Torts Class Notes 12/9/03


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.


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