Torts Bernstein 2000 I. Negligence P has burden of proving that D did not use ordinary care. (Brown v. Kendall) A. Duty – a legal duty requiring defendant to conduct himself to certain standards to avoid unreasonable risk to others 1. Foreseeable plaintiff – duty of care only owed to foreseeable (when looking prudently into the future) P. 2. Failure to conform to reasonable person standard is negligence. a) Reasonable person (an objective test) – What standard of care does the reasonable person owe someone else? -Invent hypothetical person and assign traits and characteristics conforming to societal expectations. -Defendant’s individual traits and characteristics (except physical) are irrelevant, instead use hypothetical person. -There are certain things a person must know (GRAVITY, LEVERAGE, FLAMIBILTY, EFFECT OF PULLING A TRIGGER ON A GUN) b) Departures from the reasonable person standard i) Dumbness/Ignorance– No downward departure. -Policy: It is burdensome on the courts to determine mental capacity. Vaughan – Less than ordinary intelligence does not lessen liability. Defendant’s hay rick ignited after constant warnings and plaintiff’s cottage caught on fire. Delair – Ignorance is not a defense. Defendant didn’t infer from state of tire that it was dangerous. A reasonable person may not know everything, but knows some things – bald tires blow out. ii) Insanity -No downward departure for constant or recurring known state of mental incapacity. -Sudden, unforeseeable mental incapacity warrants downward departure -Policy: Insanity hard to prove, easy to fake. Ordinary liability of the insane gives caretakers incentive to control insane. If there are two innocents and one suffers a loss, the liability should fall on the one who occasioned the harm. Breunig – woman who had mental problems crashed her car. When an episode of insanity is unforeseeable, insanity becomes like unconsciousness that Jenner had and not basis for liability. But majority of courts still say insanity (when not instantaneous and unexpected) is basis for liability Gould – Insane guy under regular care by D (nurse). Employee was not innocent because she signed up to work and was compensated. Relatives were locking him up to keep him from committing torts – everyone is doing their best so no need to exchange money Physical Disabilities – Departure: Must conform to reasonable conduct of person with the specific disability
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Roberts - Blind man must be held to the standards of what a reasonable person would do if he were blind. – Prosser. iv) Sudden disability – (mental or physical) if first attack, will probably not be held liable, but if subject to attacks, may be required to take more precautions and will be held liable Hammontree – doctor told him it was safe to drive, so not held negligent when he suddenly went unconscious v) Emergency situations – must act how a reasonable person in an emergency would act Cordas – taxi driver who was held up at gunpoint injures people when jumped out of car. vi) Children – Standard of conduct is of a reasonable person of like age, intelligence and experience under like circumstances for welfare and protection. Exceptions: -Engaging in adult activity-held to reasonable adult standard Stevens – child drives and injures someone. When a child is engaged in an adult activity, he should be held to the same standard as an adult. -Children under four-not held liable for negligent torts vii) Professionals –HIGHER (specialists held to even higher) Locality rule: Reasonable professional in same or similar communities (still majority view), but the fact that everyone else in defendant’s industry does a certain thing the same way does not mean that way was not dangerous. Morrison-Must have expert testimony of peer group in the vicinity. This was a rule from when educational standards were not the same throughout the country. In order to increase incentive to raise the standard of care, court holds we should have a national standard and thus do away with the locality rule. National standard is good law. Policy: Pro – why should lower income people get lower quality of healthcare Con - Risks are different, different education, may discourage doctors in rural areas because not as good equipment, impossible to keep clinics up to national standard ****Medical professionals exception to CUSTOM Informed consent – (Really about breach.????) Risks of proposed treatment must be adequately disclosed to patients by doctors. Lack of full disclosure is negligence because doctors have duty to inform, breach duty by not informing and injury occurs. Silence cannot become custom in the medical profession. Canterbury doctors must disclose sufficient material that a patient would take into account in deciding whether to undergo treatment. Boy should have been told of the risks of the spinal cord surgery. Treated to an objective standard. Most courts say must present medical evidence about which facts should be disclosed. Subjectively – Scott – what counts is what decision the patient himself would have made (not the reasonable person), but have to be aware that the plaintiff may be testifying in hindsight. Plaintiff would not have gotten hysterectomy if she knew all the risks, even though a reasonable patient would still have gotten the surgery.
