Professional Documents
Culture Documents
Bush Torts Briefs
Bush Torts Briefs
Hammontree v. Jenner
Court of Appeal of California, 1971.
20 Cal.App.3d 528, 97 Cal.Rptr. 739.
Facts: (D) Jenner was driving his car when crashed into (P) Hammontrees
shop and caused injury to P and damage to her property.
-D claimed had epileptic seizure at the time of the crash and was
rendered unconscious and did not recall the accident
-D had medical history of epilepsy and was placed on medication which
physicians testified would stop the seizures from taking place
-DMV and physicians found D was allowed to drive and continued to
take medication at the time of the accident
Procedural History: Brought before the appellate court by P under the
argument that the trial court erred in refusing to grant summary judgment
and that the trial court also erred in refusing to instruct the jury on absolute
liability and refusal to grant directed verdict.
Issue: Does a D who falls ill while operating a vehicle by something that he
tried to prevent fall under strict liability or negligence?
Rule & Holding: A defendant who is struck ill after trying to prevent it and
is rendered unconscious while resulting in an accident falls under the
principles of negligence but is not liable because he tried to prevent it
P argument: Since a retailer who releases a product without inspection of
that product and has a defect with his product causing injury is found under
the principles of strict liability even more so someone who knows they have
an illness that can render them unconscious or defective and they cause an
injury should be found under the principal of strict liability as well.
Reasoning and refuting Ps argument: In previous cases in which the
driver caused injury due to defective brakes, the Supreme court refused to
the apply the doctrine of strict liability and instead the creator of the product
is the one that should bear the cost of injury.
In previous cases in which the driver was rendered unconscious due to
illness and injury occurred the court found that the accident rests on
principles of negligence. Also since the D had no reason to anticipate that
illness were to occur and had no true control over it, it is negligence.
Questions and Notes: If the D did NOT try to prevent the illness and
allowed it to occur, would it fall under liability or negligence? Since the D
used a standard of care he was not found N.
08/23/12
Brown v. Kendall
Supreme Judicial Court of Massachusetts, 1850.
6 Cush. (60 Mass.) 292.
Facts: P and Ds dogs were fighting.
-D using a stick tried to break up fighting between dogs
-D accidently hit P in the eye from behind when the dogs moved in that
direction
Procedural History: D appealed on the grounds that the trial court erred in
instructing the jury that burden of proof of showing negligence falls on the D
and that he had to prove he used ordinary care.
Issue: 1) Who does the burden of proof to show negligence fall under?
2) How is negligence proven according to the court?
3) What is the definition of bad according to the court in this case?
What is bad conduct?
One of the first cases that define what bad is.
When you act a person has to use extra ordinary care. Because court will
find those who dont use care will be liable
Rule and Holding: The burden of proof always falls under the P to show
that D had the intention of injury or that D was negligent in injuring P.
N or not N Rule: If the D used ordinary care, NOT liable. D tried
-If both D and P did not use ordinary care, D NOT liable.
Didnt matter if tried or not b/c both didnt try so not Ds fault completely
Ordinary Care: Degree of care a prudent and cautious man would use
to guard himself from probable danger in this case several feet away from
the stick
-do not have to pay for an inevitable accident if you used ordinary care
-Goes by case to case basis on what is considered to guard ones self
from danger
Big Picture: This case introduces the idea of a standard of care that needs
to be used by the D in order to show that the D is not negligent and actually
tried
-discuss what is considered negligence according to the law (those
who breach the standard of reasonable care)
-also shows that the burden of proof in a negligence case ALWAYS falls
to the P
Adams v. Bullock
Court of Appeals of New York, 1919.
227 N.Y. 208, 125 N.E. 93.
Facts: D owns a trolley line that uses the overhead wire system
-P, a boy of twelve, swung using a wire and came into contact with Ds
trolley wire and was electrocuted.
-The wires were not in the reach of the boy (the wires were 4 below
where the trolley were) and if he did not act foolishly (swung 8 feet
couldnt have reached it without his stupidity) he would not have been
electrocuted.
Procedural History: The trial courts found in favor of P, in that D was
found N.
Issue: Is a D who tries to prevent every reasonable circumstance of injury
to others, liable under the principles of negligence?
Was the fact that he didnt protect the wires but wasnt readily reached
considered bad conduct?
N = bad conduct
Holding & Reasoning: D is not found negligent and the judgment is
reversed. The system he used was his right under the law to conduct his
business. Because he followed his duty to adopt all reasonable precautions in
protecting the public and insulation to prevent the boy from touching the
wire was impossible in putting the wires in a way that could not be reached
by most people, not found negligent. In regular cases the person should
insulate the wires because that was his duty in protecting the public, but in
the case of trolley cases its impossible.
TEST: if foreseeable accident then NEED to protect (because could see
it coming so needs to protect):
You are N if = you did not take precautions for foreseeable accidents
NOT N= If NOT foreseeable and very hard to avoid (like in our case)
-no special danger at the bridge warned the D that there was need to
have extra precautions -did everything in reason to protect the public
-Those who try to prevent accidents in every reasonable way
(reasonable precaution) will be rewarded by the courts and will NOT be
found negligent or liable.
What does the court do when theres no RPS for what is good and bad for a
specific situation?
Need clear rule and RPS is NOT a clear rule how does the court
remedy?
If its vague then its not enforceable all the time
Need fairness in a Tort case goal of tort
Concretization of the rule
A vague rule is not only unfair but is not effective
RPS is used to deter bad conduct but if you dont know nec what is
bad conduct what do you do?
