A tort is (1) a civil wrong (2) other than a breach of Torts basics Defense of Others Egg-Shell Skull Doctrine

Defense of Others Egg-Shell Skull Doctrine Negligence Elements Standard of Care Standard of care for Physical
contract (3) for which the law proides a remedy. 1. Plaintiff has burden of proof An unusually sensitive person can
*SEE SELF-DEFENSE* recover damages in full for injuries 1. Duty -->Negligence is judged by an objective reasonable person standard (Vaughan Handicaps
Goal: Restore individuals to state they would be in if 2. Civil wrong can happen through Same general principles that are greater in extent than 2. Breach of Duty v. Menlove) man with haystack --> Physically handicapped
tort were not to have happened intent or negligence would be reasonably foreseeable if 3. Causation -How a reasonable person would act if they exercised an ordinary level of care individuals must act with the
Fault Continuum Two types of intent: it was reasonably foreseeable that 4. Injury -Reasonable standard of care is a community standard (Rural vs. Urban; standard of care that a reasonable
Negligence---Recklessness---Belief Intent---Desire Intent---Malicious Conduct 1. Desire intent OR 2. Belief intent an ordinary person would suffer Hand Formula: B<P-L weather patterns. person with the same physical
some kind of harm B: Burden P: Probablility -->Liability for negligence exists if a reasonable person would have known of handicap would act (Roberts v.
NEGLIGENT TORTS INTENTIONAL TORTS (substantial certainty): Garratt v. Dailey
Transferred intent (Talmage v. Intent basics Battery Clarifications: L: Injury the danger State of Louisiana)

Defense acknowledges that tort occurred, but states

Hypo: Should a blind person drive?

(1) Consent (2) Self Defense (3) Defense of others

Smith) 1. Good faith intent does not The contact has to be harmful or offensive to a reasonable person of Hand Formula -->The industry where the incident occurs cannot set the standard of care,

that defendant had a privilege to commit the tort.

(4) Defense of property (5) Recovery of property

1. Transferred person intent: same tort negate liability (Ranson v. ordinary sensitivities. (Wallace v. Rosen) HYPO: Germophobe -If B<P-L, then because the industry can disregard safety for the purpose of incentives/money ->No, they should be held to
transferred from one person to Kitner) touched on the shoulder is not a reasonable person of ordinary liability for -->Custom evidence is never binding on a jury the standard of care reasonable for
negligence -->Custom standard of care vs. Judge Hand?s formula a blind person. Blind people

Defenses to Intentional Torts

another. Intent is transferred between 2. Insanity/mental instability sensitivities.
potential recipients does not negate liability Extended person rule: when an object is so intimately connected with occurs.* * * Always -->Apply custom first, then Judge Hand?s formula shouldn?t be driving.

(5a) Merchant's privilege (6) Necessity

2. Transferred tort intent: occurs when (McGuire v. Almy) a plaintiff's person, it is part of the person. Objects essentially apply unless given
another rule or Standard of Care for Children
a plaintiff intends to commit a tort 3. Age does not negate become part of the plaintiff's person when held or otherwise Flesh out Emergency Doctrine for Standard of Care
standard.* * * burden! -->Takes into account age,
against one person and ends up liability (Garratt v. Dailey) embraced. (Fisher v. Carousel Motor Hotel) -A person may not be required to exercise as much care when acting intelligence, maturity, training, and
committing a different tort against the 4. Parents are NOT liable Crowded world: we should expect a reasonable amount of Risk/utility analysis aka during emergency circumstances as they would if they had time to experience
same person. for torts committed by bumping/touching (Wallace v. Rosen) Economic Deterence pause and deliberate (Cordas v. Peerless Transportation Co.) -->When a child engages in an
Doctrine of transferred intent applies to children (GENERAL RULE) Plaintiff does not have to be presently aware of the battery. HYPO: 1. Goal is to make -->To qualify as a sudden emergency, the event must be unforeseen, inherently dangerous activity, the
battery, assault, false imprisonment, LSD in a coffee cup actions/products safer, but sudden, and unexpected.. child is held to an adult standard of
Assault
trespass to land, trespass to chattels. Any touching in anger is battery (Cole v. Turner) not at efforts unduly --> Under the Emergency Doctrine, the same standard of care of a care (Robinson v. Lindsay)
1. Act: volitional act
Battery Policy: Battery liability protects the dignity of the plaintiff reasonable reasonable person exists.
(decision was made)

consequences and therefore should be treated under rules of physical disabilities.

