Torts Question

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Extension_Cord
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Torts Question

Postby Extension_Cord » Mon Nov 28, 2011 8:17 pm

A real estate agent was having an affair with his neighbor's wife. The neighbor learned of the affair and decided to confronst the real estate agent. The neighbor stormed over to the real estate agent's house carrying a loaded gun. The real estate agent refused to open the door, instead yelling at his neighbor through the closed door. Enraged at the real estate agent's refusal to open the door, the neighbor fired a warning shot through the top of the real estate agent's door. The neighbor did not intend to injure the real estate agent but simply to scare him. However, the door shattered and several long, wooden shards flew off and became lodged in the real estate agent's chest and shoulder. The real estate agent sued the neighbor for battery.

Who will prevail?
A) The neighbor, because he did not intend for the shards to strike the real estate agent.
B) The neighbor, because he did not inend to injure the real estate agent.
C) The real estate agent, because the neighbor failed to act as a reasonably prudent person.
D) The real estate agent, because the neighbor intended to shoot the gun.

What do you think the answer to this is? I missed this but I'm pretty sure I know why.

The facts the same as stated above, but changed in the scenario where the neighbor didn't intend to fire the gun at all, but just to show it to the real estate agent to spook him. Would it still be a battery? I think it is because the neighbor still intended to scare the real estate agent.

However if the neighbor went over to leave a note on the real estate agent's door and he saw a fly on the door and thought, hey im going to shoot this fly on this guys door and he does but the neighbor was home which results in the damage above (its my hypo i will do what i want with it). The neighbor would not be liable for battery because he didn't intend to cause harm, wanst substantially certain the harm would occur, and didn't act with the purpose to cause apprehension to his neighbor. Is that sound?

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ph14
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Re: Torts Question

Postby ph14 » Mon Nov 28, 2011 8:20 pm

Extension_Cord wrote:A real estate agent was having an affair with his neighbor's wife. The neighbor learned of the affair and decided to confronst the real estate agent. The neighbor stormed over to the real estate agent's house carrying a loaded gun. The real estate agent refused to open the door, instead yelling at his neighbor through the closed door. Enraged at the real estate agent's refusal to open the door, the neighbor fired a warning shot through the top of the real estate agent's door. The neighbor did not intend to injure the real estate agent but simply to scare him. However, the door shattered and several long, wooden shards flew off and became lodged in the real estate agent's chest and shoulder. The real estate agent sued the neighbor for battery.

Who will prevail?
A) The neighbor, because he did not intend for the shards to strike the real estate agent.
B) The neighbor, because he did not inend to injure the real estate agent.
C) The real estate agent, because the neighbor failed to act as a reasonably prudent person.
D) The real estate agent, because the neighbor intended to shoot the gun.

What do you think the answer to this is? I missed this but I'm pretty sure I know why.

The facts the same as stated above, but changed in the scenario where the neighbor didn't intend to fire the gun at all, but just to show it to the real estate agent to spook him. Would it still be a battery? I think it is because the neighbor still intended to scare the real estate agent.

However if the neighbor went over to leave a note on the real estate agent's door and he saw a fly on the door and thought, hey im going to shoot this fly on this guys door and he does but the neighbor was home which results in the damage above (its my hypo i will do what i want with it). The neighbor would not be liable for battery because he didn't intend to cause harm, wanst substantially certain the harm would occur, and didn't act with the purpose to cause apprehension to his neighbor. Is that sound?


Would it be (D)? Since he intended to assault the neighbor through the doctrine of transferred intent he meets the intent requirement, and the contact and harmful/offense requirements are met.

For the changed (2nd) scenario, I don't think it would be battery since he didn't intend to fire the gun. He intended to scare the neighbor through showing the gun but not to fire it. Somehow inadvertently it went off, seems like it would be negligence.

3rd scenario definitely seems like negligence.

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Re: Torts Question

Postby target » Mon Nov 28, 2011 8:28 pm

Extension_Cord wrote:A real estate agent was having an affair with his neighbor's wife. The neighbor learned of the affair and decided to confronst the real estate agent. The neighbor stormed over to the real estate agent's house carrying a loaded gun. The real estate agent refused to open the door, instead yelling at his neighbor through the closed door. Enraged at the real estate agent's refusal to open the door, the neighbor fired a warning shot through the top of the real estate agent's door. The neighbor did not intend to injure the real estate agent but simply to scare him. However, the door shattered and several long, wooden shards flew off and became lodged in the real estate agent's chest and shoulder. The real estate agent sued the neighbor for battery.

Who will prevail?
A) The neighbor, because he did not intend for the shards to strike the real estate agent.
B) The neighbor, because he did not inend to injure the real estate agent.
C) The real estate agent, because the neighbor failed to act as a reasonably prudent person.
D) The real estate agent, because the neighbor intended to shoot the gun.