Goodman: driver was responsible because he did not stop and get out of his
car to see if the train was coming
Creates rule for duty of the driver
They had a lot of cases where ppl were getting hit by train so
created needed to create general rule of the duty of the driver and
what the bad conduct is in this kind of case so this way you dont
rely on the RPS
IF theres a type of case that is a recurring fact pattern then the
court will create a rule for what is good and what is bad -
Pokara: Cardozo says that judge cannot be concrete situational rule because
there are so many variations to the particular facts of each case need to
allow jury to decide instead of judges
In Goodman there was more than one train track and if the driver
got out of the car the truck would have been hit by at least one of
the trucks
Should use RPS and that judge cannot make a fact-based rule
Still law today RPS is upheld
Hard to frame standards of behavior that amount to rules of law
when the facts of each case are different, so it should be left up to
a jury to decide not have judges implement rules.
If we let judge make a standard rule, it would be unfair and not
workable/effective, so we need to let jury decide
Rely on judgment by jury as opposed to judge
NO Judge made rules prevails
Facts:
P was Ds tenant and P fell through glass of shower door
During trial P proved it was a standard for building owners to
replace the glass of shower doors to tempered glass since the
1950s
P argued that D failed to follow the standard of the industry
Procedural History:
Trial court found in favor for P, Appellate court for D
Issue:
Whether a industry standard acts as the RPS in that a jury trial is
not needed, or is a jury trial still needed?
If have industry standard, do you look to see if the D followed or
not and decide from there, or do you allow a jury to decide?
Ruling:
Court found that a jury trial is still needed. Although a standard or
custom does exist, it poses a greater argument for the P in that it
shows the D did not follow the standard. However it is still the
jurys decision to decide whether or not the D is liable
P argument:
D didnt follow standard so N
D argument:
I didnt need to follow standard b/c it was stupid
Advocates for customs are arguing that the custom = the required standard
of care = RPS
Easier argument dont have to argue R > C/AV and as a result
cheaper to do and takes less time
Trimarco rules that customs does NOT = RPS and therefore cannot
used
Why is industry standards bad? Saves us money and time
o Ppl in the industry have an incentive to have less safety
standards because it costs them less. Safety standards are
extremely expensive and therefore the industry is losing
profits
o The standard IS SET by the industry and therefore is how
little the industry thinks it can get in industry (minimal
standard) so the standard set by the industry is NOT what
the RP would do but is the minimal level
o Assuming a business set standard is crony capitalism
Rule from Trimarco:
Some Evidence: Deviation from the standard is NOT N and rather
just some evidence of RPS helps prove but doesnt conclusively
establish what the RP would have done
Always mention that the custom exists and integrate it into the
RPS/R-AV argument
All cases are decided by JURY NOT the judge
R-AV Argument + Custom for Trimarco:
P Argument:
Did: Reg glass
Shoulda: Shatterproof glass
What coulda happened?
o Ppl fall through glass
o Installer fall through
o Ppl slip outside of shower and fall in
o Door slammed and breaks falling on someone
Show probability of each coulda happened
o A lot of ppl fall through glass, a lot of installers fall through
etc etc
RP in this case:
A R shower glass door installer would know there is a custom
and that most ppl put shatterproof glass doors and the risks
involved in use regular glass instead of safety glass
Essentially integrating the custom in that the RP would know and do the
custom at least helps fill in both sides of the argument and is very good
evidence but it doesnt prove it conclusively it gives the D an opportunity
to argue from his side of why the custom is stupid and RP wouldnt follow it
Isnt just if you didnt follow the custom you are automatically
wrong still allows both sides to argue there point
Custom usually the shoulda done of the D
Statutory Rules
Statutory rules ARE accepted and followed
Violation of statutory rules are N per se = NPS = RPS would follow statute
and therefore immediately decided by JUDGE instead of Jury
R/AV argument is not necessary if you dont follow statute then
you are N
Proving this was the victim the legis was worried about
P: Has to prove ALL conditions:
1) Covers conduct of the D prove the conduct the D was doing is
covered by the statute
o Martin: Stat covers the ppl travelling on the highway- D was
driving on highway
o Need to define each of the words of the stat? What does
travelling mean? If someone is parked on the highway is that
travelling?
o Unless the statute DIRECTLY covers the conduct then the stat
is NOT applicable (only deals with moving cars)
2) What was the purpose of the stat?
Safety accident prevention? Prevent injury NEEDS to be a safety
law need to be talking about our situation and that our situation
involves safety
How do you know what the legis intended by the stat?
o 55 MPH speed limit: prevent ppl from wasting gas NOT
hurting ppl not a safety intent
o Martin: prevent damage to life and limb but NOT conserving
energy
o Need to analyze what the purpose of the stat was if doesnt
relate to a safety case then cant argue NPS
o Other types of statutes: economic reasons & blue laws (no
drinking on Sunday before 12pm)
o Needs to be a safety law and not for any other reason if
other reason safety law doesnt get in
3) Stat purpose was to prevent this type of accident
o If accident was part of the FRA or not
o Sheep HYPO: stat required sheep slips so there was no spread
of disease. As a result of no sheep slips sheep fell off boat
and drowned Stat was NOT trying to prevent this type of
accident but only for disease and therefore is not NPS cant
use this argument and need to make a R/AV argument
instead
4) Stat purpose was to protect this type of victim victim must in
the protected class by the stat
o Martin: involves drivers and P was a driver so NPS is
applicable
4.5) No excuse for the violation
o If an emergency then you dont have to listen to the statute
o Do you have an emergency that will make you go against the
stat? emergency beyond your control
P will argue that didnt have an emergency and
therefore was not allowed to go against the statute and
therefore is NPS
D will argue that I had an emergency (as an excuse)
and therefore did not have to listen to stat and is NOT
NPS
What was the legis trying to doThats what you need to prove.