Knowing what you know about mental illness, what would argue?
HYPO: Suppose you have an elderly patient that has Alzheimers and dementia.
EXCEPTION: Sudden mental illness without forewarning (very few jurisdictions)
insanity to avoid liability.
the insane person to restrain and control him; and, iii. To stop false claims of
borne by the one who occasioned it; ii. To induce those interested in the estate of
follows: i. When one of two innocent persons must suffer a loss it should be
-->The general policy for holding an insane person liable for his torts is stated as
standard of a reasonable person. (Breunig v. American Family Ins. Co.)
-->Insanity does not negate negligence liability. Individuals are held to the same
1. Act: A volitional act (meaning that a 2. Intent: Cause imminent (DIGNITARY TORT). Protect automony 2. Deter actors from creating --> Amount of care can go down in emergencies
decision was made) apprehension of harmful or Intent R2T 8A Assault Clarifications: risks that fail cost/benefit test -->Key question: What is reasonable under the circumstances?
The word "intent" is Imminent=no significant delay of harmful or

-->Would most likely argue it is a physical impairment that has mental

2. Intent: to inflict harmful or offensice offensive contact
bodily contact
3. Result: harmful or offensive bodily
contact occurs, directly or indirectly
Conversion
while permitting them to
used throughout the offensive contact occurring. Professional Standard of Care (Medical Malpractice)
3. Result: imminent create cost-justified risks
Restatement of this Words alone can never constitute an assault 1. Professionals are held to reasonable and customary
apprehension of harmful or Subject to denote
offensive contact occurs Words can negate an assault. Merchant's General Rules for Professional standards of other professionals in the same field
that the actor Avoiding Professional Malpractice
desires to cause Future threats do not qualify as an assault. Privilege Malpractice
1. Reasonable belief A professional standard of care is 1. Posses degree of knowledge and skill customarily
consequences of his Conditional present threats, when combined w/

Standard of Care for Mental Handicaps

1. Act: volitional act (decision was made) act, or that he 2. Reasonable not a subjective standard, it is an found in the profession
threatening gesture, can constitute an assault.
2. Intent: to exercise dominion or control over the chattel of another believes that the investigation objective standard predicated on 2. Exercise the knowledge and skill customarily found in
Plaintiff has to be presently aware of the assault.
3. Result: interference results so seriously with the right of another consequences are
***Allows room for the rules and guidelines of the the profession
Fear IS NOT apprehension.
to control it that the actor may justly be required to pay the other the substantially certain reasonable profession. (Heath v. Swift Wings) Establishing the Professional
to result from it. Defendant must have apparent ability to committ
full value of the chattel. Standard of Care
assault, but not the actual ability. (Western Union) mistakes*** Medical Malpractice Standard of Care Rule
Conversion Multi-Factor Test R2T 222A(2) Intentional Infliction of Emotional Distress Reasonableness of Escape -->A physician is required to possess and exercise the degree of 1. Expert testimony is required to
Conduct 1. Act: Extreme and Outrageous Conduct
knowledge and skill customarily exercised by members of her
Plaintiff cannot be expected to put profession in the same area of practice [in the community] establish standard of care
a) extent and duration of the exercise of dominion or control 2. Intent: Intentionally (subj. std) or recklessly (obj. std.) in danger any of the following: 2. Plaintiff must establish the
-->Community rule depends on jurisdiction.
b) the actor's intent to assert a right in fact inconsistent with the cause... 1. Person; 2. Property; 3. Dignity standard of care AND the breach
-->The Medical profession gets to offer/choose its own (customary)
other's right of control 3. Result: Severe emotional distress (phys injury not standard of care of the standard of care
Types of Confinement
c) the actor's good faith req'd) 1. Complete physical barriers; 2. Community Rule Types
Questions for Expert Witness
Consequence PLAINTIFF MUST PROVE DAMAGES, NO NOMINALS Force or threat of force (even an 1. Locality Rule (Two states - Idaho & New York

undergo treatment if disclosure was made?

2. Subjective: Would the plaintiff not have elected to
elected to undergo treatment if disclosure was made?
1. Objective: Would a reasonable patient not have
informed of the risk
patient would have refused treatment if patient was
Plaintiff has to show that doctor knew of the risk and
1. What is the customary standard
d) the extent and duration of the resulting interference with the have strict locality rules)
IIED Bystander Element R2T 46 implicit threat); 3. Asserted legal 2. Statewide Rule
of care for this medical condition at
other's right of control this time [in this community]?

Casual Connection Informed Consent

When conduct is directed at third person, actor liable if: authority 3. "Same or similar community" (TN is this, but with
e) the harm done to the chattel 2. Did [defendant] breach the
1. a member of person's immediate family, no bodily

imminent circumstance to protect life or property

limited to bordering states)

what would otherwise be a tort (almost always a

standard of care?

destruction of property that comes out of public

f) the inconvenience and expense caused to the other harm required. 4. National Standard of Care (modern approach)

-Private necessity=strict liability. must pay for

from some independent cause (not his fault)
***If either set of factors is satisfied, conversion occurs.

