Chart Torts

7/22/2019 Chart Torts

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D intendsto cause a

(i) harmfulor offensivecontact with the person of the other

(or a third person), or

(ii) animminent apprehensionof such contactINTENT

- with purpose, desire, or substantial certainty(subjective

standard)

Most Courts:only the intent to touch is necessary

Other courts: Dual intentto (i) intend the contact and to (ii)

intend the offensive or harmful action (the consequences).- intentional act must be voluntary (no sleep movements)

Transferred Intent: intent can transfer: is still a tort but he

must have intended to offend or touch. (But consent does not

transfer).[a different tort on the same person; an intendeddifferent tort on different person]

Battery

(iii) A harmfulor offensivecontact(with the other) directlyor

indirectlyresults.

Contact: direct physical contact or something intentionally (but no

accidently) set in motionto contact with P's sphere of personal

autonomy,with the imminent extensionof the person (shoppinbag and horse, ?car? but not bus). Touching of anything that is

attached or identified with the body--no battery by inaction

- Victim need not be awareat the moment battery occurs

Offensive contact:- offending a reasonable sense of personal dignity;or

- when D know of P's special sensitivity.No offensive contact:- when prior conduct or habit allows it.

Unexpected consequence:you are liable for the unforeseen

Eggshell skull: liable for full damages (you get the plaintiff as youfind him)

Disease: If no actual exposure occurred, no offensive act was

committed

Harmful: physical impairment

Smoking: is battery if smoke is intentionally directed at P, but not

when the smoke finds its own way (second hand smoke)

[Leichtman], but courts differ.

Assault(Threat of physical contact)The other (must be reasonable) is thereby put inimminent

apprehension of contact (no future threat)

Victim must:

(ii)be awareat that moment (before is is over)(iii) believe that a harmful or offensive contact on her is

imminentdue to an action of D.

(iv) believe that D is ableto commit the action

Conditional threat(option to escape): is assault (unless

privileged)

Words aloneare not the basis for assault unless togetherwith other acts or circumstances

Unforeseen Consequences (not limitless): you are liable--

take the plaintiff as you find him.

False Imprisonment?(i) D intended to confine [negligence or recklessness is not

sufficient], (ii) D's action(directly or indirectly) results in confinem

(iii) within boundaries fixed by D,(iv)against P's will, (v) P is awof the confinement orharmedby it (vi)no reasonable escapefor

Transferred intent is works here too.

Confinement: Test: whether a RP would feel that he could not leave

- P submits to force (is not assenting to confinement)- D takes car key away (in the middle of nowhere)

- D blocks his car in a bad neighborhood

- D: If you leave the room, I kiss you, I kill you, kill you child, keep yopurse

- D asserts to have legal authority and P reasonably believes.

- P does not have to risk (i) harm or (ii) designer dress or (iii) dignityescape.

Unaware toddler(harmed by deprivation of care by his relatives)

Texas ShoplifterStatute (Tex. Civ. Prac. and Rem. Code 124.001Detention)

A person who

- (i) reasonably believes that another has stolen or is attempting to

steal property is privileged to detain that person in a- (ii) reasonable manner and for a (no handcuffs)

- (iii) reasonable time to investigate ownership of the property (10 m

- Merchant may not purport to arrest the suspect but must call thepolice

Outside store?: courts are split.

Intentional Infliction of emotional distress (IIED)

(i) extreme and outrageous conduct, (ii) intentional or recklessly , (iii)causes (iv) severe emotional distress(see med attention or

sleeplessness)

Defenses: D had a right to put the mother with her children on the street(not paying rent)

Outrageous:

- distress must be (i) severe for a reasonable person of ordinary sensibility

(the minimum requirement) and plaintiff must (ii) actually be distressed.- for conduct exceeding all boundsusually tolerated by decent society

- gross insults only sufficient if delivered by a public utility, carrier,

innkeeper telegraph.Ask:

- did the defendant have some power over the plaintiff (special relation).

- did the plaintiff have some vulnerability the defendant knew about (child,hypochondriac, but not a short person)?

- was it a repeated act?Reckless:- he knows of high probability of harm but disregards precaution that would

eliminate the risk.

- the defendant knows or should know but acts in indifference

- an intentional act that raises the probability (getting drunk)Eggshell skull: goes into damages (after showing distress of a reasonable

person)

-you can recover forphysical injury that fall form it: She cracks her headafter being told that her son is dead.

