Updated assignment list

Negligence / Reasonable Care

 Assignment #1 1-17
 Assignment #2 39-43, 49-60
 Assignment #3 68-77
 Assignment #4 90-106
 Assignment #5 106-115
 Assignment #6 119-128

Chapter 2 The Negligence Principle

 Central concept
o Standard of care
o Reasonable person
 The Roles of Judge and Jury
o In General
o The Role of Custom
 Except in malpractice cases, courts have rejected the argument that
a prevailing custom defines the standard of care.
o The Role of Statutes
 The unexcused omission of a statutory requirement is negligence
 A statute determines the standard to care required. In the absence
of such a standard, the case goes to the jury, which must determine
whether the defendant has acted as a reasonably prudent man
would act in similar circumstances
 Proof of Negligence
o Res Ipsa Loquitur
 “The things speaks for itself”
 Establishes a rebuttable presumption on the part of the defendant
through the use of circumstantial evidence
 the negligence is of defendant is presumed by the fact itself
 Requirements (SMITH)
o
 The Special Case of Medical Malpractice
o Although the law has thus imposed a higher standard of care on doctors, it
has tempered the impact of that rule by permitting the profession, as a
group, to set its own legal standards of reasonable conduct.
o In a malpractice case, however, the question of whether the defendant
acted in conformity with the common practice within his profession is the
heart of the suit
o
 Chapter 1
Introduction to Tort Liability

A. Prologue:

The Primary concern of tort law has been whether one whose actions harm another
should be required to pay compensation for the harm done.

Strict Liability: liability imposed when there is no requirement to prove fault, negligence
or intention. The law imputes strict liability to situations it considers to be inherently
dangerous.

Negligence: It describes a situation when someone accidently does something wrong,

which causes someone else to get hurt. A person can be held liable for any damages they
cause through their careless (or "negligent") behavior.

Introduction to Tort Liability

B. When Should Unintended Injury Result in Liability?

Name: Hammontree v. Jenner Court of Appeal of California, (1971).

Facts: While driving home from work, Jenner suffered from a seizure. His car crashed
into the bicycle shop of Hammontree and her husband causing personal injuries and
damage to the shop. Jenner who had previously taken medication had reason to believe
that his seizures would not recur anymore based on doctors’ opinions. Hammontree and
husband sued the defendant for personal injuries and property damage.

Procedure: Jury was given instructions based on negligence. Jury ruled for the
defendant. On appeal, plaintiffs argue that the trial court committed prejudicial error in
refusing to give their jury instructions on absolute liability.

In support of her argument, Plaintiff compares this case with the principle of imposing
strict liability upon the manufacturers.
 These authorities hold that “A manufacturer is strictly liable in tort when an
article he places on the market, knowing that it is to be used without inspection
for defects, proves to have a defect that causes injury to a human being.”

Issue: w/n strict liability applies in this case.

Holding: Strict Liability does not apply in this case.

Reasoning: In citing the Maloney case, court holds that: “To invoke a rule of strict
liability on user of the streets and highways, without also establishing in substantial detail
how the new rule should operate would add confusion to the automobile accident
problem. Settlement and claims adjustment procedures would become chaotic until the
new rules were worked out on a case-by-case basis, and the hardships of delayed
compensation would be seriously intensified. Only the Legislature, if it deems it wise to
do so, can avoid such difficulties by enacting a comprehensive plan for the compensation
of automobile accident victims in place of or in addition to the law of negligence.

Additionally, assuming appellant’s position that the defendant had reason to believe his
seizure could recur, it doesn’t leave out the possibility of a driver who is suddenly
stricken by an illness or physical condition which he had no reason whatsoever to
anticipate and of which he had no prior knowledge.

Disposition: Judgment Affirmed.

Notes: Court uses the terms “strict liability and “absolute liability” interchangeably in the
course of its opinion.

8/24 Class Notes:

Tort:
 Law of accidents (for purpose of this class)
 Concerned with personal injuries that arise out of accident (doesn’t cover
intentional torts)
 Covers mostly accidents

π = plaintiff
Δ = defendant

Question of fact: what happened?

Question of law: what are the legal implications of what happened?

