liable for punitive damages (3) Attorney contingency fees are capped (4) Federal employees are released from personal liability (5) Covers "negligent" or "wrongful" conduct of federal employees
MEASURE OF DAMAGES FOR NEGLIGENT STERILIZATION PROCEDURES
(1) limited recovery, (2) full recovery with benefit offsets, and (3) full recovery without benefit offsets
WHY IS VL IMPORTANT? AND WHAT HAPPENS TO BUSINESSES THAT HAVE A LONG RUN OF MISTAKES CAUSED BY EMPLOYEES?
(1) makes sure victims get compensated for undoubted tortious behavior and (2) the market disciplines the business by eliminating the business from the market
TEST FOR PRIVATE RIGHT TO ACTION
(1) the plaintiff is a member of the class the statute was intended to benefit, (2) the statute was designed to prevent the type of harm that the plaintiff suffered, and (3) the statute is clear as to what standard of conduct is expected, where and when it is expected, and of whom
RES IPSA CRITERIA
(1) the plaintiff was injured by an accident that would not ordinarily happen without negligence and (2) the source of the negligence falls within the scope of the duty owed by the defendant tot he plaintiff NOTE: There used to be a third element that required that there be no contribution to the plaintiff's injuries by the plaintiff or a third party, but this no longer bars a res ipsa claim
NO DUTY TO ACT REASONABLY WHEN:
(1) there is an unforeseeable, extraordinary peril, (2) there is a very very small risk, and (3) if the burden is greater than the injury times the probability that the injury will occur
ARGUMENT FOR GIVING THOSE WHO CAN SHOW A BETTER THAN EVEN CHANCE OF FUTURE DISEASE TO SUE NOW
Difficulty of proving your case if you have to wait for years and years, deterrent aspect of tort law would be delayed and diminished
VICARIOUS LIABILITY
Employer is held liable for the tortious acts of employees
INVITEE DEFINITION AND DUTY OWED
Invitees are all persons who have reason to believe that the premises has been made safe to receive them Duty is to make reasonable inspections to discover non obvious dangerous conditions
WHO HAS OFFICIAL IMMUNITIES
Judges and prosecutors if they are acting within their official capacity Police DO NOT have immunity but may have a "good faith defense"
LICENSEE DEFINITION AND DUTY OWED
Licensees are all persons who enter a premises with permission Generally, the guest is expected to take the premises as the possessor himself uses them, duty is only to warn of known dangers
FTCA EXCLUSIONS
Mail, money, military, and discretionary functions
REASONABLE PERSON STANDARD
An objective standard that takes into account the circumstances that the actor was confronted with, including the reasonably perceivable risk and gravity of harm to others and any special relationship between the victim and the actor
FULL RECOVERY WITHOUT BENEFIT OFFSETS
Allows for recovery for all damages that are reasonably foreseeable and that would result from the negligent performance of the sterilization procedure (Two jurisdictions)
FULL RECOVERY WITH BENEFIT OFFSETS
Allows the cost of child rearing but balances against this cost the benefits derived by the parents, either economic or emotional, from having a healthy child
BUSINESS PRACTICE/MODE OF OPERATION RULE
A customer need not establish actual or constructive notice when the business practice of the store provided a continuous and foreseeable risk of harm to customers
LOSS OF PARENTAL SOCIETY
A few states allow a child to recover if they have a viable claim for loss of parental society if they can show that they are minors dependent on the parent. This dependence must be rooted not only in economic requirements but also in the need for closeness, guidance and nurturing (but the refusal of the direct victim to go along with the claim (like crazy mom), may persuade the court to deny the action)
LANDLORD DUTIES
A landlord is liable for bad repairs and no repairs and must act as a reasonable person under all of the circumstances Also obligated to take those measures of protection which are within his power and capacity to take, and which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants
SPECIFIC HARM RULE
A landowner does not owe a duty to protect patrons from the violent acts of third parties unless he is aware of specific, imminent harm about to befall them (courts have generally held that this rule is limits duty too much)
CHILD TRESPASSERS
A landowner is liable for the injuries of children who trespass on their land if the landowner knows or has reason to know that kids are likely to trespass, would pose an unreasonable risk to kids, the kids are unable to realize the risk, the utility of the danger is slight compared to the risk to the children and the landowner fails to exercise reasonable care in eliminating the danger
NATIONAL STANDARD RULE
A physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances
DOCTRINE OF QUALIFIED IMMUNITY
COURTS WILL DEFER TO THE CHOICES MADE BY EXPERTS To accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in the jury's hands what the Legislature has seen fit to entrust to experts
DEFINITION OF AND ANOTHER PHRASE FOR CAUSE IN FACT
Cause in fact, also called, but-for causation, answers the question of whether, but for the defendant's actions, the plaintiff would have sustained injuries
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS WHEN PLAINTIFF SUFFERS FROM DISEASE
Common law courts do permit a plaintiff who suffers from a disease to recover for related negligently caused emotional distress, and some courts permit a plaintiff who exhibits physical symptoms of exposure to recover.
