D intends to cause a
com
(i) harmful or offensive contact with the person of the other
(or a third person), or
(ii) an imminent apprehension of such contact
INTENT
- with purpose, desire, or substantial certainty (subjective
standard)
Most Courts: only the intent to touch is necessary
Touching
Other courts: Dual intent to (i) intend the contact and to (ii)
occurs
intend the offensive or harmful action (the consequences).
- intentional act must be voluntary (no sleep movements)
Transferred Intent: intent can transfer: is still a tort but he
must have intended to offend or touch. (But consent does not
transfer).[a different tort on the same person; an intended
different tort on different person]
imminent
apprehension
occurs
Assault (Threat of physical contact)
The other (must be reasonable) is thereby put in imminent
apprehension of contact (no future threat)
Victim must:
(ii) be aware at that moment (before is is over)
(iii) believe that a harmful or offensive contact on her is
imminent due to an action of D.
(iv) believe that D is able to commit the action No imminent
Conditional threat (option to escape): is assault (unless apprehension
privileged)
Words alone are not the basis for assault unless together
with other acts or circumstances
Unforeseen Consequences (not limitless): you are liable--
take the plaintiff as you find him.
Texas Penal code § 22.01. Assault
A person commits an offense if the person
(i) intentionally, knowingly, or recklessly causes
bodily injury to another (or spouse);
(ii) intentionally or knowingly threatens another
with imminent bodily injury (or spouse); or
(iii) intentionally or knowingly causes physical
contact with another when the person knows or
should reasonably believe that the other will regard the
contact as offensive or provocative.
Intentional Infliction of emotional distress (IIED)
(i) extreme and outrageous conduct, (ii) intentional or recklessly , (iii)
If no
causes (iv) severe emotional distress (see med attention or
other
sleeplessness)
Tort fits
Defenses: D had a right to put the mother with her children on the street
(not paying rent)
Outrageous:
- distress must be (i) severe for a reasonable person of ordinary sensibility
(the minimum requirement) and plaintiff must (ii) actually be distressed.
- for conduct exceeding all bounds usually tolerated by decent society
- gross insults only sufficient if delivered by a public utility, carrier,
innkeeper telegraph.
Ask:
- did the defendant have some power over the plaintiff (special relation).
If not reckless
- did the plaintiff have some vulnerability the defendant knew about (child,
but negligent
hypochondriac, but not a short person)?
you need injury
- was it a repeated act?
Reckless:
- he knows of high probability of harm but disregards precaution that would
eliminate the risk.
- the defendant knows or should know but acts in indifference
- an intentional act that raises the probability (getting drunk)
Eggshell skull: goes into damages (after showing distress of a reasonable
person)
-you can recover for physical injury that fall form it: She cracks her head
after being told that her son is dead.
This is IIED (Rest 46)
- killing a beloved dog or object
Third party IIED liability
1. The third person is a (i) immediate relative of the distressed person who
is (ii) present at the time; (iii) D knows of third person's presence; or
2. Any third person who is (i) present at the time and distress results in (ii)
bodily harm, (iii) D knows of third person's presence
Thomas Hiesberger, hiesberg@yahoo.
Battery
(iii) A harmful or offensive contact (with the other) directly or
indirectly results.
Contact: direct physical contact or something intentionally (but not
accidently) set in motion to contact with P's sphere of personal
autonomy, with the imminent extension of the person (shopping
bag and horse, ?car? but not bus). Touching of anything that is
attached or identified with the body--no battery by inaction
- Victim need not be aware at the moment battery occurs
Offensive contact:
- offending a reasonable sense of personal dignity; or
- when D know of P's special sensitivity.
No offensive contact:
- when prior conduct or habit allows it.
Unexpected consequence: you are liable for the unforeseen
Eggshell skull: liable for full damages (you get the plaintiff as you
find him)
Disease: If no actual exposure occurred, no offensive act was
committed
Harmful: physical impairment
Smoking: is battery if smoke is intentionally directed at P, but not
when the smoke finds its own way (second hand smoke)
[Leichtman], but courts differ.
