School of Law

Torts I § 2

Final Examination

Mr. Fischer December 15, 2000

1:00 p.m.--4:00 p.m.

Instructions for Essay Questions

1. This portion of the examination consists of 3 essay questions and 4 pages (pages 1 through 4). The time suggested for each question indicates its approximate weight.

2. Please use a pen, write legibly, and write on only one side of a bluebook page.

3. Each answer should be self-contained. Thus, you should not "incorporate by reference" anything from one answer to another.

4. Turn in your papers promptly at 4:00 p.m.

5. The incidents described in these questions arise in a jurisdiction that recognizes contributory negligence as complete defense to a negligence action.

Essay I

[35 Minutes]

Morgan County owns and maintains a 70-year old stone viaduct used to carry Webber Road, and an accompanying sidewalk, across state highway 12. This overpass is heavily used by both automobile and pedestrian traffic. It is made of stones held in place with concrete mortar. It has a four-foot high stone wall on each side to protect people and cars on the viaduct from falling off. A three foot by four foot chunk of the viaduct wall broke loose and fell onto highway 12 below. Pam was injured when the car she was driving on highway 12 crashed into the chunk of wall which was laying in her lane of traffic under the viaduct. Pam saw the stones in front of her car in time to stop before reaching them. She applied the brakes in an attempt to stop, but the brakes failed without warning, and her car crashed into the stones.

Pam brings a tort action against Morgan County seeking recovery for her injuries. Neither party is able to locate any witness who saw the chunk of wall fall to the highway below. Morgan County has records showing that it regularly inspected and maintained the viaduct. Cracks in the walls occurred every few years, and were promptly repaired when discovered. The most recent inspection took place three months prior to Pam's accident. The record of that inspection states that there were no discernable cracks in the viaduct walls. A state statute requires all automobiles to be equipped with brakes in good working order at all times that the car is in use.

How do you think the case will be decided? Fully discuss the reasons for your conclusions. For purposes of this question you may assume that sovereign immunity has been abolished, and municipalities are fully liable for their torts.

Essay II

[40 Minutes]

Pete, a highschool student, sought to join a club comprised of students from his school. As part of the initiation, the club required Pete to steal an item worth at least $25.00 from Dillies, a local department store. Angus, a club member that disliked Pete, informed the police about the initiation requirement and the impending theft. The police provided full information, along with a picture of Pete, to the Dillies security officers.

Pete greatly feared being apprehended for stealing because he was on probation for another offense. He decided to purchase a $25.00 item from Dillies and tell the club members that he actually stole it. Pete went to the store, bought a $25.00 item, and attempted to leave the store when Dan, a Dillies security guard, stopped him. Dan first noticed Pete at the checkout counter. Dan witnessed the purchase and recognized Pete from the photograph. Because of the police alert, Dan suspected that Pete probably had stolen some additional merchandise and concealed it on his person. Dan decided to stop Pete before he left the store in order to ascertain whether he had any stolen merchandise on his person. Dan informed Pete of his suspicions. Pete denied stealing anything from the store. Dan demanded that Pete allow him to search Pete's backpack. Pete refused, and attempted to leave the store. Dan grabbed Pete's arm to prevent Pete from leaving. Pete hit Dan on the nose, causing Dan to loose his grip, and Pete ran away.

Please discuss the rights and liabilities of Pete and Dan against each other arising out of this incident. Fully discuss the reasons for your conclusions.

Essay III

[45 Minutes]

Paul, a professional model, suffered a detrimental consequence from plastic surgery that has adversely affected his career. Paul employed Dr. Donna, a certified plastic surgeon, to eliminate the wrinkles and baggy skin around his eyes. Donna employed the standard procedure for this type of surgery. This procedure required her to sever one of several nerves that control eyelid movement. Usually severing this nerve has no effect on the patient's ability to control his eyelids because the body compensates by relying more heavily on the remaining nerves. In Paul's case this did not happen, and the surgery left Paul with one drooping eyelid. This phenomenon occurs in about 2 percent of such operations.

Prior to obtaining Paul's consent to the operation Dr. Donna did not tell Paul that the operation required her to cut any nerves. She did, however, tell Paul about the 2 percent risk that the operation could result in a drooping eyelid.

Paul brings a tort action against Dr. Donna. He will testify that if he had known that the surgeon planned to deliberately sever an eyelid nerve, he would have never consented to the operation because of the risk to his career.

