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Esq

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Re: TEST FOR INCOMING 1L's
« Reply #70 on: May 07, 2005, 02:53:58 PM »
HERE'S ANOTHER TORTS FACT PATTERN:

Frank decided to go fly-fishing in the mountains.  Frank loved the mountains and as he drove up into the high green hills, he turned off his cell-phone so he wouldn't get any calls from work. Rolling down the window and breathing in the cool, crisp air, Steve reached inside his cooler and opened the first of the four beers he consumed before he reached a parking spot near a brook.  After he got out of his SUV and hiked about half a mile, Frank came upon a stranger that was later identified as Steve. Steve had apparently been attacked by a mountain lion. Steve was seriously injured, covered in animal bites and claw marks. Dropping his fly- fishing rod, Frank bent down and carried Steve back to Frank's SUV. Frank put Steve into the SUV. Then Frank raced down the mountain until he got on the public road, where he exceeded the speed limit, took a turn too fast, lost control of the SUV and crashed. Emergency personnel were in the area and saw the accident. They stopped to render aid. Frank had no injuries and Steve had been adequately strapped in and suffered no injuries due to the SUV accident. But the emergency personnel took one look at all the blood covering Steve, and shouted, "We'll take him from here." The EMS personnel raced Steve to the hospital. But the doctor at the hospital committed medical malpractice and made things a lot worse for Steve.

Now, Steve has a lawyer and wants to sue Frank and hold him liable for his injuries.


What was the standard of care that Frank owed to Steve and why did Frank owe that standard of care? Discuss.

Because Frank acted in the way he did, can he be held strictly liable for Steve's injuries that resulted from the doctor's malpractice? Discuss.


jacy85

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Re: TEST FOR INCOMING 1L's
« Reply #71 on: May 09, 2005, 09:56:27 AM »
Frank did not owe Steve a standard of care *until* he pick him up off the trail and carried him to his car.  Once Frank intervened, he owes Steve a standard of care.

Frank, I believe, is not liable for Steve's injuries.

Steve received no injuries from the SUV crash.  If he had been injured and the malpractice had been in relation to those injuries, then the fault could be attributed to Frank and his reckless driving while under the influence.  In this case, Frank did not meet the standard of care owed Steve.

However, as stated before, Steve was not injured in the car crash.  He was only suffering injuries from the mountain lion attack.  Medical personel rushed Steve to the hospital for medical treatment.  *This* fulfills the standard of care owed to Steve by Frank.  Steve's position was improved overall, and in now way worsed by Frank's action.

If Steve wants to sue, he should sue the doctor, who owed him a standard of care and due to malpractice, violated that standard.

desmo

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Re: TEST FOR INCOMING 1L's
« Reply #72 on: May 09, 2005, 12:05:39 PM »
Sue the Park for inadequate warning about wildlife
Sue the Doctor
Sue the hospital
Sue the EMS crew
Sue the county for inadequate warning regarding the road conditions that resulted in the rollover.

Start a class action against the SUV manufacturer for rollover problems
Start a second class action against the cell phone company for inadequate service in the reported 'covered' areas

Settle out of court on all of them, buy a Gulfstream with the class action proceeds, vacation in the mountains.





lsatposter

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Re: TEST FOR INCOMING 1L's
« Reply #73 on: May 09, 2005, 04:14:06 PM »
Yes, I was putting down the IRAC method. It is shallow and superficial (spelled wrong?). Spotting issues is much more complex. Read "getting to maybe"

Attending: Northwestern School of Law

River

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Re: TEST FOR INCOMING 1L's
« Reply #74 on: May 09, 2005, 07:23:08 PM »
HERE'S ANOTHER TORTS FACT PATTERN:

Frank decided to go fly-fishing in the mountains.  Frank loved the mountains and as he drove up into the high green hills, he turned off his cell-phone so he wouldn't get any calls from work. Rolling down the window and breathing in the cool, crisp air, Steve reached inside his cooler and opened the first of the four beers he consumed before he reached a parking spot near a brook.  After he got out of his SUV and hiked about half a mile, Frank came upon a stranger that was later identified as Steve. Steve had apparently been attacked by a mountain lion. Steve was seriously injured, covered in animal bites and claw marks. Dropping his fly- fishing rod, Frank bent down and carried Steve back to Frank's SUV. Frank put Steve into the SUV. Then Frank raced down the mountain until he got on the public road, where he exceeded the speed limit, took a turn too fast, lost control of the SUV and crashed. Emergency personnel were in the area and saw the accident. They stopped to render aid. Frank had no injuries and Steve had been adequately strapped in and suffered no injuries due to the SUV accident. But the emergency personnel took one look at all the blood covering Steve, and shouted, "We'll take him from here." The EMS personnel raced Steve to the hospital. But the doctor at the hospital committed medical malpractice and made things a lot worse for Steve.