False Imprisonment?
(i) D intended to confine [negligence or recklessness is not
sufficient], (ii) D's action (directly or indirectly) results in confinement
(iii) within boundaries fixed by D, (iv) against P's will, (v) P is aware
of the confinement or harmed by it (vi) no reasonable escape for P.
Transferred intent is works here too.
Confinement: Test: whether a RP would feel that he could not leave
- P submits to force (is not assenting to confinement)
- D takes car key away (in the middle of nowhere)
- D blocks his car in a bad neighborhood
- D: If you leave the room, I kiss you, I kill you, kill you child, keep your
purse
- D asserts to have legal authority and P reasonably believes.
- P does not have to risk (i) harm or (ii) designer dress or (iii) dignity to
escape.
Unaware toddler (harmed by deprivation of care by his relatives)
Texas Shoplifter Statute (Tex. Civ. Prac. and Rem. Code § 124.001
Detention)
A person who
- (i) reasonably believes that another has stolen or is attempting to
steal property is privileged to detain that person in a
- (ii) reasonable manner and for a (no handcuffs)
- (iii) reasonable time to investigate ownership of the property (10 min)
- Merchant may not purport to arrest the suspect but must call the
police
Outside store?: courts are split.
Negligent infliction of Emotional Distress (Hill)
(i) Had a duty not to beat him up next to her.
(ii) breached that duty
(iii) injury--miscarriage, that leads to emotional distress
(iv) causation
If there is no injury you need:
(i) special relation (contract)
(ii) particular susceptibility
(iii) defendant must know about susceptibility
- mishandling of dead body
- false death notice by telegram
- syphilis notice--divorce
emotional distress can trigger the bodily harm
Bystander
P must: be (i) at the scene (ii) must have emotional shock (don't
need physical injury); (iii) and closely related with victim (uncle
who resides together);
- does not have to be within the zone of danger
Victim must: have serious (but not bodily) injury[unsuccessful rape]
A few moments later...: not present at the scene (watch out)
Intentional Torts (Persons)
ot

g Trespassing to land
(i) Intentionally, (ii) comes onto P's land or causes someone or
something to come onto P's land (iii) or remains on the land, (iv) or fails
to remove something he has a duty to remove.
- No physical injury (damage) necessary
Co
- Motive does not matter - If
He is trespassing Ap
-w
- If he forces his employee to enter: Only he is liable -h
- If he sends his employee: Both are liable Ac
- He is privileged to do one thing does something else -W
no
- mistaken about the ownership and trespasses (good faith is immaterial) N
- children can be trespasser - if
- conducts enormous dangerous activity (underground gas well wa
-C
storage that explodes into somebody else's land--without intent or being -N
there. int
lim
- you can trespass on something other then the surface -N
- Fumes, smoke (more often a nuisance case) em
- trespass in order to repossess Ille
Mi
He is not trespassing -w
ent - if it is not a voluntary act. Me
are - if the actor reasonably believes it to be, necessary for the purpose of -M
P. -R
averting an imminent public disaster. -H
Not tangible material (smoke, gas) > only when substantial damages, Mi
-S
but ash (when substantially certain) -P
Airspace: special rules -P
(i) airplane is below federally-prescribed minimum altitude; and (ii) flight inf
Co
our substantially interferes with P's enjoyment of the land. - if
un
-b
to Conversion Co
- Intentional possession was so substantial that (i)
the
D should be required to buy it. co
Not a land
1 - First explain trespass to chattels (occurs always He
but harm
first) then go into conversion or
occurs (i)
Exercise of dominion or control for duration up
To distinguish from conversion ask: (ii)
Trespassing to chattels 1. Duration of D's dominion of the property (also: or
(iii)
(i) D intentionally interferes with P's control complete?) im
min)
possession of a thing (ii) harm must occur 2. Good or bad faith. Un
(i)
(unlike trespass to land). 3. Degree of harm done to the chattel (ii)
- possessor does not have to own it 4. Inconvenience and expenses for P ex
Examples 5. Did D intend to assert right inconsistent with Bu
(i)
- he thinks he shoots a wolf but it is somebody's P's possession? int
D should be
dog EXAMPLES: (ii)
required to buy it Ex
- Ebay complains of spider programs that bring (if you want to sell it)
Destruction: You break it, you buy it.