How do you do that?
Look to the legis history
Stat language itself
Public record many stat are in response to something going on in
the public many ppl get hurt in this specific situation so we are
trying to prevent it
Effect of the stat 55 MPH was made to prevent extra gas but as a
result of ppl driving slower there were less accidents so courts
can argue as a result of this stat this happened
o Court imputes
D: Has to negate only ONE condition if negates one then it is NOT NPS:
Assumes the legis would always go further and so if they didnt
cover something or use specific words then its on purpose and
therefore argue that it doesnt fall under something because that
wasnt the words the legis used and therefore is not NPS
If D lost NPS argument and are found N then you need to show that the fact
that you were N are not the cause in fact didnt cause the accident to
happen you would have been hurt regardless
D needs to show accident would have occurred regardless and is
not the cause in fact
If P loses NPS goes to R/AV argument and shows how D was N
Both sides always have a backup plan
Sleigh/Showman HYPO:
Stress whats in the statute and whats not in the statute ALWAYS assume
the legis has control over what goes in a statute and what doesnt and since
something is there or isnt its there on purpose and that proves your
argument
P: NEED TO REFUTE Ds POTENTIAL ARGUMENT how do you do that? By
saying the legis could have said this, but they used this language instead
and so this is what they meant by the language they used
P: 3) Person in our accident got scared and not hurt stat does NOT ONLY
ppl getting hurt but also causes ppl getting scared because if they wanted
only to cover ppl getting hurt they would have wrote heavy signs over
walkways this way ppl wouldnt get hurt so shows they are interested in
ppl getting scared and not only getting hurt and therefore the stat DOES
cover this type of accident
D: 3) If the stat was worried about ppl getting scared they would have
prevented all signs and music and other things that could have scared ppl
but it didnt so it only covers ppl getting hurt and therefore the stat doesnt
cover this type of accident
P: 4.5) Did not have an emergency and therefore could not go against the
stat
D: 4.5) Had emergency so therefore allowed to go against the stat
Martin v. Herzog
Court of Appeals of New York, 1920.
228 N.Y. 164.
Facts:
P was driving his buggy at night without any lights (in violation of
NY statute) and was struck by the D car
o Didnt have lights on so was in violation of statute and
therefore did something bad
P sued D for driving negligently
D argued that P driving without any lights was negligent of the
driver and therefore was not the Ds fault that he couldnt see the
buggy (argued that it was contributory negligence)
Procedural History:
Trial court found in favor of the P in that the P was not N in driving
without lights on
Instructed jury that they had the ability to decide whether a
violation of the statute (not driving with the lights on) was bad
conduct and whether or not the P was N.
Issue:
Is a violation of a statute a questionable negligence or is the person
automatically N when they violate a statute?
Ruling:
The violation of a statute that is there to protect both parties shows
N and the jury had no right to decide whether or not there was N
because there was automatically N
Theres no evidence to show that D was driving fast or that his car
was defective the cause of the accident was due to the fact that
the P violated the statute
Statute was used to regulate travelers on the highway
Tedla v. Ellman
Court of Appeals of New York, 1939.
280 N.Y. 124.
Facts:
D hit P when P was in violation of statute by walking on the right
side instead of the left side
Ruling:
Cant completely understand what the legislature intended to do be
enacting the statute and therefore cant go by the strict language of
the statute
Bassey v. Mistrough
-The person had no way to listen to the stat saying that you cant drive
without lights b/c lights went off while driving and before could get off
highway to get fixed he got into an accident if an emergency then you
dont have to listen to the statute rule 4.5
Compliance
If P loses on NPS can go to R/AV and make argument there If D loses
argues cause in fact
D can never make a due care argument in that I complied with the
statute and therefore I shouldnt be N (in that once D shows hes
not NPS why can the P make an argument for R/AV why isnt the
D automatically not N?)
Kinda saying that the legis standard didnt make a good standard
o Like with business cutstoms dont follow the customs b/c we
dont trust there standard b/c they are self-promoting and
make the lowest possible standard for themselves but that
doesnt mean the legis makes the lowest possible standard
they work for the ppl
The ct decides that the legis are influenced by lobbyist (who work
for industry) and therefore the standard that is created although
not as low as business customs is still pretty low and complying
with that standard does NOT nec get you off the hook and therefore
once the D disproves NPS still needs to respond to R/AV argument
o Disproving NPS is evidence but isnt completely disproving N
Proving Negligence - Res Ipsa Loquitur the thing speaks for itself (the fact
of the accident speaks for itself b/c it happened you are the cause)
Showing that an accident involving an object that is most probably
in control of the D shows that he was most probably the cause of
the accident and is therefore N
If P can provide evidence showing that the D probably was the
responsible party even if the defendant did not have exclusive
control
Showing that the D is somewhat in control and arguing RIL allows
that argument to go to the jury and be decided by them isnt just
that a default argument that if you have RIL then the D is N
needs to be decided by a jury
o Is almost like a jury instruction but jury still needs to decide
P needs to prove and has the burden that the D conduct fell below
the standard of reasonable care and therefore caused the accident
and is liable
Best type of evidence is evidence that document the error the D did
also called real evidence cause it shows what really happened
Better than witnesses because cant be argued against completely
proves the accident
o Witness credibility could be argued and as a result would
diminish the testimony
RIL is good when we cant definitively prove what the D did wrong
that shows his N but the mere fact that the accident occurred is
enough to show he is liable because it could only occur since he did
something N
RIL shows an inference of someone being N
What happens when evidence is circumstantial?
