Torts all Flashcards
Standard of Care
objective standard of care: what a reasonable person would have done under the circumstances
Reasonable Person
Synopsis of Rule of Law. Reasonable and prudent action is based on the set of circumstances under which the actions took place.
Sudden Medical Emergency
Defendant cannot be held liable for conduct if caused by a sudden medical emergency which was not reasonably foreseeable by the defendant. Up until this point the sudden blackout defense is valid and this court reaffirms it, looking at all precedent cases nationwide, 36 states follow this rule.
Blackouts and Physical Illness
Synopsis of Rule of Law. When a Plaintiff fails to show any actionable negligence on the part of the Defendant, and the Defendant’s uncontested evidence shows the injury resulted from a sudden, unforeseeable illness, a verdict is properly directed for the Defendant.
Physical Disability
Synopsis of Rule of Law. The handicapped are held to a reasonable standard of care for a person with their disability, the handicap is considered part of the circumstances.
Liability is a Fault Based System
Synopsis of Rule of Law. When a Defendant unintentionally injures another while undertaking a lawful act, the Plaintiff must prove that the Defendant acted without due care as adapted to the exigencies of the circumstances.
Mental Illness
Rule: The Mentally Ill are held to the same standard of care as the reasonable man
Policy basis for holding a mentally disabled person liable: 1) where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; 2) to induce those interested in the estate of the insane person (if he has one) to restrain and control him; 3) the fear an insanity defense would lead to false claims of insanity to avoid liability
Although generally insanity is not a defense to negligence, when the insanity is unforeseen and unavoidable, it is unjust to hold a person responsible for the conduct that caused the injury.
Also, a paid caretake cannot recover for institutionalized patient, can recover worker comp.
Standard of care for children
RULE: what it is reasonable to expect of children of like age, intelligence and experience…except liability would apply the adult standard of care to children engaged in dangerous activity that is characteristically undertaken by adults”
OHIO Rule of Sevens: - under 7: incapable of negligence or an intentional tort - 7 to 14: presumed incapable, but rebuttable by π - over age 14: presumed capable of negligence, but rebuttable by Δ
Professional Standard of Care
Rule: Medical malpractice can only be shown where, by expert testimony, substantial and sufficient evidence, it is established that the doctor acted outside of the community norms in their treatment of the patient.
Ohio: National Standard, not Locality
Informed Consent
Rule: In an action for tort of lack of informed consent, a patient/plaintiff suing under the theory of informed consent must allege and prove:
1) Duty to Inform: defendant physician failed to inform him adequately of any material risk before securing his consent to the proposed treatment
2) Causation: If he had been informed of the risks he would not have consented to the treatment (reasonable person standard), question of fact
3) Injury: the adverse consequences that were not made known did in fact occur and plaintiff was injured as a result of submitting to the treatment.
- **exceptions, to which the burden of proof is on the defendant:
1) full disclosure would be detrimental to patient’s best interests (FREAK OUT factor)–there is a big burden on the doctor to prove this; or
2) emergency existed which required prompt treatment AND the patient was in no condition to decide for themselves (this last one is objective)–>IMPLIED CONSENT, a major one
Vicarious Liability
Rule Respondeat Superior: An employer is ordinarily liable for the injuries its employees cause others in the course of their work. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee. the doctrine’s animating principle is that a business should absorb the costs its undertakings impose on others.
Going and Coming Rule
an employee is within the scope of his employment if the conduct of the employee was not a substantial deviation from the scope of their employment, in determining whether the deviation was substantial or slight, there are six parameters which must be analyzed:
1) the employee’s intent
2) the nature, time, and place of the deviation
3) the time consumed in the deviation
4) the work for which the employee was hired
5) the incidental acts reasonably expected by the employer
6) the freedom allowed the employee in performing his job responsibilities
Independent Contractor
Rule: the decisive test for determining whether a person is an employee or an independent contractor is the right to control the physical details of the work, I.C’s Set their Own Hours, and decided what they charge.
exception: something that is considered to be a non-delegable duty is something that is so dangerous/inherently dangerous work that the court does not want to let the employer off the hook (we see this a lot in electrical work)
Doctrine of Apparent Authority
Under the reasonable person standard, the tortfeasor reasonably appeared to be an employee
Statutory Standard of Care/Negligence Per Se
Rule: when the standard of care is essentially the same as the conduct required by a statute, the defendant can be held liable under statutory law, the only difference is that in the one case the measure of legal duty is to be determined upon common-law principles, while in the other the statute fixes it Rule: in order for the judge to allow penal statutes to establish tort statutes, a plaintiff must show 3 things:1) D violated statute; 2) plaintiff is in class of people to be protected by the statute; 3) the harm suffered is the type of harm the statute was designed to prevent -judges use the fact the the statute was enacted to protect the GENERAL PUBLIC, not any one specific person to get out of using penal statutes as tort statutes b/c they don't like using penal statutes
Industry Custom
Rule: A defendant may be liable when evidence has shown that defendant did not reasonably conform to a reasonably accepted practice in situations of similar circumstances.