-d
their server down Purchase of stolen goods: you unknowingly buy a thr
- Somebody rips a page in my notebook. stolen painting from an art dealer and keep it for int
-y
Mistakes about ownership: 10 years. de
- still a trespass - He steals car and damages it. bu
Defenses Transfer to third person: Tom delivers package He c
(i) Only when wrongdoer is in the process of wrong person (to John instead of Frank) and John not
taking the chattel or shortly thereafter (when in leaves with the package. Tom is a converter. deat
(Res
hot pursuit). (ii) After reasonable believe that he Withholding goods for substantial time: Parking (i) If
has taken the property. (iii) No deadly force garage refuses to return car. anot
or o
Consent Defense: (ii) th
D reasonable believed that P lets him have the (iii) h
chattel com
He c
caus
even
injur
likely
harm

s) Intentional Torts (Property)

 Defenses
Insanity and Infancy Policy Defense
Reason of necessity (Property) Plaintiff can't recover, but it is still a tort
- not a defense but might be a
Public necessity--prevent disaster for - Statute of Limitation
question of intent
community: - Statute of Repose
- Dual intent might be required:
(actor pays no damages) - Governmental Immunity
intent to contact and intent to
harm. However most courts
- saving the town Privilege
Private necessity negates the tortiuous nature of the Performance of a public duty
hold that mental illness does not
(actor pays damages) tort, therefore privileged actions cannot policeman handling a suspect
automatically negate intent.
- stealing somebody's bike for be transfered and become a tort ----------------------------------------
- it is better to hold the crazy
emergency -It is OK to restraining a mentally ill person
person liable rather than let the
victim be uncompensated.
Discipline
(i) within the definition of "privileged person"; (ii) within the
Consent scope of the job; (iii) acting under discretionary authority
- If you have consented, it cannot be a tort (In Texas it is an Affirmative Defense) - Only reasonable force and confinement for discipline
Apparent consent [Implied consent] (as effective as actual consent) purpose (education and training)
- words or conduct are reasonably understood by another to constitute consent Is it reasonable:
- his action or inaction justify a reasonable person to find consent (even if none exists!) - Is the actor a parent? (more leeway)
Actual consent (willingness in fact) - Parent's motives, age and mental condition mental, nature of
- Willingness in fact for conduct to occur. It may be manifested by action or inaction and need offense
not be communicated to the actor. - Was it disproportionate (reasonable compared to the offense)
No effective consent: Who
- if you consented to a different conduct; different time; area; exceeding the consent; consent Child-parent, In loco parentis; grandparents, teacher, school bus
was already terminated (unless irrevocable) driver, School nurse; Prison guard-prisoner; Officer-soldier
- Can't consent to certain types of dangerous activities Proper purpose for discipline (in all jurisdictions):
- No capacity to consent: A minor, unconscious, intoxicated cannot consent to sexual - has to be used to enforce an instructional command
intercourse, unless (?) he does not have any reason to know. (but criminal law has strict age - don't be cruel, unnecessary, demeaning
limit) - to handle disruptive behavior
- No duress or coercion [but economic duress does not negate consent unless a employee- - do not punish academic or athletic performance
employer relation] - no excessive force or be negligent to cause bodily harm
Illegal act (duel, ) Most courts hold that you can't consent to a criminal act. Tex. Edu. Code § 22.0511 Immunity from Liability
Mistakes negating consent (a) A professional employee of a school district is not personally
- when substantial and known to D liable for any act that is incident to or within the scope of the
Medical consent duties of the employee's position of employment and that
- Must be carried out by medical professional using scientific procedures involves the exercise of judgment or discretion on the part of
- Removes spleen instead of appendix (Battery, unless emergency) the employee, except in circumstances in which a professional
- He consents to medicine (not informed about the side-effect) > negligence employee uses excessive force in the discipline of students or
Misrepresentation negligence resulting in bodily injury to student.