This is IIED (Rest 46)

- killing a beloved dog or objectThird party IIED liability

1. The third person is a (i) immediate relative of the distressed person who

is (ii) present at the time; (iii) D knows of third person'spresence; or2. Any third person who is (i) present at the time and distress results in (ii)

bodily harm, (iii) D knows of third person'spresence Intentional Torts (Persons

Texas Penal code 22.01. Assault

A person commits an offense if the person

(i) intentionally, knowingly, or recklesslycausesbodily injury to another (or spouse);

(ii) intentionally or knowingly threatens another

with imminent bodily injury (or spouse); or(iii) intentionally or knowingly causes physical

contactwith another when the person knows or

should reasonably believe that the other will regard the

contact as offensive or provocative.

Negligent infliction of Emotional Distress (Hill)

(i) Had a dutynot to beat him up next to her.

(ii) breachedthat duty(iii) injury--miscarriage, that leads to emotional distress

(iv) causation

If there is no injury you need:

(i) special relation (contract)

(ii) particular susceptibility(iii) defendant must knowabout susceptibility- mishandling of dead body

- false death notice by telegram

- syphilis notice--divorce

emotional distress can trigger the bodily harm

If noother

Tort fits

If not recklessbut negligent

you needinjury

No imminent

apprehension

imminent

apprehensionoccurs

Touching

occurs

Bystander

P must: be (i) at the scene(ii) must have emotional shock(don't

need physical injury); (iii) and closely related with victim (uncle

who resides together);- does not have to be within the zone of danger

Victim must: have serious(but not bodily) injury[unsuccessful rape]

A few moments later...: not present at the scene (watch out)

Thomas Hiesberger, [email protected]


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Trespassing to land

(i) Intentionally, (ii) comes onto P's land or causessomeone orsomething to come onto P's land (iii) orremainson the land, (iv) orfailsto removesomething he has a duty to remove.- Nophysical injury (damage)necessary- Motive does not matter

He is trespassing- If he forces his employee to enter: Only he is liable- If he sends his employee: Both are liable- He is privileged to do one thing does something else- mistaken about the ownership and trespasses (good faith is immaterial)- children can be trespasser- conducts enormous dangerous activity(underground gas wellstorage that explodes into somebody else's land--without intent or beingthere.- you can trespass on something other then the surface- Fumes, smoke (more often a nuisance case)- trespass in order to repossessHe is nottrespassing

- if it is not a voluntary act.

- if the actor reasonably believes it to be, necessary for the purpose ofaverting an imminent public disaster.Not tangible material (smoke, gas) > only when substantial damages,but ash (when substantially certain)Airspace: special rules(i) airplane is below federally-prescribed minimum altitude; and (ii) flightsubstantially interferes with P's enjoyment of the land.

Trespassing to chattels

(i) D intentionallyinterferes with P'spossession of a thing (ii) harmmustoccur(unlike trespass to land).- possessor does not have to own itExamples

- he thinks he shoots a wolf but it is somebody'sdog- Ebay complains of spider programs that bringtheir server down- Somebody rips a page in my notebook.Mistakes about ownership:

- still a trespassDefenses

(i) Only when wrongdoer is in the process oftaking the chattel or shortly thereafter (when inhot pursuit). (ii) After reasonable believe that hehas taken the property. (iii) No deadly force

Conversion

- Intentional possession was so substantialthatDshould be required to buy it.- First explain trespass to chattels (occurs alwaysfirst) then go into conversion

Exercise of dominionor controlfor durationTo distinguish from conversion ask:1. Duration of D's dominion of the property (also:control complete?)2. Good or bad faith.3. Degree of harm done to the chattel4. Inconvenience and expenses for P5. Did D intend to assert right inconsistent withP's possession?EXAMPLES:

Destruction: You break it, you buy it.Purchase of stolen goods:you unknowingly buy astolenpainting from an art dealer and keep it for10 years.