What is the did in all of these cases? In RIL we dont know what the did is
and extremely hard to prove
In the past you have specific bad conduct that you can analyze in
relation to R/AV analysis in RIL you have no bad conduct that one
can argue is bad and hard to show what the RP woulda done
more of just an accident happened
3 section of Torts cases:
1) Cause in fact Causation
2) N not living up to RPS
Good = reasonable risk
Bad = unreasonable risk
3) RIL proving the breach when you cant show what the good or bad
conduct was
Facts:
P slipped on baby food that was dirty and messy
Dirty and messy indicates that the food was there for a long time
and was stepped on by several ppl
Dirty and messy evidence is considered circumstantial in that there
is no complete proof that is was there for a long time
Also brought witness saying that the aisle was not cleaned up in the
past 15 to 20 minutes
P argued that was there for long time and D had ample time to
clean it up (had constructive notice)
Issue:
Is circumstantial evidence enough to prove negligence?
Rule & Holding:
Court of Appeals found yes, circumstantial evidence is enough to
prove N
Because it shows that D had ample time to clean up via
constructive notice and they didnt they are N
Did: didnt clean up the baby food from the floor when you had
ample time to clean it and left it there for a long period of time
o In RIL we need evidence of the did
o Camera of when accident happened shows time when it
occurred documentary evidence
o Witnesses customers & workers testimony evidence
o Pictures from customers documentary
o In this case we ONLY have the condition of the floor that it
was dirty and messy and was black and dirty (when its
normally yellow) that shows that a lot of ppl were walking
over it and it was there for a long time
circumstantial evidence doesnt show that something
happened only shows circumstance of something
happened
Ct found that it was enough evidence to show N
Shoulda: shoulda discovered the food was on the floor and cleaned
it in a short period of time
Point of Case:
If the D has constructive notice of the thing that would cause an
accident and doesnt clean it up the D is N
Facts:
P fell on waxy paper on the staircase of the museum
P argued that the D had enough time to clean up the paper because
they agreed to have the concession stand where the paper came
from in there museum
Because they didnt clean up the paper in allotted time the D is N
Issue:
How much time is needed to show constructive notice of the D in its
requirement to clean it up?
Holding:
Must exist for a sufficient amount of time before the accident occurs
in order for the D to have constructive notice and clean up the
paper
P couldnt prove that anyone knew about the paper before the
accident took place
o So shows that it probably wasnt there for a long time
Did: Museum didnt discover and clean up the slippery wax paper
(RP would have realized and cleaned it up)
o Ct found that there is NO evidence to show the did where
as in S/Shop you have a little circumstantial evidence to show
the did
o In this case there is NO evidence whether circumstantial or
not showing how long the paper was there for if it was there
for a few seconds then the D was NOT N
No witnesses no evidence showing how long it was
there nothing at all
o Because doesnt have evidence of a did the Ct finds in favor
for D in that he is not N
Byrne v. Boadle
Because the barrel fell out from his warehouse and he was the only
who had control over it we can automatically assume that he was
the one who caused the accident and is therefore N
o Jury instruction
o Res Ipsa Loquitur
Barrel couldnt just roll out happened as a result of some N in part
by the D
o The fact that the accident occurs proves N
McDougald v. Perry
Because the D didnt do his due care in checking all of the chains he
acted N and RIL he is N (jury decides whether he is actually N but
allows the jury to think he didnt do due care)
Only one who had control over it
P doesnt need to prove 100% control just has to show 3 things
1) Prob that a tire falling off a car was an act involving N show its
likeliness
2) D had sole control
3) P had no participation other than being hurt
Each jurisdiction have there own rules on what to do with RIL but they all
agree that it is sufficient evidence to show N but the D can always come
back and show what he did to rebut the P argument of RIL
IF D cannot show what he did then he is N so D will always
come with an argument of what he did if a P makes a RIL argument
No did in RIL and no real evidence showing what happened and who did
something wrong
Couldnt find any evidence
Aurora HYPO:
Using RIL to show that the mechanical snowman caused the
accident
D is the engineering company that maintains the snowman
1) Need to show that its likely that a mechanical snowman blowing up is
likely to happen based off of someone being N
Create scenario that could explain why it would explode: (list all the
possibilities)
o Manuf poorly
o Serviced poorly
o Tampered with by pedestrian
o Lightening
o Bird hitting it and ruining it
Say that the examples that where a person was N is much more
likely then a bird or lightening hitting it
2) Need to show D has exclusive control:
List all the ppl who have control (or access) of the snowman (to
show who has possible N)
o Bank
o Hotel
o Manuf
o Pedestrians also have access to it
CANNOT make dominion argument (only use argument if the case
involves a boss who has control over the others involved and they
all fall under the umbrella) So what do you do?
Eliminate: Who?
o Cannot eliminate anyone So what do you do?