- She would not have allowed the touching if she had known that he was not a doctor (battery) (b) This section does not apply to the operation, use, or
- P had intercourse with D (D promised to marry her but has no intention to do so): Battery maintenance of any motor vehicle.
- P had intercourse with D (D has venereal disease, P gets infected)[Unless D thinks he is not (c) ...
infectious]: Battery
Communication Property
- if it was consented in fact, it does not have to be communicated to the trespasser (he can act He can use reasonable force not
unaware of the consent and it's OK) intended or likely to cause death or
- but if consent it retracted it must be communicated to the trespasser serous bodily harm to prevent or
Consent implied by law [Actor is unable to consent and a reasonable person would consent] terminate intrusion if
(i) P is unable to give consent; (ii) Immediate action is required to save P's health or life; (iii) (i) the other is not privileged or the other
there is no indication that P would not consent if able; and (iv) a reasonable person would have (intentionally or negligently) causes such
consent. believe.
He can use force intended or likely to cause death (ii) he reasonably believe that the intrusion
or serious bodily harm Self-Defense can be prevented only by force.
(i) reasonable believes that another is about to inflict You are entitled to use reasonable force to prevent any threatened (iii) he has first requested the other to
upon him an intentional contact or other bodily harm harmful or offensive bodily contact and any threatened desist and the other has disregarded the
(ii) he is put in peril of death or serious bodily harm confinement or imprisonment. request [or the actor reasonably believes
or ravishment, P must reasonably believe that the aggressor is going to touch that a request will be useless or that
(iii) which can safely be prevented only by the you (not important what he really intended) (imminent danger) substantial harm will be done before it can
immediate use of such force Not OK: be made]
Unless he - if the other is privileged Defense with mechanical device (barbed
(i) correctly or reasonably believes that he can, - punishment of past wrongs, retaliation wire, dog)--Analyze as if D were present
(ii) with complete safety, retreat or relinquish the - upon provocation by words must be (i) reasonable [she would be
excise of any right or privilege - to forestall future threat does not justify self-defense (harm must be privileged to use similar force if present], (ii)
But he does not have to imminent). necessary, and (iii) known.
(i) retreat within his dwelling or permit the other to But, If you mistakenly believe that you are attacked, it's OK if you Ask: was deadly force privileged against
intrude or dispossess him of his dwelling defend yourself reasonable. that particular intruder.
(ii) abandon a lawful arrest Ask Mistake (intruder was privileged)
Examples: - was your self-defense proportionate, or did you exceed your D has no defense (unlike in self-defense)
- don't defend yourself against fist attack (not privilege? unless intruder, intentionally or negligently
threatening serious harm) with a gun [even if only Retreat causes the mistake
intending to injure P] - If there is a reasonable safe way to clear up mistakes and facts, Mistake (as to danger)
- you are attacked with a knife on the street: you may you have to do so. D has defense when he uses deadly force
defend yourself with your fists rather then running away - unless there is no safe retreat (or at home) against a burglar whom she reasonably
but not with your gun rather then running away. - don't have to retreat if you use less then deadly force. believes to be armed, but he is not armed.
