Torts I Uga Fall 2004 (Negligence Torts)

Front 1

Elements of Consent

Back 1

Georgia Statute
1) Free (no coercion)
2) No obtained by fraud (or misrepresentation)
3) Of a sound mind
4) capable to consent (age,impairment)

Front 2

How do you determine Implied Consent?

Back 2

What would the D have understood from the actions & circumstances at the time?

O'Brien v. Cunard SS Co.
held: Dr. on ship reasonable understood woman to consent to shot, so Implied Consent.

Sports.
held: No S.J. assuming Implied Consent to battery when Bengal's fullback smacked Bronco's player.

Front 3

Standards for Medical Implied Consent?

Back 3

GA Code list of who can give consent.

1) Person need immediate attention
a) life-threatening
b) disfigurement threatening
2) Person authorized to give consent not readily available

Front 4

Battery if hospital violates a Do Not Resuscitate Order, or Medical Implied Consent?

Back 4

Battery, but limited damages.

Front 5

Can you sue for Wrongful life or birth?

(like when hospital ignores DNR or baby is born after tubes tied or after supposed abortion?)

Back 5

Courts can't measure death vs. life & impaired condition.

Front 6

Consent not effective if:

Back 6

Restatement
1) Lack of capacity(age, intoxication, etc.)
2) Restricted (they exceed the:)
a) Time
b) Place
c) Purpose
3) Misrepresentation or Mistake of substantial matter
a) said/not said... who knew what?
4) Duress/Force/Coercion

Front 7

Is it Trespass to Land of the business if they consent to your presence based on a misrepresentation in your resume?

Back 7

Maybe.

Food Lion vs ABC TV
held: trespass when reporter lies on resume to get job at Food Lion
(might argue trespass because exceeded scope of employment)

Front 8

Can consent to criminal conduct bar recovery?

Back 8

Courts split.
GA- appears consent is not effective.

Consent not usually effective if statute targets particular group for protection: e.g. statutorily raped girl who consents to sex can sue for battery

Front 9

Elements of Defense of "Self Defense"

Back 9

1) Is D privileged to use any force in defense of self?
[no privilege for retaliation or mere words]
[reasonable belief that force is necessary]
[GA: No privilege if you're the initial agressor, unless it's excessive or you withdraw]
If so...
2) What kind of force?
3) What degree of force?
Death: Only if reasonable believe necessary to prevent death

Front 10

Duty to Retreat in Self Defense?

Back 10

Many states: no absolute duty.

If duty, no requirement ot enganger yourself to retreat.

Bradley v. Hunter (grandmothers)
held: 2 grandmothers had NO DUTY TO RETREAT when 28 y/o male w/ bad reputation came at them in face of shotgun presence.

Yoshi Hatari v. Paris (halloween)
held: DUTY TO RETREAT when man could have gone back in house instead of shooting boys in halloween costumes.

Front 11

Is it assault if someone Threatens more in Self Defense than he's Privilged to use?

Back 11

No, per the Restatement.
OK to threaten "I'll blow your head off" to deter someone in self defense.

Front 12

If you make a mistake, do you still have a Defense of Others defense?

Back 12

GA- you can make reasonable mistakes

Some jxn- step into the shoes of the person you are defending.

Front 13

Are you justified to use deadly force in defense of property?

Exceptions?

Back 13

Rarely.
In GA: only defend property w/ reasonable force.

Exceptions
In GA: deadly force only if personal violence (Defense of Self or Others), or person coming on property is attempting/committing a felony.

Front 14

Is there a Defense of Necessity?
2 Types?
(threat of harm no posed by P, by from natural source or 3rd party)

Back 14

Rarely do courts weign in.

Cases split on Public v. Private necessity.
Defense in Public Necessity (Surocco Case: defense when fire warden bulldozes your property to create a fire break) [May be a takings under Constitution]

Private cases: Privilege to trespass, so OK to preserve your property, but pay for the damage that you do.

Front 15

Is "Discipline" a defense?

Back 15

Generally- No. Must come from state law.

Parents generally have discipline right b/c most states have parental immunity (except for Willful Injury)

"Yes" case: Sindle v. New York City Transit Authority. held: school bus driver drives rowdy kids to police station. No FI b/c of justification.

Front 16

What is it called if you leave something dangerous with someone?

What if you employ someone for which they're not suited?

Back 16

Negligent Entrustment

Negligent Hiring

Front 17

Elements of Negligence?

Back 17

1) Duty (q of law) - This D owe a duty to this P?
2) Breach
Std. of care
failure to exercise it
3) Causation
4) Damages (must be Actual)

Front 18

Some examples when no duty is owed?