Make a majority argument
o Need to show that the engineering had more control and
length of involvement with the snowman more than any of
the other actors majority involvement more than anyone
else
o Engineering made the snowman, they repaired it and
maintained it and took care of it all the time holding the
bag most of the time
o Touched and dealt with the snowman more so than the bank
or hotel even if the bank or hotel or pedestrians did
something that caused the snowman to screw up it was the
job of the engineering to see it and fix it so they are the
ones who are prob N
Have to make an elimination argument, dominion argument or majority
argument or combo argument depending on what you can possibly do
So if you can only make one argument make one if you can make
more than one then combine them better argument
Causation is showing that if X didnt occur then Y would not have occurred
and therefore D is liable b/c he clearly caused the accident
Types of evidence:
Testimonial
Direct / physical
Expert
Circumstantial
Statistical
Wolf v. Kaufman
NYS. App Div.
Did:
Allowed lights to go out
Shoulda:
Kept light on
P: But For Causation Argument: But for you leaving the lights off, I
fell down the stairs. If you left the lights on, I WOULD NOT have
fallen.
D: Even if Causation Argument: Even if you I left the light on, you
still would have fallen down.
Have ear witness someone heard victim falling down the stairs
and was going down the stairs in an ordinary fashion but doesnt
prove that the lights was the cause. Just showed that he fell down
the stairs. Could have had his shoe broke or something.
Since they didnt prove enough evidence that D was the actual
cause doesnt go to jury and directed verdict
Rejects C/S/S
Borenstein
Had an eyewitnesses to show that nothing happened to victim while
the fell and therefore the D that he didnt have light was the only
cause
An eyewitness is enough evidence to bring to a jury (reasonable
jury)
In Stubbs didnt have any eyewitness that there was a typhoid
bacteria in the body of the P
Ingersoll
P: but for you not maintaining the stairway I got hurt when the I
stepped on the stair. If you fixed the stairs I wouldnt have gotten
hurt.
D: even if I fixed the stairs you would have gotten hurt and fell into
the stairs. The box fell on top of you and caused the accident. Its
your fault.
P brought CSI evidence that box was broken consistent with the
box fallen down the stairs not that it fell on top of the victim.
o Physical, circumstantial and expert witness evidence can be
enough to bring to reasonable jury
Statistical Evidence
Zuchowicz v. United States
United States Court of Appeals, 2d, 1998.
140 F.3d 381.
Did: Told V to take the wrong dosage twice the amount of max dosage
Got PPH (rare heart disease) and required her to need a lung
transplant
D admits to be N and telling her to take wrong dosage
Shoulda: Shoulda given her the correct dosage
Special Rules
Lost of chance / Lost Opportunity
Matsuyama v. Birnbaum
Supreme Judicial Court of Massachusetts, 2008.
890 N.E.2d 819.
Lost of chance / lost opportunity is a case when the P is attempting
to show that the Doctors failed to act failed to prevent an
unfavorable outcome in that the D reduces the patients chances
for survival, even if the patient has a very low survival rate with the
D helping
o Ds actions give P a complete loss of chance on surviving and
a loss of opportunity to diagnose and treat his cancer and
therefore the D somewhat caused the death of the patient
Case applies all or nothing doctrine in that if the P proves that if the
D diagnosed he would have had a 51% or more chance for
surviving that the D not diagnosed it was the reason he died (was
the but for cause) then get 100% worth in damages
Facts:
P had been seen by D from 1995-1999.
Complained of stomach pain, at first D did not conduct any tests to
determine cause of pain.
(D knew P had a 10-20 times higher risk of gastric cancer than
average American)
P developed moles on back, D determined they were benign
P developed mole near eye, D ordered test which came back
positive for gastric cancer but D still didnt order tests that would
confirm that P had diagnosis of gastritis
May 3rd, 1999, p went to D complaining of epigastric pain, vomiting
etc. D ordered a gastrointestinal series and abdominal ultrasound
which revealed a 2 cm. mass in Ps stomach. P died in October
1999.
Expert witness Finkel found that D breached a standard of care and
was therefore N
Procedural History:
Superior court found that a loss of chance doctrine in medical
malpractice exists and b/c the D did not act in trying to help the P,
the P lost his chance for survival and the D was N
D appeals on that judge erred in granting jury instructions that loss
of chance doctrine exists
Issue:
Does a loss of chance doctrine exist in medical malpractice suits?
Holding:
Ct found that a loss of chance doctrine does exist in medical
malpractice suits and if the P proves that if the D diagnosed he
would have had a 51% or more chance for surviving that the D not
diagnosed it was the reason he died (was the but for cause) then
get 100% worth in damages
If P had 49% chance of surviving then doesnt get ANYTHING
o Applying the all or nothing doctrine
BUT the P had less the a 51% chance (had 37.5% chance of
surviving) of surviving so why should the a lack of diagnosis be a
loss of chance?
P was statistically likely to die
o D: even though I was N, more likely than not you still would
have died if I helped (admitted by D in this case)
Dr is paying for 100% chance that he took away chance of survival
However ct still finds in favor of P Why?