-Privilege that allows a defendant to commit

2. other person who is present, if bodily harm caused
***Conversion causes a forced sale of the chattel Additional Informed Consent Rules (Scott v. Bradford)

property-based tort) where he acts under

-There must be reasonable apparence of

False Imprisonment The doctrine of informed consent arises out of the premise that doctors cannot substitute
***If someone tries to steal chattel of another, that's conversion

-There is no right to compensation for

their own judgment for that of the patient. For consent to medical treatment to be
***Intangible Property can be converted 1. Act: volitional act (decision was made) effective, it must stem from adequate information about the risks from the treatment as
2. Intent: to confine unlawfully well as any collateral risks. Informed consent is as essential to the physician?s skill as
IIED CLARIFICATIONS 3. Result: unlawful confinement occurs performing the treatment. If no consent is obtained then treatment would be a battery. If
Necessity

1. Mere insults, indignities, threats, annoyances, petty oppresions, or 4. Plaintiff must be conscious at the time of consent, but uninformed in obtained then it would be negligence on the part of the doctor
other trivalities do not qualify for extreme and outrageous conduct for failing to perform the obligation of informing the patient.

harm caused, but no tort.

confinement. Informed Consent
under IIED. 1. Physician can be held liable for failure to
Trespass to Chattels Patient Standard of Care Informed Consent

1. Professional Standard
2. Repeated conduct can developed into extreme and outrageous disclose feasible alternatives and any

Disclosure Standards
Informed Consent:
1. Act: volitional act (decision was made) Objective approach: What would a reasonable patient want to know?

2. Patient Standard of
of Care (majority rule)
material risks of undergoing surgery
conduct Subjective approach: What would this particular patient want to know?
2. Intent: interfere w/ chattel in the possession of Self-determination is philosophy

care (Two Types)

3. Authority figure abuses presumed authority over subordinate. (small minority)
another
E&O Conduct Themes: (1) Serious threats of physical harm. (2)
3. Result: chattel is impaired to its condition, quality, or
necessity.

necessity.

mere insults not sufficient. (3) Repetitive conduct can elevate insults Defenses to Informed Consent Claims Informed Consent Claim Elements
value OR possessor is depried of the use of the chattel 1. There is no need to disclose risks that ought to be known by everyone. 1. Duty to Disclose
to E&O conduct. (4) abuse of authority by a person in authority over
for a substantial time OR bodily harm caused to the 2. There is no need to disclose risks that are already known to the patient 2. Breach of that duty
a subordinate in a vulnerable position. (5) exploiting known 3. Therapeutic privilege: If disclosure would alarm, emotionally upset, and be detrimental to 3. Casual Connection between failure to
owner.
sensitivities the patient?s care, then the doctor does not have to disclose disclose and the injury
Trespass to land Defense of Property 4. There is no need to disclose during an emergency 4. Manifestation of the injury
LAW: self defense can be used when you have a
reasonable belief that you're in danger and force

threat could cause death or serious bodily injury.

1. Fresh pursuit. Any lapse requires individual to

-Regaining lost possession of personal property

1. Act: Volitional Act (decision was made)

LAW: amount of force must be reasonable and

-Applies only to current possessor

--->Deadly force (force likely to cause death or

Additional Malpractice Rules (Boyce v. Brown)

--->Reasonability is judged by the facts. Also

2. Intent: Enter property in posession of another -A party cannot gain privilege to use deadly force for
serious bodily injury) can only be used if the

2. Leeway for mistakes not allowed through

1. One licensed to practice medicine is presumed to possess the degree of skill and learning which is possessed by the average
allows for leeway for reasonable mistakes.

3. Result: entry (entry must be done by tangible mass) defense of property by giving notice. This is because member of the medical profession in good standing in the community in which he practices, and to apply that skill and learning with
through use of force. REQUIREMENTS:

POLICY: protects right to exclusive possession of land. the value of human life is higher than property rights ordinary and reasonable care to cases which come to him for treatment. If he does not possess the necessary skill or learning, or if he
Recovery of Property

Extended liability covers damages resulting from trespass -Booby traps are illegal because they are does not apply it, then he is guilty of malpractice.
indiscriminable 2. Before a physician or surgeon can be held liable as for malpractice, he must have done something in his treatment of his patient
Consent
Self-Defense

which the recognized standard of good medical practice in the community in which he is practicing forbids in such cases or he must
(Transferred Intent/defense)