Back 18

No duty to:
Rescue
Control 3rd parties
someone leaving my party drunk: maybe

Front 19

Two parts of causation in negligence?

Back 19

1) Cause in Fact- "but for"


2) Proximate Cause = Legal Cause
not if too removed in time/distance

Front 20

Negligence if:
1) leave golf club in yard & kid hits another kid with it?
2)leave 10 inch stump in yard and trespassing neighbor kid trips over it?
3) don't yell Fore when hit golf ball into wrong fairway?

Back 20

1) golf club- no N b/c not intrinsically dangerous
2) stump- Held: not forseeable. (arguably forseeable though)
3) no c/i/f because substitute the yell and person still gets hit

Front 21

Economic Analysis of Breach
& Considerations

Back 21

b<p*l
1) character & location of premises
2) purpose for which used
3) prob. of injury
4) precautions nec. to prevent
5) benefecial use of premises
{would precaution change the essential use of the item/premises?}

Front 22

Does the existing level of safety technology influence evaluation of Breach?

Back 22

Sometimes.
Davison v. Snohomish County
held: county had flimsy guardrails on bridge; no breach because civil engineering not advanced yet.

Opthamologists now have to test for glaucoma b/c easy & cost effective.

Front 23

Is Self-Preservation a breach?

Back 23

No.
Thurmond v. Pepper (lead pipe truck)
held: "nonbreach" of refusing to slam on brakes NOT REQUIRED when might lead to death of driver

Front 24

Example of no cause-in-fact?

(hint: sliding glass door)

Back 24

McCarty v. Pheasant Run
held: when woman didn't lock the door, and presented no evidence to cost of non-breach, D's alleged breach not cause-in-fact.

Front 25

Is it a breach not to follow a standard of care based on a statute that has not yet taken effect?

Back 25

Might be.
See Pinto case- Ford avoiding using a new safety standard for gas tanks that was about to take effect.

Front 26

Under whose perspective do we judge what is "reasonable care"?

If person is moron- what's reasonable for THEM?

Back 26

No personal standard. Use community standard.

Vaughan v. Menlove
held: guy who is "not very swift" responsible for making hay rick which burned up.

Front 27

Ordinary Standard of Care in GA?

Back 27

"that degree of care which is exercised by Ordinarily Prudent persons under the same or similar circumstances"
OCGA

Front 28

Do we impute Constructive Knowledge in negligence cases?

Back 28

1) Knowledge of the facts that give rise to the risks
2) Appreciation fo the risk

RULE?

Front 29

Standard for Reasonable Care?

Back 29

1) General "reasonable care" std
2) Custom Usage or practice
(landlord responsible for safety glass in bathtubs; Ford should have redesigned after failed crash test)
expert testimony & literature

Front 30

Negligence Defense of Emergency in GA

Back 30

1) factual circumstances of emergency
2) D did not cause emergency
3) D no time to assess options

LA snake case
held: no emergency when D drove forward suddenly b/c D put the snake in the car

Front 31

Vary std. of care for:
1) bad judgement
2) emergency
3) "think fast"
4) disability
5) voluntary intoxication
6) children ?
7) mental impairment?

Back 31

1) bad judgement - NO
2) emergency - YES
3) "think fast" - YES
4) disability - YES (in '75 GA case: no)
5) voluntary intoxication - NO
6) children - Sometimes
7) NO

Front 32

Why might a jury instruction modifying the std. of care not help the defendant.
(ex: for the "reasonable pedophile" )

Back 32

Might argue that pedophile should exercise EXTREMELY high care around children.

Front 33

Modify Std. of Care for elderly?

Back 33

Sometimes. Reduce to childlike std:
"age, training, experience, ability" and be more subjective.

Front 34

Child Standard of Care generally?

Exception?

Back 34

Yes. (I T.A.M.E)
intelligence, training, age, maturity, experience.
GA <7 conclusively presumed incapable of breach

No if doing particularly dangerous or adult-only activity.

Front 35

Std. of care for Malpractice?

Back 35

Not training & experience of the individual (Heath v. Swift Wings Inc- bad instruction re pilot)

Reasonable "pilot", vet, etc.. Use expert testimony

Front 36

Attorney Standard of Care

Back 36

1) Requisite Degree of Training
2) Will Exert your best judgment
3) reasonable and ordinary care in use of skill and application of knowledge
-If statutes or major decisions, atty should find them (Woodruff v. Tomlin)
-Should use due diligence

Front 37

Cause-in-fact in Legal Malpractice

Back 37

GA: P must prove that D would have won
LA: D must prove that P would NOT win
some courts: P should get at least settlement value of case

No expert needed on statute of limitations

Front 38

Med Mal standard of care- what evidence need?

