1. Torts: Fact or Fiction? Raise your hand if you think the following actually happened: A woman sued a doctor for malpractice because he invited his friend to watch him deliver her baby. A woman sued a doctor for malpractice because he invited his friend to watch him deliver her baby. A man sued a doctor for telling him he had terminal cancer and only spent all of his money had 9 months to live. He then spent his life savings, quit his job, etc. The doctor then realized he was mistaken, he was misdiagnosed and not dying. The man sued for malpractice. A man sued a doctor for telling him he had terminal cancer and only spent all of his money had 9 months to live. He then spent his life savings, quit his job, etc. The doctor then realized he was mistaken, he was misdiagnosed and not dying. The man sued for malpractice. A man who stole a car sued the man who owned the car, b/c the car had faulty breaks and the car jacker was injured driving the car. A man who stole a car sued the man who owned the car, b/c the car had faulty breaks and the car jacker was injured driving the car. A construction worker sued his employer for injuries sustained when he was hit by an out-of-control car and thrown nearly 100 feet into a vat of boiling tar. The construction site had not been properly cordoned off. A construction worker sued his employer for injuries sustained when he was hit by an out-of-control car and thrown nearly 100 feet into a vat of boiling tar. The construction site had not been properly cordoned off.

2. Review of Torts There are a variety of torts, which can broadly be broken into the following three categories: 1.Negligent torts 2.Intentional torts 3.Strict liability torts

3. Tort Law Negligence- The tort that occurs most often in society!

4. Negligence Defined A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. IMPORTANT: the defendant does not intend for the bad consequences to result

5. How to Prove Negligence The plaintiff needs to prove four elements by a preponderance of the evidence 1.Duty 2.Breach of Duty 3.Causation (two parts) 4.Damages

6. Duty “A legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right” Example: If you drive a car, you have a duty to obey the rules of the road

7. The Duty of Care A person owes a “duty of care” to those around him or her (i.e. a duty to act reasonably) How is this duty of care determined? –By an objective standard When evaluating a person’s conduct, tort law asks – would a reasonable person of ordinary prudence in the defendant’s position act as the defendant did?

8. The Duty of Care: Example Would a reasonable person drive down the street with a paper grocery bag over her head? The reasonable person would not do this Thus, part of the duty of care when driving is to not obstruct your vision

9. Who is the Reasonable Person? Typically, the jury is asked whether a reasonable person of ordinary prudence in the defendant’s position would act as the defendant acted The reasonable person considers: how likely certain harm is to occur, how serious the harm would be if it did occur, and the burden involved in avoiding the harm

10. Circumstances Matter Circumstances matter when evaluating a defendant’s actions and the law typically says that a defendant’s physical characteristics are part of the circumstances What characteristics of the defendant become “a part of” the reasonable person? –Physical disabilities –If defendant is a child, the child’s age (unless doing an “adult activity” such as driving a car) –Defendant acted during an emergency

11. What characteristics of the defendant do not become “a part of” the reasonable person? –Mental characteristics (e.g. if defendant is of below average intelligence, he can’t defend his actions based on this) –Intoxication

12. Breach of Duty “The violation of a legal or moral obligation; the failure to act as the law obligates one to act” Once the duty is established, it is a simple matter to determine whether the defendant’s actions met this standard of care or not

13. GROUP ACTIVITY Get together in a group of three Pick up a BRAND NEW white board and eraser for your group.

14. Problem #1: Duty and Breach Itchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot. He stops at the intersection, looks to the left and to the right and then crosses the street How would a “reasonable person” act? Did Itchy breach the standard of care?

15. Problem #2: Duty and Breach Scratchy comes to an uncontrolled intersection (i.e. no traffic lights or signs) on foot at night. He is wearing black pants, a black sweatshirt, black shoes, black gloves and a black ski mask. Scratchy puts his iPod headphones on and begins blasting music at full volume. Without looking, Scratchy crosses the street How would a “reasonable person” act? Did Scratchy breach the standard of care?

16. Causation Two aspects of causation to be considered: 1. Cause in fact : “The cause without which the event could not have occurred” 2. Proximate cause : “A cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor”  Also known as legal cause

17. Cause in Fact: The “But For” Test How does the law determine what is a cause in fact? The “but for” test: If the defendant had not acted negligently the plaintiff would not have been injured

18. Proximate Cause: Foreseeability How does the law determine what is a proximate cause? Foreseeability: defendant is liable only for consequences of his negligence that were reasonably foreseeable when they acted

19. Problem #3: Causation Mr. Burns races down the street in his car with a paper grocery bag over his head. Hans Moleman begins to cross the street and is hit by Mr. Burns. Was Mr. Burns’ behavior the cause in fact of Hans’ injuries? Was it the proximate cause of Hans’ injuries?

20. Problem #4: Causation Captain McAllister’s boat spills oil into Springfield Harbor. Some of the oil sticks to docks owned by Fat Tony. One of Fat Tony’s workers is welding on the dock and some molten metal ignites the oil, which in turn ignites the entire dock Was Capt. McAllister’s spilled oil a cause in fact of the dock fire? Was it the proximate cause of the dock fire?

21. Damages Two aspects of damages 1. Actual/physical harm: show that you suffered actual injury (e.g. broken arm, burned down house, etc.) 2. Monetary values: Money claimed by, or ordered to be paid to, a person as compensation for loss or injury –The law tries to restore the plaintiff to her pre-injury condition using money

22. What Can Plaintiffs Recover? most common are injunctions and damages: –Direct loss – value of the loss of certain bodily functions (e.g. loss of a leg) –Economic loss – out-of-pocket costs resulting from the injury (e.g. medical bills, lost wages, reduced earnings capacity, property damage) –Pain and suffering – value of the mental anguish plaintiff has suffered and will continue to suffer –Injunctions-this will prevent the defendant from taking an action, or stop an action that has already begun

23. Defenses to Negligence Suits If the plaintiff is partly at fault for his or her injuries, what can the defendant do to reduce his or her liability? –Contributory negligence defense : If the plaintiff’s own negligence contributed to the harm suffered, the plaintiff cannot collect anything from the defendant –Comparative negligence defense: Plaintiff’s recovery from the defendant is reduced by the percentage that the plaintiff’s own negligence contributed to the injury

24. Comparative Negligence in MI Negligence Law in Michigan “ For economic damages, award is reduced proportionately to plaintiff's negligence even if greater than 50%. For non- economic damages, negligence greater than 50% bars any recovery. (§600.2959)”

25. Defense to Negligence Assumption of risk- if the defendant can show the plaintiff knew of the risk involved and still took the chance of being injured Examples: I go to the store and see a sign that says “wet floor”. Even though I see this, I walk right through it in my high heel shoes and slip and fall. I saw the sign, and still took the chance. Extreme sports- you know you are doing something that could seriously injure yourself

26. Statue of Limitations How long do you have to sue? 1. Negligent actions resulting in personal injury or property damage must be brought within 3 years from the date the cause of action accrued. 2. Professional malpractice must be filed within 2 years from the date of injury. 3. Product liability cases. 3-year limitation period The statute of limitations period begins to run from the date the cause of action accrued, which is usually the date the injury was sustained.

27. Seinfeld Kramer and Java example of negligence. Seinfeld clip #1 Seinfeld clip #1 Seinfeld clip #2 Seinfeld clip #2