- He steals car and damages it.Transfer to third person: Tom delivers packagewrong person (to John instead of Frank) and Johnleaves with the package. Tom is a converter.Withholding goods for substantial time: Parkinggarage refuses to return car.Consent Defense:D reasonable believed that P lets him have thechattel

Intentional Torts (Property)

D should berequired to buy it

(if you want to sell it)

Not a landbut harm

occurs


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Against Negligent Conduct:Use reasonable forcenotintended or likely to cause deathor serious bodily harm unless you can safely retreatoravoid the harm. (if retreat endangers you, you don't have toretreat.He can use reasonable force(i) against harmfulor offensivecontact or bodily harmwhich he, (ii) reasonably believes to be threatenedbytheconduct of another, although, (iii) herecognizes suchconduct to be negligent.Unless:(i) he knows or should know that he can(ii) escape the necessity of doing so by retreating, or by(iii) giving upthe exercise ofa rightor privilege which,under the circumstance, it is reasonable to require him torelinquish.

He can use force intended or likely to cause deathor serious bodily harm(i) reasonable believes that another is about to inflict

upon him an intentional contact or other bodily harm(ii) he is put in peril of death or serious bodily harmor ravishment,(iii) which can safely be prevented only by theimmediate use of such forceUnless he(i) correctly or reasonably believes that he can,(ii) with complete safety, retreator relinquish theexcise of any right or privilegeBut he does not have to(i) retreat within his dwelling or permit the other tointrudeor dispossess him of his dwelling(ii) abandon a lawful arrestExamples:- don't defend yourself against fist attack (notthreatening serious harm) with a gun [even if onlyintending to injure P]- you are attacked with a knife on the street: you maydefend yourself with your fists rather then running away

but not with your gun rather then running away.

Privilegenegates the tortiuous natureof thetort, therefore privileged actions cannotbe transfered and become a tort

Self-DefenseYou are entitled to use reasonableforceto preventany threatened

harmful or offensive bodily contactand anythreatenedconfinement or imprisonment.P must reasonably believe that the aggressor is going to touchyou(not important what he really intended) (imminent danger)Not OK:- if the other is privileged- punishment of past wrongs, retaliation- upon provocation by words- to forestall future threat does not justify self-defense (harm must beimminent).But, If you mistakenlybelieve that you are attacked, it's OK if youdefend yourself reasonable.Ask- was your self-defense proportionate, or did you exceed yourprivilege?Retreat- If there is a reasonable safe way to clear up mistakes and facts,you have to do so.- unless there is no safe retreat (or at home)

- don't have to retreat if you use less then deadly force.

PropertyHe can use reasonable force notintended or likely to cause deathorserous bodily harm to prevent orterminate intrusion if(i) the other is not privilegedor the othe(intentionally or negligently) causes sucbelieve.(ii) he reasonably believe that the intrusiocan be prevented only by force.(iii) he hasfirst requested the other to

desist and the other has disregarded therequest [or the actor reasonably believesthat a request will be useless or thatsubstantial harm will be done before it cabe made]Defense with mechanical device (barbedwire, dog)--Analyze as if D were presentmust be (i) reasonable [she would beprivileged to use similar force if present],necessary, and (iii) known.Ask: was deadly force privileged againsthat particularintruder.Mistake (intruder was privileged)D has no defense (unlike in self-defenseunless intruder, intentionally or negligentcauses the mistakeMistake (as to danger)D has defense when he uses deadly forcagainst a burglar whom she reasonably

believes to be armed, but he is not armedDwellingBurglar: You can use deadly force toprevent the consummation of yourdispossession if you reasonably thinknothing short of deadly force will safelykeep the burglar out.Dispossession of Chattelsprompt, reasonable force to retake chatt

Defense of others- If he is privilegedtodefend himself, so are youin defending him (even if heis not actively defendinghimself)Mistakes: If you help(unknowingly) the bad guy or( they make a movie) you areOK in most jurisdictions(your thinking must appearreasonable); Other courtssay, that you step into theapparent victims shoes).

