BREACH OF DUTY: Failure to conform to a reasonable standard of care Determining reasonable standard of care: HAND FORMULA Liability exists when: B (BURDEN) < FORSEEABLE RISK = P (PROBABILITY) x L (LOSS OR INJURY).
P: FORESEEABLE PROBABILITY OF INJURY
Blyth v. Birmingham Waterworks Co. 1856: Water main installed by Defendant 25 years prior to it breaking and flooding in extremely severe freeze. Rule: A reasonable man would have acted in reference to average temperatures, not accounting for extreme frost. Injury was not foreseeable.
L: FORESEEABLE LOSS IF INJURY OCCURS
Gulf Refining v. Williams 1938: Appellant distributed a drum of gasoline to farm, which had a cap in disrepair that sparked explosion when farmer opened it. Rule: Potential danger was great, and even though probability of injury was small, Defendant was liable.
B: BURDEN OF SAFETY
What would it take to make things safe? Elements in determining burden of safety: character and location of premises, purpose of premises, probability of injury there from, precautions necessary to prevent injury, and relation such precautions bear to beneficial use of premises.
Chicago, B + Q RR v. Krayenbuhl 1902: Kid gets foot cut off when playing on RR turntable which had defective lock. Rule: When reasonable means to reduce danger exist, which would not interfere with benefit provided by the machine, they should be employed. Burden small. U.S. v. Carroll Towing Co. 1947: After its mooring lines were shifted, ship drifted into tanker and tore whole. Rule: Because many barges were in area, ships fastened in haste, and towing company working quickly, probability for drifting was high. Burden small: leave attendant on ship to respond in case of drifting.
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REASONABLE PRUDENT PERSON Objective standard of reasonable care; unlike subjective standards of intent and perceived intent which characterize intentional torts. ♦ CUSTOM May be admitted as evidence of standard of care; but jury must still decide if custom is evident and reasonably applicable. If Defendant has complied with custom, he will introduce it is as evidence of reasonable standard of care; if Defendant has not complied with custom, Plaintiff will introduce it.
Trimarco v. Klein 1982: Shower glass door; standards of care—federal government releases pamphlets on danger of glass doors and local building industry established pattern of replacing doors in tenant’s homes for safer materials.
♦ EMERGENCY SITUATION Emergency—a sudden, dangerous, unexpected situation; does not excuse all negligence, but reasonable prudent person is considered in same situation as actor.
Cordas v. Peerless Transp. Co. 1941: Cab driver jumped out of moving cab when threatened by passenger with gun; cab rolled into sidewalk injuring mother and child. Rule: what would be negligence in a normal situation may not be when actor responds to an emergency, not of his own making. Who can be wise and amazed in a moment?
♦ PHYSICAL DISABILITY Handicapped person must take precautions, be they more or less than nonhandicapped actor, which an ordinary reasonable handicapped man would. Exception: Voluntary or negligent intoxication is not legitimate disability.
Roberts v. Louisiana 1981: Old man runs into blind man, walking without his cane to restroom. For Defendant—argues custom of other blind people in his situation who do not use canes in familiar locations to evidence reasonable blind man standard of care.
♦ YOUTH General standard of care: what is reasonable to expect of children of like age, intelligence, and experience. Common Law Age Restrictions on Negligence Claims
Age 1-7 Incapable of negligence Age 7-14 Presumed incapable, but may be proven capable Age 14-17 Presumed capable, but may be proven incapable.
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Exception: When activity child engages in is inherently dangerous, as operation of powerful mechanized vehicles, child should be held to adult standard of care. ♦ MENTAL DEFICIENCY Majority: No exception to reasonable prudent standard of care for insanity. Policy: fairness argument—where one of two innocent must suffer loss, burden should fall on one who caused loss; to induce family restraint of insane, and to avoid encouraging false claims of insanity. Exception: Mental illness must affect person’s ability to understand and appreciate duty he has to exercise ordinary care or his ability to control conduct. Sudden effect of mental illness must come in absence of notice or forewarning to actor. PROFESSIONAL STANDARD General standard of care: Minimum standard of care generally applicable to profession. Exception: Professionals who proclaim themselves to be specialists will be held to a specialist standard of care.
Heath v. Swift Wings 1979: Pilot crashed with wife, son, and friend, killing all. Rule: proper standard of care is not that of an ordinary prudent pilot having Defendant’s same training and experience, but rather minimum standard of care expected of a “first day pilot.”
→ ATTORNEY MALPRACTICE NO LIABILITY: good faith, honest belief that advice and acts are well-founded and in best interest of client erase liability for error of judgment or mistake of law, not settled by highest court of state. LIABILITY: Attorney is liable for any loss to client resulting from want of knowledge and skill ordinarily possessed by others of his profession, from omission to use reasonable care, and from failure to exercise his best judgment in good faith.
