We will not forgetWe will not forget..

HAS 4400Torts

Chapter 6

Pozgar Text

Dr. Burton

Tort

• A civil wrong not based on the violation of a contract.

• Something was done incorrectly

• Something that should have been done was omitted.

• Three types:– Intentional,Negligent, Strict liability

Intentional torts

• Assault and Battery

• Defamation

• False imprisonment

• Invasion of privacy

• Intentional infliction of emotional distress

• Malicious prosecution and abuse of process.

Assault

• A deliberate threat, coupled with the apparent present ability to do physical harm.

• NO actual contact is necessary.

Battery

• Intentional touching of another’s person, in a socially impermissible manner, without that person’s consent.

False Imprisonment

Defamation of Character• Slander is oral• Libel is written• Four exceptions where not proof of actual harm is

required.– Accusing someone of a crime.

– Accusing someone of having a loathesome disease

– Using words that affect a person’s profession or business

– Calling a woman unchaste

Invasion of Privacy• Invading a person’s right to personal privacy.• Information in a person’s medical record is

confidential and should not be disclosedd with the patient’s permission.

• Reporting Exceptions:– Communicable diseases– Gunshot wounds – Child abuse– Or as required by law

R386-703-3. Reportable Injuries.(1) The Utah Department of Health declares the following injuries to be of concern to the public's health. Each case shall be reported to the Utah Department of Health as described in R386-703-4.

• (a) Acute traumatic brain injury.

• (b) Acute spinal cord injury.

• (c) Blunt force injury. • (d) Drowning and near

drowning. • (e) Asphyxiation. • (f) Burns.

• (g) Electrocution. • (h) Elevated Blood

Lead. • (i) Chemical

Poisoning. • (j) Intentional Injuries. • (k) Injuries Related to

Substance Abuse. • (l) Traumatic

Amputations.

http://www.rules.utah.gov/publicat/code/r386/r386-703.htm#E3

Negligent Torts

• Four Elements must be proved:1 duty (what should have been done)

2 breach of duty

3 injury

4 causation

“Someone must be willing to make a claim.”

DutyDetermined by:

• Expert testimony

• Common Sense

• Written Standards

• Negligence per se

• Respected minority rule

• Locality rule

• Legally imposed standards

Breach of duty

• Deviation from a standard of care

• Something was done that should not have been done or

• Something was not done that should have been done.

Injury

• Demonstration of physical, financial, or emotional injury.

Causation• The breach of duty must be proved to have

legally caused the injury.• New standard—loss of chance of recovery• Res Ipsa Loquitur elements of proof

– The accident is of a kind that does not happen without negligence

– The apparent cause is in the exclusive control of the defendants

– The person suing could not have contributed to the difficulties

– Evidence of the true cause is inaccessible to the person suing and

– The fact of injury is evident

Under the old common law rule, to use res ipsa loquitur in the context of negligence the plaintiff must prove that:

• The harm would not ordinarily have occurred without someone's negligence

• The instrumentality of the harm was under the exclusive control of the defendant at the time of the likely negligent act

• The plaintiff did not contribute to the harm by his own negligence.

Source: wikipedia.org

Origin of res ipsa loquitur

• The principle of res ipsa loquitur was first put forward by Baron Pollock in Byrne v. Boadle, 159 Eng.Rep. 299, an 1863 English case.

• Byrne was struck by a barrel of flour falling from a second-storey window. The court's presumption was that a barrel of flour falling out of a second-storey window is itself sufficient evidence of negligence.

Source: wikipedia.org

Examples of res ipsa loquitur• A scapel found in the abdomen of a patient

following an appendectomy.

• A towel with the hospital’s logo emblazoned on it found in the abdomen of a patient following surgery.

Defenses• Res Judicata and collateral estoppel• Statute of limitations• Immunity

– Sovereign immunity– Charitable immunity

• Release• Exculpatory contract• Arbitration agreement• Contributory negligence• Comparative negligence• Damage caps

Breach of implied warrantiesand Strict liability

• Usually applies to goods and products.

• Blood transfusion

• Drugs

• Radiation

• Medical Devices

Liabilitypersonal liability, liability for employees and agents,

institutional liability • Respondeat superior “let the master answer”• Borrowed servant and Dual servant• Physician-employees and agents• Agency• Apparent or ostensible agency• Institutional liability• Off-premises liability

Alexis de TocquevilleQuotes:

• America is great because she is good. If America ceases to be good, America will cease to be great.

• Liberty cannot be established without morality, nor morality without faith.

• In politics shared hatreds are almost always the basis of friendships.

• The American Republic will endure until the day Congress discovers that it can bribe the public with the public's money.

Criminal Law

Laws are made to restrain and punish the wicked; the wise and good do not need them as a guide, but only as a shield against rapine and oppression; they can live civilly and orderly, though there were no law in the world.

John Milton 1608-1674

Criminal Law

• Misdemeanor– < 1 year in jail

• Felony– > 1 year in state or federal peniteniary– Manslaughter– Murder– Fraud

Criminal Prosecution Procedure

• Arrest• Arraignment• Conference• Trial

– Jury selection– Opening statements– Presentation of witnesses and other evidence– Summations– Instructions to the jury– Jury deliberations– Verdict

• Must be unanimous• Standard of proof must be beyond a reasonable doubt

– Opportunity to appeal