Tort- negligence

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Author:
sascha.hammerle
ID:
3049
Filename:
Tort- negligence
Updated:
2010-01-05 16:22:40
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Taft LAW
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tort claims
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  1. torts to the person
    • tort of assault
    • tort of battery
    • false imprisionment
    • intentional infliction of emotional distress
  2. tort of battery
    the intentional harmful or offensive touching of another.

    • esential elements:
    • act ( must be volitional, insanity no defense, reflexes dont count ect.)
    • intent( subjective- personal, intention to create the specific harmful or offensive touching, motives irrelevant. does not have to desire result of damages must be substantially certian harmful or offense would occur)if malice, punitive damages also transferred intent applies, likened to strict liability.desire or belief of sunstantial certainty (subjective)
    • harmful or offensive touching ( closely related object ok,harm is injury, disfigure, impairs, or causes pain, no special sensitivities, except if know or blatant. plaintiff does not need to know of the touching. offensive, reasonble persons ( objective) sense of dignity.
    • causation legal cause and proximate cause. must be the direct cause with no interviening sources, chain of events are direct cause.
    • ( lack of consent)
    • DISTINGUISH:negligence. this is an intentional tort for wrongdoers, whether forseeable or not.

    • damages:if no real harm, sometimes nominal.
    • compensory:general damages-embarassment...pain or suffering. disfigurement or disability special damages:identifyable income losses, medical bills, lost wages.
    • punitive damages:with acts of malice, jury can award punitive damages, usually under review by courts for ammount review. can violate due process if D did not know the severity of the penalty.... supreme court will look at ( reprehensibility, disparity between the compensory and punitive awards, difference between the punitive award and criminal and administrative penalites.
  3. tort of assault
    the intentinal intention to infliction of a harmful or offensive touching, or the apprehension of immenant haarmful or offensive touching.


    • act ( must be volitional, more then words, slightest movement is ok' you are about to die" is not. but "turn around and I will kill you" is..
    • intent: must intend to harm( etc.) or place immenant fear of harm ( etc) transferred intent... yes.desire or belief of sunstantial certainty (subjective) source of threat:a false statement... " watch out a snake is about to bite you" IS assault, using god as a threat.( also hwere words alone CAN be sufficient for these examples.
    • apprehension: must be immenant,, must be aware of threat... must be immediate. threats can not be for chattel or property, not even to a third person (family) must be actual.must be aprehension to touching of her actual person. phone calls not sufficient, " next time" is also insufficient.
    • causation: proximal and legal
    • lack of consent

    • distinguish:emotional distress other threats... to famiy, property etc.
    • distinguish :false imprisionment:threats to a famly member might create false imprisionment. " i will shoot your son here and now if you leave.. this is not assauly, this is false imprisionment."
  4. negligence
    approach technique
    • 1. act or omission
    • 2. determine duty of care
    • 3. actual and then proximate cause ( breach)
    • 4. defnese?
  5. negligence definition, elements
    the liability for resuts not intended, that the defendant failed to perform some act that the law required under the circumstances.

    must show defendant was at fault, maybe not intended ( differs from strict liability, which is no fault)

    • elements
    • act or omission
    • duty of care
    • breach of duty
    • actual cause
    • proximate cause
    • damages
  6. duty of care
    • two types:
    • duty to conduct ones self as a reasonable person under the same circumstances " duty of due care"
    • and
    • special duty, imposed by statute or case law, which may be in ADDITION TO or INPLACE OF>
  7. duty of due care
    • elements: act or omission,
    • duty of care
    • breach
    • proximate and legal cause
    • damages

    reasonable person standard: OBJECTIVE someone under the same or similar circumstances ( without special considerations) would do the same thing. regerdless to what a person feels they did. this test also is not how YOU would do it, but how "the reasonable person" would do it.

    • the greater the risk, the greater the care required.
    • emergency, some conduct for emergencies will be different then in non emergent situations.... emergency being the suddenn and unexpected peril created causing immentatn danger to someone.
    • in lyons v. midnight sun, driver not cause of the emergency... and still must act the same as person in same shoes.


    common carriers ow a higher standard of care. common carrrier = commercial enterprise who offers for a fee the transport to the public.
  8. establish standard of care
    • proof of circumstances
    • * custom of community might help, but is sometimed difficient in itself
    • * expert testiminy. when all experts are employed by same industry, the courts will be more linient about the qualification of an expert.
    • motel emergency lights ( will create the issue of... conforming all industry to this new standars < school busses) but also might be an indication there is no other sufficicent way to accomplish this task...
    • need to prove deviation for the standard.


    with a violation, maybe can prove negligence just by violation of statute.