ROLE OF CUSTOMS
Courts have rejected the argument that a prevailing custom defines the standard of care, but it may, but not always, indicate some evidence of negligence or non-negligence
APPARENT AUTHORITY
Authority that a principle knowingly tolerates or permits, or which the principal by its actions or words holds the agent out as posessing
WRONGFUL LIFE CLAIMS
Courts very rarely allow these types of claims because it would be impossible to compare life with or without a disability to nonexistence (nonexistence paradox)
ATTRACTIVE NUISANCE DOCTRINE
Covers injuries to children who are unaware, because of their immaturity, of risks associated with a land occupier's property
VERBAL INFORMED CONSENT
Health care professionals who rely on an oral consent for informed consent do so at considerable risk Is often considered inadequate
WHAT IS RECOVERY BASED ON FOR CONSORTIUM CASES?
How much non-economic support the plaintiff spouse generally received from his/her wife/husband
JUDGE LEARNED HAND'S BPL FORMULA
If B<PL, then liability ensues. (B=burden, P=probability, L=injury)
GENERAL RULE FOR DUTIES OF DOCTORS TO THIRD PARTIES
If a victim is clearly foreseeable to the doctor and the clinic, a court may extend some duty to that foreseeable victim, but the scope of the duty remains uncertain
EXCEPTION TO DOCTRINE OF INFORMED CONSENT
If and only if the patient is unconscious or otherwise incapable of giving consent, and either time or circumstances do not permit the physician to obtain the consent of a family member, may the physician presume that the patent, if competent, would consent to life-saving medical treatment
FIRST AMENDMENT CONCERN
If parents follow a specific religion that doesn't allow modern medical care for children, then it is ok and the parent won't be held liable for the child's injury. However, if the child's life is put in danger by the injury, then the parent can be liable for the injury
LOSS OF COMPANIONSHIP OF CHILD
Some courts allow an action for the loss of companionship of their seriously injured child Some courts have barred a cause of action for parents for loss of companionship of their injured child (siblings also barred) The extension of consortium actions to the child have encountered substantial resistance because recovery in other areas make the child's claim excessive
EMOTIONAL DISTRESS CAUSED BY LOSS OF PROPERTY
Some courts categorically deny recovery for emotional distress caused by loss of property A few states do allow recovery, but only in special situations (built house with own hands and a reasonable man normally constituted wold be unable to adequately cope with the stress of losing the property) PETS are considered property in some states, and in states that they are not, the claims generally aren't worth much
INTERGENERATIONAL TORT DUTIES
Some courts decline to recognize intergenerational tort duties because physicians would be faced with a conflict of interest (best treatment for patent vs. minimizing possible liability to future generations)
EMOTIONAL HARM AND CONSORTIUM
Some courts have extended the consortium action to cover nonphysical injuries to the first spouse because a marriage can clearly be damaged by emotional trauma. Jury decides if marital relationship was harmed enough to warrant damages
HARM TO THE FETUS
Some courts have held that a mother does have a duty to protect the fetus from foreseeable harm Other courts have held that a mother does not owe a duty to protect a fetus because they draw a bright line between a fetus and child that is born already
EMOTIONAL HARM
Some jurisdictions have required claims of emotional distress to be medically diagnosable Other courts do not require this and have found that the existence of the required distress is a matter of proof for the trier of fact
DAUBERT V. MERRELL DOW PHARMACEUTICALS
Supreme Court identified factors that were relevant to whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly could be applied to the facts in issue
TOTALITY OF CIRCUMSTANCES TEST
Takes nature, condition and location of the land as well as any other relevant factual circumstances bearing on the foreseeability into account (most common approach)
WHO HAS THE BURDEN OF PROVING THAT THE DEFENDANT'S CONDUCT FELL BELOW THE STANDARD OF REASONABLE CARE?