Juries = fact finders

Judges = decide questions of law

Judges can also judge issues of fact

Law
 Rulebook model vs. common law model
o Rulebook model (not in this class)
o Common law model (cases build up interpreting law in certain situations
creating precedent leading to what the law is today. Evolving law)
Assignment #2 pp. 39-43, 49-60

Case Brief

 Negligence
o The Central Concept
 The Standard of Care

Name: Adams v. Bullock Court of Appeals of New York, (1919).

Facts: Child was playing on with a wire on a bridge, which a trolley ran through.
Defendant owned the trolley. The child threw the wire over the bridge and it collided
with the wire, which the trolley was attached to. The child was shocked and burned as a
result.

Procedures: Trial Court affirmed for plaintiff (child). Appellate court affirmed decision
of the Trial Court ruling that the defendant was negligent. This is an appeal by the
defendant.

Issue: w/n Defendant was negligent in the use of his trolley

Holding: No, the Defendant was not negligent in the use of his trolley

Reasoning: the trolley wire was so placed that no one standing on the bridge or even
bending over the parapet could reach it. Only some extraordinary casualty, not fairly
within the area of ordinary prevision, could make it a thing of danger… No special
danger at this bridge warned the defendant that there was need of special measures of
precaution. No like accident had occurred before, No custom had been disregarded. We
think that ordinary caution did not involve forethought of this extraordinary peril.

Disposition: Judgment reversed.

Case Brief

 Negligence
o The Central Concept
 The Reasonable Person

Name: Bethel v. New York City Transit Authority Court of Appeals of New York, (1998).

Facts: Plaintiff was hurt on defendant’s bus when the “wheelchair accessible seat”
collapsed under him” Plaintiff sued claiming that a proper inspection during the repair of
the seat would have revealed the defect that caused the seat to collapse

Procedure: Lower court ruled for Plaintiff charging the jury that, as a common carrier,
“the bus company had a duty to use the highest degree of care that human prudence and
foresight can suggest in the maintenance of its vehicles and equipment for the safety of
its passengers”

Issue: w/n defendant needed to have exercised the highest degree of care in the
maintenance of his Bus.

Holding: No

Reasoning: The duty of common carries to exercise the highest degree of care does not
apply in this case because that rule applied to a time when the railroads in the US were
new.

In this century, however, through technological advances and intense governmental

regulation, “public conveyances . . . have become at least as safe as private modes of
travel”

Disposition: The case was remanded for a new trial.

Assignment 3
Pages 68-77
Case Brief

 Negligence
o The Roles of Judge and Jury
 The Role of Custom

Name: Trimarco v. Klein Court of Appeals of New York (1982).

Facts: Plaintiff was a tenant in defendant’s apartment building. Plaintiff was badly cut
when he fell through the glass door in the shower. The door turned out to be ordinary thin
glass, which looked same as tempered glass which the plaintiff thought it was. Plaintiff
presented expert evidence that at least since the 1950s a practice of using shatterproof
glass in bathroom enclosures had come into common use, so that by 1976, the date of the
accident, “the glass door here no longer conformed to accepted safety standards”

Procedure: Lower court awarded damages. Appellate court reversed and dismissed the
case on the ground that there was no common-law duty on the defendant to replace the
glass unless prior notice of the danger had come to the defendants either from the
plaintiff or by reason of a similar accident in the building.

Issue: can custom be the standard for testing reasonableness / negligence?

Holding: yes.

Reasoning: The evidence of custom and usage “by others engaged in the business” in
proper perspective, when among other things, can be a way to test the reasonableness of
the defendant’s conduct.

Disposition: decision of appellate court reversed but a new trial is ordered because the
trial judge had erroneously admitted certain evidence that had hurt the defense.

Case Brief

 Negligence
o The Role of Judges and Jury
 The Role of Statutes

Name: Martin v. Herzog Court of Appeals of New York (1920).

Facts: While plaintiff and her husband were driving down the road, they were struck by
defendant, causing the husband to die. Plaintiffs charge that the defendant was negligent
because he did not keep to the right of the center of the highway. Defendant argues that
he was not moving at an excessive speed and that the plaintiff was negligent because
plaintiff was traveling without the lights.

Disposition: Lower court ruled for plaintiff. Appellate Court reversed and ordered a new
trial

Issue: can the jury consider whether or not to consider a statutory requirement?