Now, Steve has a lawyer and wants to sue Frank and hold him liable for his injuries.


What was the standard of care that Frank owed to Steve and why did Frank owe that standard of care? Discuss.

Because Frank acted in the way he did, can he be held strictly liable for Steve's injuries that resulted from the doctor's malpractice? Discuss.



Q1)   Frank owed due care to Steve, which is implied from the moment when Frank gave consent to help Steve out as he found and knew Steve seriously injured, approached him to help, touched and carried him in his car to get to the public road instead of using his cell phone for the EMC personnel.   

Under common law one may have a duty of care to another in an emergency situation where the former sees the latter under a serious or the like situation threatening or affecting his life and gives him help.  If the person passes by a person lying on a street but later he is found seriously injured to death, can he still owe due care to the injured?   No, because he has no obligations to take care of him unless he sees his injuries and touches him for help.  If any, he may be only morally blamed. On the other hand, he touches him to see how sever his injury is but ignore him leaving the place, and the injured dies soon or his injury gets worse threatening his life.  Then the issue will be different because he is negligent in failure to seek an immediate help from relevant sources unless he alone can handle the matter. Then, where does one’s due care owed to the injured derive from?   That comes from one’s knowledge of the injured condition upon seeing and touching him.   In a legal sense, one gives consent to help the injured when approaching and touching the injured upon seeing the injured.  The consent thus carries one’s obligation to take care of the injured as long as one remains in that scene with the injured until emergency aids arrive.  However, what if one tries to hold his neck while waiting for the aid but exacerbates his injuries (in fact his neck is found broken later on)?   Can one is liable for the worsened injury due to his negligence in failure of due care owed to the injured?   Yes, because he should not hold his neck unless he can give the injured a first aid based upon his certain expertise on that situation.  Only what he can do is to call police for help.         

As applied to the present case, Frank owed duty of care in the emergency to Steve under common law because, in his course of actions to drive Steve onto the public road, Frank gave him consent for help. His consent then carries his obligation to take care of Steve until he met the emergency aid on the public road. Therefore, Frank owed common law duty of care to Steve.


2) Frank may not be strictly liable for Steve’s injury, though different upon jurisdictions as to whether it apples comparative negligence or contributory negligence or strict liability.   First, under comparative or contributory negligence jurisdiction, Frank and the doctor may contribute to Steve’s worsened injuries. Frank speeded up and crashed. Although Steve had no injury from the crash, the EMC personnel found blood covered Steve’s body.  If the blood the EMC personnel noticed is from the crash that might worsen his injuries, Frank could be negligent because he owed due care to drive within speed limit but failed to do so.  His failure could cause his injuries worsened. The doctor’s alleged mistreatment also contributed to his worsened injuries for certain proportions.  Thus, the remaining issue here is how to proportion the liability.  The ratio shall be a matter of medical knowledge, which is to be determined by a jury. Therefore, under the comparative or contributory negligence jurisdiction, both Frank and the doctor are liable for Steve’s worsened injuries.  On the other hand, under strict liability jurisdiction, Frank is not strictly liable for Steve’s injuries resulting from the doctor’s malpractices because the two different statutes apply to each of Frank’s over speed driving and the doctor’s med mal. (Traffic statute and medical malpractice statute)   


jacy85

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Re: TEST FOR INCOMING 1L's
« Reply #75 on: May 10, 2005, 08:47:58 AM »
Although Steve had no injury from the crash, the EMC personnel found blood covered Steve’s body.  If the blood the EMC personnel noticed is from the crash that might worsen his injuries, Frank could be negligent because he owed due care to drive within speed limit but failed to do so. 

Am I misreading something?  This statement makes no sense to me...The blood the EMT noticed was *NOT* from the crash, as the passage clearly stated that he was not injured from the crash.  The blood was from the animal attack.  So how can the blood he noticed be indicitive of Frank negligence if his injuries were not from the crash?

River

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Re: TEST FOR INCOMING 1L's
« Reply #76 on: May 10, 2005, 03:52:41 PM »
Although Steve had no injury from the crash, the EMC personnel found blood covered Steve’s body.  If the blood the EMC personnel noticed is from the crash that might worsen his injuries, Frank could be negligent because he owed due care to drive within speed limit but failed to do so. 

Am I misreading something?  This statement makes no sense to me...The blood the EMT noticed was *NOT* from the crash, as the passage clearly stated that he was not injured from the crash.  The blood was from the animal attack.  So how can the blood he noticed be indicitive of Frank negligence if his injuries were not from the crash?

I infered that from below; yet it is to be verified in court.