Against Negligent Conduct: Dwelling
He can use reasonable force
Use reasonable force not intended or likely to cause death Burglar: You can use deadly force to
not intended or likely to cause Defense of others
or serious bodily harm unless you can safely retreat or prevent the consummation of your
death or serous bodily harm - If he is privileged to
avoid the harm. (if retreat endangers you, you don't have to dispossession if you reasonably think
(Rest 63) defend himself, so are you
retreat. nothing short of deadly force will safely
(i) If he reasonably believes in defending him (even if he
He can use reasonable force keep the burglar out.
another inflicts upon him harmful is not actively defending
(i) against harmful or offensive contact or bodily harm Dispossession of Chattels
or offensive contact, and himself)
which he, (ii) reasonably believes to be threatened by the prompt, reasonable force to retake chattel
(ii) the other is not privileged Mistakes: If you help
(iii) he does not have to retreat or (unknowingly) the bad guy or conduct of another, although, (iii) he recognizes such Recapture of Chattels
comply with a command ( they make a movie) you are conduct to be negligent. prompt, reasonable force to retake chattel
He can't use force likely to OK in most jurisdictions Unless: - owner must be in fresh pursuit (without
cause deadly injury (he is liable (your thinking must appear (i) he knows or should know that he can unreasonable delay)
even if he does cause the same reasonable); Other courts (ii) escape the necessity of doing so by retreating, or by - property must have taken wrongfully:
injury as when using force not say, that you step into the (iii) giving up the exercise of a right or privilege which, Use of force not privileged in repossession
likely to cause serious bodily apparent victims shoes). under the circumstance, it is reasonable to require him to
harm) relinquish. - never use deadly force

Defenses
bodily harm, (iii) D knows of third person's presence
Negligence
When D's conduct imposes a unreasonable risk upon another,
which results in injury.(Only conduct counts but not the intent or
mental state.
- the failure to exercising reasonable care under the
circumstances in a particular incidence.
D's conduct imposed a unreasonable risk:
(i) D owed a legal duty to P or to the general public to conduct
himself according to a certain standard
(ii) D failed to behave with the degree of reasonable care
required (breach of duty)
(iii) P suffered a injury (harm must be reasonable foreseeable)
(iv) cause in fact, and
(v) proximal cause [legal cause]{not too remote}
Foreseeability Considerations:
- the reasonable foreseeable risk or probability that his conduct
will result in harm to the person situated as plaintiff; (ii) the
foreseeable severity of the harm. Ask: Is the risk foreseeable for
a reasonable person?
Gross Negligence
Several jurisdictions (Texas): must have a conscious state of
mind to do something very risky (get punitive damages)
Good Samaritan Rule
No duty to assist -Protects rescuers whose conduct is
Unless: merely negligent, but not something
- D is the owner of worse like reckless, willful or wanton.
business premises Firefighter rule
- D created the danger A public employee who suffers an injury
caused by a kind of hazard that she
- D undertakes to assist confronts as a normal part of his job,
(starts to assist, promises does not ha a negligence claim against
to assist the person who created it,
Reasonable care
Custom (is a standard)
- to define whether the defendant used reasonable care
Departing from custom: rebuttable (suggestive but not conclusive)
proof of negligence.
Acting according to custom: does not automatically preclude
negligence. Jury is still free to conclude that industry custom is
unreasonable dangerous. (use better screws)
Custom must be (i) widespread; (ii) well known to be wide
spread; (iii) generated by regarding safety measures
- violation of a statute cannot be a custom
Emergencies (unusual decision in a short time)
- the reasonable person in such an emergency
- if the actor is confronted with an unexpected emergency
(requiring rapid response), it needs to be taken into account to
determine whether his conduct was reasonably careful. (time
pressure limits good judgment)
- but, if the emergency arose out of a negligent conduct by the
defendant, he is liable even when his later actions (dealing with
the emergency) were reasonable.