Holding: No

Reasoning: The unexcused omission of the statutory signals is more than some evidence
of negligence. It is negligence itself. To omit, willfully or heedlessly, the safeguards
prescribed by law for the benefit of another that he may be preserved in life or limb, is to
fall short of the standard of diligence to which those who live in organized society are
under a duty to conform.

Jurors have no dispensing power by which they may relax the duty that one traveler on
the highway owes under the statute to another.

A statute designed for the protection of human life is not to be brushed aside as a form of
words, its commands reduced to the level of cautions, and the duty to obey attenuated
into an option to conform.

Notes:
The Role of Custom

 Except in malpractice cases, courts have rejected the argument that a prevailing
custom defines the standard of care.
 Custom can establish the standard of care. This custom and usage when
considered among other things in the proper perspective can help determine the
reasonableness of the defendant’s conduct under all the circumstances.
 While industry custom is not conclusive in any given case, it is a useful guide,
unless it is apparent that under the particular circumstances of the case a
reasonable person would not conform to the industry-wide custom

The Role of Statutes

 The unexcused omission of a statutory requirement is negligence.

 Jurors are not allowed to dispense with the duty that one traveler on the highway
owes under the statute to another (Martin v. Herzog).
 A statute determines the standard of care required. In the absence of such a
standard, the case goes to the jury, which must determine whether the defendant
has acted as a reasonably prudent man would act in similar circumstances. The
jury then has the burden of deciding not only what the facts are but also what the
unformulated standard is of reasonable conduct.
o When a legislative body has generalized a standard from the experience of
the community and prohibits conduct that is likely to cause harm, the court
accepts the formulated standards and applies them except where they
would serve to impose liability without fault.

Assignment 4
Pages 90-106

 Negligence
o Proof of Negligence
 Res Ipsa Loquitur

Res ipsa loquitur

 “The things speaks for itself”
 Establishes a rebuttable presumption on the part of the defendant through the use
of circumstantial evidence
 Ybarra court holds that there are 3 conditions that must be met for this doctrine to
apply
1) The accident must be of a kind which ordinarily does not occur in the
absence of someone’s negligence
2) It must be caused by an agency or instrumentality within the exclusive
control of the defendant
 3) It must not have been due to voluntary action or contribution on the part of
the plaintiff
 Res ipsa applies in all 3 cases in the reading

Case Brief
 Negligence
o Proof of Negligence
 Res ipsa loquitur

Name: Bryn v. Boadle Court of Exchequer, 1836

Facts: Bryne was walking down the side of the street when a barrel of flour fell on top of
him. He sued the defendant who was the owner of the shop where the barrel of flour fell.
Defendant responded saying that there was no evidence of negligence.

Procedure: lower court ruled for plaintiff

Issue: whether evidence for negligence is needed on the part of the prosecution.

Holding: No

Reasoning: The doctrine of res ipsa loquitur applies in this case. “It is the duty of persons
who keep barrels in a warehouse to take care that they do not roll out, and I think that
such a case would, beyond all doubt, afford prima facie evidence of negligence.

I think that those whose duty it was to put it in the right place are prima facie responsible,
and if there is any state of facts to rebut the presumption of negligence, they must prove
them.

Disposition: affirmed.

Case Brief
 Negligence
o Proof of Negligence
 Res ipsa loquitur

Name: McDougald v. Perry Supreme Court of Florida, (1998).

Facts: Plaintiff McDougald was driving behind tractor-trailer being driven by the
defendant Perry. The spare tire on defendant’s care came loose and bounced into their air
crashing into the windshield of plaintiff’s car. Plaintiff sued. Defendant responded that
as originally designed, the chain was secured to the body of the trailer by a latch device.
At the time of the accident, however, the chain was attached to the body of the trailer
with a nut and bolt.
Procedure: Trial court instructed the jury on the doctrine of res ipsa loquitur. Jury ruled
for Plaintiff. On appeal the appellate court ruled the trial court erred by (1) not directing a
verdict on the issue of negligence erred by (2) instructing the jury on res ipsa loquitur.