Consent- If you have consented, it cannot be a tort (In Texas it is an Affirmative Defense)

Apparentconsent [Implied consent] (as effective as actual consent)- words or conduct are reasonably understood by another to constitute consent- his action or inaction justify a reasonable person to find consent (even if none exists!)Actual consent (willingness in fact)- Willingness in fact for conduct to occur. It may be manifested by action or inaction and neednot be communicated to the actor.No effective consent:

- if you consented to a different conduct; different time; area; exceeding the consent; consentwas already terminated (unless irrevocable)- Can't consent to certain types of dangerous activities- No capacity to consent: A minor, unconscious, intoxicatedcannot consent to sexualintercourse, unless (?) he does not have any reason to know. (but criminal law has strict agelimit)- No duress or coercion [but economic duress does not negate consent unless a employee-employer relation]Illegal act(duel, ) Most courts hold that you can't consent to a criminal act.Mistakes negating consent- when substantial and known to DMedical consent

- Must be carried out by medical professional using scientific procedures- Removes spleen instead of appendix (Battery, unless emergency)- He consents to medicine (not informed about the side-effect) > negligenceMisrepresentation- She would not have allowed the touching if she had known that he was not a doctor (battery)- P had intercourse with D (D promised to marry her but has no intention to do so): Battery- P had intercourse with D (D has venereal disease, P gets infected)[Unless D thinks he is notinfectious]: BatteryCommunication- if it was consented in fact, it does not have to be communicated to the trespasser (he can actunaware of the consent and it's OK)- but if consent it retracted it must be communicated to the trespasserConsent implied by law[Actor is unable to consent and a reasonable person would consent](i) P is unable to give consent; (ii) Immediate action is required to save P's health or life; (iii)there is no indication that P would not consent if able; and (iv) a reasonable person would haveconsent.

Discipline(i) within the definition of "privilegedperson"; (ii) within thescopeof the job; (iii) actingunder discretionary authority- Only reasonableforce and confinementfor discipline

purpose(education and training)Is it reasonable:- Is the actor a parent? (more leeway)- Parent's motives, age and mental condition mental, nature ofoffense- Was it disproportionate (reasonable compared to the offense)WhoChild-parent, In loco parentis; grandparents, teacher, school bdriver, School nurse; Prison guard-prisoner; Officer-soldierProper purpose for discipline (in all jurisdictions):- has to be used to enforce an instructional command- don't be cruel, unnecessary, demeaning- to handle disruptive behavior- do not punish academic or athletic performance- no excessive force or be negligent to cause bodily harmTex. Edu. Code 22.0511 Immunity from Liability(a) A professional employee of a school district is not personaliablefor any act that is incident to orwithin the scope of thedutiesof the employee's position of employment and that

involves the exercise of judgment or discretionon the part the employee, exceptin circumstances in which a professionaemployee uses excessive force in the disciplineof students negligence resulting in bodily injury to student.(b) This section does not apply to the operation, use, ormaintenance of any motor vehicle.(c) ...

Policy DefensePlaintiff can't recover, but it is still a tort- Statute of Limitation- Statute of Repose- Governmental Immunity

Insanity and Infancy- not a defense but might be aquestion of intent- Dual intent might be required:intent to contact and intent toharm. However most courtshold that mental illness does notautomatically negate intent.- it is better to hold the crazyperson liable rather than let thevictim be uncompensated.

Reason of necessity (Property)Public necessity--prevent disaster forcommunity:(actor pays no damages)- saving the townPrivate necessity(actor pays damages)- stealing somebody's bike foremergency

Defenses

Performance of a public dutypoliceman handling a suspect-----------------------------------------It is OK to restraining a mentally ill person

Recapture of Chattelsprompt, reasonable force to retake chatt- owner must be in fresh pursuit(withouunreasonable delay)- property must have taken wrongfully:Use of force not privileged in repossessio

- never use deadly force

He can use reasonable forcenot intended or likely to causedeath or serous bodily harm(Rest 63)(i) If he reasonablybelievesanother inflicts upon him harmfulor offensive contact, and(ii) the other is not privileged(iii) he does not have to retreat orcomply with a commandHe can't use force likely tocause deadly injury(he is liableeven if he does cause the sameinjury as when using force notlikely to cause serious bodilyharm)

Defenses


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NegligenceWhen D's conduct imposes a unreasonable risk upon another,

which results in injury.(Only conduct counts but not the intent ormental state.

- the failure to exercising reasonable care under the

circumstances in a particular incidence.D's conduct imposed a unreasonable risk:

(i) D owed a legaldutyto P or to the general public to conduct

himself according to a certain standard(ii) D failed to behave withthedegreeof reasonable care

required (breachof duty)

(iii) P suffered a injury(harm must be reasonable foreseeable)

(iv) cause in fact,and(v) proximal cause[legal cause]{not too remote}

Foreseeability Considerations:

- the reasonable foreseeable risk or probability that his conductwill result in harm to the person situated as plaintiff; (ii) the

foreseeable severity of the harm. Ask: Is the risk foreseeable for

a reasonable person?