P isnt suing for loss of life its suing for a loss of chance to try to
treat and survive
To deter doctors from dismissing cases with potential cancer so
they diagnose all cases and try to treat ppl
Cant necessarily show if the particular person falls within the
percentage of ppl who die so the victims dont care about the
statistics the stats of a group dont matter to the P
P is arguing that it doesnt matter that they had a high chance of
dying they still had some sort of chance of surviving and I lost my
chance of surviving b/c you didnt help me
So I should be able to sue for a loss of life and loss of life and you
recover proportional to the amount you prove. That if you have a
25% chance of surviving you get 25% in damages
So the rule of preponderance no longer applies when involving stats
you get the % you are able to prove not 100% IF less than
50% chance of survival
IF had 50% chance of survival and doc screws up then you get
100% - rule of preponderance
BUT if survival is less than 50% then go to RPP and P gets %
proved - so P can still get some % b/c in rule of prop need to show
50% in order to recover ANYTHING so in order to allow P to
recover something use RPP if less than 50% chance of survival
Only use this rule in cases of medical malpractice IF involving stats
Loss of chance is a theory from a law professor
Bush doesnt like the loss of chance rule b/c if a person survives
that person cannot sue the Dr. who didnt try to help him b/c
they're still alive didnt really cause anything
So its not really a loss of chance its only if you die then you're
suing so a loss of chance rule is really a loss of life rule
RPP is for medical malpractice ONLY but doesnt always apply still
can have the all or nothing rule with malpractice suits as well
For all other torts (whether its toxic torts or food poisoning case)
all or nothing ONLY
Why have RPP for Drs? in this case attorneys are asking to get
rid of the all or nothing rule for this case why did they accept?
Only apply for medical malpractice cases why?
P argues to keep it in just medical malpractice cases b/c in medical
cases a survival rate is a very common term used but in other
tort cases they dont talk about survival rates or rates if it didnt
happen so the court allows it
To convince judge to apply RPP instead of all or nothing P could
have also argued from a policy perspective for why all or nothing
should be changed and how its not fair and to social welfare etc etc
o Need to be able to explain why to explain your argument from
a policy perspective your honor we should do this because
it leads to better fairness and social welfare etc etc
D argues that if you accept RPP then ppl will use it to apply to other
types of cases
Ct explains for the reasoning in allow RPP for meds:
o Reliable expert evidence to prove loss of chance is more
readily available in med cases
o Patients expect doctors to do everything they can to help
them and so when Drs. dont do what they are supposed to
and a patient cant prove a preponderance the patient should
still have the ability to recover $
o Not uncommon for patients to have a less than even chance
of survival when they present themselves for diagnosis
most likely to die when the cancer is discovered so all or
nothing is hard to prove from the get go cant show CIF
o If we dont hold doctors responsible (who are those who are
most responsible for the death) then insurance companies will
be forced to pay (where as they were not as responsible for
the death)
If P proves RPP then it goes to a jury DONT forget that its about
whether it goes to a jury or not and also if the P can get directed
verdict or not
Also RPP is better in med malpractice cases b/c under prep cases a
jury may stretch what is found for example you have to prove
50% or more and if NOT then you dont get ANYTHING if there's
45% or even 33% the jury may still feel bad for the V and say its
almost 50% b/c if they dont estimate up then the guy doesnt get
any money at all so RPP is better b/c you dont stretch it out
everyone wins P gets money and D doesnt pay too much and
jury rules fairly and doesnt have to stretch (no pressure)
But RPP could also be bad b/c the D will always have to pay
In order to argue RPP:
o Needs to be Med Malpractice ONLY
o Have stat evidence like survival/success rate
o Chance of recovery is < 50% (meaning <50% statistical
probability that its a c/f)
Causation Issue:
P: CHILDREN do NOT know the medicine taken by there parents
and it was many years ago so parents dont even have the pills
anymore and dont remember what they took
D: cannot prove whose pill caused the cancer to the P
Problems with this case:
In this case CANNOT use the Summers rule b/c:
o 1) there are too many possible c/f
o 2) impossible to have ALL possible c/f in court (which was
required in the rule) b/c some companies are no longer in
business, ct may not have juris over them, and just simply
b/c there are too many
Since cannot use summers rule what do you use?
Concert of Action: Greatest example in drag racing or frat hazing: -Good law
1) One possible cause in fact
o Only one person is the real cause
2) Engaged in joint activity
3) With mutual encouragement
o Only one possible cause but the cause was due to the fact of
your involvement in the race or hazing (if you didnt do it
then the other ppl wouldnt be encouraged to do it)
o Drag race: other guy hit person and person sues YOU can
receive 100% in damages b/c if you werent involved then the
concert would not have happened and the P would NOT have
been injured
o Can sue you even if you cannot get the other D in ct
o Not required to get all causes in ct
CANNOT use this in Hymowitz b/c they didnt communicate or work
in concert to create the drug so no concert of action
ONLY time the SIC gets the D off the hook is:
If the SIC is reckless (had actual knowledge that he was doing
something wrong and still acted)
OR
If the SIC is deliberate (hurts the V on purpose)
AND
The SICs conduct was UF (unforeseeable) to the D
Ct doesnt apply this rule b/c Trax wasnt reckless or deliberate and it was
foreseeable to D that they someone would forget to apply insulation and
therefore they are the Prox Cause
Benn v. Thomas
Facts:
In this case, defendant rear ended the decedents van and caused
him injuries and he died 6 days later of a heart attack.
o No SIC in this case the D hit P fact
o So need to use UF harm instead if it was foreseeable then
the D would be guilty
D argues in response that even if I didnt hit him b/c the decedent
was old he would have had a heart attack anyway
D also argues that it wasnt foreseeable that he would get a heart
attack as a result of the accident how was he supposed to know?
