Torts

16 September

• So, recalling. Custom is not necesarily dispositive, but it is important. Unexcused violations of statutes are negligence per se. But then the reason behind a statute is important as well So statutory violation isn't negligence per se if the harm is something different from what the statute is supposed to prevent.
• See, e.g., Note 8 on p. 84: Gorris: sheep fall overboard when a pen would have restrained them. But the point of the pen statute was to prevent the spread of disease. So the suit fails.
• But don't be too literal with the meaning of the statute; see note 6 on p. 82: De Haen: the purpose of the statute was to protect employees from falling down the shaft, and here it was a radiator that fell down. But the purpose of the statute here was "safety."
• Sometimes the purpose of a statute is hard to discern... the title might make it obvious. But what about leaving keys in an auto. Note 7 on p. 83: if the purpose of the statute is safety, the key-leaver is negligently liable for the injury; if it's prevention of auto theft, the case is weaker. You can still sue, but you don't get the per se linkage of the statute with statute and the case.
• The converse use of statute is also of interest: is compliance with a statute evidence of compliance with an acceptable standard? Does it demonstrate due care? The parallel to custom is apt: it's evidence, but not dispositive. Statutes are suggestive of due care: we want to see statutory compliance but in itself it's not enough. Note 10, p. 85, references Hubbard- Hall: migrant workers killed by insecticide. The warnings conformed to the regulations, but the standard of due care is a common law standard.
• Proof of negligence. Here's where we start to get a sense of how a trial might work. What is available to a plaintiff who wants to recover for negligence? Often there's really very little evidence to be had, so the courts have doctrine to assist the plaintiff.
• Negri
  Everyone knows that if you slip on a banana peel in a store in America, you can sue.

  Not much direct evidence here. So we start making complicated inferences about time. There's evidence that the smashed baby food had been sitting in the aisle for quite some time: the aisle was a mess, and people testified they didn't hear any jars break there for at least 15-20 minutes prior to the fall.

  Constructive notice: the condition was such that we can infer that the defendant knew about it, or failing that, should have known.

  Note that most of these constructive notice cases are in self-service stores, and the resolution depends on what kind of evidence the plaintiff can put forward.

• Gordon v. American Museum of Natural History
  There are nice big steps at the museum, and it's right by the park, and there are vendors there. Gordon slips on a piece of paper, and claims that the defendant should have known about it.

  Remember, we only go the constructive notice route if we lack direct evidence.

  Constructive notice: a defect must be visible and appparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. (citing Negri)

  It's not enough to say that the defendant should have some sort of general awareness of litter, or that there had been other litter around (we don't care about the other litter-- the defendant might have taken care of that-- only this particular litter).

  Constructive notice, therefore, is not like strict liability: the mere presence of a condition doesn't make the defendant accountable. We need evidence that the condition was one that the defendant ought to have addressed.

  Maybe the concession stands sold "slippery foods." :)

• It's not always easy to establish constructive notice. For example, Note 4 on p. 89: Faricelli. Merely the blackening of the banana peel doesn't imply negligence on the defendant's part. How regularly does a houseware department have to check for banana peels?

  "Banana peels happen in produce sections." "Grapes are slippery little dudes." Classic quotes. Anyway, there's no blanket rule for errant produce and notice: what's reasonable in one store environment (e.g., a produce section) may be more stringent than what's reasonable elsewhere.

• What about evidence where there's a pattern of leaving broken baby food jars around? That's not constructive notice-- it's a pattern of behavior. This is different from constructive notice. It's not irrelevant, but it doesn't show that the defendant acted negligently this time around. Pattern cases are less useful in torts than they are in employment law, e.g. Evidence of past behavior (carelessness to someone else) doesn't really prove carelessness to this plaintiff in this incident.
• In some cases, it's really impossible to establish that the defendant had either direct or constructive notice. There's still hope: the "business practice rule" (note 6 on p. 90) is an opportunity for the plaintiff to demonstrate negligence in the absence of either direct or constructive evidence of notice.

  The plaintiff in Randall v. K-Mart has no evidence of how long the birdseed had been there, and instead shows that the business practice in that store should have been to check more frequently because this is a set of circumstances that will obviously produce just this sort of danger and it should therefore be monitored more vigilantly.

  This plaintiff loses, because it's not enough to say that self service invokes the business practice rule: it would bring in too many possible defendants. You need to prove that the defendant's practice posed a special risk (i.e., the way that K-Mart was merchandising these particular items), and none of that was in the record.

  The business practice rule is important: it's an exception to the requirement of notice in cases where specific practices create foreseeable risks.

  And, of course, the defendant can rebut this presumption; but at least the suit can proceed.

• Students tend to exaggerate the usefulness of res ipsa loquitur
• Byrne v. Boadle
  So a barrel falls on a guy as he's riding past the defendant's shop, and the defendant has barrels of flour. That's pretty much all the evidence.

