Torts
SUMMARY OF NEGLIGENCE LAW
I -
Elements of Proof in a Negligence Action
A -
Defendant had a duty of care toward the plaintiff.
B -
Defendant breached its duty of care; and
C -
Defendant's breach of duty was a cause of actual
harm to the plaintiff.
II - The Standard of Care in Negligence Cases
A -
The Reasonable Person Standard
1 -
Under the reasonable person approach, people have
a duty to take the same degree of care that a
"reasonable person" in the defendant's situation,
with the same knowledge as the defendant, would
take under the same circumstances.
2 -
This is the leading formulation of the applicable
standard of care in negligence cases in American
courts.
3 -
Major exceptions:
a -
Children are generally held to a standard of
care of the average child of their age,
experience and stage of mental development.
1)
b -
4 -
However, where children are engaged in
"adult like activities" they are held
to the standard of care of a reasonable
adult.
Physically disabled people are held to the
standard of care of a reasonable person with
the same physical disability or
disabilities.
Other special categories under the reasonable
person rule:
a -
Beginners are held to the standard of care
of a reasonable person of average
experience, not the standard of a
"reasonable beginner."
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b -
In most states, elderly persons are held to
the reasonable person standard, without
taking their advanced age into account (even
though their individual disabilities, if any,
will be affect the standard they are held
to.)
c -
Intoxicated persons are held to the standard
of care of a reasonable person who is sober.
d -
Poor people are held to the standard of care
of a reasonable person, without regard to
their indigence.
e – Insane people are generally held
to the standard of care of a reasonable
person, notwithstanding their mental
illness, except that their insanity is
taken into account where the defendant is
an in-patient in a mental hospital and the
plaintiff is one of his or her health care
providers.
1 -
In a minority of jurisdictions however,
in automobile accident cases, insanity
is a defense in a negligence cases
where:
a)
or b)
and c)
The insane defendant cannot
understand the duty to use
ordinary care due to insanity
The insane defendant cannot
exercise due care due to insanity
The insane defendant has no
forewarning of his/her
susceptibility to a mental
aberration.
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III- Custom of a Trade or Profession as the Basis for the
Standard of Care
A -
Majority View: Custom is evidence of the
appropriate standard of care but it not necessarily a
conclusive indication of what constitutes due care.
1 -
B -
C -
Courts may hold the practice of an entire
industry to be unreasonably risky.
Other (Minority) Views
1 -
Custom of a trade establishes an "unbending test"
of due care.
2 -
Custom of a trade has "no bearing whatsoever" on
the proper standard of care in a negligence case.
Custom in Medical Malpractice Cases
2 -
In malpractice cases, physicians are generally
held to the standard of care and skill of a
reasonable qualified practitioner, with the same
specialty as the defendant, taking account of
advances in the profession and the medical
resources available to the physician.
3 -
In general, in medical malpractice cases (other
than "nondisclosure cases") the standard of care
is established by the custom of physicians, in the
same speciality, under the same circumstances. In
determining the relevant customs, courts instruct
juries to look to accepted national medical
practices and protocols, not those of the local
community where a doctor practices.
4 -
In "non-disclosure" cases however, the prevailing
custom of physicians as to disclosure
of risks of medical treatment to their patients
in similar cases, is merely evidence of the
appropriate standard of care. It does not,
however, define that standard.
a -
In such cases, physicians generally have a
duty to disclose the risks of medical
treatment to the extent that a reasonable
physician would know that his or her patient
needs the information to make an intelligent
and informed choice as to whether to proceed
with treatment.
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b – In non-disclosure cases, courts generally
determine whether the physician’s nondisclosure caused the plaintiff harm by having
the jury determine whether or not a reasonable
plaintiff would have agreed to let the
treatment in question proceed if he or she
had been properly informed of the risks
the treatment posed.
IV - Criminal Statutes as the Basis for a Standard of Care
A -
Majority View:
The Negligence Per Se Doctrine
1 - Proof that the defendant has violated a
statute is conclusive evidence that the defendant
has breached a duty of care toward the plaintiff
where:
a -
The defendant violated a statute that was
designed to avoid harm to persons.
b - The plaintiff was among the class of persons
the statute was enacted to protect.
and
B -
C -
c -
The plaintiff's injury is the kind of harm
the statute was enacted to prevent.
Some Alternative Judicial Approaches
1 -
Evidence that the defendant has violated a
statute is no evidence that the defendant has
breached a duty of care towards the plaintiff.
2 -
Evidence that the defendant has violated a
statute is some evidence that the defendant has
breached a duty of care towards the plaintiff.
3 -
Evidence that the defendant has violated a statute
is prima facie evidence that the defendant has
breached a duty of care towards the plaintiff.
Licensing Laws
1 -
In most jurisdictions, by statute or case law,
evidence of a defendant's failure to obtain a
professional license where one was required is
considered no evidence of breach of a
duty of care towards the plaintiff.
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V -
The Roles of Judge and Jury in Negligence Cases
A -
B -
General Responsibilities of Judges
1 -
Judges decide upon the existence or nonexistence
of a duty of care.
2 -
Judges decide upon the general standard of
care (usually the reasonable person standard)
as well as the role of custom and of statutes in
establishing the standard of care.
3 -
In appropriate cases, judges decide whether to
remove questions of fact from the jury (including
the question of what a reasonable person would
have done under the circumstances). A judge may do
that where the judge is convinced no reasonable
jury could disagree as to the conclusion that
should be reached.
General Responsibilities of Juries
1 -
Juries decide on the probative value of the
evidence as establishing the facts. They are the
“finders of the facts,” except in bench trials.
2 -
Unless the judge has determined that reasonable
jurors cannot disagree, juries also decide what a
reasonable person would have done under the
circumstances.
VI - Proof of Negligence: The Doctrine of Res Ipsa Loquitur
A -
Elements of Res Ipsa Loquitur
Res ipsa loquitur, which is NOT a tort, allows
plaintiffs in negligence cases a means of proving
the tort of negligence by circumstantial evidence
where:
1 -
There was an accident which does not usually
occur unless someone is negligent.
2 -
The defendant had "exclusive control" of the
instrumentality causing the accident.
3 -
The plaintiff was not contributorily negligent.
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B -
Procedural Significance of Res Ipsa Loquitur
1 -
2 -
C -
Usually, this doctrine is invoked by the
plaintiff at trial to defeat a motion by the
defendant for a directed verdict following the
close of the plaintiff's case.
Most courts which rely on res ipsa loquitur
consider the plaintiff's circumstantial evidence
to be prima facie evidence that the defendant has
been negligent towards the plaintiff.
Multiple Defendant, Multiple Instrumentality Cases
1 -
In many states, res ipsa loquitur has been
applied in negligence cases involving two or more
defendants and/or two or more instrumentalities
which may have caused harm to the plaintiff.
2 -
In most jurisdictions, res ipsa may be invoked by
plaintiffs who are inexplicably injured while
anesthetized for medical treatment.
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