Therefore he should be let off the cook
Holding:
The ct HOWEVER find that D CANNOT use that argument and b/c it
was UF is not an excuse to get you off the hook
Duty is a D argument and defense just like proximate cause - I did NOT
have a duty to act
Duty = scrutiny D will have scrutiny by the ct doesnt mean he
is liable just means he has to go to trial
Made in summary judgment No TRIAL if no duty
P must anticipate this argument and parry
DUTY MEANS THAT YOU WILL HAVE A TRIAL AND ANSWER FOR
YOUR ACTIONS DOES NOT MEAN YOU ARE LIABLE!!!!!
o Disprove liability in N and NPS arguments
DONT DISCUSS SPECIFIC PARTIES IN CASE: GENERALLY A
PERSON IN THAT ROLE HAS A DUTY TO DO SOMETHING
Two ways of creating a new risk (RIB) to show feasance (Ps Argument):
1) RIB by Affirmative Conduct (Note 1, Pg 140) D did something
affirmative and proactive that created a new risk to the V that he
did NOT have before therefore creating a duty that D must follow
o A) Direct Imposition of new risk move body
Creating new risk = RIB and b/c he has RIB he has a
duty to act
Doesnt matter if he actually creating a risk or not if
you are being proactive and physically doing something
that could potentially create a risk to the V then you
have an affirmative conduct and are creating a duty for
himself
ANY physically thing done that could potentially create a
new risk to the P would create a duty to stand trial!
Ex: Farwell: Beat up and under car and you pull him
from under the car and put him in your car could be
creating a risk for V and therefore you have affirmative
conduct and you have a duty
Must be creating a NEW risk meaning that the
situation the P is in is Different!
Have car in the middle of the highway and you are
directing traffic protecting ppl from hitting your car and
getting into an accident if someone comes and picks
you up then you are NO longer directing traffic thereby
creating a risk that ppl may hit you car
That person picking you up is creating a NEW risk
and that risk is a feasance
If the D did something that wasnt a NEW risk to the P
then the D has no duty and wont have a trial
Easier to make an aff conduct argument b/c there arent any extra factors
required like in sp rltp argument
2) No Duty For Policy/Neg Econ Impact Not subject to suit due to policy
Only Judge decide NOT juries WHY?!
A) Economic Productivity Policy:
o Certain companies are not subject to suit b/c it would go
against a public policy and have a negative economic impact
on the general public if they were subject to suit and we want
the general public to have a great economic prospects
o Ex: Protect ppl b/c if public utility companies (Con-Ed) are
subject to suit they will eventually raise the costs of
defending at trial onto the customers and therefore the
customers will eventually suffer and lead to a negative
economic impact
B) Social Justice Policy:
o If we allow prices to go up then ppl who are poor and
suffering already will suffer even more b/c they're going to
have to pay even more for electricity (assuming that rich ppl
will be able to afford the drastic price increases)
o Shifting the burden from the poor ppl who cant afford the
price increases to the ppl who are injured b/c they cannot sue
the company
C) Give credit to poor ppl so therefore they dont suffer and injured
parties can still sue
D) Social Justice Policy 2:
o Posecai Policy Argument: You should have a public policy that
says as an owner should provide lights and cameras b/c you
have a duty to protect your customers BUT you dont you
protect the customers! Why?
Juries would ALWAYS find for the ppl who are injured
and as a result would make the owners do a lot of
things so that injuries dont happen leading to extensive
searches at every door and taking away the individual
rights of every customer
There would only be poor ppl who suffer b/c the stores
(like walmart) where poor ppl shop are in poor
neighborhoods are the ones where robberies occur
the good stores like lord and taylor are in good
neighborhoods and robberies dont occur there
As a result only poor ppl would be subject to the harsh
searches in the stores b/c the stores where the rich ppl
go to dont have robberies and therefore dont need
extensive searches
So we dont allow juries to decide b/c they dont know
what they're doing and they will cause these things to
happen to themselves and to protect those ppl ct says
only judges decide b/c they are the ones who know
better
3) Limited No Duty For Premises Injury: Types of Vs
Invitee: business visitor and comes for a business matter or
economic benefit of D
o Someone who comes to clean your yard
o A colleague who comes to your house and youre working at
home
Licensee: Social guest, comes for social contact w/ permission
Trespasser: intrudes w/o permission
Damages
Seward: Pg 710: suing LA bus company for running over foot
Pain & Suffering gives you more money then the economic
amount you were normally getting emotional trauma
Statutory liability of survival the estate of the decedent will state have to
pay debt to others
So if decedent does a tortuous act, his estate will have to pay
damages
The statute allows survival of pre-death tortuous acts
Loss of consortion
Wrongful Death statute allows the family to recover $ for the death of
person in their family
The idea is b/c the person that was killed was the earner of the
family (breadwinner) and when he was killed the family lost and
possible future earnings of the dead person
Therefore the family files a wrongful death suit to recover the
possible future money that they lost as a result of the death of the
breadwinner
Grief and long-term emotional stress is NOT recoverable
Only for the possible money that was lost
Defenses 10/6/2016 4:57:00 AM
Aff Defense:
1) Contributory N (CN) P contributed some Negligence as well
use EXACT same argument in all tort argument Mirror image P
did N to himself running into a street is risky to ones welfare and
to someone else welfare it causes me to crash I shouldnt be
liable
o Elements:
1) R (to oneself) is higher than C/AV P took some sort
of risk
2) NPS P was contrib NPS
3) CIF but for your bad conduct accident wouldnt
have occurred
4) P/C no SIC cause and wasnt UF, etc
o Why?:
To ensure the N V dont get money this way it deters
others ppl from taking unrble risk with there when they
are doing something
Its stupid b/c you are always caring about your own
body and therefore you cant really deter someone from
hurting themselves they obviously will try themselves
not to put themselves in a risky situation
o Result:
If you a CN then you CANNOT recover anything at all
All or Nothing Rule
2) Assumption of Risk (AR) AKA VAR (voluntary assump of risk)
P is assuming the risk and therefore CANNOT sue P was reckless
o 1) EAR (Express AR):
P and D have a K about risk waiver of who bears the
risks of one parties N
Ex: Go skiing: waive all claims of N by D in case I
get injured therefore cannot get dam
Only void IF:
1) It was poorly drafted / no clarity
2) The K was extremely one sided
3) Against public policy ppl who are in public
service should be accountable for the N actions
Doctors, hospitals etc
But a ski resort or a gym is NOT public
service and therefore they should be help
accountable but they arent anywayWhy?