  So here, we contend that the accident itself is prima facie evidence of negligence. Now there are other possible factors that might contribute to this accident, but the circumstances are such that it's permissible for a jury to find that the defendant was negligence because the facts are so suggestive of it. The defendant is welcome to rebut.

  Basically, the presumption is actually that the defendant is in the best position to rebut negligence-- the plaintiff in these cases has no access to information. Byrne was knocked out, and doesn't remember the trauma itself.

• What if there are multiple possible defendants? We know there was negligence, for example, but we don't know whose. See, e.g., Note 3 on p. 94: Larson the falling chair scenario. The plaintiff needs to demonstrate that the defendant was in control of the instrumentality, or eliminate causes other than negligence. So res ipsa doesn't wash away all burdens.
• What we have to show, in order to get a res ipsa instruction:
  1. The injury generally doesn't happen in the absence of negligence
  2. The instrumentality was within the defendant's control
• Note 3 (p. 94) continues with Connolly. The hotel was negligent, but was this res ipsa? You don't need it, because you've got direct evidence. The memo is a smorking gun. The negligence need not be inferred from the accident itself (c.f. our two elements)-- that would be hard, actually. But here negligence can be found on the basis of direct evidence. A case might start out as a res ipsa case, but turn into something more, after discovery.
• Res ipsa cases aren't about specific acts of negligence: they're cases where negligence can be inferred because of the two controlling factors, enumerated above. If you've got evidence that a defendant was negligent, you don't need res ipsa.
• The goal of res ipsa is to smoke out the facts of a case, by placing the burden on a defendant, who has the ability to rebut the presumption. It's way less relevant today, because we now have discovery: you can depose anyone who's involved in the case and get all the evidence you need.
• McDougald v. Perry
  The defendant sort of inspected the chain (but not every link). And the chain is now gone. So we get a res ipsa instruction: the court finds that the two factors are met. Then the appellate court reverses, saying that res ipsa was inappropriate. FL SC reverses the reversal, saying that even though res ipsa is rare nowadays, this is the sort of thing that doesn't happen but for negligence. Everyone knows that spare tires don't just go flying off, and wayward wheel cases are a good fit for res ipsa.

  So what kind of a duty are we putting on the defendant? Just to show reasonable care. All the defendant needs to do is show reasonable practices. Also note that the chain was gone, so the plaintiff couldn't have access to the direct evidence. So it's up to the jury to decide whether the rebuttal was sufficient.

• Ybarra
  Lots of defendants: how do we explain the inclusion of them all? Well, the plaintiff was unconscious, so he has no idea which of the people who touched him caused this trouble.

  Back to respondeat superior: why not just sue the hospital and recover no matter who was at fault? Well, if the hospital could shift the blame onto an independent contractor, the case might collapse.

  The plaintiff wants a res ipsa instruction, and defendant says there's no proof as to the instrumentality. The court says this is the whole point: we don't want injuries to go unredressed just because plaintiffs were anaesthetized. We expect some defendants to be exonerated: they'll have information to rebut the presumption in their instance. That's a good thing.

  Note a third condition for res ipsa here: the injury must not have been due to any voluntary action or contribution on the part of the plaintiff.

  As it turned out, none of them could or did exonerate themselves, so they were all found jointly liable. This is a surprising result, but we pretty much know someone was negligent, and they've got insurance presumably.

  This is still sort of generous to plaintiffs.

  • See note 5 on p. 108: Inouye. There's no reason to think the doctor was necessarily at fault-- there are lots of ways this could have happened. It could have been others' fault, and they're not before the court. So there's a temptation to be over-inclusive in defendant listing: let's sue everyone and let the court sort it out. But then we see note 6 on p. 109 Fireman's Fund: no res ipsa here. Ybarra is different because all the defendants were collectively responsible for the plaintiff's care. Here, the court doesn't want to extend Ybarra because we don't want liability for ALL POTENTIAL tortfeasors. We don't want disjointed unconnected defendants.
  • So res ipsa demands a balance between being under-inclusive on the one hand, and over-inclusive on the other. With respect to listing defendants.

  18 September

  • Medical malpractice. So far, we've been talking about the defendant's duty of care, and how we can assess it, and how we can present proof that it is absent. This is a specialized field, though, because you can't just compare a doctor to the standard reasonable person. After all, the doctor is supposed to have additional knowledge and training. So we have the reasonable doctor standard, in a way. We can't expect them always to make perfect diagnoses, but we want to hold them accountable for sub-standard treatment. Physicians set their own standards (the community of physicians, in other words, and what is customary for them to do). So this is like our discussion of custom, except that here compliance with custom will insulate a doctor against liability, and failure to comply will smack of malpractice.
  • Some jurisdictions have a "respectable minority" rule. Even if you don't follow the prevailing practice, if you can demonstrate that what you did conforms to a reasonably well-regarded minority, that might be OK. And this makes sense, because we want innovation.
  • So a plaintiff has to present what the prevailing standard is, and that the doctor departed from it.
  • Sheeley v. Memorial Hospital
    Why would overqualification be a concern? Wouldn't you want the most qualified person possible? Well, someone with too much expertise might wind up with a defendant being held to an unreasonable standard of care. And nobody would be willing to practice in isolated communities that would preclude their compliance with some standard, and make them liable all the time.