-Consent can be implied or given by silence. Must factor in the have neglected to do something which such standard requires.
Medical Consent (limited scope of Consent)
totality of the circumstances. 3. In order to sustain a verdict for the plaintiffs in an action for malpractice, the standard of medical practice in the community must be
Medical care providers may act in the absence of shown by affirmative evidence and unless there is evidence of such a standard, a jury may not be permitted to speculate as to what the
-If consent is given to the volitional act, consent is given to the result,
express consent if:
resort to legal process.

required standard is, or whether the defendant has departed therefrom

no matter how crazy.
1. the patient is unable to give consent (unconscious, 4. Negligence on the part of a physician or surgeon in the treatment of a case is never presumed but must be affirmatively proven, and
-If a person acts pursuant to consent, no tortious intent can be found. no presumption of negligence nor want of skill arises from the mere fact that a treatment was unsuccessful, failed to bring the best
intoxicated, mentally ill, incompetent);
Consent negates tortious intent. results, or that the patient died.
2. there is a risk of serious bodily harm if treatment is
-Consent is only valid if the actions taken fall with the scope of the 5. The accepted rule is that negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of
common law.
is necessary.

delayed;
proportional

actual consent given. practice, must be established by expert medical testimony, unless the negligence is so grossly apparent that a layman would have no
3. a reasonable person would consent to treatment difficulty recognizing it.
-Consent based upon fraud is invalid. Omission if fraud.
under the circumstances; AND 6. The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant is
-Consent given under duress is not valid. not sufficient to establish malpractice unless it also appears that the course of treatment followed deviated from one of the methods of
4. the physician has no reason to believe this patient
-Consent given while intoxicated or mentally ill isn't valid. treatment approved by the standard in that community.
would refuse treatment under the circumstances.

I N T EN T I N T EN T I ON A L T ORT S D EFEN SES T O I N T EN T I ON A L T ORT S N EGLI GEN CE PROFESSI ON A L M A LPR A CT I CE