Gross Negligence

Several jurisdictions (Texas): must have a conscious state of

mind to do something very risky (get punitive damages)

Legal Duty (Court's decision--as a matter of law)

-to exercise reasonable care in the conduct of our own affairs

-established by (i) tort statute, (ii) adoption of non-tort statute, (iii)act as a reasonabl

person of ordinary prudence under the circumstances, jury will decide whetherstandard was met.

-not to create an unreasonablerisk of harm.

Duty exists:

- if you have created the dangerous situation (Dram shop-bar is liable if they let you

drink beyond a reasonable limit)

-contractual relation or special relation; after voluntarily rendered aid; companionon social venture; D and injurer have a special relation

No Duty exists:

-Bystander (unless he created the dangerous situation)

Risk benefit analysis (Negligence Calculus)

- If P x L > B, you have a duty.

- (P) Probability of harm x (L) injury > (B) burden of precaution.

- if harm is more costly than the cure, you have to cure- risk can be reduced by warnings! Failure to warn could itself be negligence.

The conduct is negligent:

- if the magnitude of risk outweigh the burden of risk prevention.- If he did not reduce the risk enough to satisfy the formula (storekeeper does not

have to inspect continuously but only every hour)

- If the actor was not aware of the risks, ask what the burden of being aware wouldhave been.

TEX:

A duty to act as a reasonably prudent person under the same or similar

circumstances, considering the reasonably foreseeable risk or probability of harm topersons situated as the plaintiff.

Reasonable care

Custom(is a standard)

- to define whether the defendant used reasonable care

Departing from custom: rebuttable (suggestive but not conclusive)proof of negligence.

Acting according to custom: does not automatically preclude

negligence. Jury is still free to conclude that industry custom is

unreasonable dangerous. (use better screws)Custom must be(i) widespread; (ii) well known to be wide

spread; (iii) generated by regarding safety measures

- violation of a statute cannot be a customEmergencies (unusual decision in a short time)

- the reasonable person in such an emergency

- if the actor is confronted with an unexpected emergency(requiring rapid response), it needs to be taken into account to

determine whether his conduct was reasonably careful. (time

pressure limits good judgment)- but, if the emergency arose out of a negligent conduct by the

defendant, he is liable even when his later actions (dealing with

the emergency) were reasonable.

Reasonable person (objective standard)

- Ask: Whether a reasonable person of ordinary prudencein D's position (under

the circumstances) would act as D did.

- has knowledge of the standards of community; qualities and habits of human beings- has the same facilities or resources available as the actor

Anticipation of other's conduct

- a reasonable person possesses at least limited ability to anticipate the conduct of

others. RP can presume that others will not commit crime or intentional torts (unlesshe has special knowledge) but may be required to anticipate negligence.

Physicaldisability:

- a reasonable person with the same disabilities. Ask: what is the connectionbetween the disability and substandard conduct.

But, contributory negligence: Could the disabled foresee and take special precautions

(physical disability)?

Sudden incapacitation: liable only if incapacitation was foreseeable to himMentalor emotional disabilities:

- the ordinary, reasonable person is not deemed to have the same mentalcharacteristics[generally pay for their torts (unless child)].

- no influence in the determination of negligence (no justification or excuse)

- Intoxicationis no defense (will be held to the standard of a sober person), but

involuntary intoxication might be taken into account.

Person with special knowledge

- standard is that of a reasonable person with such superior attributes (plaintiff may

have relied on that)- people that handle dangeroussubstances

- knows of bad road condition, but drives too fast anyway

Persons with substandard knowledge

- is ignored to determine his reasonableness

- "beginner status" is only taken into account when the plaintiff is the instructor.

Injured Rescuer: D is liable if he negligently put himself (or another) in danger andrescuer is injured.

Possessors of Land

ChildrenRest. (age below majority, 18-21)

- conduct must conform to a reasonable person of that (i) age, (ii) experience, (iii)knowledge, (iv) maturity, (v) education (unless engaging in typically adult, dangerous

activity). Consider also: mental or emotional disability; did parents give instructions?

