Torts – Outline Part 4

Standard of Care

• The Reasonably Prudent Person
  • Has normal intelligence
    • Objective standard
    • Not adjusted for any cognitive disabilities of D
      • Mental health issues apply under this too
  • Has normal experience, perception, memory, or knowledge
    • Knowledge = starts at basic common knowledge and then based on community where D is
  • Has all the additional skill or knowledge as the actual D (all the mental attributes)
    • Takes on any positive additional attributes of D
    • Unique knowledge or skill of D taken into account
  • Has the physical attributes of the D himself
    • Subjective standard
      • Can be increased or diminished based on D’s physical condition
  • Exemptions:
    • Emergencies can apply
    • What doesn’t apply:
      • Mental illness
      • Intoxication
  • Children
    • Taken into account; can be liable for negligence
    • Age:
      • Generally starting around 4-5 y/o
      • Minority rule = rule of sevens
        • Children under 7 y/o deemed incapable
      • Age 18 = adult standard imposed
    • Compared to children of similar age, intelligence, and experience
      • Experience taken into account here; more than adults
    • When engaged in an adult activity = held to the standard of care as a reasonable adult doing that activity
      • Ex: driving
• The Professional
  • Has additional specialized training
  • Standard of care:
    • Must possess + use the knowledge/skill common to members of the profession in good standing
    • Still an objective standard
    • Used as evidence:
      • Understood through expert testimony
        • Putting professionals on stand to explain the common practice specifically
        • Doesn’t have to be professional = must only be an expert within their field
          • Specialized knowledge + background
        • Malpractice = Expert testimony must be from someone trained in the field

Rules of Law (Negligence per se)

• Negligence as applied to a statute or rule of law
  • Make sure to know where rule fits in the standard of care
• Outside of jury determination
• Application of a violation of statute
  • Statute must apply to facts
  • Consider:
    • Is P a member of a protected class?
    • Is the hazard one the legislature intended to protect against?
    • Is it appropriate to impose tort liability for violations of statute?
      • If case fails on any of these 3 requirements = NPC over
      • If it passes on requirements = court can choose to use it
  • Regular negligence (deviation from standard of care) charge can go forward even if this one fails
• Court isn’t required to use a criminal statute in a civil case
  • However, the court has the ability to do so under certain circumstances
  • Statute in question becomes something like a rule of law to be applied
  • Reasonable care under the circumstances still applies
  • Stachneiwicz
    • Will use regulation as standard of care + means of statute if issue carries criminal penalty
  • Osborne v. McMasters = pharmacist giving improperly labeled poison
• Licensing Statutes:
  • Not used to establish a standard of care in NPC issues
  • Must operate under reasonable care under the circumstances
    • Can be held to standard of care of the professional whose activity D engaged in
• Safety statute:
  • Court has tremendous amount of discretion in using a statute as a safety statute
  • No obligation if issue is of first impression
  • Can refuse of use it; choice of application

Res Ispa Loquitor

• Thing speaks for itself
  • Negligence so clear that it will be inferred from the circumstances; an obvious situation
  • Occurrence of the accident implies negligence
• What P must show:
  • Not required to show direct evidence of D’s conduct/ how D behaved in connection w event
  • 2 part test:
    • Object causing harm was in exclusive control of D
      • Not due to P’s own conduct
    • Result would not occur commonly under standard of care; occurence is the product of negligence
• Will need expert testimony
  • Subject beyond expertise of the jury
  • Has specialized knowledge or insight
• Proving damages:
  • Usually monetary
    • Ex: medical expenses, lost wages, pain + suffering, etc.
• Still must satisfy the other elements of negligence:
  • Some foreseeability in breach of duty
  • Cause in fact = essentially covered by RIL; just must prove that D’s negligence caused damages
    • Requires inference of causation for proving the damages
• Medical malpractice = custom becomes the standard
  • Don’t need expert testimony to prove negligence
  • Locale = also an issue
    • Would need to call expert from locale of issue to testify regarding common practice/standard
  • The fact that an ideal outcome has not occurred isn’t always an indication of negligence
  • Specialists = held to a higher standard
    • From a standard of care to the standard of care of a specialist
    • Must bring in another specialist of the same kind to testify on the standard
  • If professional guaranteed outcome = not malpractice, but instead breach of contract

Defenses to Negligence:

• Contributory negligence (NC)
  • Negligence committed by the P
  • Complete bar to recovery
  • Must be presented to jury
    • Question of the P’s role
  • If failure on the breach of duty argument, CN can be argued
    • Often very much linked based on the facts of the case

Joint and Several Liability

• When two independent acts of negligence come together to cause a single harm, the injury is indivisible
  • Where neither one acting alone would not have caused the injury, each tortfeasor is responsible for the entire amount of damages
• 3 ways to establish:
  • Indivisible harm
  • Acting in concert
  • Vicarious liability

Strict Liability (Faultless Liability)

Neither intentional nor negligent but D still held responsible

Miscellaneous Notes

12(b)(6) = failure to state a claim
Prima facie = at face value