What do you think the answer to this is? I missed this but I'm pretty sure I know why.

The facts the same as stated above, but changed in the scenario where the neighbor didn't intend to fire the gun at all, but just to show it to the real estate agent to spook him. Would it still be a battery? I think it is because the neighbor still intended to scare the real estate agent.

However if the neighbor went over to leave a note on the real estate agent's door and he saw a fly on the door and thought, hey im going to shoot this fly on this guys door and he does but the neighbor was home which results in the damage above (its my hypo i will do what i want with it). The neighbor would not be liable for battery because he didn't intend to cause harm, wanst substantially certain the harm would occur, and didn't act with the purpose to cause apprehension to his neighbor. Is that sound?


First Q: I think D is the answer.
Second Q: No battery, maybe assault
Third Q: If he shoots the gun at the door, I think he could be liable for battery as well. But like ph14 said, negligence may be a better answer.

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Re: Torts Question

Postby ph14 » Mon Nov 28, 2011 8:32 pm

target wrote:
Extension_Cord wrote:A real estate agent was having an affair with his neighbor's wife. The neighbor learned of the affair and decided to confronst the real estate agent. The neighbor stormed over to the real estate agent's house carrying a loaded gun. The real estate agent refused to open the door, instead yelling at his neighbor through the closed door. Enraged at the real estate agent's refusal to open the door, the neighbor fired a warning shot through the top of the real estate agent's door. The neighbor did not intend to injure the real estate agent but simply to scare him. However, the door shattered and several long, wooden shards flew off and became lodged in the real estate agent's chest and shoulder. The real estate agent sued the neighbor for battery.

Who will prevail?
A) The neighbor, because he did not intend for the shards to strike the real estate agent.
B) The neighbor, because he did not inend to injure the real estate agent.
C) The real estate agent, because the neighbor failed to act as a reasonably prudent person.
D) The real estate agent, because the neighbor intended to shoot the gun.

What do you think the answer to this is? I missed this but I'm pretty sure I know why.

The facts the same as stated above, but changed in the scenario where the neighbor didn't intend to fire the gun at all, but just to show it to the real estate agent to spook him. Would it still be a battery? I think it is because the neighbor still intended to scare the real estate agent.

However if the neighbor went over to leave a note on the real estate agent's door and he saw a fly on the door and thought, hey im going to shoot this fly on this guys door and he does but the neighbor was home which results in the damage above (its my hypo i will do what i want with it). The neighbor would not be liable for battery because he didn't intend to cause harm, wanst substantially certain the harm would occur, and didn't act with the purpose to cause apprehension to his neighbor. Is that sound?


First Q: I think D is the answer.
Second Q: No battery, maybe assault
Third Q: If he shoots the gun at the door, I think he would be liable for battery as well.


For the 3rd one, don't you have intend the contact, or be substantially certain it will occur, for it to be battery? Just shooting the gun I don't think is enough? The question of whether you need only intend the contact (single intent) or intend contact which is harmful or offensive (dual intent) is another issue but I don't think under either it will meet the intent requirement.

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Re: Torts Question

Postby kaiser » Mon Nov 28, 2011 8:37 pm

Remember that intent to commit assault (i.e. just meaning to scare) transfers over and fulfills the intent requirement of battery, should a battery end up occurring. So number 2 would be battery, since he intended to assault (scaring someone by waving a gun in their face would most certainly be assault), and intent to assault is sufficient to meet the intent for battery.

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Re: Torts Question

Postby Extension_Cord » Mon Nov 28, 2011 8:38 pm

ph14 wrote:
Extension_Cord wrote:A real estate agent was having an affair with his neighbor's wife. The neighbor learned of the affair and decided to confronst the real estate agent. The neighbor stormed over to the real estate agent's house carrying a loaded gun. The real estate agent refused to open the door, instead yelling at his neighbor through the closed door. Enraged at the real estate agent's refusal to open the door, the neighbor fired a warning shot through the top of the real estate agent's door. The neighbor did not intend to injure the real estate agent but simply to scare him. However, the door shattered and several long, wooden shards flew off and became lodged in the real estate agent's chest and shoulder. The real estate agent sued the neighbor for battery.

Who will prevail?
A) The neighbor, because he did not intend for the shards to strike the real estate agent.
B) The neighbor, because he did not inend to injure the real estate agent.
C) The real estate agent, because the neighbor failed to act as a reasonably prudent person.
D) The real estate agent, because the neighbor intended to shoot the gun.

What do you think the answer to this is? I missed this but I'm pretty sure I know why.