Issue: whether or not the doctrine of res ipsa loquitur applies in this case

Holding: yes

Reasoning: We conclude that the spare tire escaping from the cradle underneath the
truck, resulting in the tire ultimately becoming airborne and crashing into McDougald’s
vehicle, is the type of accident which, on the basis of common experience, and as a
matter of general knowledge, would not occur but for the failure to exercise reasonable
care by the person who had control of the spare tire.

The plaintiff is not required to eliminate certainty all other possible causes or inferences .
. .. All that is required is evidence from which reasonable personas can say that on the
whole it is more likely that there was negligence associated with the cause of the event
that there was not.

Disposition: district court’s decision was reversed and the case remanded for
consideration of remaining issues.

Case Brief

 Negligence
o Proof of Negligence
 Res ipsa loquitur

NAME: Ybarra v. Spangard Supreme Court of California 25 Cal.2d 486 (1944)

FACTS: Plaintiff Ybarra was given an appendectomy by defendants. However after the
surgery, the plaintiff felt pain between his neck and shoulder muscles. He developed
paralysis and atrophy of the muscles around the shoulder. Plaintiff was treated by
multiple employees in the course of his operation. Plaintiff consulted other doctors who
believe that the injury was a paralysis of traumatic origin. Plaintiff sues for damages
alleging that his injures were caused by the operation of the defendants.

The defense of defendants is that (1) that where there are several defendants, and there is
a division of responsibility in the use of an instrumentality causing the injury, and the
injury might have resulted from the separate act of either one of two or more persons, the
rule of res ipsa loquitur cannot be invoked against any one of them; and (2) that where
there are several instrumentalities, and no showing is made as to which caused the injury
or as to the particular defendant in control of it, the doctrine cannot apply.
in CA the doctrine of res ipsa loquitur has 3 conditions:
(1) The accident must be of a kind which ordinarily does not occur in the absence of
someone’s negligence
(2) It must be caused by an agency or instrumentality within the exclusive control of
the ∆.
(3) It must not have been due to any voluntary action or contribution on the part of
the π

PROCEDURE: The trial court entered judgments of nonsuit as to all of the defendants.
Plaintiff appeals claiming that a nonsuit is improper because the doctrine of res ipsa
loquitur applies to this case.

ISSUE: does the doctrine of res ipsa loquitur apply to this case?

HOLDING: yes.

REASONING: The number of those in whose care the patient is placed is not a good
reason for denying him all reasonable opportunity to recover for negligent harm.

We hold that where a plaintiff receives unusual injuries while unconscious and in the
course of medical treatment, all those defendants who had any control over his body or
the instrumentalities which might have caused the injuries may properly be called upon to
meet the inference of negligence by giving an explanation of their conduct.

An unconscious patient (plaintiff) cannot be able to see how he received his injuries. The
best eh can do is show that he was injured

“If we accept the contention of ∆s herein, there will rarely be any compensation for
patients injured while unconscious.”

DISPOSITION: The judgment is reversed.

Rule: where a plaintiff receives unusual injuries while unconscious and in the course of
medical treatment, all those defendants who had any control over his body or the
instrumentalities which might have caused the injuries may properly be called upon to
meet the inference of negligence by giving an explanation of their conduct. Then the
individual defendants can provide a defense to their presumed guilt.

Assignment 5
Pages 106-115

E. The Special Case of Medical Malpractice

 The conduct of a defendant in a negligence suit is usually measured against the

conduct of a hypothetical reasonably prudent person acting under the same or
similar circumstances
  In medical malpractice cases, however, courts have required that the specialized
knowledge and skill of the defendant must be taken into account
 Although the law has thus imposed a higher standard of care on doctors, it has
tempered the impact of that rule by permitting the profession, as a group, to set its
own legal standards of reasonable conduct.

 In a malpractice case, however, the question of whether the defendant acted in

conformity with the common practice within his profession is the heart of the suit

 As part of the prima facie case a malpractice plaintiff must affirmatively prove the
relevant recognized standard of medical care exercised by other physicians and
that the defendant departed from that standard when treating the plaintiff

 In medical malpractice cases, the plaintiff must present expert witnesses since the
technical complexity of the facts and issues usually prevents the jury itself from
determining both the appropriate standards of care and whether the defendant’s
conduct conformed to that standard.

Case Brief
 Negligence
 Medical Malpractice

Name: Sheeley v. Memorial Hospital Supreme Court of Rhode Island, 1998.