    So the court says this is no longer a concern, and that's partly true-- we've got better communications-- but it's also partly false, because not everyone has the same fancy instruments, etc. So it's not clear that a strict national standard for physicians makes total sense. Knowledge still trickles down at some finite rate.

    We're worried about a conspiracy of silence, also.

    The standard: "duty to use the degree of care and skill that is expected of a reaspnably competent practicioner in the same class to which he or she belongs, acting in the same or similar circumstances.

    Why do experts get paid? They have to miss work, and also posit a standard that they know a colleage has been accused of violating. And note that experts maybe don't know this supposed "national standard" either. They basically testify about how they do things, and how that's a good practice. See, e.g., Note 9: the discussion is really about reasonableness (that term has supplanted "custom" in this context).

    One problem, by the way: certain individual experts may wind up with a huge influence over a national standard if they are repeat performers. But the facts of each case, hopefully, will be different enough to differentiate. Still, you do wind up seeing the same practicioners over and over. They are good at appearing before lawyers. Ironically, they might even have quite divergent opinions, and these are the people who do define the standard of care for one field or another. The same thing is true of lawyers (for guardians ad litem, for appointments to complex representation, etc.): the judges pick the people they find to be reliable in the situation.

  • States v. Lourdes Hospital
    The plaintiff concedes that there's an absence of direct evidence, but also thinks there has been negligence. So she wants res ipsa. But, of course, the jury has no idea whether or not this is the type of injury that happens without negligence. And if the jury has no idea, the conventional res ipsa approach is off limits. But the court says expert testimony can help out.
  • Matthies v. Mastromonaco
    Bed rest actually made things worse for her.

    So there were medical reasons not to pin the hip: osteoporosis. The doctor seems to have meant well by his patient.

    The plaintiff now claims that she would have chosen differently had she known the consequences of dealing with the situation by bed rest. Should we rely on this post factum opinion? Well, in retrospect, OF COURSE she says she'd have preferred the other course. And we can never really ascertain after the fact what she would have thought back then. And also, the doctor would probably have still steered her in some direction. And we also don't know for sure that the other treatment would really have been better.

    But nevertheless, failure to get informed consent implies negligence, and doctors must disclose material risks.

    And what is a "material risk?" It's whether a reasonable PATIENT under the circumstances would consider the risk material. Should a patient be told, for example, if a doctor is performing a procedure for the first time? (see note 6 on pages 128-9).

    Note: the potential negligence isn't prescribing bed rest; it's the failure to tell about the harms of bed rest.

    The issue here is strictly what degree of information the patient had, not what risks there were overall.

  • The duty requirement is our next big topic. So far, we've never questioned whether the defendant had a duty to act reasonably. But that's not always the case.
  • In most cases, the question of duty simply doesn't arise. But there is a subset of cases where you can argue that the defendant didn't even have any duty whatsoever. Negligence occurs when a person fails to act, but in some cases there may not even be an affirmative duty to act.
  • Once you act, however, you're required to do it reasonably.
  • A utilitarian approach might say that we should compel action in cases where the social gains would exceed the perceived costs of inaction. On the other hand, the courts adopt a basically libertarian position-- people without obligations to act are at liberty not to do so.
  • Maybe there's a middle ground, and "easy rescues" should be mandatory. That's too hard a principle to formulate clearly, though, so unless there's a statutory mandate (which there is in some rare jurisdictions), you have no duty to rescue people.
  • Harper v. Herman
    Plaintiff alleges that the defendant had the duty to warn about shallowness.

    So, as a general principle, we don't have a duty to take affirmative action. But certain special relationships create exceptions to this rule. Just being a party host, and knowing the water is shallow, doesn't add up to that, though.

  • If there's an economic advantage to a relationship (to the defendant), maybe that would tend towards creating a duty. Had the boat been a commercial venture, there'd be a different situation.
  • The only question of importance is the relationship between people. We don't care about the burden of acting, or the degree of harm, etc. Absent a special relationship, there is no affirmative duty to act.
  • Farwell v. Keaton
    Voluntary assumption of assistence is an exception to the "no duty to act"

    The effect of this is either that people won't act, or that they'll act with care. A little action compels review of the nature of the action. If you take on a burden, it's incumbent on you to carry it through.

    You could argue that the person is no worse off from your aborted attempt to help, and you might get away with it. There's no expectation that you'll kill yourself to save someone else, for example.

  • Note 4 on p. 144. R2T § 324: if you take charge of another who is helpless, you are subject to liability if you discontinue helping or leave the person in a worse position than when you took charge.
  • Note 5 on p. 145: Haben v. Anderson kid drinks self to death in some university initiation ritual. Buddy puts the drunk kid in his room, but he dies anyway. The court says that a jury could find that he'd assumed a duty of care.