Contributory negligence
(must prove same elements)
- duty to protect your own safety
1. conduct that only endangers himself (climbing a ladder)
2. conduct that endangers somebody else (traffic)
in some states it bars recovery in other there is comparative
negligence
Trial procedure
Plaintiff must prove
1. Burden of production
- sufficient evidence to establish a duty as a matter of law
- that defendant breached duty
- that proximately
- caused injury
2. Burden of persuasion
- more probable than not that his injuries arose out of D's
negligence
Legal Duty (Court's decision--as a matter of law)
-to exercise reasonable care in the conduct of our own affairs
-established by (i) tort statute, (ii) adoption of non-tort statute, (iii)act as a reasonable
person of ordinary prudence under the circumstances, jury will decide whether
standard was met.
-not to create an unreasonable risk of harm.
Duty exists:
- if you have created the dangerous situation (Dram shop-bar is liable if they let you
drink beyond a reasonable limit)
- contractual relation or special relation; after voluntarily rendered aid; companion
on social venture; D and injurer have a special relation
No Duty exists:
-Bystander (unless he created the dangerous situation)
Risk benefit analysis (Negligence Calculus)
- If P x L > B, you have a duty.
- (P) Probability of harm x (L) injury > (B) burden of precaution.
- if harm is more costly than the cure, you have to cure
- risk can be reduced by warnings! Failure to warn could itself be negligence.
The conduct is negligent:
- if the magnitude of risk outweigh the burden of risk prevention.
- If he did not reduce the risk enough to satisfy the formula (storekeeper does not
have to inspect continuously but only every hour)
- If the actor was not aware of the risks, ask what the burden of being aware would
have been.
TEX:
A duty to act as a reasonably prudent person under the same or similar
circumstances, considering the reasonably foreseeable risk or probability of harm to
persons situated as the plaintiff.
Reasonable person (objective standard)
- Ask: Whether a reasonable person of ordinary prudence in D's position (under
the circumstances) would act as D did.
- has knowledge of the standards of community; qualities and habits of human beings
- has the same facilities or resources available as the actor
Anticipation of other's conduct
- a reasonable person possesses at least limited ability to anticipate the conduct of
others. RP can presume that others will not commit crime or intentional torts (unless
he has special knowledge) but may be required to anticipate negligence.
Physical disability:
- a reasonable person with the same disabilities. Ask: what is the connection
between the disability and substandard conduct.
But, contributory negligence: Could the disabled foresee and take special precautions
(physical disability)?
Sudden incapacitation: liable only if incapacitation was foreseeable to him
Mental or emotional disabilities:
- the ordinary, reasonable person is not deemed to have the same mental
characteristics [generally pay for their torts (unless child)].
- no influence in the determination of negligence (no justification or excuse)
- Intoxication is no defense (will be held to the standard of a sober person), but
involuntary intoxication might be taken into account.
Person with special knowledge
- standard is that of a reasonable person with such superior attributes (plaintiff may
have relied on that)
- people that handle dangerous substances
- knows of bad road condition, but drives too fast anyway
Persons with substandard knowledge
- is ignored to determine his reasonableness
- "beginner status" is only taken into account when the plaintiff is the instructor.
Injured Rescuer: D is liable if he negligently put himself (or another) in danger and
rescuer is injured.
Possessors of Land
Children Rest. (age below majority, 18-21)
- conduct must conform to a reasonable person of that (i) age, (ii) experience, (iii)
knowledge, (iv) maturity, (v) education (unless engaging in typically adult, dangerous
activity). Consider also: mental or emotional disability; did parents give instructions?
Under 5 years: no negligence possible
Adults can usually adjust their conduct for the child's proximity unless their status
cannot be detected (car driving)
Children Texas
- under 5 years: no negligence possible
- 5-14: standard is the "reasonable child, same age, circumstances"
- above 14: adult standard (unless disabled
Negligence
e

Statutes Negligence per se (violation of an absolute statute,--standard

Statutes not expressly dealing with tort liability: of conduct)--a conclusive presumption of duty and breach of duty.