Facts: Dr. Ryder performed an episiotomy on Sheeley when she gave birth. She
developed complications from this. She sued the hospital and the doctor.

Procedure:
 Trial court ruled for defendant citing § 9-19-41, ruled that the expert witness was
not in the same medical field as the defendant physician and denied the testimony
of the expert witness. [witness must be from the same medical field]
 Sheeley appeals saying that the trial justice erred in excluding the testimony of
her expert witness.
 SC rules for Sheeley

Issue: whether the trial court erred in excluding the testimony of the expert witness
because he was barred by the similar locality rule

Holding: yes

Reasoning:
Even though the proposed expert did not practice in the same specialty as the defendants,
he clearly had the prerequisite “knowledge, skill, experience, training, or education . . . in
the field of the alleged malpractice.”

The “similar locality” rule that the defendant’s argue does not apply here.

 Similar locality rule – the standard of care is to exercise “the same degree of
diligence and skill which is commonly possessed by other members of the
procession who are engaged in the same type of practice in similar localities
having due regard for the state of scientific knowledge at the time of treatment.

A witness, who has obtained board certification in a particular specialty related to the
procedure in question, especially when that board certification reflects a national standard
of training and qualification, should be presumptively qualified to render an opinion.

The court is of the opinion that whatever geographical impediments may previously have
justified the need for a “similar locality” analysis are no longer applicable in view of the
present-day realities of the medical profession. In modern times the medical field is more
advanced and has a more national standard

The old similar locality rule is outdated and hence abolished.

Disposition: case remanded to lower court.

Old rule: similar locality rule

New Rule: the old rule is abolished in favor of a national standard and hold that a
physician is under a duty to use the degree of care and skill that is expected of a
reasonably competent practitioner in the same class to which he or she belongs, acting in
the same or similar circumstances.

Notes:

Several courts have established a national standard of care for all physicians, completely
abandoning any locality limitation

Even in jurisdictions which have not adopted a national standard for all malpractice
issues, if a physician holds himself out as a specialist, [as defendant had done here], he is
held to the general standard of care required of all physicians in the same specialty

It seems clear that the medical profession itself has adopted a national standard for
membership in one of its certified specialties. If the law remains tied to a locality
standard it ignores the realities of modern medicine in favor of an outdated mythology
Common knowledge – in some occasions, experts aren’t needed if the situation is within
the layman’s common knowledge such as leaving a sponge or surgical instrument inside
the person or operating on the wrong leg.

Custom is evidence; it does not conclusively establish the standard of care

 Note case 114: Leonard v. Watsonville Community Hospital (holding that custom
of not counting instruments before closing an incision would not control the case
because it was a matter of common knowledge that no special skill is required in
counting instruments)

Class notes 9/9/15

Review
 Burden of proof of causation and injury is on the plaintiff
 Defendant has burden to prove affirmative defense
 Proof needed in torts is preponderance of evidence (more likely than not)
 Res ipsa loquitur
o “The things speaks for itself”
o Establishes a rebuttable presumption on the part of the defendant through
the use of circumstantial evidence.
o Shifts the burden of proof on defendant

 Requirement for res ipsa (SMITH requirement)

o Normally doesn’t happen without negligence
o Negligence was probably that of the defendant

 There are 3 different types of rationale for a plaintiff in this case.

o Mostly circumstantial evidence
o Some burden shifting
o And a little bit of strict liability
McDougald v. Perry
 Trial court ruled for plaintiff
 Defendant appeals saying res ipsa doctrine wasn’t applicable
 Appellate court says res ipsa doesn’t apply
 SC of FL reverse back to trial court instruction
 Did defendant have exclusive control of instrumentality?
o Wording doesn’t help this case (shouldn’t be the requirement)
 Use res ispa (SMITH) requirements
o Assuming negligence, was it probably more likely than not the defendant?