Under 5 years:no negligence possible

Adults can usually adjust their conduct for the child's proximity unless their status

cannot be detected (car driving)

ChildrenTexas

- under 5 years: no negligence possible

- 5-14: standard is the "reasonable child, same age, circumstances"

- above 14: adult standard (unless disabled

Negligence

Contributory negligence

(must prove same elements)- duty to protect your own safety

1. conduct that only endangers himself (climbing a ladder)

2. conduct that endangers somebody else (traffic)in some states it bars recovery in other there is comparative

negligence

Trial procedure

Plaintiff must prove

1. Burden of production

- sufficient evidence to establish a duty as a matter of law

- that defendant breached duty- that proximately

- caused injury

2. Burden of persuasion- more probable than not that his injuries arose out of D's

negligence

No duty to assist

Unless:

- D is the owner of

business premises- D created the danger- D undertakes to assist

(starts to assist, promises

to assist

Good Samaritan Rule-Protects rescuers whose conduct ismerely negligent, but not somethingworse like reckless, willful or wanton.

Firefighter ruleA public employee who suffers an injurycaused by a kind of hazard that sheconfronts as a normal part of his job,does not ha a negligence claim againstthe person who created it,


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Negligence per se(violation of an absolute statute,--standardof conduct)--a conclusive presumption of duty and breach of duty.(i) actor violates a statute (must be a "safety statute")(ii) violation caused injury(iii) statute is designed to prevent this type of harm(iv) victim is within the protected group(if it is designed to protectemployees, a visitor is not protected)takes care of the reasonable person standard-still need to prove causation and injury- Court has to apply statute unless unconstitutionallyExcuses (Courts may excuse a violation as long as the statute does

not prohibit an excuse)

1. violation was reasonable due to incapacityof actor (child'sjaywalking)2. Actor exhibits reasonable care to comply but fails(fog-drivesslowly but runs stop sign)3. The actor neither know or should know(or Rest.: Statute ispresented in confused way) (Contractor has no reason to know that hedigs within the high-power line danger area)4. Confronted by emergencynot caused by his conduct he crossesthe centerline5. Compliance with statute is a greater risk. (cross centerline to avoidchild)Contributory negligence per se: helps the plaintiff where the jurisdictionallows it.

Res Ipsa Loquitor(the case speaks for itself)(i) injury doesnot normally occur(in the absence of negligence, injury would not haveoccurred, [or most of the time, negligence is the cause of such occurrence.(ii) instrument was inexclusive control or management of defendant [some courts: (ii)more likely to be under D's control then under somebody else's](iii) plaintiff must not have contributed to the event(iv) direct evidence of D's conduct must not be available{(v) D must know more (evidence) then P (patient was unconscious)?

(vi) Injury not due to plaintiff}Why?

- to meet the burden of production with circumstantial evidence and go to the jurywithout direct evidence.- if it is so clear that a lay-person can understand it,you don't need experts: RIL(scissors, sponges stay behind)- If you need expert, is not RIL (Rest. says that expert witness in medical malpracticeRIL case is admissible.- you can use evidence to rebut other causes of the injury (other then D's negligence)Court Procedure

1. Judge must decide whether there is enough evidence to go to the jury2. Jury must decide wether to believe it (often they don't)[permissive interference]Management and control

- under the exclusive control at the particular time when the negligence happened.

(unless change of circumstances)- guest could have thrown the chair out of the hotel window as wellMore then one in control

If joint enterprises(Elevator company and office building owner) (either the surgeon orthe nurse) (exploding coke bottles, gas-lines) [shared responsibility]. Especially when allof the Defendants participate together in an integrated relationship.Texas: in medical cases

-RIL only recognized by cases by appellate court prior 1977)(X-ray burns, operation on wrong part of the body, mechanical devices, foreigns objects)Rebuttal:

- General evidence of due care: that D was in fact careful will not be successful, but

evidence directly disproving one of the requirements of the doctrine will lead to a

directed verdict.

Legislators response to the Boyle case 21.15.

Improper Photography or Visual Recording

A person commits an offense if the person(i) photographs or by videotape or other electronicmeans visually records another- (a) without consent; and- (b) with intent to arouse or gratify the sexual desireof any person; or(2) knowing the character and content of thephotograph or recording, promotes such aphotograph or visual recordingsuch an offense is a state jail felony.