 Violation of Statute Approaches
1. Negligence Per Se: statute sets fixed
standard of care. (majority rule)
2. Rebuttable presumption: it would be
more dangerous to follow statute.
Reasonable to violate statute for personal
safety.
3. Mere evidence of negligence
Negligence Per Se Requirements
1. Plaintiff must be within the class of
persons intended to be protected by the
statute. If plaintiff is not within the class of
persons, the plaintiff would not be able to
invoke the doctrine of negligence per se
2. Plaintiff must suffer the kind of harm the
statute was intended to protect against
3. There must be a causal connection
between the violation of the
statute/regulation/ordinance and the injury
Excuses to Applying Statute R2T 288A
Excuses remove the effect of the statute.
Negligence can still be found, but not
negligence per se
1. An excused violation of a legislative
enactment or an administrative regulation
is not negligence.
2. Unless the enactment or regulation is
construed not to permit such excuse, its
violation is excused when
(a) the violation is reasonable because of
the actor's incapacity;
(b) he neither knows nor should know of
the occasion for compliance;
(c) he is unable after reasonable diligence
or care to comply;
(d) he is confronted by an emergency not
due to his own misconduct; OR
(e) compliance would involve a greater
risk of harm to the actor or to others.
Burdens of Proof
1. Substantial Evidence - lowest standard
2. Preponderance of the evidence - torts
3. Clear & convincing evidence
4. Beyond a reasonable doubt - criminal
standard, highest standard
Preponderance of the Evidence
1. Greater weight of the evidence (even if
only by 1%)
2. Evidence shows existence of the facts
is more likely than not
3. This is the burden of proof required in
the overwhelming majority of torts,
property, and contracts cases
Plaintiff's Burdens
1. Burden of production/burden of going
forward with the evidence
a. To meet the burden of production, the
plaintiff must produce sufficient evidence
to convince the judge, viewing the
evidence in the light most favorable to the
plaintiff that reasonable jurors could find
that the plaintiff could prove the case by
preponderance of the evidence
2. Burden of persuasion
Res Ipsa Loquitur Jurisdictional
Approaches
1. Permits permissible influence of
negligence by jury (MAJORITY RULE)
2. Permits rebuttable presumption
(Negligent unless proven otherwise)
3. Shifts burden of persuasion (small
minority) (Defendant must prove by
preponderance of the evidence that he or
she was not negligent)
Res Ipsa Loquitur
Meaning: ?The thing speaks for itself?
-> The happening of some events gives
rise to an inference by a more likely than
not standard that negligence did occur
Q: What is the most likely explanation?
A: The mere occurrence of the accident is
circumstantial evidence of negligence
->Expert Witnesses can be used in Res
Ipsa Loquitur cases
Causation
1. Causation is not the cause of the injury,
but a cause of the injury
2. Both Causation in Fact and proximate
causation are required to prove
negligence
Sine Qua Non (" But for" principle)
1. But for the defendant?s negligence, the
injury would not have occurred.
***CAUSATION IN FACT PRINCIPLE***
Meaning: ?Without which not?
N EGLI GEN CE PER SE
Negligence Per Se Overview
->Statute sets fixed standard of care. Rest of negligence: factfinder
sets standard of care without existence of statute
->Negligence per se applies to statutes, administrative regulations,
ordinances, etc. Some states give less weight to administrative
regulations and ordinances.
->Must show that there was a causal connection between violation
of statute and cause of action.
->Statute does not generally create cause of action. Cause of
action was a tort cause of action and statute applies to cause of
action.
Jury instruction: Ladies and gentleman, there was a statute at
the time of the cause of action. If you find that defendant that
violated the statute, you must find the defendant negligent per se.
When Statute is Not Adopted R2T 288
The court will not adopt as the standard of conduct of a reasonable
man the requirements of a legislative enactment or an
administrative regulation whose purpose is found to be exclusively
(a) To protect the interests of the state or any subdivision of it as
such, or
(b) To secure to individuals the enjoyment of rights or privileges to
which they are entitled only as members of the public, or
(c) To impose upon the actor the performance of a service which
the state or any subdivision of it undertakes to give the public, or
(d) To protect a class of persons other than the one whose
interests are invaded, or
(e) To protect another interest than the one invaded, or
(f) To protect against other harm than that which has resulted, or
(g) To protect against any other hazards than that from which the
harm has resulted
Circumstantial Evidence Direct Evidence
1. Requires factfinder to draw 1. Evidence that proves
inferences the fact without needing to
2. To be prove liability, plaintiff must draw inferences
prove that defendant had notice of the Res Ipsa Loquitur
dangerous conditions Elements
a. Actual notice (defendant actually 1. Event is one that
knew of the hazard) OR ordinarily does not occur
b. Constructive notice (defendant absent negligence
should have known of the hazard) 2. Control Element
Extreme Burden Shift
(Instrumentality that
Hypo: If plaintiff shows that there was
caused the injury was
a foreign substance on floor and that
under the control of the
substance caused the fall, burden
defendant)
shifts to defendant to show that
2a. Must consider
employees neither caused substance
whether the defendant
to be on floor nor had sufficient time to
had control when
have discovered and removed it.
negligence occurred
Res Ipsa Loquitur R2T 328D
(1) It may be inferred that harm suffered by the plaintiff is caused
by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in
the absence of negligence;
(b) other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated by the
evidence; and (CONTROL ELEMENT)
(c) the indicated negligence is within the scope of the
defendant's duty to the plaintiff.
(2) It is the function of the court to determine whether the inference
may reasonably be drawn by the jury, or whether it must
necessarily be drawn.
(3) It is the function of the jury to determine whether the inference
is to be drawn in any case where different conclusions may
reasonably be reached.