Ybarra v. Spangard
 Appendicitis
  Plaintiff comes out of appendix surgery with a neck and back injury
 Many defendants
 Plaintiff wants to use the Res Ipsa Loquitur doctrine
o 1. Accident doesn’t happen without negligence
o 2. Negligence probably caused by defendant

Constructive
  Legal fiction
o e.g. constructive notice, actual fact isn’t there but law accepts it as fact

 Trial judge rules that res ipsa doesn’t apply here

o (2nd requirement is not met)
o plaintiff can’t show which defendant was negligent
 CA SC overturns this
o Plaintiff is unconscious
o Plaintiff can’t prove negligence
o This trial ruling would mean that plaintiff can’t get a remedy
o Trial ruling means plaintiff has burden of proof and can’t prove because
he was unconscious
o Hard to prove which defendant breached duty of care when unconscious

California’s 3 requirements
 Ruling says its circumstantial evidence, but its burden shifting
 Ruling treats res ipsa as more of a burden shifting device
 Defendants had to burden of proof on remand

Assignment 6
Class 7 Notes
p. 119-128
Case Brief
 Negligence
 Special Case of Medical Malpractice
 Informed Consent

Name: Matthies v. Mastromonaco Supreme Court of New Jersey, (1999).

Facts: Matthies, an 81-year-old woman, fell down in her apartment and broke her right
hip. Dr. Mastromonaco, prescribed bed rest rather than surgery. Shortly after her bed rest
treatment, the head of her right femur displaced. Her right leg shortened and she nerve
regained the ability to walk. Matthies sued for medical malpractice and an informed
consent claim.
Procedure: Trial court refused to permit an informed consent claim to go to the jury
because (1) the doctrine did not apply where the recommendation was non-invasive and
(2) the claim was subsumed within the malpractice claim. The jury found that the
defendant had not committed malpractice by failing to perform surgery on plaintiff. The
Appellate Division reversed because of the failure to charge on informed consent.

Issue: whether the doctrine of informed consent requires a physician to obtain the
patient’s consent before implementing a nonsurgical course of treatment.

Holding / Reasoning: Yes.

To obtain a patient’s informed consent to one of several alternative courses of treatment,
the physician should explain medically reasonable invasive and noninvasive alternatives,
including the risks and likely outcomes of those alternatives, even when the chosen
course is noninvasive.
 For consent to be informed the patient must know not only of alternatives that the
physician recommends, but of medically reasonable alternatives that the physician
does not recommend

In informed consent analysis, the decisive factor is not whether a treatment alternative is
invasive or noninvasive, but whether the physician adequately presents the material facts
so that the patient can make an informed decision.

The standard obligates the physician to disclose only that information material to a
reasonable patient’s informed decision.

Like the deviation from a standard of care, the physician’s failure to obtain informed
consent is a form of medical negligence

By not telling the patient of all medically reasonable alternatives, the physician breaches
the patient’s right to make an informed choice.

Disposition: Judgment of Appellate Court affirmed.

Notes:
Negligence v. Battery
Battery
 Historically, the failure to obtain a patient’s informed consent to an invasive
procedure, such as surgery, was treated as a battery.
 The physicians need to obtain the consent of the patient to surgery derived form
the patient’s right to reject a nonconsensual touching
 Eventually courts recognized that the need for the patient’s consent is better
understood as deriving form the right of self-determination.
Negligence
  The rationale for basing an informed consent action on negligence rather than
battery principles is that the physician’s failure is better viewed as a breach of
professional responsibility than as a nonconsensual touching.
 The essential difference in analyzing the informed consent claims under
negligence, rather than battery principles, is that the analysis focuses not on an
unauthorized touching or invasion of the patient’s body, but on the physician’s
deviation from a standard of care.

Reasonable physician standard vs. Reasonable patient standard

- The standard used depends on the jurisdiction
- Reasonable physician standard: standard of information needed to provide a
patient is that of what a reasonable physician / medical practitioner would have
disclosed under similar circumstances
- Reasonable patient standard: standard of information needed to be provided is
that which a reasonable patient would want to know.

Matthies court rejects the contention that the claim is one of battery. Some states have
held that injections aren’t considered “invasive” as contemplated under battery.

Personal autonomy is very important

- Not having been provided all the options limits personal autonomy because they
can’t make choices that they don’t know are available.
- Competent adult may refuse lifesaving treatment.
- Right to die
o “Wrongful prolongation of life”
- Advanced directives
o Statutes that allow patients to specify what types of care they intend to
refuse and under what circumstances.

Written consent is much safer than oral consent so many states require written consent