1 Torts Outline Part One The Principal of Liability for Harm A. 3 Types of Tortious Conduct (1) intent →→→→→→→(2) negligence →→→→→→→(3) strict liability B. 4 Elements of Negligence 1. Duty to Exercise Reasonable Care: is required to conform to a certain standard of conduct. 2. Breach of Duty: a failure to conform to that standard 3. Causation: a reasonably close causal connection between the conduct and the injury. 4. Resulting Damages: actual loss relating to the interests of another. Note: Doctrine of Respondeat Superior: A master/employer will be vicariously liable for tortuous acts committed by her servant/employee if the tortuous acts occur within the scope of the employment relationship. • Usually held in Intentional Torts that tortious conduct by servants is not within the scope of employment. Part Two. The First Type of Tortious Conduct: Negligence A. The Standard of Care Standard of Care: In the law of negligence, the degree of care that a reasonable person should exercise. The reasonable person acts sensibly, does things without serious delay, and takes proper, but not excessive precaution. *** No duty is imposed on persons to take precaution for risk that cannot be reasonably foreseen. Therefore, if at the time of negligent conduct, no foreseeable risk to person in Π’s position is created by ’s act, there is NO general duty. A. Hand Formula: Reasonable person takes a precaution against injury if the (B) burden of doing so is less than the (L) loss of the injury occurring multiplied by the probability (P) that the injury will occur. If BPxL, then it is NOT negligent to not take precaution. B. The Reasonable Person I. Objective Standard: applied when assessing a ’s alleged negligence. The is considered to have the same physical characteristics of a reasonable person. ***However, a person is expected to know his handicaps and is under a duty to 2 exercise the care of a person with such knowledge (e.g. may be negligent for an epileptic to drive a car). A. Must Act with Average Mental Ability: must act as would a person with average mental ability. Individual handicaps are NOT considered (e.g. stupidity is no excuse, insanity is no defense, and is held to the standard of a reasonable person under the circumstances. Roberts v. State of Louisiana: Π fell after being bumped by , a blind operator of a concession stand located in U.S. Post Office. Π sustained injuries and sues for damages. Blind man must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind. Prosser Π failed to show that acted unreasonably, therefore is not liable for damages. C. Same Knowledge as Average Member of Community: is deemed to have knowledge of things known by average member of the community (e.g. fire is hot). The individual shortcomings of a particular are not considered. ***However, a defendant with superior knowledge to that of the average person is required to use that knowledge. i.e. Expert D. Professionals or People w/Special Skills: are required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities. E. Lack of Capacity—No Excuse 1. Children: a child is required to conform to the standard of care of a child of like age, education, intelligence, and experience. 2. Children Engaged in Adult Activities: where a child engages in an activity that is normally one that only adults engage in, most cases hold that he will be required to conform to the same standard of care as an adult in such activity (e.g. driving an automobile, flying an airplane, driving a motorboat, etc.). Stevens v. Calumet Public Schools: , only 14 yrs. old, was engaged in adult activity of driving an automobile in a driver’s education course, so he could drive to school. was involved in an accident where he struck Π. Court ruled when minors are involved in adult activity of driving an automobile, we will not consider the reasons for him participating in this act, but will rule that even minors are held to an adult standard of care. 3. Exception to Lack of Capacity/No Excuse Rule: Gould v. American Family Mutual Insurance Co.: was incapacitated in a Health Center. When not physically restrained, he went into other patients’ rooms and sometimes resisted being removed by staff. Π attempted to redirect to his room and suffered personal injuries. Court ruled that when a person is institutionalized with a mental disability, and who does not have the capacity to control or appreciate his or her conduct, he cannot be held liable for injuries caused to caretakers who are employed for financial compensation. F. Emergency Doctrine: Legal principle exempting a person from the ordinary 3 standard of reasonable care if that person acted instinctively to meet a sudden and urgent need. Exceptions: i. whenever reason for emergency is negligent conduct by the , most courts agree that is not allowed to use emergency doctrine. ii. not all emergencies provide excuse for s. Sometimes the ’s behavior is deemed unreasonable even though an emergency existed. Sometimes court determines had a duty to anticipate the emergency and take reasonable precaution in advance. C. Custom I. Custom or Usage: may be introduced to establish the standard of care in a given case. However, customary methods of conduct do not furnish a test that is conclusive for controlling the question whether certain conduct amounted to negligence. A. Locality Rule: the conduct of members of the medical profession is to be measured solely by the standard of conduct expected of other members of the medical profession in the same locality or the same community. Must have an expert to testify. B. Exceptions to Locality Rule i. Measure by National Standard: Typically applied to Specialist in Medical Malpractice Brune v. Belinkoff: Court held that Π a specialist in anesthesiology would be measured by a national standard because of the Advances in the Profession practicing that speciality. Said the Small v. Howard "Locality Rule" was NOT applicable to present day conditions. Did leave the door open to consider medical resources available to the physician in their locale, however made a particular distinction b/w specialist and general practioners. ii. Doctrine of Informed consent (no expert needed): exception to custom that states a physician must disclose the risk of procedure under most circumstances. Three exceptions: a. if patient is unconscious in an emergency situation b. if the risks are well known c. if informing the patient will be detrimental to the patient’s health (unusual patient) Cantebury v. Spence: Court held against doctor who opted not to tell Π of possible side effects of a surgery because he felt the patient may shy away from receiving a much needed surgery. Court noted that American Jurisprudence has long held that “every being of adult years and sound mind has a right to determine what shall be done with his own body.” B. Weak Custom: If customs are weak, court is NOT necessarily bound by what custom says. OR even if it is the "custom" if B

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