    • compliance with a statute: good, but not conclusive
    • some statutes are minimal, but not prudent within the curcumstances.
  9. who does standards apply to?
    • all people.
    • children: reasonable person ( objective ) age intelligence and experience will be considered as part of the circumstances. judgement, memory and risk perception will be considered.
    • age 4 and up. minority, under age of 7, and 7-14 rebuttable. not when doing adult activities. physical disabilities, factors as set of curcumstances.

    • knowledge of disability will be a circumstances.. thus is blind and know it will be put into the set of circumstances.
    • voluntary intoxication will be held to the same standard of regular persons.

    • mental dificiency ( adult) no allowance fo rthe difficiency. this applies to stupidity, and even downright insanity...
    • HOWEVER, low intelligence can sometime be applied as contributory negligence cases.

    • skill levels, when beginner etc. will still be held to regular standard. when skills are superior, well be held to higher stnadard.( profession or trade)
    • professionaly, there are national standards, except for physicians.
  10. medical profession- negligence
    • older view, local standard
    • modern trend, same or similar community... gravitating towards the national standard.


    to prevail. establish that there is a standard, and show it was deviated from.

    • no expert testiminy needed if glaring discrepency that a layperson can see.
    • if conflicting opinions occurr, then doctor can follow either path, even if well respected minority opinion.

    informed consent- benefits and risks of treatments, and likely results.need to inform about noninvasive procedures and all viable alternatives., no obligation for the hospital or nurses.

    standard of disclosure- split/ doctor recognise will be material to the decision. some argue level of disclosure of the industry.

    • three exceptions: emergencies- prompt treatment required, and consent unable
    • tharaputic privledge- distraught or unstable physician reasonbly concludes full disclosure will be detrimenal. however: if an adult might decline lifesaving treatment can not be gived ( such as a DNR)
    • lack of experience; no need to disclose has not performed before.

    causation: informed consent OBJECTIVE view PATIENT SHOW they would not have had treatment, as well as the reasonable person would not either.minoruty ( subjective)

    revokable ( consent) as long as there is a viable alternative.there is a needed required consent discussion.
  11. who is owed care?
    • if a reasonable person would not have forseen injury to anyone, then there is no duty under the general form.no duty owed to unexpected persons by act.
    • andrews creates the broad view of all people proximately injured, regardless to forseeablility.
    • cordoza: forseeable plaintif, zone of danger.
    • andrews anyone cordoza zone

    • rescuers are forseeable, and proximate.because danger invites rescue.
    • harm caused by rescuer: lible for even these damages.
    • self negligence creating own peril.same as above.
    • LIMITATION:
    • if rescue was foolhearty, D may not be liable because of contributory negligence
    • LIMIT: professional rescuers: will not be liable... NOTE, this is not arson...
  12. forseeable plaintiff
    • cordoza's view... based on the reasonable person.
    • starting in california,: more then forseeable. also: moral blameworthyness attached to the act , closeness to the injury and the conduct, and the policy of preventing future harm.

    crushing liability:
  13. breach of care
    • proof of what happened ( direct evidence/ circumstantial evidence) Limit on the circumstantial evidence:showing safety record proof can not be brought into play.
    • the defendant acted reasonable under the circumstances ( ballancing test)

  14. res ipsa loquitor
    • res ipsa loquitor 3. elements:accident does not normally occur unless someone is negligent attributed to the defendant because of a duty to guard against no contributiry negligence. need to be withn the controll of the defendant . and was that one which D had a duty to control against?in cases of tire blowout, no res ipsa loquitor without more information.
    • LIMIT: where there is not a cohesive unit
    • LIMIT: can not sue a whole crowd looking for tortfeasor. plaintiff then has to identify
    • can not be from a self or third person. however, contributory negligence can not apply res ipsa loquitor.
  15. actual/proximate cause
    but for test... actual can be shown as this test, but proximate is more reflectant of the laws and statutes in place.
  16. concurence
    when an act has a contribution of facts. and there were two or more negligent people and acts which created the situation in a dependant relationship, and both were necessary to create the damage, then both are the actual cause...

