© 2014 Jones and Bartlett PublishersChapter 4.docx

© 2014 Jones and Bartlett Publishers
Chapter 4
Tort Law
LEARNING OBJECTIVESDescribe what a tort is and the
purpose of tort law. Identify, understand, and describe the
elements of negligence. Identify and describe intentional
torts.Explain the theories a plaintiff could use in pursuing a
products liability case and the defenses a manufacturer might
use to defend itself.
TortA civil wrong, other than a breach of contract, committed
against a person or property for which a court provides a
remedy in form of an action for damages.
Objectives of Tort LawPreservation of peace between

individuals.Find fault for wrongdoing.Deterrence by
discouraging the wrongdoer from committing future tortious
actsCompensation to indemnify injured person/s.
Categories of Tort LawNegligenceIntentionalStrict liability
regardless of fault e.g., products liability
NegligenceCommission or omission of an act that a reasonably
prudent person would or would not do under given
circumstances.
Commission of an ActAdministering the wrong
medicationAdministering the wrong dosage of a
medicationAdministering medication to the wrong
patientPerforming a surgical procedure without patient
consentPerforming a surgical procedure on the wrong
patientPerforming the wrong surgical procedure
Omission of an ActFailing to conduct a thorough history &
physical examinationFailing to assess & reassess a patient's
nutritional needsFailing to administer medicationsFailing to
order diagnostic testsFailing to follow up on abnormal test
results

MalpracticeNegligence of a professional person surgeon who
conducts a surgical procedure on wrong body part
Criminal NegligenceReckless disregard for safety of
another.Willful indifference to injury that could follow an act.
Forms of NegligenceMalfeasanceExecution of an unlawful or
improper act, i.e., performing a partial birth abortion when
prohibited by lawMisfeasanceImproper performance of an act,
i.e., wrong sided surgery.NonfeasanceFailure to act when there
is a duty to act, i.e., failing to prescribe medications that should
have been under the circumstances
Degrees of NegligenceSlightMinor deviation of what is
expected under the circumstances. Ordinary NegligenceFailure
to do what a reasonably prudent person would or would not
do.Gross NegligenceIntention or wanton “omission of care” that
would be proper to provide or the “commission of an act” that
would be improper to perform.

Elements of NegligenceDuty to Use Due CareStandard of
careBreach of DutyInjury/Actual DamagesProximate
Cause/CausationForeseeability
I. Duty to CareObligation to conform to a recognized standard
of care.
Standard of CareDescribes the conduct expected of an
individual in a given situation.Describes how a “reasonably
prudent person” would or would not act under “similar
circumstances”.Measuring stick for properly assessing actual
conduct required of an individual.
Reasonably Prudent PersonA nonexistent - hypothetical person
who is put forward as community ideal of what would be
considered reasonable behavior.
Similar CircumstancesCircumstances at the time of the
injury.Circumstances of the alleged wrongdoer/s at the time of
injury.AgePhysical conditionEducation & trainingLicenses
heldMental capacity, etc.

Determining StandardEstablished by legislative enactment or
administrative regulation.Adopted by the court from a
legislative enactment or administrative regulation.Established
by judicial decision.Applied to the facts of the case by the trial
judge or jury, if there is no such enactment, regulation or
decision.courts often rely on testimony of an expert witness as
to the standard of care required.
Community v. National StandardCommunity Standardhometown
standard (we want to do things our way).National Standardmost
currently accepted standard of care on a national basis.
Case: Hiring PracticesNurse hired sight unseen over telephone.
Applicant falsely stated in an employee application that he was
licensed as an LPN. His license was not verified by the
employer. He had committed 56 criminal offenses of theft. He
assaulted a resident a resident & broke his leg.
Case: Hiring Practices
DutyStandard expected:Employer had a “duty” to validate the
nurse’s professional license.
II. Breach of DutyDeviation from the recognized standard of
care.Failure to adhere to an obligation.Failure to conform to or
the departure from a required duty of care owed to a
person.Occurs when a physician fails to respond to his/her on-

call duties.an employer fails to adequately conduct a pre-
employment check (e.g., licensure, background check).
Breach of Duty
The employer failed to verify the applicant’s licensure.A more
thorough background check should have revealed this
employee’s previous criminal conduct.
III. InjuryActual damages must be established.If there are no
injuries, no damages are due.
Injury
The resident suffered a broken leg.Hospital vicariously liable
for nurse’s conduct.