B/c the costs of the companies will go up
thereby making the ppls cost go up and
that would take away from the ppl
o 2) IAR (Implied AR) Implied via the behavior of both parties
1) Primary
Ex: Playing sports and hurt someone ppl know
you cant sue the person who hurt you b/c you
took the assumption of risk by playing
Policy argument that we encourage ppl to
have a good time and exercise soc welfare
Therefore theres no N & no Duty b/c
doesnt have to worry about getting into ct
Only have a certain amount of duty that the D did
follow Ex: baseball stadium have enough ppl
fenced in but not required to have everyone
Followed the RPS and did all that was
required of them by the law therefore
cannot be sued
2) Secondary
Rble AR (RAR) rble risk
Ex: Firefighter goes into building and is
injured by the landlords N on staircase
o Cannot Recover Why?
o B/c he will compensated by FDNY
insurance or somewhere elsewhere
like that AND therefore shouldnt be
able to recover twice ALSO he is doing
an inherent risk that is part of his job
o D/RAR (Deliberate risk taker) does
not recover b/c he recovers elsewhere
Ex: Someone from building goes up bad
stairs to save baby from fire
o Rble risk b/c knew he was taking a
reckless risk but it was rble to save
the baby
o Does Recover Why?
o Should be able to recover for doing a
heroic act this way we dont deter
ppl from doing an heroic act b/c they
may get hurt and wont recover b/c of
someones N they can recover
o S/RAR (Spontaneous Risk Taker)
DOES recover b/c cant recover
elsewhere
Dont confuse Reckless & a Rble risk a
reckless risk unrble risk, a rble risk is
something accepted by society so should be
recoverable
Unrble AR (UAR) the risk being taken is unrble
took the dark stairway instead of the lit stairways
when he knew of the lit stairs
When the P was being reckless knew that
you could possibly fall by taking the dark
stairway but did it anyway instead of taking
lit stairway
No rble excuse to do risk
o (Risk High, C/Av Lo)
3) Diff btwn CN and AR
o A person under AR has KNOWLEDGE of the risk thereby
acting reckless and therefore should NOT be able to recover
o However, cannot recover in CL CN as well
4) Comparative Fault no longer an all or nothing rule for some
behaviors still have All or nothing for other behaviors
o If P has some sort of N they can still recover, but just cover
less amount
Reduce dam
o No longer complete bar of dam compare the N (or reckless)
of each party thereby sharing the dam
Give dam prop to the amount each part was N or R
Some behavior gets compared and other doesnt
See Chart
The behavior that DOESNT get compared is all or
nothing Ex: EAR signing K, cannot recover
ONLY that which is compared get prop dam
P would rather be N, this way they get more
D would rather P be R, this way D pays less
o As a result the diff btwn CN & AR matters Why? How?
The diff btwn CN & AR is N vs. R
The amount that a P can recover will be MORE in a CN
case b/c he was N, and LESS in a case R b/c he did
something stupid and shouldnt recover as much for
having knowledge and still continuing
o D still needs to prove CIF, P/C and Duty
Strict Liability
ADA Abnormally Dangerous Activity and therefore if you do it you
automatically are liability and have no excuse for it
Rest 1st: Conditions of SL Ultra Hazardous Activity (UHA) (Better for P)
1) Activity necessarily involves a serious risk of harm, which cant
be eliminated through care
o By the nature of the activity someone will definitely get hurt
o Ex: Tiger Keeping, Reservoir
2) Not common to do this activity
o Ex: Person who has the dynamite takes care of the risk to
other b/c he insures himself somehow so in case something
happens hell have the money on the side to pay for it
(D/RIR- Deliberate Rble imposer of risk) b/c you put money
on the side then you should pay others regardless of whether
youre N or not so you made a deliberative choice to have
money on the side so instead of making him going thru trial
he just has to pay automatically he deliberately had the
money on the side for this purpose
Rest 2nd Abnormally Dangerous Activity (ADA) (Better for D has excuse)
1) High risk of harm to others
o Hi NER high non-eliminatable risk
2) Likelihood the harm will be great
3) Cant eliminate risk through rble care
4) Not a common usage
5) Inappropriate location to do activity (P) vs. Appropriate Loc (D)
o P arguing that R Hi, and C/Av was low
o D arguing that R Hi, but was appropriate
6) Low social value to the community (P) vs. High social value (D)
o P arguing that R Hi, and C/Av was low
o D arguing that R Hi, but allowed b/c of high social value
o High social value = ppl want him to do it