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Wednesday
Dec062017

Torts Stuff

A.    The  Fault Allocation Problem:

 

        1.  Plaintiff can recover under several theories.

 

        First P. can recover from D-1 because P's fault at 25% was "less than" D-1's fault of 50%.

 

        If the state aggregates the fault of the defendants for purposes of the comparative negligence comparison ( most states do),  then p. can also recover from D-2 because then         the plaintiff's fault at 25% would be less than the combined fault of the defendants at 75%.

 

        Further because the Defendants acted in concert, they are both responsible for the negligence of the other, and thus on this theory EACH defendant carries 75% of the fault.

 

     2.  How much?   Plaintiff can recover $75000, subtracting his 25% share of his own damages.

 

    3.  What is the judgment against D-1 and the judgment against D-2?

 

        On the "actions in concert" theory, they are both responsible jointly and severally for all the $75,000 due p., so the judgments are in that amount for each.  In most states this         will be so, and logically it SHOULD be so.  Even if J & S liability has been abolished in the state in favor of comparative FAULT (we can't tell from the problem), most states                 preserve it where used in Cause- in- Fact doctrines like alternative liability and actions in concert.

 

        Ignoring the concert aspect,  most states with comparative NEGLIGENCE (the plaintiff v. defendants comparison, given in the problem) have also adopted comparative FAULT (between defendants).  In that probable case, the J. against D-1 is for $50,000 and the J. against D-2 is for 25,000.  The risk that one of the defendants is a "turnip" that cannot pay falls on P. in this system.

 

        If, perchance, our research discloses that this state has NOT shifted to comparative FAULT, then under the traditional "Joint and Several" liability doctrine for independently     acting tortfeasors, each would suffer a judgment of $75000 against them.  In that case, the plaintiff could collect $75000 only once, and if plaintiff collected more than either defendants' share under the fault allocation, the "overcharged" D. could seek CONTRIBUTION from the other.   In this system the risk that one D. will prove to be a "turnip"             falls on the other D.

 

        A "model" solution adopted in a few states including Oregon is to reallocate the fault share of the turnip defendant to the P. AND THE OTHER DEF. in proportion to their fault.         In this system, if say D-1 owed 50,000 based on the fault allocation, and D-! proved to be a turnip one year after the initial J,  then P and D-2 would split that loss, with each             responsible for another 25000 based on their equal fault allocations (25% for P, and 25% for D-2.

 

 

 

 

B.  Medmal via Overdose of Patient Lowering Odds of Survival from 60% to 10%:

 

       1.  At first blush this may appear to be a Lost Opportunity Doctrine problem.  But an issue is presented whether the LOD applies, since the initial odds of survival were 60%.         That is to say,  without the medmal, would the husband more probably than not have survived?  Yes!!!   Thus many common law courts would uphold a judgment in these circumstances without any need to invoke an exotic causation doctrine like L-O.   Just seeing the question is the main thing, not how you think the issue would be decided.

 

        2.  Assuming nothing unusual in the Wrongful Death Statute, the spouse and kids can recover even though the Estate's claims are barred by the Survival Statute requiring         filing before death;  the Wrongful Death claims and the Survival claims are conceptually distinct claims; the wrongful death claims are the distinct claim of the decedent's     dependents,  and the survival claims are those of the decedent, and then his estate.

 

        3.  Of course the Doctor who gave the hapless victim 10 times the proper dose has almost certainly violated the standard of care, though testimony is needed from an expert doctor in the same specialty or school of medicine, and perhaps in a similar community under any remnant  of the "locality" rule in the state.

 

        4.  The amount they can recover will include damages for:  their pecuniary or financial loss of support  and, in most states, their grief, loss of companionship,  or other             non-economic loss.  It depends on the statute.  As to the $5 million in lost expected future earnings of the decedent, how much the spouse and kids can claim as loss of support would depend on his level of support in the past;  he might have chosen to save or invest at lot of this income, beyond the amount he would have provided in                     support. So a claim for $5 million in lost support might well be substantially overstated.

 

C.  The Domestic Violence Scenario:

 

         1. This analysis assumes that the state has abolished SPOUSAL IMMUNITY  for (at least) intentional torts.

 

         2. The Husband Striking His Wife in Rage:   Obviously this is a BATTERY, and his rage ( whether "justifiable" or not) or the provocation of the extra-marital affair, does not             provide any defense.  He struck her for the purpose of an offensive, and perhaps a harmful, touching, and the contact was at least offensive if not harmful.

 

        3.  The Wife's slapping of the husband.    Again an obvious battery but her SELF-DEFENSE is equally obvious, there being reasonable ground for S-D, and the amount and             duration being reasonable under the circumstances.

 

        4.  The threat and reach for the knife:   Hubby's words and overt action combined constitute an ASSAULT because they might cause a reasonable person to fear an imminent             harmful touching, and in fact,  it appears from the wife's subsequent actions that she was in fact fearful.  Under the circumstances, intent is established as the very purpose             of the threat and overt action is to put  her in fear of her life, or at the least,  there was "substantial certainty" that his words and actions would have that affect.

 

        5.  The Baking Soda in the Face:   Another battery but again SELF-Defense.   The occasion and means/amount of response seems r. under the circumstances.  There is an imminent threat of deadly force.

 

        6.  The Wrapping of the Chain:  FALSE IMPRISONMENT:  She had the purpose of confining him, but was he confined, or did he have some other, though not "ready," means of              exit ( a back door?).  Or did the chain cause only a temporary and arguably de minimus confinement?

 

            BESIDES for the same S-D reasons she can cite to his allegation of battery in connection with the baking soda, she can invoke S-D to False Imprisonment.

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