"Steve had been adequately strapped in and suffered no injuries due to the SUV accident. But the emergency personnel took one look at all the blood covering Steve"

littletanuki

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Re: TEST FOR INCOMING 1L's
« Reply #77 on: May 11, 2005, 03:14:55 PM »
Frank might be negligent...he owed Steve a duty of reasonable care (driving within the speed limit, driving safely etc.) and breached that duty, which resulted in the car crash.  However, in this situation, the "emergency doctrine" applies to Frank...the reasonableness of his actions should be considered against the circumstances...How would a reasonable person act in an emergency situation like the one Frank was in?  We might drive faster than the speed limit in an effort to get Steve to the hospital as quickly as possible.  But even if Frank breached his duty of reasonable care under the circumstances, what damages is he responsible for?  Steven did not sustain any additional injuries as a result of the crash.  So what can Steve realistically recover as a result of the crash?  Mental anguish, emotional distress?   

In terms of liability for medical malpractice, I don't know that "but for" Frank's negligence Steven would NOT have been the victim of medical malpractice.  If Steve wasn't already injured and Frank's careless driving caused an accident to which paramedics responded and took Steve to the hospital where he was a victim of malpractice by the doctor, Frank would definitely be liable for injuries sustained as a result of malpractice.  But for Frank's negligence, Steve wouldn't have been in the hospital in the first place.  But in the actual situation, Steve was on his way to the hospital to be treated anyway.  Frank could have driven carefully and arrived at the hospital only to have the same inept doctor treat him.  Was there only one hospital in the area?  Did the paramedics take Steve to a different hospital than Frank would have taken Steve too?  I don't know that Frank is liable for the injuries sustained from the malpractice...

Esq

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Re: TEST FOR INCOMING 1L's
« Reply #78 on: May 14, 2005, 03:17:05 PM »
Here's a possible answer to the hypothetical fact pattern above.

The issue is whether Frank who undertook to rescue Steve owes a standard of care to Steve as a reasonably prudent person.  Tort law’s general rule is that no legal duty is owed by any individual to affirmatively go to the rescue of another.  But an individual who does undertake to act on the behalf of another (even though he is under no obligation to so do) must act as a reasonable prudent person.  Here, Frank may have owed to Steve a standard of care to act as a reasonably prudent person.  Even if this situation can be classified as a sudden emergency, Franks still had to act as a reasonably prudent person and Frank may have not lived up to that standard.  The facts state that Frank had a cell phone, which he had turned off.  Frank could have turned it on and called for help instead of putting Steve in Frank’s SUV and racing down the mountain and onto a public road after Frank had been drinking. Although the facts state that the crash did not cause Steve any injuries, Frank apparently botched the rescue because he certainly did not intend to wreck the car as part of the rescue attempt, and the delay, the jostling about, and the failure to cleanse, bandage, or close any of Steve’s wounds caused Steve injury.  In the absence of facts suggesting a Good Samaritan statute, and because Frank undertook to act as a rescuer, he had a duty to act as a reasonably prudent person.

The issue is whether Frank is strictly liable for Steve’s injuries. A rescuer is not strictly liable for a victim’s injuries.  However, a rescuer can be held liable for negligent acts.  Here, although Frank may have been negligent in his rescue attempt, he cannot be held liable on a strict liability theory.  Furthermore, the first tortfeasor is generally liable for the aggravation of a plaintiff’s injuries caused by the malpractice of the Plaintiff’s doctor and may be classified as a dependent intervening cause which is almost always foreseeable. However, it can be argued that Frank was not the original cause of Steve’s injuries.  The mountain lion was.  Regardless of the scope of Steve’s potential negligence liability, Frank is not liable under a theory of strict liability.     

Esq

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Re: TEST FOR INCOMING 1L's
« Reply #79 on: May 14, 2005, 03:51:27 PM »
One Example of Law School Multiple Choice:

Gary Traveler was  a guest at the Ritz Hotel. Ritz Hotel was very exclusive and catered to movie stars and international dignitaries. As a result, staying just one night at the Ritz usually cost upwards of $500.00.  Inside, the furniture was imported and fine French chefs prepared dinners in the restaurant.

However, the hotel management knew that the outside of the hotel had a problem with slimy green slugs. The slugs were in mating season, and each morning, dead slug bodies would litter the marble steps at one of the key entrances to the Ritz.  Management was disgusted, but they told their lowest paid employees to hustle out there every morning and clean up the dead slugs off the marble steps.

On a Tuesday, Gary’s buddy, Paul Plaintiff, who lived in the same town as the Ritz, dropped by the Ritz to see his old friend, Gary.  As Paul began to go up the Ritz steps, he slipped on a dead slug that had not  been cleaned up and severely injured himself. On this Tuesday, the low-paid employees had failed to clean up the steps.  Paul now thinks he has a claim against the Ritz.

Paul is most likely to:

A.   prevail on his claim because the Ritz employees failed to clean up the steps.

B.   not prevail on his claim, unless Paul intended to get a room for himself at the Ritz prior to his injury.

C.   prevail on his claim, only if the Ritz management knew of the hazardous slip condition.

D.   not prevail on his claim, unless the low paid employees had seen the slug on the steps.