Torts Class Notes
The
standard for doctors is not what a “reasonable doctor” would do. Professionals get a different standard of
care: it’s what an ordinary member of the profession in good standing would do.
In
terms of informed consent, there are three different standards. The risk in all of them has to be a material one. Was this a material risk? What did the doctor know? Whose responsibility is it to find out the
profession of the patient?
The
debatable issue was informed consent rather than malpractice.
The exam
The
first part is multiple choice and has 74 questions. It’s closed book. It’s like a bar exam. It’s 90 minutes for that section. Then we’ll take a ten or fifteen minute break
to get computers set up. Then we’ll
start again and we’ll have an hour and a half for one open-book essay
question. This room will be the computer
room. Everyone will start in here.
It’s
sorta almost 50-50, but the essay is weighed marginally higher.
What’s
open book? It’s like on the practice
exam. You can have your casebook, your
notes, any outline you prepared and no commercial outlines or hornbooks. No find on the computer. The computer is a typewriter for the purposes
of the exam. You must print your
outline. If you finish the multiple choice
early, you can’t start the multiple choice early.
She’ll
only look at the white part of the bluebook and not the blue part.
Double-spaced
is easier to read.
Don’t
look at the answers! First predict, and
then look at the answer choices.
Questions she got by e-mail
What
constitutes duty versus causation? Duty
is what a reasonable person does under the circumstances. How do you figure out what is
reasonable? One way of doing that is to
use the Hand formula to figure out what the person could have done differently
to avoid a particular loss given the probability that loss might occur.
By
taking one precaution or two precautions, you may not have enough money to take
some third precaution. Use the Hand
formula whenever there is a single precaution to take or not take. This is a helpful formula. But also think of reasonableness as a qualitative
sort of “instinct”.
How
does foreseeability play into reasonableness?
Reasonable people foresee harm.
Reasonable people only take precautions against harms that are
foreseeable. You can only take
precautions against foreseeable harms.
We
only want people to be on the hook for foreseeable harms. We might hold someone responsible for
spilling oil and getting stuff dirty, but we might not hold them responsible
for setting something on fire if that wasn’t foreseeable.
If
we know someone is negligent, we hold them responsible for all the foreseeable
harms from that negligence.
Automobile
guest statutes – Guest statutes are where legislation prohibited passengers
from suing drivers of the vehicles in which they were guests. The thinking was that guests and drivers
would likely conspire to bilk insurance companies for money. Guests couldn’t sue drivers for negligence,
but could sue for negligence plus. These
statutes are unconstitutional, but these statutes helped define extreme negligence
or willful or wanton misconduct, which could get you punitive damages.
A
classic example is where you’re driving carelessly and you’re drunk. That would
be an example of “negligence plus” and could amount to “wanton or willful
misconduct”.
How
is strict liability different from negligence per se? With negligence per se, you must convince the
judge to adopt the statute to set the standard of care. The judge must consider whether the statute
describes behavior that is what a reasonable person would do under the
circumstances. For example, do
reasonable people not leave their keys in the ignition? You must convince a judge that a statute
should be adopted to set the standard of care.
Then you just have to show causation and damages.
With
strict liability, all you have to show is causation. If the defendant caused the plaintiff’s damages,
then that’s it. If the harm is not
foreseeable from the defendant’s highly dangerous conduct, then the plaintiff
won’t be able to recover.
What’s
the role of last clear chance in a comparative negligence jurisdiction? It doesn’t have any real effect. However, you would argue to the jury if you
were a plaintiff that the plaintiff wasn’t negligent because the defendant had
the last clear chance to prevent the accident and that therefore the jury
should apportion the damages more heavily to the defendant rather than the plaintiff. You don’t need
last clear chance in a comparative negligence jurisdiction, but Cole would
be willing to argue a last clear chance description to a jury to convince them
that the defendant is much more at fault.
At trial,
the plaintiff must establish a prima facie case by the preponderance of the negligence
in order to avoid a directed verdict. The
prima facie case is (1) duty, (2) breach of duty, (3) causation and (4) damages.
If
you say “look out, there’s a rattlesnake behind you!” and there’s no
rattlesnake behind you and your intent is being mean, many jurisdictions and
the Restatement would find that it’s an assault. Some jurisdictions might find that it isn’t
the threat of imminent harmful or
offensive touching because no touching is actually going to take place.
What’s
the standard for people with mental disabilities? It’s the reasonable person under the
circumstances standard. We want to
compensate plaintiffs. Also it’s hard to
prove whether someone is insane or not.
Also, potential plaintiffs may have trouble telling just who is insane
or not insane. Mental capacities are not
treated as exempting circumstances. You
will always be held to the reasonable
person standard.
The
objective standard is “the typical reasonable person under the circumstances”. The professional standard is different than
that.
In
a defense of others situation, there are two different standards. You may either get the reasonable mistake
standard or the “in the shoes” standard.
Res
ipsa loquitur – three views of burden of proof: (1) Res ipsa loquitur creates a
permissible inference of negligence. (2) Res ipsa loquitur creates a rebuttable
inference of negligence that the jury can reject. (3) Res ipsa loquitur shifts the burden of
proof to the defendant.
In
a “permissible inference” jurisdiction, the jury can say “we agree with you and
find for you” or “we disagree with you and find against you”.
In
a “rebuttable inference” jurisdiction, the defendant must affirmatively rebut
the inference.
In
a “shifting burden of proof” jurisdiction, the defendant has to prove that they
didn’t do it.
Res
ipsa loquitur is a last resort claim.
The
plaintiff doesn’t have any information about what happened except that they’ve
been injured by something they believe
the defendant was responsible for.
There’s
no res ipsa loquitur if the defendant wasn’t under control or if there were
actual witness or other evidence.