    example a two car crash ( with negligent drivers) who then hit someone else..
  17. when there are a few people engaged in negligence..
    example: illegal drag racing and thus creates a dangerous situation... and bystander gets hit.. all are liable.
  18. sucessive tortfeasors
    when different people in a sucession of events, the defendant themselves will have to attempt to prove extent of injuries each caused.
  19. if two persons create injury
    substantial factor rule
    if each was sufficient alone was sufficient for injury, then they are both responsible if each was a substantial factor in the injury

    distinguish:concurrent liability.it is not the concurrrence with two motorcycles passing a horse, but either one alone would have sufficed, and because of the :but for" escape clause.. this created the substantial factor rule
  20. shift of balme
    • when unable to distinguish the balme between two persons, plaintiffs have to show they were not the cause.
    • if there was clearly only one person to blame, and can not be shifted, then both will be responsible.
  21. market share liability
    • new york: all defendants are liable based on culpability, based on national market share.
    • california: equal to the market share
  22. loss of chance
    traditionaly loss of chance is unrecoverable, unless can prove have lost something she was more then likely to have gotten or retained if accident had not happened

    • medical exception: loss can be extended to 50% loss ( loss of life?)
    • when physical injury is present,, then empotional injury for FEAR of cancer is recoverable.
  23. absence of proof
    if the absence of proof is due to the negligence of the defendant, then recoverable regardless.
  24. proximate cause
    forseeability.... a plaintif is unforseeable because the manner or result or plaintiff was unforseeable. because the nature of the situation on which negligence was placed. or there was other interviening sources.


    • " direct cause" no interviening causes
    • indirect causeeither extended injuries or combined to make them. this goes between the act and the harm.these will not be plaintiffs acts..
    • ( may be conrtibutory negligence or assumption of the risk, and do not affect the prima fasie case)
    • non interviening acts are:

    • preexsisting conditions
    • forces set in motion ( so if garbage truck gets hit and debris flies in the air, this debris in not an interviening force)
    • omission to act.
    • ultimately... forseeability.
  25. forseeable result-proximate cause
    maybe hitting a pedestrian one could see hitting someone... but the extent of injuries might be unforseeable.maybe protect.

    but in the second reenstatement ( unofficial) if the manner or set of circumstances are bizarre, might protect from liability. other courts will hold liable if just the results were forseeable no matter how bizarre the rest is...
  26. unforseeable result-proximate cause
    • unforseeable type of injury, and unforseeable extent of injury
    • type:split over whether should be liable. Polemis view:all direct consequesces.
    • wagon mound:no liability for unforseeable consequences. ( example:oil sipll might create a clog, but to ignite might noe be forseeable and thus unrecoverable)
    • result " a tortfeason takes his victims as he finds them" regardless of preexsisting conditions.
    • but damages will be reduced because the life expectancy for a person with preexsisting conditions might be less.
  27. indirect cause-proximate cause
    • unforseeable force has interviened:liable if act produced a forseeable result.
    • in some exceptional cases:liability even when unforseeable forces and unforseeable results

    • dependant interviening force: normal response.these act rise as a response to the defendants negligence and they are deemed forseeable, and are recoverable if those results are forseeable
    • in short. a person is liable to recsuers and other damages encurred unless the additional circumstances are actually reckless ( drunk doctor)
    • as long as the results and reactions are "normal"
    • independant interviening forces not a response or a reasction to. this is where an act of god fits in. animals too. defendant will be liable for all these results unless:

    force is unforseeable intentinally tortious, or an unforseeable criminal act then basically unliable UNLESS increased risk of this happening from the original act.

  28. proximate cause- not interviening
    • forces set in motion by the defendant.
    • preexsisting conditions
    • omission to act by a third person... even if legal duty to act.
  29. proximate cause- DIRECT CAUSE
    • what is the result? is it but for?
    • forseability leads to liability
    • exceptions: unusual mannernew york fire ( to isolate an indefinate application of liability.)
    • unforseeable results: unforseeable type of injury/ unforseeable extent.

    • unforseeable manner:
    • Polemis view. liable all direct consequences minority
    • wagon mound( not liable for unforseeable consequenses
  30. proximate cause- UNFORSEEABLE RESULTS-

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