Law School Discussion

Nine Years of Discussion
;

Author Topic: Torts- fill in the blank  (Read 692 times)

Jumboshrimps

  • Sr. Citizen
  • ****
  • Posts: 598
    • View Profile
Torts- fill in the blank
« on: December 04, 2005, 01:47:36 PM »
1) John is 65 years old and needs the tree in his yard cut down before it destroys the foundation of his houe. It would cost him $10,000 to have a pro do it, so he decides to do it himself. He cuts the trunk on the wrong side and it fall on a car driving by, causing severe injury to the driver.

Q: John's duty was to observe the standard of care of...?

2) Bob has taken a class on emergency medical procedures but he has no other medical training. His neighbor collapses on his porch. Bob runs over and decides to perform an emergency surgery with his portable medical kit to open up neighbor's airway. Of course, this goes horribly wrong and neighbor croaks.

Q: Bob's duty was to observe the standard of care of...?



Jumboshrimps

  • Sr. Citizen
  • ****
  • Posts: 598
    • View Profile
Re: Torts- fill in the blank
« Reply #1 on: December 04, 2005, 05:42:25 PM »
bump

lakerat

  • Jr. Member
  • **
  • Posts: 14
    • View Profile
Re: Torts- fill in the blank
« Reply #2 on: December 04, 2005, 11:41:20 PM »
1) John is 65 years old and needs the tree in his yard cut down before it destroys the foundation of his houe. It would cost him $10,000 to have a pro do it, so he decides to do it himself. He cuts the trunk on the wrong side and it fall on a car driving by, causing severe injury to the driver.

Q: John's duty was to observe the standard of care of...?

2) Bob has taken a class on emergency medical procedures but he has no other medical training. His neighbor collapses on his porch. Bob runs over and decides to perform an emergency surgery with his portable medical kit to open up neighbor's airway. Of course, this goes horribly wrong and neighbor croaks.

Q: Bob's duty was to observe the standard of care of...?




...reasonable precaution to prevent foreseeable harms.
...reasonableness varies with the inherent danger of the activity.

Actors with a higher degree of knowledge have a higher degree of reasonableness,

so in #1 I would think that a reasonable person would realize they need to account for which way the tree's going to fall. It was reasonably foreseeable that the tree may fall into the street. How foreseeable that the tree actually hit a car is not relevant, just that the tree might fall. I guess that B<PL could also be applied for breach saying that B=10000 and P would probably be at least 20%. L could vary quite a bit...

#2 I would say that Bob had a higher standard of care than a reasonable person. He had taken the course, which increased his level of knowledge and with that his standard of care, which would lead the reasonable person who has only taken such a course to not attempt surgeries.

lakerat

  • Jr. Member
  • **
  • Posts: 14
    • View Profile
Re: Torts- fill in the blank
« Reply #3 on: December 04, 2005, 11:43:51 PM »
#1: actually i guess B could be much less than 10000, say $50 to place cones in the road.

prondippe

  • Newbie
  • *
  • Posts: 2
    • View Profile
Re: Torts- fill in the blank
« Reply #4 on: December 08, 2005, 01:05:14 AM »
for the third question about running over ... didn't he have no duty to rescue?

When he is rescuing - perhaps he is covered by a good samaritan statute.

plumbert

  • Sr. Citizen
  • ****
  • Posts: 162
    • View Profile
Re: Torts- fill in the blank
« Reply #5 on: December 08, 2005, 03:30:57 AM »
Bob assumed the duty of due care when he rendered aid. That standard is either to act as a reasonably prudent person would under same or similar circumstances OR to leave the person no worse off than s/he was when Bob voluntarily rendered care. While it is possible there is a good Samaritan statute shielding Bob from liability, that doesn't affect the standard of care.

Suen2b

  • Full Member
  • ***
  • Posts: 15
  • Sue 'em all (and I will collect the fee) ;)
    • View Profile
Re: Torts- fill in the blank
« Reply #6 on: December 08, 2005, 06:55:03 PM »

 Bob did a mistake when he tried to intervene and should face the consequences for this. I don't know if the good samaritan shileds him from this, but in any case his wisest decision would be to have walked by, not touching the perosn to begin with.


Jumboshrimps

  • Sr. Citizen
  • ****
  • Posts: 598
    • View Profile
Re: Torts- fill in the blank
« Reply #7 on: December 08, 2005, 07:10:17 PM »
Wouldn't Bob be held to the standard of a professional surgeon, since he took it upon himself to act as one?

plumbert

  • Sr. Citizen
  • ****
  • Posts: 162
    • View Profile
Re: Torts- fill in the blank
« Reply #8 on: December 09, 2005, 12:02:57 AM »
Wouldn't Bob be held to the standard of a professional surgeon, since he took it upon himself to act as one?

It's a stretch to assume one class likely made him as knowledgeable and skilled as a surgeon, and thus a real stretch to hold him to the standard of care expected of a reasonably prudent surgeon under the same or similar circumstances (which would be the custom set for such a procedure by the medical profession as a whole).

If Bob can be shown to have superior knowledge and/or skills regarding emergency medical procedures because he took that  class, I think he'll still be held to one or other of the above-mentioned standards of care: that of a reasonably prudent person who took the same class and is acting under the same or similar circumstances; or, alternatively, to merely leave the plaintiff no worse off (depending on the jx).

Oh--and it's important to remember that Good Samaritan statutes don't affect the standard of care--they only limit liability.

Suen2b

  • Full Member
  • ***
  • Posts: 15
  • Sue 'em all (and I will collect the fee) ;)
    • View Profile
Re: Torts- fill in the blank
« Reply #9 on: December 10, 2005, 06:21:34 PM »

 Yes, but Bob took the liability upon himself the moment he chose to try saving the other guys life.
   
   And that action cause another man's life. We will never know what would happen had he not tried to do anything. Maybe the guy would have been fine.

 In any case, he is acting outside the scope of his practice. I doubt a jury will find him skilled enough to perform a cricothryroidotomy. Even many physicians are acting outside the scope of their practice if they do that.

 (Pathologist, Psychiatrist, Primary Care physician that has never done so after residency).