IV. CausationProximate causebreach of duty was the proximate
cause of the injuryBut-for Rulethe defendant’s action, the injury
would not have occurred
CausationReasonable anticipation that harm or injury was likely
to occur.The patient suffered a broken legDeparting from
recognized standard of carefailure to verify licensure & conduct
an adequate background check
Hiring Practices – IIIInjury resulted from the breach of
duty.Injury was foreseeable.
Failure to Hydrate
CausationFailure to administer proper hydration.Not
unreasonable to conclude that one’s dehydration can be caused
by failing to provide water.
ForeseeabilityReasonable anticipation that harm or injury is
likely to result from an act or an omission to act.

Test for ForeseeabilityThe test for foreseeability is whether a
person of ordinary prudence and intelligence should have
anticipated danger to others caused by his or her negligent act.
ForeseeabilityA person of ordinary prudence and intelligence
should have anticipated the danger to the resident caused by the
employer’s negligent act.
Hot Radiator
ForeseeabilityA patient’s left foot came in contact with a
radiator and she suffered third-degree burns.The defendant had
knowledge of the plaintiff’s condition. The defendant should
have shielded the radiator or not placed the plaintiff next to it.
Sponge & Instrument CountDr. Smith owns the local Outpatient
Surgery Center. He instructs employees to count all instruments
& surgical sponges following a surgical procedure, prior to
closing the surgical site. Annie, an employee, failed to conduct
the count following Bills surgery. Two months later, Bill,
suffering from extreme abdominal pain, was noted to have
several sponges and an instrument in his abdomen. He had

developed a massive infection.Was the doctrine of Vicarious
liability applicable in this case?
YESEven though Annie had strict instructions to count the
sponges & surgical instruments prior to closing the surgical
site, she failed to do so. To determine otherwise would
undermine the doctrine of vicarious liability, since employers
would almost always escape liability by presenting evidence
that employees were given careful instructions.
Failure to Follow InstructionsSarah has a minor surgical
procedure under general anesthesia at ABC Surgery Center. She
was instructed not to drive home after release. Her daughter
Leslie picks her up. On the way home Leslie stops for a donuts.
Meanwhile, her mother moves to the driver seat. Upon leaving
the parking lot, Sarah hits Carol’s car. Carol sustains a broken
arm & sues ABC for releasing Sarah before she is completely
recovered from the anesthesia.Was the hospital liable for
Sarah’s injuries?
NO!Sarah was negligent, not the hospital. She failed to adhere
to both verbal & written instructions not to drive following
anesthesia. It was Sarah’s duty not to drive and her breach of
that duty that caused Carol’s injury.
RememberThe four elements of negligence must be presented in
order for the plaintiff to recover damages caused by negligence.

Intentional TortsAssault and BatteryFalse
ImprisonmentDefamation of CharacterFraudInvasion of
PrivacyIntentional Infliction of Mental Distress
AssaultDeliberate threat, coupled with apparent ability to do
physical harm to another. Actual contact not necessary.
Person attempting to touch another unlawfully must possess
apparent present ability to commit battery.
Person threatened must be aware of or have actual knowledge of
an immediate threat of a battery and must fear it.
BatteryIntentional touching of another’s person in socially
impermissible manner without person’s consent.Failure to
obtain consent prior to surgery.Administering blood against
patient’s express wishes.Physically restraining one who refuses
to eat.
False ImprisonmentUnlawful restraint of individual’s personal
liberty or unlawful restraining or confining an
individual.Restraining patient without cause.Locking patient in
secluded room for failing to attend therapy session.
Legal Justification for Restraint or SeclusionPerson represents a