The Plaintiff
MUNICIPALITY AND STATE LIABILITY
The basic duty to act reasonably applies with equal force to governmental actors and private actors
NONTRADITIONAL/MODERN APPROACH TO LANDOWNER DUTIES
The distinction between licensees and invitees should be eliminated by requiring a standard of reasonable care for all lawful visitors
FELLOW SERVANT RULE
Vicarious liability does not apply when injuries are suffered because of a fellow workers' negligence
LOSS OF CHANCE DOCTRINE
Views a person's prospects for surviving a serious medical condition as something of value, even if the possibility of recovery was less than even prior to the physician's tortious conduct. Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages *some courts limit loss of chance to the med mal context and a significant minority refuse to adopt a lost chance theory
NEGLIGENT INTERFERENCE WITH CONSORTIUM
Virtually all states have one to recognize the loss of consortium action for both spouses. In determining the award, juries can consider the happiness of the marriage
CHILDREN BORN WITH HANDICAPS AFTER FAILED STERILIZATION
When a physician is placed on notice, in performing a sterilization procedure, that the parents have a reasonable expectation of giving birth to a physically or a mentally handicapped child or if the physician should be placed on notice, by reason of statistical information of which he is or should be aware of in the practice of his or her profession, then the entire cost of raising such a child would be within the ambit of recoverable damages
SAME OR SIMILAR LOCALITY RULE
When a physician undertakes to treat or diagnose a patient, he is under a duty to exercise the same degree of diligence and skill which is commonly possessed by other members of the profession who are engaged in the same type of practice in *similar localities* having due regard for the state of scientific knowledge at the time of treatment So, essentially, requires the expert testifying to be from a similar locality compared to the defendant
WHEN DOES A STATE LOSE QUALIFIED IMMUNITY?
When they don't implement the plan within a reasonable time period and if the state is clearly acting without good reason
PRIVATE RIGHT ACTIONS
Where a statute clearly provides for civil remedy, a plaintiff can sue directly under the statute. Otherwise, where a legislative provision enacts a statutory duty but no remedy, a court may accord a plaintiff a private right of action
WHEN DOES THE THERAPIST RULE NOT APPLY?
Where the risk is self inflicted harm or property damage
WHAT IS THE DECISIVE FACTOR IN AN INFORMED CONSENT ANALYSIS?
Whether the physician adequately presents the material facts so that the patient can make an informed decision
DISCRETIONARY TASKS
conduct involving the exercise of reasoned judgment CANNOT result in the municipality's liability even if the conduct is negligent
MINISTERIAL TASKS
conduct requiring adherence to a governing rule, with compulsory results CAN result in the municipality's liability if the conduct is negligent
FRYE TEST
requires that scientific evidence be based on techniques generally regarded as reliable in the scientific community
BALANCING TEST
seeks to address the interest of both business proprietor and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons
