Monday, July 22, 2019

Tort Law Essay Example for Free

Tort Law Essay After reviewing the facts, I would advise Jason, Penny and Fancy Fashions, Ltd. of their possible causes of action vis-à  -vis the parties who may be held liable for damages for their negligence, namely, Alice, Joyce, the junior doctor, the nurse who administered the anti-tetanus serum, and Richard’s Teaching Hospital.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   In particular, I would advise Jason to take legal action against Alice, the learner driver, for damages sustained by him as a result of the collision with her automobile.   My advice is based upon the fact that Alice is liable for actionable negligence. Traditionally, the elements of a cause of action for negligence are: (1) a duty to use reasonable care; (2) a failure to conform to the required standard; (3) a reasonably close causal connection between the conduct and the resulting injury, commonly called â€Å"proximate cause† or â€Å"legal cause†; and (4) actual loss or damage to the aggrieved party (Prosser 1982).   Ã‚  Ã‚  Alice did not comply with her duty of seeing to it that her act of driving does not result in injury to another.     Ã‚  Knowing that she must be particularly careful at a road portion designated for people crossing, she should have slowed down.  Ã‚  Ã‚   Her not exercising reasonable care while driving is the proximate cause of the accident, which resulted in actual damage to Jason.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   I would, however, caution Jason that the task of proving the negligence of Alice would not be easy or simple. The fact of the accident occurring having been proved, Jason would now have to show that Alice was negligent, and that such negligence is the proximate cause of his injury.   To do this, he has to show that Alice fell short of the standard of care required, that is, she failed to do â€Å"what a reasonable, prudent person would do under the same or similar circumstances† (Prosser 1982).  Ã‚   Jason may argue that in determining negligence, the law makes no distinction as to whether or not the defendant is a learner driver or an experienced professional, that what is expected of Alice is that standard of care expected of a reasonable man   in order to prevent a foreseeable wrong.    A reasonably diligent person ought to be aware that pedestrian crossings are designated passageways for people and that it is a basic rule among motorists to exercise due care when approaching such crossings.  Ã‚   As every learner driver ought to know, one of the fundamentals of safe driving is to be always alert at pedestrian crossings; traffic signs are adequate warning to this effect.  Ã‚   Thus, a reasonably diligent driver should approach such crossing with caution by slowing down , his foot poised to hit the brake pedal if necessary.   Judicial notice may be taken of the fact that braking is one of the first skills taught a learner driver.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   In fine, Jason would have to satisfy the court: (2) that the negligence of Alice is the proximate cause of Jason’s injury, and (2) that there is no contributory negligence on his part.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Proximate cause has been defined as â€Å"that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another which, if it had not happened, the injury would not have been inflicted.† (Tennessee Trailways, Inc. v Ervin, Supreme Court of Tennessee, 1969).  Ã‚   In the instant case, the omission of care on the part of Alice as she approached the pedestrian crossing would have prevented the accident; thus her negligence is the proximate cause of it. Jury instructions in the state of Texas define proximate cause as â€Å"that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred; and in order to have a proximate cause the act or omission complained of must be such that a person using ordinary care would have foreseen the event, or some similar event, which might reasonably result therefrom.   There may be more than one proximate cause of an event.† (Prosser 1982).   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Since contributory negligence either bars the victim from award of damages or reduces the amount thereof, the defendant would probably adduce evidence of contributory negligence on the part of Jason.  Ã‚  Ã‚   Alice may contend that Jason is solely to blame for the accident. He should have realized that in his drunk condition he is prone to danger from passing vehicles.   Ã‚  Ã‚  Ã‚  Alice would attempt to show that a drunk person may not invoke his state of intoxication to evade responsibility for his own negligence, and that Jason ought to have foreseen the possible consequences of his crossing the street while drunk.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   In U.S. courts where the doctrine of contributory negligence is still in force resort has sometimes been made to the old common law doctrine of â€Å"last clear chance†: a plaintiff is allowed to recover damages upon showing that the defendant had the last clear chance to avoid the accident. Under this doctrine, the later negligence of the defendant makes him liable for negligence on the assumption â€Å"that he is the more culpable whose opportunity to avoid the injury was later.