danger to self or others.Criminal conduct.Persons with highly
contagious diseases, as provided by state or federal statutes.
Reducing Use of Restraints – I Development of policies and
procedures that conform to state & federal guidelinesEducation
& orientation of staffEducation for patients & familiesSound
appraisal of need for restraintsApplication of least restrictive
restraintsContinuous monitoring of patients to determine
continuing need for restraints
Defamation of CharacterThe offense of injuring a person’s
character, fame, or reputation by false & malicious
statements.False oral or written communications to someone
other than person defamed that tends to hold that person’s
reputation up to scorn or ridicule in eyes of others.
Defamation of CharacterLibel – written form of
defamationSignsLettersPhotographsCartoonsSlander – oral form
of defamation
Proof of DefamationA false & defamatory
statement.Communication of a statement to a person other than
the plaintiff.Fault on the part of the defendant.Special monetary
harm.

Proof of Harm Not Required
to recover damages when:Accusing a person of a
crime.Accusing a person of having a loathsome disease.Using
words are harmful to a person’s profession or business.Calling a
woman unchaste.
Libel – Performance AppraisalsPerformance appraisals are not
meant for general publication.To recover damages, the appraisal
must be published in defamatory manner that injures one’s
reputation.
Cartoon – I Jack draws a cartoon depicting Paul having a
rendezvous with a new grad nurse in an empty patient room.
The incident in fact never occurred.Can a defamatory statement
can take the form of a cartoon?Yes, a defamatory statement can
take the form of a cartoon because it is capable of adversely
affecting a person’s reputation.
Newspapers ArticlesNewspaper editorial cartoon depicting 3
persons resembling gangsters in dilapidated building, identified
as particular facility that had been closed by state order, was an
expression of pure opinion and was protected by 1st
Amendment.

Accused of an AffairNurse Rachet suggests to Dr. Smith that he
should leave his wife Sharon because she is having an affair
with Dr. Doe. Dr. Smith writes a letter to Mrs. Doe, repeating
Rachet’s statement.Assuming Dr. Smith’s letter is defamatory,
is it libel or slander?
Accused of an AffairIt is libel, even though Dr. Doe is repeating
a slanderous statement.The reverse is not true – the spoken
repetition of a written defamation is still considered libel.The
rule is: once libel, always libel.
SlanderPerson who brings suit must prove special
damages.When defamatory words refer to person in professional
capacity, professional need not show that words caused damage.
Defenses to a Defamation ActionTruth – no liability for
defamation if it can be shown that statement is
true.PrivilegeAbsoluteQualified
Absolute PrivilegeStatements made during judicial & legislative
hearingsConfidential communications between spouses

Qualified PrivilegeStatements made as result of a legal or moral
duty to speak in interests of 3rd personsStatements must be
without malice
Public FiguresVulnerable to public scrutinySuits generally
dismissed in absence ofmaliceactual knowledge statements are
falserecklessness as to truth
Proof of FraudMisrepresentation by the defendant.Knowledge of
falsity.Intent to reduce reliance on misrepresentation.Justifiable
reliance by the plaintiff.Damage to the plaintiff.
Health Care FraudBilling Tradename Drugs/Issuing
GenericOffice Visits/Double BillingBilling for Services not
RenderedAccepting referral fees
Invasion of PrivacyThe right tobe left alonebe free from
unwarranted publicitybe free from exposure to public viewbe
free from unwarranted intrusions into a one’s personal
affairspersonal privacyhave records/kept confidential

Intentional Infliction
of Mental DistressConduct that is so outrageous that it goes
beyond bounds tolerated by decent society.
Mental DistressGriefShamePublic
humiliationDespairShameHuman pride
Mental DistressMother shown premature infant in a jar.
Johnson v. Womens HospitalVerbally abusive
physician to patient and/or spouse.
Greer v. Medders
FraudWillful & intentional misrepresentation that could cause
harm or loss to person or property.e.g., purposeful concealment
from patient of the presence of surgical sponges in his/her
abdomen following surgery.
Products LiabilityLiability of a manufacturer, seller, or supplier
of chattels to a buyer, or other third party for injuries sustained
because of a defect in a product.