Res Ipsa Loquitur Hypos
1. Automatic doors closing on a person - No. There is no evidence
that such malfunction does not ordinarily happen in the absence of
negligence.
2. When a person falls on a work of art the person who fell was
negligent. - Yes.
3. When a heavy tool at a store falls off a shelf onto a shopper?s
foot. - No.
4. When an automobile leaves the highway and overturns and
crashes into a stationary object the driver is at fault. - Yes.
5. When a fertilizer plant explodes the person in control of the plant
was negligent. - Yes.
6. When an escalator comes to a sudden stop, the company
responsible for its manufacture and maintenance is at fault. - No.
There is no evidence that such malfunction does not ordinarily
happen in the absence of negligence.
7. When cattle escape onto highway rancher is at fault. - yes, but
there is a jurisdictional split.
8. When an experienced skier falls on his first run down the
mountain then the equipment was negligently maintained. - No.
Res Ipsa Expert Witnesses
Most jurisdictions allow the plaintiff to use an expert witness to
prove res ipsa loquitur in cases where the subject matter is so
specific that the layman would not be able to determine if it was
likely for the incident to occur without negligence.
Exclusive Control Res Ipsa Hypos
1. Res Ipsa Loquitur applies where a person leaves a parked car
on the side of the road and it rolls down the hill. Even though it was
not in exclusive control, it was negligent.
2. An escalator stopping where the buttons are exposed to the
public cannot be determined to be res ipsa loquitur. There was no
exclusive control.
R ES I PSA L O QU I T U R
Causation In Fact Exists Post hoc ergo Diagraming Intervening Causes
1. ?But for the defendant?s negligence propter hoc [Original Negligent Actor] ? [Intervening Cause] ? [Result/Harm] I certify that this exam-aid sheet is the original
in [FACTS], injury would not have Meaning: "After this Question: Does the intervening cause relieve the original
occurred?
Causation In Fact Does Not Exist
therefore because of
this" LOGICAL
negligent actor of liability?
If yes, it?s called a superseding cause
product of my study group. Exam No. ______
2. ?It cannot be said that but for the FALLACY ->It is not necessary that the precise manner in which the harm R2T 448: I ntentionally Tor tious or Cr iminal Acts Done Under Oppor tunity Affor ded by Actor 's Negligence
defendant?s negligence in [FACTS], ->Just because one was caused be foreseeable The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another
injury would not have occurred? event follows the ->Just a general nature of the manner of the harm be foreseeable resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to
other, it does not the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized
Concurrent Causes mean that one event Tenn. Code Ann. 40-7-116. Shoplifting; detention of or should have realized the likelihood that such a situation might be created, and that a third person might
->Either cause would have alone causes the other. suspect avail himself of the opportunity to commit such a tort or crime.
caused the entire injury (a) A merchant, a merchant's employee, or agent or a peace
->Either cause by itself would have Hill v. Edmonds
officer who has probable cause to believe that a person has Probable cause: higher standard than reasonable belief
been sufficient to cause the entire Combined Cause
committed or is attempting to commit the offense of theft, as
injury When two separate
defined in 39-14-103, may detain that person on or off the T. C. A. 29-26-115 Burden of proof; expert witnesses
Alternative Liability acts of negligence
premises of the mercantile establishment if the detention is done (a) In a health care liability action, the claimant shall have the burden of proving by evidence as provided by
->All possibly responsible parties must produce a single for any or all of the following purposes: subsection (b):
be named in a suit for the plaintiff to harm, each tortfeasor
(1) To question the person, investigate the surrounding (1) The recognized standard of acceptable professional practice in the profession and the specialty thereof,
recover is wholly responsible
circumstances, obtain a statement, or any combination thereof; if any, that the defendant practices in the community in which the defendant practices or in a similar
HYPO: If A sues B and C for damages for the harm even (2) To request or verify identification, or both; community at the time the alleged injury or wrongful action occurred;
caused by a fire, but D was the though his act alone
(3) To inform a peace officer of the detention of that person, or (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance
tortfeasor, A cannot recover because may not have caused
surrender that person to the custody of a peace officer, or both; with such standard; and
D was not named in the suit it.
(4) To inform a peace officer, the parent or parents, guardian or (3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which
Concurrent Cause (Summers v. Tice) Anderson v. other private person interested in the welfare of a minor of the would not otherwise have occurred.
If Defendants are independent Minneapolis detention and to surrender the minor to the custody of that (b) No person in a health care profession requiring licensure under the laws of this state shall be competent to
tortfeasors, and thus each liable for Combined Cause person; or testify in any court of law to establish the facts required to be established by subsection (a), unless the person
the damage caused by him alone, but When the injury is (5) To institute criminal proceedings against the person. was licensed to practice in the state or a contiguous bordering state a profession or specialty which would
it is impossible to prove whose caused by multiple (b) Probable cause to suspect that a person has committed or is make the person's expert testimony relevant to the issues in the case and had practiced this profession or
conduct actually caused the harm, acts of negligence, attempting to commit the offense of theft may be based on, but specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act
many jurisdictions presume that each but only one not limited to: occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court
Defendant was the actual cause of the tortfeasor is known, (1) Personal observation, including observation via closed may waive this subsection (b) when it determines that the appropriate witnesses otherwise would not be