Back 38

Need a Dr. in that kind of medicine to answer "yes" when asked EXPRESSLY if what D did was a breach of the standard of care.

Front 39

Special GA requirement for malpractice cases?

Back 39

Georgia: Affidavit from expert requirement when file the complaint

TX & LA prescreen medmal cases

Front 40

Locality standard of care in malpractice?

exception?

Back 40

Old relic. GA rejected.

exception: facilities & equipment at hospitals

Front 41

What is the requirement that Dr. ask permission to do a procedure?

Back 41

Informed Consent.
Dr. has to ask, and tell of the risks, else it's a battery.

Front 42

Is consent a defense to medical malpractice?

Back 42

No. Consent is a defense to intentional torts.

Front 43

Standard for Informed Consent- objective or subjective?

Back 43

Not sure. I think Subjective

Front 44

Effect of written consent form on Informed Consent?

Back 44

Rebuttable presumption of Informed Consent.

Front 45

What's is called when we try to use a law or policy on the books as the Standard of Care in a negligence case?

2 things court looks at?

Back 45

Violation of Statute.

1) Was the injured in the class being protected by the statute?
2) Was the injury the type of injury being avoided by the statute?

Front 46

Exam tip for when doing Violation of Statute

Back 46

Always Hedge w/ the effect of using the statute.
Consider alternative of "reasonable care under the same or similar circumstances"

Front 47

Effect of COMPLIANCE w/ statute by D?

Back 47

Does not mean "no breach" per se.
Just goes to jury.
Jury may require more than the statute.

Front 48

What P have to prove for premises liability?

Back 48

1) D had actual or constructive knowledge of hazard
(constructive knowledge in Banana peels there a long time... should have known. Circumst. evid.)

2) P lacked knowledge of hazard despite exercise of ordinary care

Front 49

What is latin for "the thing speaks for itself"?

example

Back 49

Res Ipsa Loquitor

Byrne v. Boadle (Know this!)
Guy hit in head by a barrel of flour.

Front 50

Elements of Res Ipsa Loquitor?

Back 50

1) unusual or unexplained
(cows falling into crowd)
2) wouldn't happen w/o a breach
(airplane crashes)
3) D has exclusive control over the thing
(hotel no exc. ctl. over chairs in rooms)

Front 51

Does Res Ipsa apply ...
...in Med Mal?
...in cars leaving the road?

Back 51

MedMal: Not in GA. Courts say there's enough complexity that need to show the breach.

Cars: Yes. don't usually leave road w/o breach.

Front 52

Possible Standards for Cause-In-Fact element of Negligence?

Burden of persuasion?

Back 52

1) But-For Cause (main std.)
2) Substantial Factor (sometimes)
3) Played a Role

Preponderance of the evidence.

Front 53

Cause In Fact If:
1)Train wreck & we're not sure if wreck still occurs if train slows down?
2)Drowning if problem w/ life boats but not sure when they fell off boat?
3)Step is bad, guy trips, but we're not sure he tripped on step?

Back 53

No, No, No.

Front 54

Is lost chance of survival a cause-in-fact?

Back 54

35 states have addressed. Ga hasn't.

Front 55

Who can recover in wrongful death?

Back 55

surviving spouse
children
estate administrator
parents for minors (some c/l on adult kids)

Front 56

measure of damages in wrongful death?

Back 56

value to society
companionship
services to family
support.

Majority: Money person contrib to family

Front 57

Damages for lost chance of survival?

Back 57

Full recovery of wrongful death
Multiple full recovery * lost change %
Ask the jury to figure it out

Front 58

How analyze Contributory negligence within cause-in-fact?

Back 58

Duty
Breach
Causation
Damages

Front 59

5 considerations in proximate cause?

Back 59

1) Describe breach
2) people harmed & likely harms from breach (forseeable?)
3) other events intervene?
4) time pass? (remote in time?)
5) the results match up w/ #2 ?

Front 60

Polemis test for proximate cause?

Back 60

Direct consequences = direct causation =directly traceable

Take the harm & track backwards (looks for something inbetween to break causation)

Front 61

Mechanism Rule (principle) on prox. cause?

Back 61

If the kind of harm & person harmed are the kind expected, even though strange circumstance, still Causal.

Front 62

GA instruction on prox cause?

Back 62

That which, in the natural and continuous sequence, unbroken by other causes, produces an event and without which the event would not have occured

Front 63

Wagon Mound test for prox cause?

Back 63

Forseeability or Scope of the Risk test

(GA sometimes uses this test)

held: No liability for fire when oil spilled in water burns, because not forseeable. We anticipated pollution.