Products Liability Legal TheoriesNegligenceBreach of
warrantyExpressImpliedStrict liability
NegligenceDutyProduct manufactured by the
defendantBreachProduct defective when it left the
manufacturerInjuryPlaintiff/s injured by the
productCausationProduct proximate cause of injury
Defective X-ray Unit – I Mindy places Candice on the table of
the hospital’s newly manufacturer-installed x-ray unit. While in
the control room, Mindy hears a crash. She rushes to the patient
& finds that a section of the x-ray unit fell on Candice, further
injuring her already broken leg. Candice sues the manufacturer
for negligence. Can the manufacture be held liable for the
plaintiff’s injuries?
YES!Duty: manufacturer to properly install the x-ray
unit.Breach: failure to properly install the x-ray unit.Injury:
plaintiff suffered injury.Causation: improper installation was
the proximate cause of the plaintiff’s injury.
Express WarrantyIncludes specific promises or affirmations

made by seller to buyer.e.g., drug manufacturer represents the
product as free from addiction & is not
Crocker v. Winthrop Laboratories
*
Implied WarrantyA warranty that exists by operation of the law
as a matter of “public policy” for protection of the public.e.g.,
consumers have right to assume that food is not contaminated
Jacob E. Decker & Sons v. Capps
Strict LiabilityLiability without faultElements required to
establish strict liabilityProduct manufactured by
defendantProduct defective at time it left manufacturerPlaintiff
injured by productDefective product proximate cause of injuries
Wrong Medication – IStanley refills his drug prescription at D
Drugs, where he has been a customer for 10 years. Prior to
taking his nightly dosage, he noticed the pill appeared larger
than normal. He phoned D Drugs & explained his concern. The
Pharmacist assured Stanley generic drugs sometimes are larger
because of formula fillers but that the medication dosage in his
drug was correct.

Wrong Medication – IIStanley took the drug & never woke up;
the dosage given was 5 times that which had been prescribed.
The container from which the pharmacist filled Stanley’s
prescription had been mislabeled by the manufacturer.
Wrong Medication – III
Court’s DecisionProduct was manufactured by the
defendantProduct defective at time it left manufacturerThe drug
was placed in a mislabeled container.Plaintiff injured by the
productStanley passed away in his sleep.Defective product
proximate cause of injuriesThe mislabeled container was the
proximate cause of Stanley’s death.
Products Liability
Res Ipsa LoquiturMust establishProduct did not perform in way
intendedProduct not tampered with by buyer/3rd partiesDefect
existed at time it left defendant
Products Liability CasesTainted Tylenol CapsulesElsroth v.
Johnson & JohnsonManufacture of unsafe drugsMerck’s Vioxx
Products Liability Defenses – I Assumption of the

Riskvoluntary exposure to risks: Smoking, radiation therapy,
ChemotherapyIntervening Causean IV solution contaminated by
product userContributory Negligenceuse of product in a way it
was not intended to be used.
Products Liability Defenses – III Comparative Faultinjury due
to concurrent negligence of both manufacturer &
plaintiff.Disclaimers manufacturers inserts
Review Questions – I
Describe the objectives of tort law.
Discuss the distinctions among negligent torts, intentional torts,
and strict liability.
What forms of negligence are described in this chapter?
How does one distinguish between negligence and malpractice?
What elements must be proven in order to be successful in a
negligence suit? Illustrate your answer with a case (the facts of
the case can be hypothetical).
Review Questions – III
Can a "duty to care" be established by statute or contract?
Discuss your answer.
Describe the categories of intentional torts.
How does slander differ from libel? Give an example of each.
What is products liability? Describe what legal theories an
injured party may use in proceeding with a lawsuit against a
seller, manufacturer, or supplier of goods.
Describe the defenses often used in a products liability case.

Chapter 4
Tort Law
LEARNING OBJECTIVESDescribe what a tort is and the
purpose of tort law. Identify, understand, and describe the
elements of negligence. Identify and describe intentional
torts.Explain the theories a plaintiff could use in pursuing a
products liability case and the defenses a manufacturer might
use to defend itself.
TortA civil wrong, other than a breach of contract, committed
against a person or property for which a court provides a
remedy in form of an action for damages.
Objectives of Tort LawPreservation of peace between
individuals.Find fault for wrongdoing.Deterrence by

discouraging the wrongdoer from committing future tortious
actsCompensation to indemnify injured person/s.
Categories of Tort LawNegligenceIntentionalStrict liability
regardless of fault e.g., products liability
NegligenceCommission or omission of an act that a reasonably
prudent person would or would not do under given
circumstances.
Commission of an ActAdministering the wrong
medicationAdministering the wrong dosage of a
medicationAdministering medication to the wrong
patientPerforming a surgical procedure without patient
consentPerforming a surgical procedure on the wrong
patientPerforming the wrong surgical procedure
Omission of an ActFailing to conduct a thorough history &
physical examinationFailing to assess & reassess a patient's
nutritional needsFailing to administer medicationsFailing to
order diagnostic testsFailing to follow up on abnormal test
results

MalpracticeNegligence of a professional person surgeon who
conducts a surgical procedure on wrong body part
Criminal NegligenceReckless disregard for safety of
another.Willful indifference to injury that could follow an act.
Forms of NegligenceMalfeasanceExecution of an unlawful or
improper act, i.e., performing a partial birth abortion when
prohibited by lawMisfeasanceImproper performance of an act,
i.e., wrong sided surgery.NonfeasanceFailure to act when there
is a duty to act, i.e., failing to prescribe medications that should
have been under the circumstances
Degrees of NegligenceSlightMinor deviation of what is
expected under the circumstances. Ordinary NegligenceFailure
to do what a reasonably prudent person would or would not
do.Gross NegligenceIntention or wanton “omission of care” that
would be proper to provide or the “commission of an act” that
would be improper to perform.
Elements of NegligenceDuty to Use Due CareStandard of

careBreach of DutyInjury/Actual DamagesProximate
Cause/CausationForeseeability
I. Duty to CareObligation to conform to a recognized standard
of care.
Standard of CareDescribes the conduct expected of an
individual in a given situation.Describes how a “reasonably
prudent person” would or would not act under “similar
circumstances”.Measuring stick for properly assessing actual
conduct required of an individual.
Reasonably Prudent PersonA nonexistent - hypothetical person
who is put forward as community ideal of what would be
considered reasonable behavior.
Similar CircumstancesCircumstances at the time of the
injury.Circumstances of the alleged wrongdoer/s at the time of
injury.AgePhysical conditionEducation & trainingLicenses
heldMental capacity, etc.
Determining StandardEstablished by legislative enactment or

administrative regulation.Adopted by the court from a
legislative enactment or administrative regulation.Established
by judicial decision.Applied to the facts of the case by the trial
judge or jury, if there is no such enactment, regulation or
decision.courts often rely on testimony of an expert witness as
to the standard of care required.
Community v. National StandardCommunity Standardhometown
standard (we want to do things our way).National Standardmost
currently accepted standard of care on a national basis.
Case: Hiring PracticesNurse hired sight unseen over telephone.
Applicant falsely stated in an employee application that he was
licensed as an LPN. His license was not verified by the
employer. He had committed 56 criminal offenses of theft. He
assaulted a resident a resident & broke his leg.
DutyStandard expected:Employer had a “duty” to validate the
nurse’s professional license.
II. Breach of DutyDeviation from the recognized standard of
care.Failure to adhere to an obligation.Failure to conform to or
the departure from a required duty of care owed to a
person.Occurs when a physician fails to respond to his/her on-
call duties.an employer fails to adequately conduct a pre-

employment check (e.g., licensure, background check).
Breach of Duty
The employer failed to verify the applicant’s licensure.A more
thorough background check should have revealed this
employee’s previous criminal conduct.
III. InjuryActual damages must be established.If there are no
injuries, no damages are due.
Injury
The resident suffered a broken leg.Hospital vicariously liable
for nurse’s conduct.