All of the experts in the case agree that the operation itself was properly performed. They also agree that the custom in the medical profession with respect to this operation is to inform the patient about the 2 percent risk of a drooping eyelid, but not to tell the patient that a nerve would be severed. This is because many patients become unduly nervous if they know about the severed nerve.

Please evaluate Paul's chances of recovering from Dr. Donna. Fully discuss the reasons for your conclusions.

Sample Answers

Essay I

Pam would have a difficult time bringing an ordinary negligence action against Morgan County. No one saw the concrete fall and the county appears to have taken the maintenance steps on ordinary, reasonable "person" would take. Pam would probably be best served by suing under a "res ipsa loquitur" negligence case. A person can sue under by showing res ipsa by showing that the defendant was exclusive control of the instrumentality that caused the damage and that the accident is one which does not ordinarily occur without some negligence on the part of the person in control. It is probably reasonable that large pieces of public structure do not fall loose with negligence on someone's part. The exclusive control requirement is problematic for Pam. While the requirement is not absolute, it is possible that the action of someone else caused the concrete to break free. To maintain res ipsa, Pam would need to show that no one else was responsible for the piece falling, such as a car striking it.

Res ipsa is treated differently by courts. In some it allow the inference of negligence (which is very important because res ipsa is generally used when we don't know what happened), in some it raises a presumption of negligence which the defendant (D) must rebut, and in some it shifts the burden of proof to the D who would then have to prove by a preponderance of the evidence that he did not act negligently. Any of these approaches will benefit Pam because they would allow her to show negligence on the part of the county, something which she has no direct evidence of.

Pam could bring a negligence claim by arguing that the County knew that the walls developed cracks and that this represented a foreseeable risk of harm to motorists. Pam could show that it was unreasonable for the County not to replace the bridge because it was old, the county knew it developed cracks, and the cost of replacing it did not outweigh the potential damage it might cause, either in some sort of collapse or in the kind of accident which appears to have happened to Pam. If the damage was foreseeable and it was unreasonable for the county to impose this risk on motorists, Pam could show that the county was negligent and that the negligence caused the damage she suffered.

Pam has a problem however because she may have been negligent herself. Pam's brake failure appears to have violated the brake statute and can serve as evidence of negligence. Statutory negligence crises when a person violates a statute if the statute was a safety statute, the person injured belongs to the class of people the statute was designed to protect, and the injury is one which the statute was intended to prevent. Clearly a car brake statute is a safety statute and is designed to protect motorists and those around them such as Pam It is arguable that running into large pieces of overpasses was the kind of harm the statute was designed to prevent although the statute was probably designed to make sure that motorists are able to safely handle the unexpected while driving.

Because statutory negligence seems to apply, it largely depends on how the court uses it. In some it is negligence person, the jury won't even receive a negligence and thus contributory and would lose her claim. In other jurisdictions violation only evidence of negligence Under either of these Pam could show that she acted as a reasonable and prudent person, and that her brake failure was unforeseeable and that as such she was not negligent.

Pam probably has a good case for res ipsa, could make a case that is was negligence not to replace the old bridge, and will probably not be found to be contributorily negligent unless the local jurisdiction treats statutory violation as negligence per se. She would probably win a tort action for negligence.

Essay II

Dan vs. Pete - battery. A person commits battery when he acts intending to cause a harmful or offensive touching to the person of the other or a third person, a harmful of offensive touching results. Clearly punching Dan in the nose constituted a battery. However, Pete can claim that he was acting in self-defense when he struck Dan. The right to self-defense arises when a person reasonably believes that he is about to be attacked by another. Dan grabbed Pete's arm which would seem to give Pete reason to believe he was or was going to be attacked. Mistake is an excuse in self-defense so even if Dan was acting lawfully Pete was within his right to defend his person.

Pete vs. Dan - battery. Grabbing Pete's arm constitutes an offensive or harmful touching which makes Dan liable to Pete for battery (as above). Dan can claim merchant's privilege, possibly, for the battery. The merchants privilege allows a merchant (or an employee such as Dan) to detain a person for a reasonable inspection whom they reasonably believe has stolen property. When their reason for this belief comes form a third party, the source has to be one which a reasonable person would rely on given the circumstances. Dan obtained his information from the local police which is probably a reasonable source (even though one could question the source of the police's information.. However, not all jurisdictions allow the use of force with the merchants privilege. If Dan is in a jurisdiction that does allow force, he was probably reasonable in its use by grabbing Pete's arm and would not be liable for battery. On the other hand, if the local jurisdiction does not allow the use of force, Dan's battery of Pete would not be privileged and he would be liable.