† (Kansas City Southern R. Co. v Ellzey (1927) However, the said doctrine is history for being manifestly â€Å"inequitable in its operation because it fails to distribute responsibility in proportion to fault.† (LI v Yellow Cab Co. of California Supreme Court of California, 1975).   Ã‚  Ã‚  In the United States, the last clear chance doctrine appears to have been modified or superseded by the theory of comparative or gross negligence or a combination of both, and the issue of determining the best principle to be applied in such cases is now being shifted to the legislative branch.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   In the United Kingdom, contributory negligence is provided under statutory law.  Ã‚   A plaintiff who is found to be liable thereto may recover damages subject to a reduction to an extent to be determined by the Court.  Ã‚   As provided under Section 1(1) of the Law Reform (Contributory Negligence) Act of 1954, in cases where contributory negligence occurs, â€Å"the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.†   In view thereof, I would advise Jason that the damages to be awarded him in case of a favorable verdict shall be reduced as the Court shall see fit upon a finding of contributory negligence on his part.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Regarding the question of whether or not Jason’s act of walking in the pedestrian crossing while drunk constitutes contributory negligence, I submit that, yes,   it may possibly be so construed.  Ã‚   Alice may invoke the aforesaid statutory provision stating that contributory negligence occurs when there is a sharing of fault by both parties.     She may likewise cite the ruling in Froom v Butcher (1976), where the Court held that â€Å"negligence is a man’s carelessness in breach of duty to others.   Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself.†   Ã‚  Ã‚  However, I maintain my position that Jason’s crossing the street â€Å"oblivious to all traffic† does not ipso facto show that he was aware of a foreseeable harm to himself.  Ã‚   A person crossing a street is not expected to be always on the lookout for learner drivers while doing so; they rely on the fact that any motorist is aware of its being a pedestrian crossing and should observe proper care when approaching and passing through it.  Ã‚   Every pedestrian or motorist always assumes that the other person behind the wheel knows what he is doing. Whether drunk or alert, one cannot possibly foresee that a particular motor vehicle is being driven by a negligent driver.   In the case of O’Connel v Jackson (1972) (where an employee rode on a traxcavator against orders, thereby exposing himself to danger, and was crushed when another vehicle rammed into it), it was opined that â€Å"foreseeability is not the decisive test of causation.   It is often a relevant factor, but it is not decisive.†Ã‚     Inasmuch as foreseeability is not decisive, Jason may disprove contributory negligence by showing that he could not have foreseen being struck by a learner driver’s car as he crosses the street. I submit that Alice may not evade liability through negligence by showing that she could not have foreseen that a drunk person would ignore the flow of traffic.   Ã‚  If that reasoning were allowed,   a lame person, an unassisted child or elderly person,   a blind man walking with a cane, or any person with disability who take the pedestrian crossing (and who are perfectly aware of the possibility, however remote, that they would be hit by an oncoming car) would also be liable for contributory negligence in the event of an accident.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Contributory negligence must be proven in court; it cannot be presumed.   In a U.S. case, the plaintiff was injured by a passing train owned by the defendant who was then walking â€Å"on defendant’s right-of-way along a much-used path at the end of the crossties of its main track† and was hit by an open car door.   The jury found that â€Å"plaintiff’s injuries were caused by his own negligence.† However, in a certiorari before the Circuit Court of Appeals, the appeals court held that â€Å"the evidence required a finding that plaintiff was guilty of negligence that contributed to cause his injuries.†Ã‚   Accordingly, judgment below was reversed.   (Erie Railroad Co. v. Tompkins (1938).  Ã‚  Ã‚   Thus, a very drunk person crossing a street cannot be presumed negligent; his contributory negligence must be proved to bar a claim for damages.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   As regards the liability of the ambulance driver, I submit that both Jason and Penny as well as the owner of Fancy Fashions Ltd. have a possible cause of action against Joyce, the driver of the ambulance owing to his presumed negligence.  Ã‚     Ã‚  The fact that the accident occurred while he was in an emergency situation does not free him of responsibility.   