Torts Class Notes 9/24/03




The reasonable person standard is an objective rather than a subjective standard.


Custom can cut both ways: the judge will decide whether custom evidence comes in.If it gets in, it will usually resolve the case against the defendant if it shows that the defendant did not comply with custom.If the defendant did comply with custom, the defendant may not get off the hook if the custom itself is negligent.Custom does not set the standard of care.


If there is a custom, we shall assume it is relatively easy and cheap to comply with; that is, we assume that customs donít arise unless there are substantial dangers to be avoided.


Generally, children are judged against other children of like age.The only time we donít follow that rule is when a child engages in an adult activity.Some courts will hold children engaged in an adult activity must satisfy the standard of care of a reasonable adult.Other courts find that children only must satisfy this standard when they participate in an inherently dangerous activity.


For example, if a nine-year-old drives a car and gets into an accident, to what standard shall we hold him to?You may argue that driving is an inherently dangerous activity because we canít tell who is driving the car.You also may argue that the child should be held to a childís standard.


The insane Ė Breunig v. American Family Ins. Co.


Na na na na na na na na naÖBATMAN!


The plaintiff, who was hurt by the crazy lady, is suing the insurance company.The plaintiff may do this due to a Wisconsin statute that authorizes him to do this.The jury had returned a verdict for the plaintiff.


Did Mrs. Veith, the crazy lady, have forewarning that she might go off her rocker?


How is this different from heart attacks, strokes, and so on?Well, you canít prove that you had a sudden bout of insanity, and we donít want to have to sort out the truth of insanity pleas.We leave that to the criminal courts.Itís hard to distinguish true incapacity from mere poor judgment.


However, there is no jurisdiction that would rule that if you know youíre insane, and you get on the road, youíre not liable.


Is it fair to treat people with mental impairments one way and people with physical impairments differently?This is a practical decision derived from the fear of false claims.The court does not want to get into the business of distinguishing real from fake mental impairments.


On the other hand, we will bend over backwards not to interfere with the independence of a person with a physical disability.Weíre not too concerned, however, that someone with a mental disability is liable every time.


Professional standards of care Ė Heath v. Swift Wings, Inc.


The issue was whether the jury instruction was correct in this negligence case.The controversy was whether the pilot, Heath, should have been held to the standard of a reasonable pilot in general or a reasonable pilot similar to Heath.


What is the court worried about?What is the concern?Why must there be an objective standard?What people do we want to discourage from flying planes?We want to discourage poorly trained pilots.We donít want someoneís poor training to let them off the hook.


The standard of care used in cases involving professionals is acting with the knowledge, training, and skill of an ordinary member of the profession in good standing.


What this means will be determined by expert testimony from members of the profession in good standing.


Should there be a tort for professional negligence on the part of teachers?It would be hard to tell whether the teacher is teaching badly versus whether the student can learn well.One reason we donít have these claims is that there would be so many of them.If we allowed this tort, we would open the floodgates.


Hodges v. Carter


Attorney malpractice claims have been more successful than teacher malpractice claims, but they are still tough.


There was a service of process problem in the claim filed by the attorneys.It was claimed, in a special appearance, that the attorneys did not properly serve the insurance companies.The custom of service by mail was found not to trump the statute.


Hodges sues the attorneys for malpractice on the basis that they should have served process correctly.The court says that this was not malpractice because the lawyers acted in good faith on an honest belief that they were doing what was best for the client.


Cole says that this behavior is shocking!


We donít want to tie the hands of attorneys against making any decisions.


But what are the requirements?


1.     You must act with the knowledge and skill of an ordinary person in your profession.

2.     You mustnít fail to use reasonable care and diligence.

3.     You mustnít fail to exercise your best judgment in attending to your work.


Boyce v. Brown


Basically, this is a case where it appears the cure was worse than the sickness.But is it negligence?


What did the lawyer do wrong in this case?What should the lawyer have done differently?The lawyer should have questioned Dr. Kent about what treatment is standard in the medical community.Itís not enough to have him merely say that he would have done something differently.


Instead, the plaintiff makes a layperson exception on the basis that any ordinary person would understand that an X-ray was essential in this situation.There are very few medical cases where expert testimony is not necessary.


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