IV. CausationProximate causebreach of duty was the proximate
cause of the injuryBut-for Rulethe defendant’s action, the injury
would not have occurred
CausationReasonable anticipation that harm or injury was likely
to occur.The patient suffered a broken legDeparting from
recognized standard of carefailure to verify licensure & conduct
an adequate background check
Hiring Practices – IIIInjury resulted from the breach of
duty.Injury was foreseeable.
Failure to Hydrate
CausationFailure to administer proper hydration.Not
unreasonable to conclude that one’s dehydration can be caused
by failing to provide water.
ForeseeabilityReasonable anticipation that harm or injury is
likely to result from an act or an omission to act.

Test for ForeseeabilityThe test for foreseeability is whether a
person of ordinary prudence and intelligence should have
anticipated danger to others caused by his or her negligent act.
ForeseeabilityA person of ordinary prudence and intelligence
should have anticipated the danger to the resident caused by the
employer’s negligent act.
Hot Radiator
ForeseeabilityA patient’s left foot came in contact with a
radiator and she suffered third-degree burns.The defendant had
knowledge of the plaintiff’s condition. The defendant should
have shielded the radiator or not placed the plaintiff next to it.
Sponge & Instrument CountDr. Smith owns the local Outpatient
Surgery Center. He instructs employees to count all instruments
& surgical sponges following a surgical procedure, prior to
closing the surgical site. Annie, an employee, failed to conduct
the count following Bills surgery. Two months later, Bill,
suffering from extreme abdominal pain, was noted to have
several sponges and an instrument in his abdomen. He had
developed a massive infection.Was the doctrine of Vicarious

liability applicable in this case?
YESEven though Annie had strict instructions to count the
sponges & surgical instruments prior to closing the surgical
site, she failed to do so. To determine otherwise would
undermine the doctrine of vicarious liability, since employers
would almost always escape liability by presenting evidence
that employees were given careful instructions.
Failure to Follow InstructionsSarah has a minor surgical
procedure under general anesthesia at ABC Surgery Center. She
was instructed not to drive home after release. Her daughter
Leslie picks her up. On the way home Leslie stops for a donuts.
Meanwhile, her mother moves to the driver seat. Upon leaving
the parking lot, Sarah hits Carol’s car. Carol sustains a broken
arm & sues ABC for releasing Sarah before she is completely
recovered from the anesthesia.Was the hospital liable for
Sarah’s injuries?
NO!Sarah was negligent, not the hospital. She failed to adhere
to both verbal & written instructions not to drive following
anesthesia. It was Sarah’s duty not to drive and her breach of
that duty that caused Carol’s injury.
RememberThe four elements of negligence must be presented in
order for the plaintiff to recover damages caused by negligence.

Intentional TortsAssault and BatteryFalse
ImprisonmentDefamation of CharacterFraudInvasion of
PrivacyIntentional Infliction of Mental Distress
AssaultDeliberate threat, coupled with apparent ability to do
physical harm to another. Actual contact not necessary.
Person attempting to touch another unlawfully must possess
apparent present ability to commit battery.
Person threatened must be aware of or have actual knowledge of
an immediate threat of a battery and must fear it.
BatteryIntentional touching of another’s person in socially
impermissible manner without person’s consent.Failure to
obtain consent prior to surgery.Administering blood against
patient’s express wishes.Physically restraining one who refuses
to eat.
False ImprisonmentUnlawful restraint of individual’s personal
liberty or unlawful restraining or confining an
individual.Restraining patient without cause.Locking patient in
secluded room for failing to attend therapy session.
Legal Justification for Restraint or SeclusionPerson represents a
danger to self or others.Criminal conduct.Persons with highly

contagious diseases, as provided by state or federal statutes.
Reducing Use of Restraints – I Development of policies and
procedures that conform to state & federal guidelinesEducation
& orientation of staffEducation for patients & familiesSound
appraisal of need for restraintsApplication of least restrictive
restraintsContinuous monitoring of patients to determine
continuing need for restraints
Defamation of CharacterThe offense of injuring a person’s
character, fame, or reputation by false & malicious
statements.False oral or written communications to someone
other than person defamed that tends to hold that person’s
reputation up to scorn or ridicule in eyes of others.
Defamation of CharacterLibel – written form of
defamationSignsLettersPhotographsCartoonsSlander – oral form
of defamation
Proof of DefamationA false & defamatory
statement.Communication of a statement to a person other than
the plaintiff.Fault on the part of the defendant.Special monetary
harm.