Plaintiff?s injury. The wronged party that party is still liable circuit television or other visual device; available.
should not be deprived of his right to for the injury. (2) Report of personal observation from another merchant; (c) In a health care liability action as described in subsection (a), there shall be no presumption of negligence
redress. (3) Activation of an electronic or other type of mechanical on the part of the defendant; provided, that there shall be a rebuttable presumption that the defendant was
Proximate Cause
Proximate or Legal Cause device designed to detect theft; or negligent where it is shown by the proof that the instrumentality causing injury was in the defendant's (or
Jurisdictional
->Tool that courts use to impose (4) Personal observation of dressing rooms, including defendants') exclusive control and that the accident or injury was one which ordinarily doesn't occur in the
Approaches
limitations on liability for negligent acts 1. Direct Cause of the observation via closed circuit television, two-way mirrors, or other absence of negligence.
->Can & should assume that visual devices, shall be limited to observation by a person of the (d) In a health care liability action as described in subsection (a), the jury shall be instructed that the claimant
injury
defendant?s conduct was a cause in same sex as the person being observed. No observation shall be has the burden of proving, by a preponderance of the evidence, the negligence of the defendant. The jury
2. Scope of the
fact of the injury lawful unless notices are posted in the dressing rooms that shall be further instructed that injury alone does not raise a presumption of the defendant's negligence.
[foreseeable] risk
->Proximate cause issues deal with monitoring may occur.
Circumstantial Evidence Slip and Fall Cases
whether and how far we want to Direct Cause of the (c) A merchant, a merchant's employee or agent, or a peace
(Goddard v. Boston & Maine R.R. Co.) - Plaintiff Goddard brought suit against Defendant Boston & Maine
extend liability for negligent acts Injury officer who detains, questions or causes the arrest of any person
Railroad Co. after slipping and falling on a banana peel lying on one of Defendant's railroad platforms. Plaintiff
->It doesn?t matter if consequences ->Direct: the events suspected of theft shall not be criminally or civilly liable for any
fell a car?s length away from the train while many passengers were on the platform. Plaintiff appealed a
were unforeseeable, so long as they follow in an unbroken legal action relating to the detention, questioning or arrest if the
directed verdict in favor of Defendant.
were directly caused by the actions and natural sequence merchant, merchant's employee or agent, or peace officer:
RULE: The banana peel that caused Plaintiff?s fall may have been dropped within a minute by any one of
under conditions and (1) Has reasonable grounds to suspect that the person has
Scope of the [foreseeable] risk the persons who left the train. The opinion of Chief Justice Holmes states ?it is unnecessary to go further to
forces already committed or is attempting to commit theft;
1. What is the risk that made the decide the case?. This is an early case that relates to the burden of proof in negligence cases. While Plaintiff
existing or in (2) Acts in a reasonable manner under the circumstances; and
conduct negligent in the first place? could only provide the existence of the peel as evidence, Holmes makes a logical leap, dismissing the
operation at the time (3) Detains the suspected person for a reasonable period of
2. What is the greatest foreseeable possibility that the peel was not dropped by a fellow passenger, but may have been sitting on the platform for
R3T 33 time.
risk of that conduct? some time prior to the train?s arrival, and employees of the platform failed to notice it or pick it up.
Actor who (d) The merchant may use a reasonable amount of force
(Anjou v. Boston Elevated Railway Co.) - The Plaintiff, a passenger on the defendant?s railway, injured
Unforeseeable Consequences intentionally or necessary to protect the merchant, to prevent escape of the
herself when she slipped and fell on a banana peel. The Plaintiff had been following behind one of the
1. A defendant is only liable for the recklessly causes person detained, or to prevent the loss or destruction of property.
railroad?s uniformed workers when she slipped. The banana peel was described as black, dry and gritty and
consequences flowing from his harm is subject to (e) A "reasonable period of time", for the purposes of this section,
appeared as if it had been trampled on.
negligent act that are foreseeable to a liability for a broader is a period of time long enough to accomplish the purpose set
RULE: Circumstantial evidence can be used to establish proof of negligence.
reasonable person at the time of the range of harms than forth in this section, and shall include any time spent awaiting the
MORE: The Defendant was negligent in not removing the banana peel. Because the appearance of the
negligent act the harms for which arrival of a law enforcement officer or the parents or guardian of
banana peel suggested that it had been on the ground for some time, it could be inferred that the peal had
2. An actor is negligent and therefore that actor would be a juvenile suspect, if the merchant or the merchant's employee or
been seen and could have been removed by one of the employees of the railway. This fact distinguishes this
liable for damages only as to the liable if only acting agent has summoned a law enforcement officer, the parents or a
case from Goddard, as there is evidence upon which to base a conclusion that the peal was not dropped a
consequences of his conduct that negligently guardian.
moment before the Plaintiff?s fall by another passenger. Here, the railway employees had time to pick up the
were reasonably foreseeable R3T 10 Children
Intervening Causes hazard and they did not.
Foresseability Rules Definition: A force that comes (a) A child's conduct is negligent if it does not conform to that of a (Joye v. Great Atlantic and Pacific Tea Company) - Plaintiff was at defendant?s store. The slipped on a
Wagon Mound : Foreseeable into play after the original reasonably careful person of the same age, intelligence, and banana. There was no evidence that the defendant was aware of the banana or put the banana on the floor.