Pete vs. Dan - false imprisonment. False imprisonment arises when one intentionally and directly restrains the physical liberty of another without adequate legal justification. A person must be aware of their confinement. By grabbing Pete's arm, dan physically restrained Pete, albeit briefly, and would be liable. Again however, Dan could claim merchant's privilege based on a reasonable belief that Pete had stolen property. As before, whether or not Dan was entitled to use force depends on the local jurisdiction and may vitiate his privilege.

Pete vs. Dan, Dan vs. Pete - assault. An assault occurs when an actor acts intending to cause an apprehension of an imminent harmful or offensive contact in the mint of the other. Having carried out their battery of each other, Dan and Pete almost certainly created the apprehension of their contacts in the mind of the other. Again, Pete could raise the privilege of self-defense and Dan could raise the merchant's privilege, assuming he was entitled to use force.

Essay III

A doctor has the duty to get an informed consent from her patients before treating them. If a doctor fails to inform the patient of a risk that is almost certain or very likely to happen as a result of the treatment, the patient's consent is vitiated and the patient has a battery claim against the doctor. If the doctor fails to inform the patient of unlikely risks of the treatment it is a matter of negligence and an informed consent action.

Because the risk of severing a nerve was in fact not a risk at all, but a certainty, Dr. Donna did not receive a proper consent from Paul before treating him. Therefore, Paul has a claim of battery. Dr Donna is liable for battery because she intended (had the direct purpose) of cutting into Paul and severing the nerve (certainly a harmful touching). Therefore, she is liable for the damage caused to Paul by performing the surgery without his consent.

However, the growing trend is for courts to treat all actions between a patient and doctor concerning improper consent as a matter of a negligence informed consent claim. To recover on a negligence informed consent claim a patient must show that (1) the doctor breached her duty to inform, (2) that there was a causation between that breach and the patient's decision to undergo the treatment and (3) that the act that was not disclosed did in fact occur.

For the first element the courts are split. Some courts apply the patient's point of view to the duty to inform and require doctors to disclose all material risks that a patient would need or want to be aware of. In a jurisdiction applying this approach, Paul could show that Dr. Donna breached her duty because most patients would want to know that the treatment involved severing a nerve around their eye.

Other jurisdictions apply a doctor's point of view approach and require doctors to disclose only those risks that other practitioners in good standing disclose before the treatment. Because the custom is to not inform the patient about serving the nerve, Paul could not satisfy this element and his negligence informed consent action would fail because Dr. Donna had not breached her duty to inform.

The courts are split on the second element as well. The majority of courts apply an objective test to determine causality between the breach of duty and the consent. On these jurisdictions they ask if a reasonable person in the Plaintiff's circumstances would have made another choice about whether to undergo treatment if they had been told of the risk. Paul could not satisfy the causality element in these jurisdictions because reasonable people do and reasonable people likely would agree to the treatment even if they were told of the nerve severing act.

However, other jurisdictions support the individual patient's autonomy by applying a subjective test to the causality element. These jurisdictions ask if the actual plaintiff would have made another choice about whether to undergo the treatment if he had been informed properly. Paul, based on his promise to testify that he would have made another choice if he had known would satisfy the causality requirement in these jurisdictions.

Finally, the third element of damage- that the risk not informed did in fact occur- is easily satisfied by Paul. Dr. Donna did not inform him that he would have a nerve in his eyelid severed and in the course of the treatment, the eyelid was severed. So, the third element of damages could be satisfied by Paul in any jurisdiction.

In conclusion, unless Paul is in a jurisdiction that applies the patient's point of view approach to the duty of care element and a jurisdiction that applies the subjective test to the causality element, his informed consent negligence action will fail.

However, because Dr. Donna did not disclose the certain result of the treatment that an eyelid nerve would be severed, Paul's consent to the treatment is likely vitiated and he has a good chance of winning a battery action (if the jurisdiction recognizes such an action in these instances). If Dr. Donna is liable for negligence due to a failure to get a informed consent (if Paul is in the right jurisdictions for such a claim to succeed) or if she is liable for battery, she will be liable for any lost work that Paul can prove was a result of his medical condition.