Torts Class Notes 9/30/03


Practice Exam Review


·        A practical suggestion: many law school exams name people alphabetically.  You can call the actors in your exam A, B, C and D instead of Anne, Bob, Carl and Dave.

·        Once you identify what tort has occurred, state the elements of that tort correctly.  This is good advice for every exam over a common law subject like contracts, property, or criminal law.  This is part of the “rule” element of IRAC.

·        Identify which elements of the tort are actually at issue.  Not every element will be in doubt in every case, but you should identify in what way the other elements are already satisfied.

·        Read the call of the question and discuss only what is requested.  Don’t discuss actors who aren’t relevant to the question.  “There’s no extra credit, so don’t waste your time.”

·        Don’t be conclusory[1].  Explain your answer and show your work.  It’s not just the answer, it’s also about how you got there.

·        Don’t include any introductory remarks.  You don’t have time for that.  Skip anything extraneous.

·        Don’t ever say “the jury will decide this”.  Say what the jury is likely to do.

·        Don’t skip the statement of the law.  Act like you’re writing a letter to a client.

·        The model answer is just a model.  No one can hit it 100%.


Here are the issues in this case:


·        A’s initial tripping and pushing into the sewer will constitute battery and false imprisonment.  We should have stated the elements of battery and false imprisonment.

·        It might be assault, and you need to discuss this, asking whether there was apprehension of imminent harmful or offensive contact.

·        Is there privilege?  A may be privileged to defend depending on the jurisdiction you’re in.  It depends on whether the jurisdiction accepts the “aggressor doctrine” or the “reasonable mistake” doctrine.

·        If this is a close issue, you should cover both sides (reasonable mistake or unreasonable mistake).  If the mistake was reasonable, then you must consider if the force was reasonable.  It doesn’t seem like it was excessive right at the moment A put C in the sewer.

·        The false imprisonment is excessive force over time because A has the duty to release C once it can be done safely.

·        C is able to recover for false imprisonment if there is harm (in some jurisdictions) or if there was awareness (in other jurisdictions).

·        The outcome would be that in a reasonable mistake jurisdiction, A is privileged to assault and batter and initially imprison C, however, the false imprisonment becomes excessive and unprivileged as you go on.  C can recover damages for excessive false imprisonment but it depends on the jurisdiction and whether awareness of your imprisonment is required.

·        C could sue D for battery.  C will argue that D knew or should have known that C would not consent because of the bracelet, because touching that is unwanted is harmful or offensive and because substituted consent from C’s wife was easily available.  The prima facie case for battery is thus stated.

·        D can defend himself because C was unconscious and it was an emergency situation.  However, D has a weak argument because he could have substituted consent.  D might argue that it was too much of an emergency to do this.

·        The outcome is that C will prevail against D because substituted consent is easy to obtain.  D should have known that C didn’t want the surgery.  However, the damages will be low because the result was beneficial to C.

·        Intentional infliction of emotional distress is wrong, wrong, wrong in this case.  This is a very hard tort to prove.  Don’t take the kitchen sink approach.


An A paper would identify the issues correctly, would identify the elements of each tort correctly, and do a decent analysis that gets the easy stuff right and the hard stuff probably right.  For example, an A paper will not forget any issues or rules.  An A paper also doesn’t punt on conclusions.  You have to have the courage to say that something isn’t there if it really isn’t there.  Judgment is very important on law school exams.


You don’t have to refer to other cases.


Note: I’m screwed.


Use your common sense.  Interpret everything in the “average” way it could have happened.  Take things at face value.  Don’t worry about writing in outline form or in shorthand as long as it’s clear what you’re saying – especially if you are running out of time.


Do as little interpretation as you can.


The exam will be three hours with a closed-book multiple choice part and an open-book essay part.


Medical malpractice


Custom is important to the determination of a medical malpractice case.  It’s almost dispositive in such cases.  In most areas, custom alone is not evidence, but in medical malpractice, it is feared that juries don’t know enough to decide if malpractice happened.  We’re not sure if this is a fair result.


Outside of the medical profession, custom is not controlling or necessarily even admissible.


Is it logical to think that doctors get a slightly better standard for themselves because they have professional obligations that prevent them from setting a lower standard to serve other interests?[2]


Do doctors have an incentive to collectively lower their standards to keep from being liable?


In other professions, we do not allow their own custom to state the standard.  Why don’t we do that with doctors?  Should doctors be given more freedom?


Should we judge doctors against other doctors from their own community or against national standards?  If we judge rural doctors against rural doctors in the same community, who will we be able to get to testify against Doctor #1 if there are only two doctors in town?  Is there the threat of a “conspiracy of silence”?


Morrison v. MacNamara


Morrison went to a medical laboratory for a urethral smear test.  The test was done while he was standing up, and during the test he had an adverse reaction and got injured.  Morrison sued, arguing that the lab should be held to a national standard of care.  The defendants argued that they should be held to a local standard of care.


The court rules that nationally certified medical professionals should be held to the national standard of care.


Scott v. Bradford


Scott is claiming that if she had been given the right information she would not have consented to the surgery.


How do we judge whether the doctor failed in his duty to provide information?  Is it enough in Oklahoma for me to say “if I had known what I know now I wouldn’t have gone through with it”?


There is the so called “reasonable doctor” standard and the “reasonable patient” standard.  Who testifies in a “reasonable doctor” jurisdiction?  A doctor testifies as to what doctors would do.


In a “reasonable patient” jurisdiction, it’s a little trickier because it’s hard to contemplate such a thing as a “patient expert”.  In this case, you use a “reasonable man” or “reasonable person” standard.


Are there any other tests?


It would seem that the patient loses his right to self-determination if he would have declined where a reasonable patient would have consented.  The court adopts the so-called “subjective patient standard”.  The court says that the patient can say what they would have said and it’s up to the jury to consider the credibility of the plaintiff.


Next time, we will consider what the best standard is.


Back to Class Notes

[1] “consisting of or relating to a conclusion or assertion for which no supporting evidence is offered” –

[2] What?