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Disclosure of research interests – doctor must disclose research or financial interest if he has this in mind – even though you may be taking patient’s spleen out because it needs to come out, you must tell patient if you’re going to use it for research or financial purposes. Exceptions where physician does not need to tell o Emergency – no time to deal with informed consent o Unusual patient – not competent Well known risks do not need to be discussed. viii)Custom- Most courts allow evidence as to custom for purpose of showing reasonable care. Either side may point to a certain activity that is habitually carried out in the trade or community. Trimarco - Although the defendant was not criminally liable for not replacing the glass in the shower because statute demanding glass be replaced was ineffective at the time, custom should have ruled that defendant replace the glass (statute was not able to be entered as evidence, however, because not intended to protect plaintiff) Helling – should have given glaucoma test to woman under 40 even though it was not customary. Burden of time and money needs to be very cheap for it to be cost worthy compared to the chance that someone under 40 will get glaucoma times the loss of sight. ix) Owners and occupiers of land – What standard of care does an owner of land owe to someone who is on his land? Make sure defendant is owner or occupier of land or in privity (family members or employees) with one Did injury occur on or off the land? (obvious hazardous conditions do not need warning because obviousness is warning of itself) -Off land – -No duty for natural conditions -No duty for artificial dangers except for passerbys and an unreasonably dangerous condition. Salevan – The plaintiff had the ability to take precautions to prevent balls from flying over the fence. Once a landowner alters the condition of his land, it becomes an artificial one for the purposes of tort law and the owner must exercise reasonable care for the protection of those outside the premises. Ability to have a tort here depends on the idea that you may be able to walk more carefully on a sidewalk, but you really can’t avoid flying balls. Could also say that the baseball game is going on for profit so therefore the owner is liable. -On land – Is plaintiff trespasser, licensee or invitee. a. Trespasser – one who is uninvited and has no business being on the property (NO DUTY except to refrain from wilfull, wanton or reckless conduct that is likely to injure him)
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Mayes v. Massood – P enters warehouse looking for allegedly stolen property and falls through ceiling. D is not liable, unknowing of mantrap. KFC - no legal duty to comply with robbers demands and no duty to surrender property to protect third persons (in this case, invitee). EXCEPTIONS: -trespasser’s presence is discovered landowner required to use ordinary care to avoid injuring him. -frequent trespass on a limited area of land landowner required to use ordinary care to avoid injuring. -tolerated intruders/trespasser (not always inclusive) -dangerous conditions obvious to owner -Duty to warn for artificial dangers (if concealed and not obvious) b. Licensee – one who is on the property, but not for a reason that is economically helpful to the owner – social guest, firefighter, doorto-door salesman. -Any dangerous or non-obvious conditions-owner owes duty to warn. No duty to inspect. - homes are licensee land, and public places (restaurants) are invitees Rowlands v. Christian – D notifies landlord about crack in tub. Social guest P injures himself one month later and sues D, who’s liable because she knew of danger, it was not obvious, and failed to warn. c. Invitee – one who is on the property to be economically helpful to the owner. (usually commercial) -Owner is responsible for dangerous conditions which he should discover through reasonable inspection. Two ways to discharge duty Make it safe – if someone injured, obviously did not make dangerous condition safe. Adequately warn (VERY obvious dangers are their own warning—no liability for absence of positive warning) x) Common carrier/innkeepers - Can hold for even slight negligence towards passenger or guest (higher standard of care) RELATIONSHIP –cannot treat as stranger Lucchese - Traded off plaintiff to benefit RR passengers when didn’t use the most abrupt method to stop the train before it hit the car. As a passenger you have certain privileges (more duty). Duty changes with relationships (extraordinary to passengers, ordinary to driver) while degree of care you must use is the same in all cases (some do say that if act optionally, must use extraordinary care, but if you have a duty, must use ordinary care). Defendant breached duty to driver, but this was less of a breach than if he had used emergency brake (higher duty to passengers) xi) Employer/employee--Employer has higher duty towards employee
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Paris – Employer had to give out goggles to employee. Cheapest cost avoider- incentives should be placed on those who are in the best position to act on them. Loss of the worker’s one good eye is too unlikely to protect against according to B