Citing several U.S. court decisions, Prosser (1982) noted: â€Å"It is obvious, and elementary, that the care required by the standard of the reasonable man will vary according to the risk.   As the danger increases, the actor is required to exercise caution commensurate with it, and to be more careful.† He also took note of other decisions which insist that â€Å"there are no degrees of care but merely amounts of care, greater or less, that the care required of the actor is always the same under the traditional formula, that of a reasonable man under like circumstances; and that the greater danger, or the greater responsibility are merely circumstances that require of him a greater amount of care.†   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   In proving the negligence of Joyce, the crash of the ambulance driven by him into the shop of Fancy Fashions, Ltd. is a case where the maxim of res ipsa loquitor may be applicable.     A Tennessee court held: â€Å"Where a motor vehicle, without apparent cause, runs off the road and causes harm, the normal inference is that the driver was negligent, and res ipsa loquitor is usually held to apply† (Tenessee Trailways, Inc. v Ervin (1969).     However, pursuant to the said doctrine, the running off the road of a vehicle may not be construed as negligence per se, but only gives rise to three different effects: â€Å"(1) It warrants an inference of negligence which the jury may draw or not, as their judgment dictates. (2) It raises a presumption of negligence which requires the jury to find negligence if defendant does not produce evidence sufficient to rebut the presumption. (3) It not only raises such a presumption but also shifts the ultimate burden of proof to defendant and requires him to prove by a preponderance of all the evidence that the injury was not caused by his negligence.†Ã‚  Ã‚   If Joyce would be able to show that he did exercise reasonable care in driving the ambulance, and that there was an intervening cause (such as a third party that could have caused him to swerve off the road), the presumption of negligence arising from the maxim of res ipsa loquitor would be overcome.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   The three plaintiffs may implead in their action the employer of the ambulance (St. Richard’s Teaching Hospital), being jointly liable for failing to exercise due diligence in the hiring of driver.  Ã‚     Under the principle of vicarious liability (respondeat superior), the employer is responsible for the negligence of his employee which results in injury to another.  Ã‚   Pursuant to this doctrine, â€Å"an employer will be liable for the negligence of an employee committed while the employee is acting in the scope of his employment.   An employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer . . .† (Lundberg v State Court of Appeals of New York, 1969).   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   With respect to the damage sustained by Jason arising possibly from the administering of antibiotics, I would advise Jason that he may have an actionable right against the junior doctor (and against the hospital for vicarious liability), provided that Jason would be able to produce expert testimony that the combination of alcohol and antibiotics, with or without the jolting caused by the ambulance crash, would have produced the injury, and regardless of whether or not the junior doctor consulted the surgeon.  Ã‚     I base my advise on the doctrine of informed consent which requires a physician to fully disclose to his patient the possible consequences of a given treatment.   Ã‚  Ã‚  In Scott v Bradford (1979), the Supreme Court of Oklahoma stated:   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   the law does not permit a physician to substitute his judgment for that of the   patient by any form of artifice. Consent to medical treatment, to be   effective, should stem from an understanding decision based on adequate      information about the treatment, the available alternatives, and the collateral   risks. . . If a physician breaches this duty, patient’s consent is defective, and   physician is responsible for the consequences.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   As in the case against Alice, I would advise Jason that the recovery of damages against the junior doctor would depend upon the findings of the trial court, i.e., a question of fact to be determined on the basis of the evidence.   Moreover, the defendant physician may contend that the doctrine of informed consent is not absolute; there are exceptions, such as when the information is already obvious or known, or in case of an emergency wherein the information might alarm the patient and aggravate his condition. The doctor might contend that since his primary duty is to do what is best for his patient who is unconscious anyway, he cannot be held liable for withholding information.   As enunciated in Canterbury v Spence ( 1972), â€Å"the patient has the burden of going forward with evidence tending to establish prima facie the essential elements of the cause of action.  