- (i) absolute statute propose a standard of conduct (i) actor violates a statute (must be a "safety statute")
(Stop at the red light) (ii) violation caused injury
- (ii) conditional statute propose a standard of care (iii) statute is designed to prevent this type of harm
(describes the conduct of a reasonable person) (iv) victim is within the protected group (if it is designed to protect
- when the legislator has something condemned as employees, a visitor is not protected)
unlawful, it cannot be reasonable takes care of the reasonable person standard
- still need to prove causation and injury
- Court has to apply statute unless unconstitutionally
Excuses (Courts may excuse a violation as long as the statute does 2. F
Legislators response to the Boyle case § 21.15. not prohibit an excuse) Pat
Improper Photography or Visual Recording 1. violation was reasonable due to incapacity of actor (child's info
A person commits an offense if the person jaywalking) (i) d
(i) photographs or by videotape or other electronic 2. Actor exhibits reasonable care to comply but fails (fog-drives (ii)
means visually records another slowly but runs stop sign) (iii)
- (a) without consent; and 3. The actor neither know or should know (or Rest.: Statute is (iv)
- (b) with intent to arouse or gratify the sexual desire presented in confused way) (Contractor has no reason to know that he trea
of any person; or digs within the high-power line danger area) Old
(2) knowing the character and content of the 4. Confronted by emergency not caused by his conduct he crosses Now
photograph or recording, promotes such a the centerline The
photograph or visual recording 5. Compliance with statute is a greater risk. (cross centerline to avoid hav
such an offense is a state jail felony. child) Em
Contributory negligence per se: helps the plaintiff where the jurisdiction Dis
allows it. - al
Ma
Res Ipsa Loquitor (the case speaks for itself) -C
- Te
(i) injury does not normally occur (in the absence of negligence, injury would not have
occurred, [or most of the time, negligence is the cause of such occurrence. Te
(ii) instrument was in exclusive control or management of defendant [some courts: (ii) Me
more likely to be under D's control then under somebody else's] 74.
(iii) plaintiff must not have contributed to the event Hea
s (iv) direct evidence of D's conduct must not be available pha
{(v) D must know more (evidence) then P (patient was unconscious)? phy
(vi) Injury not due to plaintiff} Hea
Why? me
- to meet the burden of production with circumstantial evidence and go to the jury res
without direct evidence. Phy
- if it is so clear that a lay-person can understand it, you don't need experts: RIL 74.
(scissors, sponges stay behind) -N
- If you need expert, is not RIL (Rest. says that expert witness in medical malpractice 74.
RIL case is admissible. (a)
- you can use evidence to rebut other causes of the injury (other then D's negligence) (b)
Court Procedure Hea
1. Judge must decide whether there is enough evidence to go to the jury 74.
2. Jury must decide wether to believe it (often they don't)[permissive interference] (a)
Management and control disc
- under the exclusive control at the particular time when the negligence happened. (b)
(unless change of circumstances) 74.
- guest could have thrown the chair out of the hotel window as well - If
More then one in control req
If joint enterprises (Elevator company and office building owner) (either the surgeon or 74.
the nurse) (exploding coke bottles, gas-lines) [shared responsibility]. Especially when all - co
of the Defendants participate together in an integrated relationship. sign
Texas: in medical cases sta
-RIL only recognized by cases by appellate court prior 1977)
(X-ray burns, operation on wrong part of the body, mechanical devices, foreigns objects)
Rebuttal:
- General evidence of due care: that D was in fact careful will not be successful, but
evidence directly disproving one of the requirements of the doctrine will lead to a
directed verdict.

e Statutes

Medical and Professional Malpractice
(i) committed by someone with special knowledge or skills
(ii) special relationship with those you are attending
(iii) must be inseparable part of medical service (falling out of
hospital bed v. operation table)
doctors, lawyers, accountants, engineers
2. Failing to Disclose (Informed Consent)
Patient admits to have consented but claims to not have been fully
informed.
