Torts
Class Notes
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 don’t arise unless there are substantial
dangers to be avoided.
Generally,
children are judged against other children of like age. The only time we don’t 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 can’t tell
who is driving the car. You also may
argue that the child should be held to a child’s standard.
The
insane – Breunig v. American Family Ins. Co.
Na
na na na na na na na na…BATMAN!
The
plaintiff, who was hurt by the crazy lady, is suing the insurance company. The plaintiff may do this due to a
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 can’t prove that you had a sudden
bout of insanity, and we don’t want to have to sort out the truth of insanity
pleas. We leave that to the criminal courts. It’s hard to distinguish true incapacity
from mere poor judgment.
However,
there is no jurisdiction that would rule that if you know you’re
insane, and you get on the road, you’re 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. We’re not too concerned, however, that
someone with a mental disability is liable every time.
Professional
standards of care – 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
don’t want someone’s 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 don’t 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
don’t 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 mustn’t
fail to use reasonable care and diligence.
3. You mustn’t
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.
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.