-BOTH SIDES can use industry standards and customs, depending on the situation, however, it is usually used by the defendant
Circumstantial Evidence
Circumstantial evidence requires an inference be drawn from the facts. It is not a lesser form of evidence and may be more reliable than eyewitness accounts.
Slip and Fall
Majority
- Smooth or slippery surface, such as wax: P must identify substance and show that it was improperly applied or defective.
- Foreign substance: P must prove either 1) D placed substance on floor 2) D knew about substance on floor and failed to warn anyone or 3) the substance had been there long enough so that D should have known it was there
- Tracked in water: D is only liable if water is 50ft or more away from an entrance
- Defect in the surface: create an unreasonable risk of harm and are not merely slight or trivial imperfections. (2 inch rule)
Mode of Operation
Minority:
where an owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner could be held liable for injuries to an invitee if the plaintiff proves that the store owner failed to take all reasonable precautions necessary to protect invitees from these foreseeable dangerous conditions.
**OHIO, Majority: has not adopted mode of operation.
Res Ipsa Loquitur
plaintiff must prove 3 things for doctrine to apply
- That there was an accident
- That the thing or instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of the defendant; AND
- that the accident was such that in the ordinary course of events, the defendant using ordinary care, the accident would not have happened
- Doctrine cannot be applied in cases with multiple possible defendant’s or the injury could be attributable to one of several causes.
Cause in Fact
Apply BUT FOR test, “but for (if not for) the defendant actions, the defendant would not have been negligent” or…would the accident have happened even if the defendant hadn’t done it? if the answer is no, then negligence; if yes, no negligence; doesn’t work for 2 negligent defendant, with multiple negligent defendants, you must use the substantial test to determine whether they were also negligent
Substantial Factor Test
Concurrent Causes
- Substantial Factor Test: If two events coincide to cause injury, court uses this test. Is negligence of each a substantial factor in causing the harm?
- But-for test does not work with multiple tortfeasors.
Quantum of Proof Problems
NEITHER SPECULATION NOR SUSPICION IS SUFFICIENT TO OVERCOME A MOTION FOR SUMMARY JUDGMENT; Rule: plaintiff must prove sufficient evidence that causal link DID exist between defendant’s action and plaintiff’s injury, it must be probable or more likely than not (51%) that the defendant’s actions caused the plaintiff’s injuries in order to meet the burden of production in a negligence claim in order to survive a motion for summary judgment.
Joint Tortfeasors
- Joint Tortfeasors: “Joint”: 2 or more who act in concert, or independently to cause a single injury, or sharing responsibility because of vicarious liability
- two independent tortfeasors, acting independently, cause one indivisible injury held jointly responsible, even though each act separately wouldn’t have caused injury
Alternative Liability
Both D’s are negligent but only one of their negligence could cause the harm but impossible to tell which. To exonerate both would be to leave P without remedy. Both are negligent, so the burden shifts to Ds. Each should absolve himself if he can; otherwise each is 50% liable
Enterprise Liability
small number of manufacturers, acting in concert through industry-wide standards/cooperation; jointly control the risk
Market Share Liability
ONLY DES cases SO FAR, OHIO DOES NOT RECOGNIZE vast majority of market (~90%) controlled by a few producers;
- Works because of fungibility of the drug, and direct link to injury;
- π must show that drug PROBABLY caused the injury;
- Δ can escape liability by showing they didn’t supply the drug taken;
- Fair, because liability approximates a company’s relative risk;
- Has not been applied to many other products (not asbestos, guns, lead paint)
Proximate Cause
Proximate cause is a legal decision about whether liability should be imposed where cause in fact has been established. It is a question of fact for the jury.
It is a rule of limitation, limiting liability, setting a point beyond which courts will not look for damages.
Three main tests: 1) direct test, 2) foreseeability, 3) and rough sense of justice.
Direct test, Foreseeability, Rough sense of justice
-Direct Test of proximate cause: -so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results
-Foreseeability Test (MAJORITY): responsible only for all damages that can be foreseeable; TYPE of harm must be foreseen (not manner or extent…)
-Rough Sense of Justice: Justice andrews invented it, it would be unfair to make defendant completely liable, public policy argument.
LIMITED DUTY test (not cause) as limiting factor (a question of law)1) duty is relative to a foreseeable group of people 2) no duty to an “unforeseeable plaintiff” (too remote = no duty) 3) Duty is anterior to the cause (saves cost, time…)