Consequences? Scope of the negligent actor has acted experience, except as provided in Subsection (b) or (c). There was no evidence as to how long the banana was on the floor, but it could not have been longer than 30
Risk? Proximate Cause R3T 34 (b) A child less than five years of age is incapable of negligence. minutes.
Palsgraf: Foreseeable When a force of nature or an (c) The special rule in Subsection (a) does not apply when the RULE: If there is no evidence to establish that the defendant had notice of the hazard, then the plaintiff
child is engaging in a dangerous activity that is characteristically
plaintiffs? Zone of the independent act is also a cannot prove negligence.
undertaken by adults.
foreseeable risk? Duty factual cause of harm, an MORE: The circumstantial evidence is insufficient to determine whether the Defendant had notice of the
Duty actor?s liability is limited to T.C.A. 29-26-118. Consent; adequacy banana peel on the floor.
The question of whether a those harms that result from In a health care liability action, the plaintiff shall prove by (Jasko v. F.W. Woolworth Co.) - The Plaintiff was injured when she slipped and fell on a slice of pizza in the
duty is owed to a plaintiff only the risks that made the actor?s evidence as required by 29-26-115(b) that the defendant did Defendant?s store. The pizza was sold over the counter to patrons shopping in the store. The area around the
comes up in two situations: conduct tortious. not supply appropriate information to the patient in obtaining pizza counter was tiled.
->Cases where there are Types of I nter vening Causes informed consent (to the procedure out of which plaintiff's claim RULE: When the defendant engages in a business that is prone to hazardous mishaps, then the nature of
bizarre facts ->Acts of third persons allegedly arose) in accordance with the recognized standard of the business serves to put the business on notice of possible injuries.
->Cases with novel policy ->Acts of God acceptable professional practice in the profession and in the MORE: Notice of a dangerous condition need not be shown in cases where the business itself creates the
issues ->Criminal acts of 3rd persons specialty, if any, that the defendant practices in the community in hazard.The store?s method for selling slices of pizza created a foreseeable risk of danger. The slices were
which the defendant practices and in similar communities. sold on wax paper to standing patrons and therefore it was foreseeable that food would drop on the floor. It
Res Ipsa Expert Witness Not Needed Hypos
was also foreseeable that if there were food on the floor it would be hazardous. No further evidence is needed
1. Patient experiences complications 3 months after surgery. A R3T 29 Limitations on Liability for Tortious Conduct
to show notice to the store owner because the risk that someone might slip is a recognized danger under
second operation is performed and they find a sponge inside of An actor's liability is limited to those harms that result from the
these circumstances.
her. - Yes res ipsa loquitur. Who else would have put that risks that made the actor's conduct tortious.
(H.E. Butt Grocery Company v. Resendez) - While shopping at Defendant H.E. Butt Grocery Company,
sponge in her. R3T 34 Intervening Acts and Superseding Causes
Plaintiff Resendez slipped and fell near a grape display put out for customer sampling. The sampling bowl of
2. Plaintiff is left unconscious in her room for an hour after the When a force of nature or an independent act is also a factual
grapes was on a table, sitting on ice, recessed five inches below the table?s surface. The table had a
surgery and wakes up with a second degree burn in the shape cause of harm, an actor's liability is limited to those harms that
three-inch railing around its edges, and the entire floor of the produce section was a non-skid surface and the
of a hot water bottle. - Yes result from the risks that made the actor's conduct tortious.
store put floor mats and warning cones around the display. Plaintiff sued for negligence and the trial court and
3. Dentist operates on wrong side of patient?s mouth because court of appeals of Texas found in favor of Plaintiff. Defendant Wins.
the x-ray was mislabeled. - Yes. Intervening Cause: Criminal Acts of a Third Person
RULE: A plaintiff in a slip and fall case must prove that the condition of the premises posed an
4. After surgery for a tumor of the spinal cord, the plaintiff ->Intervening acts that are unforeseeable, unusual, or highly
unreasonable risk of harm, and the facts and circumstances will determine whether such risk is unreasonable.
begins hemorrhaging so the defendant reopens the incisions culpable may be outside the scope of the risk
MORE: Mere display, without more evidence, cannot be considered a condition on the premises that poses
and packs it full of cellulosic material. The plaintiff wakes up ->Courts are more willing to consider them as superseding
an unreasonable risk of harm. For a plaintiff to recover in negligence for a slip and fall, she has the burden to
paralyzed. - No. causes
prove that the store had (1) actual or constructive knowledge of a condition on the premises, (2) the condition
5. A few days after abdominal surgery to enhance the plaintiff?s Q: When liability is imposed on an original negligent actor in an posed an unreasonable risk of harm, (3) the store did not exercise reasonable care to reduce or eliminate the
chances to become pregnant, she loses function in her left leg. intervening criminal act case? risk, and (4) the store?s failure to use such care proximately caused her injuries. Plaintiff here could not
- No. A: When the risk that made the conduct negligent in the first
provide evidence that the grape display posed an unreasonable risk to customers of falling on grapes.
6. Shortly after undergoing a bilateral mastectomy, the plaintiff place was the risk of a criminal act
experiences numbness in her right arm. She is then diagnosed R2T 449: Tortious or Criminal Acts the Probability of Which Makes Actor's Conduct Negligent
with ulnar neuropathy, degenerative nerve damage affecting If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent,
her right hand. - No. intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.
CA U SAT I ON N EGLI GEN CE (GEN ER A LLY ) D EFEN SES T O I N T EN T I ON A L T ORT S PROFESSI ON A L M A LPR A CT I CE