(i) duty (a patient has the right to know)
(ii) breach (fail to disclose the risk negligence)
(iii) injury caused by undisclosed risk
(iv) ? P (or reasonable person), if informed, would not have chosen
treatment? (jurisdiction split)
Old common Law: If not fully informed it is a battery
Nowadays: is negligence unless there is no consent at all.
Therapeutic privilege:?if disclosure could hurt the patient?, he does not
have to disclose (jurisdiction split)
Emergency: the physician is not liable for negligence
Disclose what?
- all materially information that the doctor expects the patient to know
Materially:
- Common law: expert
- Texas: Medical Disclosure Panel
Texas Civil Practice & Remedies Code 74
Medical Liability General Provisions
74.001 Definitions
Healthcare provider: all the medical persons (nurses,
pharmacist, dentist, health care institution), but not the
physician)?
Healthcare liability care: (i) departure of accepted standard of
medical care [custom], (ii) directly relating to healthcare, (iii)
resulting in injury
Physician: in Texas licensed physician or group thereof
74.101 Theory of Recovery
- Negligence is the only theory for failure to disclose the risks
74.102 Medical Disclosure Panel
(a) determines what is to be disclosed
(b) only administratively attached to Texas Department of
Health
74.103 Duties of Disclosure Panel
(a) determines whether a particular treatment requires (or not)
disclosure of the risks to the patient
(b) the degree of disclosure required
74.104 Duties of Physician or Health Care Provider
- If the physician discloses he has complied with the
requirements
74.105 Manners of Disclosure
- consent is effective if disclosure is given (i) in writing and (ii)
signed by the patient, and (iii) competent witness, and (iv)
states risks in compliance with the disclosure panel.
Defenses
1. Negligent Treatment
- good results are not guaranteed, only that he will uses the
requisite minimal skill and competence ( unless he warranted a
cure)
- if D holds himself out as a specialist, he will be held to the
minimum standard of that speciality.
- must have performed with less skill than the minimally
competent specialist (not less then the average)
- pro bono is irrelevant
- is negligence unless he takes out the wrong organ.
Medical Standard of care (established by expert opinion to
determine custom)
- reasonable qualified practitioner/specialist in the field
renders opinion whether somebody has complied with the
customary standard
Reasonable physician
- possess and exercise training and skill of a reasonable
physician of ordinary prudence (not average but minimum)
- is allowed to follow a respected minority
Local community standard: standard of the custom or the
relevant community must be breached
Similar community standard;
National standard (Texas):
- reasonable professional in the same class (except when
benefit cost is high)
- specialist from same field unless overlapping
- beginners are held to the same standard
74.106 Effect of Disclosure
- a proper disclosure: rebuttable presumption that the requirements
have been complied with.
- failure to disclosure: rebuttable presumption of a negligent failure to
conform to the duty of disclosure; unless there was emergency or not
medical feasible.
- if no disclosure panel: go to common law.
74.151 Liability for Emergency Care
- good faith emergency care is not negligence, unless
(i) willfully negligent, (ii) service for remuneration, (iii) person caused
emergency by negligent act.
74.153 Standard of Proof (Medical Emergency)
- claimant must show (by preponderance of the evidence) that deviation
from standard of care was willful and wanton.
74.201 Application or Res Ipsa Loquitur
- only those cases applied before August 29, 1977
74.251 Statute of Limitation on Health Care Liability Claims
- must be filed within 2 year of the breach
- minors under 12 have until their 12th birthday
- but not later then 10 years after the breach
74.301 Limitation on non-economic damages
- max. $250,000/claimant against any healthcare institution
- max. $500,000/claimant against all healthcare institution
74.301 Limitation on Damages
- wrongful death or survival action: max $500,000/claimant
- adjusted by consumer price index
- medical expenses are extra
- Liability in "Stowers Doctrine shall not exceed the liability
- Jury instructions: bad results can be considered but not exclusively in
order to determine negligence
Medical