Hodges v. Carter 1954: Case dismissed for attorney’s failure to properly serve insurance companies in suit; no negligence because attorney acted in line with local custom in service, despite defendant’s objection to lack of notice. Rule: it is enough to do what is commonly done, even if objection raised.
→ MEDICAL MALPRACTICE Standard of treatment customary in medical community must be shown with affirmative evidence, established through expert testimony, unless negligence is so grossly apparent that lay person could see it.
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Majority: “similar community in similar circumstances” rule—standard of care found outside local community in a similar one. Minority: “strict locality” rule—standard of knowledge and skill found in terms of practitioner in good standing in local community in which Defendant practices.
Boyce v. Brown 1938: MD repaired Plaintiff’s ankle with screw, Plaintiff has repeated difficulties with ankle, eventually sees another physician who x-rays ankle and removes screw. Defendant did not xray. Rule: No community standard of care concerning x-ray established in expert testimony.
☼ INFORMED CONSENT Elements of informed consent malpractice claim: scope of disclosure, causation, and injury. 1. Scope of Disclosure Material risk—what patient would want to know before procedure, tempered by condition that if he knew the information, he might chose differently.
Moore v. Regents 1990: Physician must disclose any personal interests unrelated to patient’s health, research or economic based, that may affect MD’ professional judgment.
Exceptions to communication of material risk: if disclosure would present detriment to patient’s health, if disclosure was not necessary because risk was obvious, or if procedure administered in the midst of an emergency. 2. Causation Only exists if patient would not have agreed to tx if he had been properly informed of material risk. STANDARD OF CARE IN ISSUES OF INFORMED CONSENT
Scope of Disclosure Causation Cantebury: Objective Standard Measured according to what information is reasonable under circumstances. Liability only if nondisclosure would have affected decision of a fictitious reasonable pt. Scott: Subjective Standard Measured according to particular patient’s need to know to make informed choice. Liability exists if the particular pt. would not have consented to treatment. Traditional: Reasonable Physician Standard Measured according to what physicians usually tell patients about a particular procedure. Liability exists if disclosure of MD fails to meet customary standard for particular procedure.
3. Injury Material risk must have actually materialized and plaintiff must have been injured as a result of submitting to the treatment.
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RULE OF LAW Test for establishing standard of care by rule of law: 1. Preponderance of previous case law
Pokora v. Wabash RR 1934: Plaintiff pulled up to RR crossing, listened for oncoming train, heard none and crossed though could not see north bound tracks because of visual obstruction. Rule: Previous case law revealed rule that driver must get out of car and look before crossing, if he could not be sure whether or not train was coming. Majority interpretation: driver must look and listen, but does not always have to stop.
2. Standard set of facts exist without variation (risk and burden are known).
Helling v. Carey 1974: Undiscovered glaucoma in young person caused blindness though it could have been avoided by simple test, which by custom was not given to patients of victim’s age. Rule: Courts must in the end say what is required in standard of care; there are precautions so imperative that even their universal disregard will not excuse their omission.
STATUTE If no statute applies, then apply reasonable person standard of conduct via custom, Hand, etc. Test for establishing standard of care by statute: 1. Victim must be of class of persons the statute was designed to protect. 2. Injury of victim must be of type statute designed to prevent. Consequence of using statute as standard of care:
Majority—Unexcused violation of the statute must be declared as negligence as a matter of law, not left to evaluation by jury. Minority #1—“Rebuttable Presumption” Approach: Violation of statute gives rise to presumption of negligence, which may be rebutted by legally sufficient excuse. (If excuse determined to exist, then appropriate standard of care shifts to common law negligence standards—custom, Hand formula, etc.) Minority #2—Violation of statute is only evidence of negligence which jury may accept or reject as it sees fit.
Perry v. S.N. & S.N. 1998: Complaint against non-reporters of child abuse in daycare center. Because negligence per statute involves liability for all violators of statute, must consider whether or not imposing tort liability will disproportionately penalize conduct that is less morally blameworthy or not specifically defined than substantive crime (child abuser).
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♦ Legally Sufficient Excuses (applicable in all three jurisdictions, above) Violation is reasonable because of actor’s incapacity Actor neither knows or should know of occasion for compliance Actor is unable after reasonable diligence or care to comply Actor is confronted by an emergency not due to his own misconduct Compliance would involve greater risk of harm to actor or others.
Zeni v. Anderson 1976: Plaintiff walking to work on wrong side of street and not on sidewalk, against statute, because snow covered sidewalk on correct side of street. Plaintiff hit by car and sues for injuries. Defendant raises statute as evidence of contributory negligence. Court applies “rebuttable presumption approach”—legally sufficient excuse presented, no “strict liability” negligence per se, and standard of conduct for Plaintiff shifted to common law standards.
♦ Strict liability “negligence per se” statutory violations—not rebuttable by excuse: o Child labor acts o Pure food acts o Federal safety appliance acts o “Safe place” statutes (i.e. for public lighting) o Firearm sale to minors.
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