Products Liability Legal TheoriesNegligenceBreach of
warrantyExpressImpliedStrict liability
NegligenceDutyProduct manufactured by the
defendantBreachProduct defective when it left the
manufacturerInjuryPlaintiff/s injured by the
productCausationProduct proximate cause of injury
Defective X-ray Unit – I Mindy places Candice on the table of
the hospital’s newly manufacturer-installed x-ray unit. While in
the control room, Mindy hears a crash. She rushes to the patient
& finds that a section of the x-ray unit fell on Candice, further
injuring her already broken leg. Candice sues the manufacturer
for negligence. Can the manufacture be held liable for the
plaintiff’s injuries?
YES!Duty: manufacturer to properly install the x-ray
unit.Breach: failure to properly install the x-ray unit.Injury:
plaintiff suffered injury.Causation: improper installation was
the proximate cause of the plaintiff’s injury.
Express WarrantyIncludes specific promises or affirmations
made by seller to buyer.e.g., drug manufacturer represents the

product as free from addiction & is not
Crocker v. Winthrop Laboratories
*
Implied WarrantyA warranty that exists by operation of the law
as a matter of “public policy” for protection of the public.e.g.,
consumers have right to assume that food is not contaminated
Jacob E. Decker & Sons v. Capps
Strict LiabilityLiability without faultElements required to
establish strict liabilityProduct manufactured by
defendantProduct defective at time it left manufacturerPlaintiff
injured by productDefective product proximate cause of injuries
Wrong Medication – IStanley refills his drug prescription at D
Drugs, where he has been a customer for 10 years. Prior to
taking his nightly dosage, he noticed the pill appeared larger
than normal. He phoned D Drugs & explained his concern. The
Pharmacist assured Stanley generic drugs sometimes are larger
because of formula fillers but that the medication dosage in his
drug was correct.

Wrong Medication – IIStanley took the drug & never woke up;
the dosage given was 5 times that which had been prescribed.
The container from which the pharmacist filled Stanley’s
prescription had been mislabeled by the manufacturer.
Wrong Medication – III
Court’s DecisionProduct was manufactured by the
defendantProduct defective at time it left manufacturerThe drug
was placed in a mislabeled container.Plaintiff injured by the
productStanley passed away in his sleep.Defective product
proximate cause of injuriesThe mislabeled container was the
proximate cause of Stanley’s death.
Products Liability
Res Ipsa LoquiturMust establishProduct did not perform in way
intendedProduct not tampered with by buyer/3rd partiesDefect
existed at time it left defendant
Products Liability CasesTainted Tylenol CapsulesElsroth v.
Johnson & JohnsonManufacture of unsafe drugsMerck’s Vioxx
Products Liability Defenses – I Assumption of the
Riskvoluntary exposure to risks: Smoking, radiation therapy,

ChemotherapyIntervening Causean IV solution contaminated by
product userContributory Negligenceuse of product in a way it
was not intended to be used.
Products Liability Defenses – III Comparative Faultinjury due
to concurrent negligence of both manufacturer &
plaintiff.Disclaimers manufacturers inserts
Review Questions – I
Describe the objectives of tort law.
Discuss the distinctions among negligent torts, intentional torts,
and strict liability.
What forms of negligence are described in this chapter?
How does one distinguish between negligence and malpractice?
What elements must be proven in order to be successful in a
negligence suit? Illustrate your answer with a case (the facts of
the case can be hypothetical).
Review Questions – III
Can a "duty to care" be established by statute or contract?
Discuss your answer.
Describe the categories of intentional torts.
How does slander differ from libel? Give an example of each.
What is products liability? Describe what legal theories an
injured party may use in proceeding with a lawsuit against a
seller, manufacturer, or supplier of goods.
Describe the defenses often used in a products liability case.

© 2014 Jones and Bartlett PublishersChapter 4.docx

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