1. Civil Liability Issues and Negligence Unit 4

2. Objectives Define the intentional torts of battery, assault, false imprisonment, intentional infliction of severe emotional distress, trespass, trespass to chattels, conversion, misrepresentation, and bad faith. Define implied consent and informed consent. Explain that a competent adult has an absolute right to decline medical care and the factors that are involved in determining if a person lacks capacity to consent to, or decline medical care. Define negligence and identify the elements of negligence. Explain the concepts of duty, standard of care, breach, damages, and proximate cause as these terms relate to negligence and why the standard of care is for professionals and those with specialized training

3. Civil Liability Tort –A “Civil Wrong” –Committed by one or more parties that causes injury to another Three Types of Intentional Torts –Intentional –Negligence –Strict Liability

4. Battery Battery is an intentional unpermitted contact with another person Includes a broad range of acts –Fights, punches, etc. –Corporal punishment (e.g., teacher strikes pupil) –Sexual assaults and touching –Contact by medical personnel without valid consent of patient Does not require hostile intent –Simply intent to make contact Damages are presumed plus defendant is liable for any actual damages

5. Consent Defense to a battery Voluntary and knowingly given –No duress –Person must know to what they are consenting For consent to be valid –Person must have capacity to consent Capacity to consent Those who lack the capacity to consent also lack the capacity to decline emergency medical treatment

6. Informed Consent –Patient must be informed of what the procedure involves and possible risks Implied Consent –Emergency treatment rendered to person unable to consent –Provider must have no reason to believe treatment would be declined if patient were able to communicate Assault –Placing another in fear or apprehension of an imminent battery

7. False Imprisonment –Unlawfully restraining free movement of another against that person’s will –Once proven, damages are presumed and actual damages are also allowed –Restraint Physical barriers Threats of force Assertion of legal authority –Liability for anyone who participates in an unlawful arrest or imprisonment

8. Trespass –Intentional entry onto land of another without consent Conversion –Unauthorized taking of personal property Misrepresentation –False representation of material fact Bad faith –Intentional failure to comply with terms of a contract Defamation –Damage to another person’s reputation

9. Slander –False spoken word or gesture Libel –Written or printed falsehoods Invasion of Privacy –Four distinct torts 1.Unreasonable intrusion on seclusion 2.Appropriation of another’s name or likeness 3.Unreasonable publicity 4.Publicity placing another in a false light

10. 10 Negligence –Failure to exercise the care that the reasonably prudent person would have exercised under the circumstances, which causes damages to another Elements of Negligence 1.Act/Omission 2.Causing damages to another 3.Breach of the Standard of Care Kenavan v. New York McGuckin v. Chicago Harry Stroller v. City of Lowell

11. 11 Reasonably Prudent Person An imaginary common person who is very careful –"When a person, acting in a given set of circumstances, fails to exercise that degree of care for the safety of another which a reasonably prudent person would have exercised in the same or similar circumstances, said person is said to be negligent.“ Rhode Island Supreme Court

12. 12 Defenses to Negligence Contributory negligence Assumption of the risk Comparative negligence Last clear chance Rescue doctrine Fireman’s Rule –An exception to the rescue doctrine –Bars suits by firefighters and police officers for injuries sustained at emergencies Gross Negligence and Recklessness

13. 13 Strict Liability Liability without regard to fault Unreasonably dangerous activities Even intentional conduct of others will not stop liability Economics –Damages or risk of harm must be incorporated into the price as a cost of doing business Cost can be spread among users, as opposed to being borne solely by victims Further incentive for involved parties to exercise utmost care

14. 14 Respondeat Superior –Employer is liable for acts of employee committed within scope of employment –Respondeat superior does not require negligence by employer Scope of Employment –Employee wrongdoing must be within scope of employment –Thorn v. Glendale (1994) Joint Liability –If the negligence of two or more parties causes damages to a plaintiff –Liability is joint and several

15. Summary Tort Battery and Assault False imprisonment Consent Definition of negligence Defenses to negligence Fireman’s Rule Gross negligence and recklessness Strict Liability Respondeat superior Joint and several liability