Ã‚   The burden of proving an exception to his duty and thus a privilege not to disclose, rests upon the physician as an affirmative defense.†   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Under the first rule, the junior doctor may not be held liable solely on the ground that he did not consult the surgeon who performed the operation on Jason, his skill or competence being presumed.  Ã‚   But assuming it is proved that the jolting in the ambulance did not contribute to or cause the paralysis but only the antibiotics treatment,   Ã‚  the legal task of proving negligence on the part of the junior doctor would still be an uphill battle.  Ã‚   The defendant would enjoy the presumptions under the first and fourth rule: he is presumed competent, and is likewise presumed as not negligent.    On the other hand, Jason would have to prove that his administering antibiotics to Jason despite his being intoxicated with alcohol is contrary to or deviates from the standard of good medical practice in the community. In Boyce v Brown (1938), the issue was whether the taking of an x-ray of the plaintiff’s fractured ankle was considered standard practice (it was not).     Ã‚  Such question regarding standard practice may only be resolved by the testimony of experts in the medical field.     Thus, Jason and company must present affirmative evidence of negligence, such as the failure of the junior doctor to comply with the recognized or standard procedures in such cases, resulting in the injury.      Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   As regards the nurse who administered the anti-tetanus injection, the above rules would likewise have to be applied.   If it is considered standard procedure in hospitals or in the medical community to test a patient for allergy before being given a drug which may have fatal effects in case a patient is allergic thereto, her failure to observe or comply with the said standard resulting in injury to Penny, in addition to the other elements stated above, would make her presumptively liable for malpractice.  Ã‚   The nurse may contend in her defense that the allergy test is not standard or customary practice (if such is indeed the case), and that this rule (otherwise known as the locality rule) should not be applied anymore by the courts owing to the growing variance in the knowledge and skill of physicians throughout the country and the world.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   If the evidence would warrant a finding of liability due to negligence on the part of the nurse, I would advise my client to implead the attending physician who had given the order to the nurse, as well as the hospital on the ground of respondeat superior.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Suppose Jason proves his case against Alice, a question arises as to what extent she would be liable for damages in view of the fact that the injuries suffered by Jason may have been aggravated by the ambulance crash.   In such case, the damages shall be apportioned on the basis of the liability of the parties responsible for the first and the second accident. The Colorado Court of Appeals, deciding Bruckman v Pena (1971) cited   â€Å"the general rule that one injured by the negligence of another is entitled to recover the damages proximately caused by the act of the tort-feasor, and the burden of proof is upon the plaintiff to establish that the damages he seeks were proximately caused by the negligence of the defendant.†   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Subject to the above qualifications and views, Jason, Penny and Fancy Fashions Ltd. may file the appropriate action for damages which will be determined by the evidence presented in court.   Such awards may include but are not limited to medical expenses, the loss of earnings as a result of injury or incapacity, and moral damages due to the pain and suffering caused by the defendants’ tortious acts or omissions.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚   Finally, I would advise Jason, Penny and Fancy Fashion, Ltd. that despite the wealth of jurisprudence on tort cases, there is no clear-cut approach to a particular case, and the outcome of the cases they would file in court would depend most entirely on the evidence they would present during trial, and how the trier of fact would evaluate them. REFERENCES Boyce v Brown (1938) 51 Ariz. 416, 77 P .2d 455 Bruckman v Pena (1971) 29 Colo. App. 357 Canterbury v Spence (1972) 150 US. App. D.C. 263, 464 F. 2d 772 Erie Railroad Co. v. Tompkins (1938) 304 U.S. 64 Froom v Butcher (1976) QB 286, 291 Kansas City Southern R. Co. v Ellzey (1927) 275 U.S. 236 Larson v St. Francis Hotel   (1948) 83 Cal.App.2d 210 LI v Yellow Cab Co. of California (1975) Supreme Court of California Lundberg v State Court of Appeals of New York (1969) O’Connel v Jackson (1972) QB 270 Prosser, W. Wade, J. Schwartz, V. Cases and Materials on Torts (1982). 7th edition. New York, Foundation Press, Inc. Scott v Bradford (1979) 606 P.2d 554   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Tennessee Trailways, Inc. v Ervin (1969) 275 U.S. 236

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