Statutes

Statutes

Statutes not expressly dealing with tort liability:

- (i) absolute statute propose a standard of conduct(Stop at the red light)- (ii) conditional statute propose a standard of care(describes the conduct of a reasonable person)- when the legislator has something condemned as

unlawful, it cannot be reasonable


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Medical and Professional Malpractice(i) committed by someone with specialknowledgeor skills(ii)special relationshipwith those you are attending(iii) must be inseparable part of medical service(falling out ofhospital bed v. operation table)doctors, lawyers, accountants, engineers

1. Negligent Treatment

- good results are not guaranteed, only that he will uses therequisite minimal skill and competence ( unless he warranted cure)- if D holds himself out as a specialist, he will be held to theminimum standard of that speciality.- must have performed with less skill than the minimallycompetent specialist (not less then the average)- pro bono is irrelevant- is negligence unless he takes out the wrong organ.

2. Failing to Disclose (Informed Consent)

Patient admits to have consented but claims to not have been fullyinformed.(i) duty (a patient has the right to know)(ii) breach (fail to disclose the risk negligence)(iii) injury caused by undisclosed risk(iv) ? P (or reasonable person), if informed, would not have chosentreatment? (jurisdiction split)Old common Law: If not fully informed it is a batteryNowadays:is negligence unless there is no consent at all.Therapeutic privilege:?if disclosure could hurt the patient?, he does nothave to disclose (jurisdiction split)Emergency:the physician is not liable for negligenceDisclose what?

- all materially information that the doctor expects the patient to knowMaterially:

- Common law: expert- Texas: Medical Disclosure Panel

Texas Civil Practice & Remedies Code 74Medical Liability General Provisions74.001 Definitions

Healthcare provider: all the medical persons (nurses,pharmacist, dentist, health care institution), but not thephysician)?Healthcare liability care: (i) departureof accepted standard ofmedical care [custom], (ii) directly relating to healthcare, (iii)resulting in injuryPhysician: in Texas licensed physician or group thereof74.101 Theory of Recovery

- Negligence is the only theory for failure to disclose the risks74.102 Medical Disclosure Panel

(a) determines what is to be disclosed(b) only administratively attached to Texas Department ofHealth74.103 Duties of Disclosure Panel

(a) determines whether a particular treatment requires (or not)disclosure of the risks to the patient(b) the degree of disclosure required74.104 Duties of Physician or Health Care Provider

- If the physician discloses he has complied with therequirements74.105 Manners of Disclosure

- consent is effective if disclosure is given (i) in writing and (ii)signed by the patient, and (iii) competent witness, and (iv)states risks in compliance with the disclosure panel.

Medical

MedicalStandard of care (established by expert opinion to

determine custom)

- reasonable qualified practitioner/specialist in the fieldrenders opinion whether somebody has complied with the

customary standard

Reasonable physician

- possess and exercise training and skill of a reasonable

physician of ordinary prudence (not average but minimum)- is allowed to follow a respected minority

Local community standard: standard of the custom or the

relevant community must be breached

Similar community standard;

National standard (Texas):

- reasonable professional in the same class (except when

benefit cost is high)

- specialist from same field unless overlapping- beginners are held to the same standard

74.106 Effect of Disclosure

- a proper disclosure: rebuttable presumption that the requirementshave been complied with.- failure to disclosure: rebuttable presumption of a negligent failure toconform to the duty of disclosure; unless there was emergency or notmedical feasible.- if no disclosure panel: go to common law.74.151 Liability for Emergency Care

- good faith emergency care is not negligence, unless(i) willfully negligent, (ii) service for remuneration, (iii) person causedemergency by negligent act.74.153 Standard of Proof (Medical Emergency)

- claimant must show (by preponderance of the evidence) that deviatiofrom standard of care was willful and wanton.74.201 Application or Res Ipsa Loquitur

- only those cases applied before August 29, 197774.251 Statute of Limitation on Health Care Liability Claims

- must be filed within 2 year of the breach

- minors under 12 have until their 12th birthday- but not later then 10 years after the breach74.301 Limitation on non-economic damages

- max. $250,000/claimant against any healthcare institution- max. $500,000/claimant against all healthcare institution74.301 Limitation on Damages

- wrongful death or survival action: max $500,000/claimant- adjusted by consumer price index- medical expenses are extra- Liability in "Stowers Doctrine shall not exceed the liability- Jury instructions: bad results can be considered but not exclusively inorder to determine negligence

Documents

Chart Torts