The facts the same as stated above, but changed in the scenario where the neighbor didn't intend to fire the gun at all, but just to show it to the real estate agent to spook him. Would it still be a battery? I think it is because the neighbor still intended to scare the real estate agent.

However if the neighbor went over to leave a note on the real estate agent's door and he saw a fly on the door and thought, hey im going to shoot this fly on this guys door and he does but the neighbor was home which results in the damage above (its my hypo i will do what i want with it). The neighbor would not be liable for battery because he didn't intend to cause harm, wanst substantially certain the harm would occur, and didn't act with the purpose to cause apprehension to his neighbor. Is that sound?


Would it be (D)? Since he intended to assault the neighbor through the doctrine of transferred intent he meets the intent requirement, and the contact and harmful/offense requirements are met.

For the changed (2nd) scenario, I don't think it would be battery since he didn't intend to fire the gun. He intended to scare the neighbor through showing the gun but not to fire it. Somehow inadvertently it went off, seems like it would be negligence.

3rd scenario definitely seems like negligence.


The answer is D. I think its because he fired the gun with intent to scare the REA. Because of his intent to apprehend the REA any direct or indirect harm or offensive contact is battery.

In the second scenario he intended to scare and as a result the harm came. Its similar to the first example, but different in the apprehension didnt cause the harm, the accident did. I agree I see it your way.

The third is interesting, could the REA recover under a trespass to chattels? Wouldn't the neighbor be liable for all resulting damages from his trespass, including his bodily harm?

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Re: Torts Question

Postby kaiser » Mon Nov 28, 2011 8:40 pm

And as for the 3rd one, it wouldn't be battery either. Thinking that there is a probability you will hit someone, or even thinking it is relatively likely is NOT the same as knowledge of a substantial certainty. Sure, there is room for debate as to how much of a sure thing he thought it was that, should he fire at the fly, he would hit someone. But based on this hypo, I don't think anyone can say he would have knowledge of a substantial certainty that someone happens to be behind a closed door at the exact moment he fires at the fly without even knocking or having any reason to think someone would be in that exact spot.

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Re: Torts Question

Postby Extension_Cord » Mon Nov 28, 2011 8:42 pm

kaiser wrote:Remember that intent to commit assault (i.e. just meaning to scare) transfers over and fulfills the intent requirement of battery, should a battery end up occurring. So number 2 would be battery, since he intended to assault (scaring someone by waving a gun in their face would most certainly be assault), and intent to assault is sufficient to meet the intent for battery.


Thats the reason why I missed the first question, I overlooked this.

Its also the reason why I may have missed the second one. The assault was to scare him with a gun, but he didnt intend to fire it. I think that difference may make it negligence.

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Re: Torts Question

Postby kaiser » Mon Nov 28, 2011 8:45 pm

Extension_Cord wrote:
kaiser wrote:Remember that intent to commit assault (i.e. just meaning to scare) transfers over and fulfills the intent requirement of battery, should a battery end up occurring. So number 2 would be battery, since he intended to assault (scaring someone by waving a gun in their face would most certainly be assault), and intent to assault is sufficient to meet the intent for battery.


Thats the reason why I missed the first question, I overlooked this.

Its also the reason why I may have missed the second one. The assault was to scare him with a gun, but he didnt intend to fire it. I think that difference may make it negligence.


No, you said he intended to scare. That means we are in the realm of intentional torts here. That is most certainly not a negligence issue if one intends to scare, and accidentally fires. That is a battery, plain and simple, so long as he intended to cause apprehension of imminent harmful or offensive bodily contact (which waving a gun in someone's face most certainly does, and is exactly what the neighbor planned to do). Again, intent to assault suffices if a battery actually results. Therefore, #2 is a battery.
Last edited by kaiser on Mon Nov 28, 2011 9:08 pm, edited 1 time in total.

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Re: Torts Question

Postby ph14 » Mon Nov 28, 2011 8:47 pm

kaiser wrote:Remember that intent to commit assault (i.e. just meaning to scare) transfers over and fulfills the intent requirement of battery, should a battery end up occurring. So number 2 would be battery, since he intended to assault (scaring someone by waving a gun in their face would most certainly be assault), and intent to assault is sufficient to meet the intent for battery.


I guess it depends on our conceptualization of how they're holding the gun. I had imagined something like the gun in his pants or something and inadvertently went off. That case is much harder I think. Would it still be assault? Would it still be battery? Not sure

If he had the gun aimed and finger on the trigger then it seems like a clearer case.

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Re: Torts Question

Postby Extension_Cord » Mon Nov 28, 2011 8:52 pm

So if I jump out behind a wall just to scare you and nothing elese and dust kicks up and the sand is blown into your eyes, I committed a battery even though that contact was not intended because I intended apprehension?

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Re: Torts Question

Postby kaiser » Mon Nov 28, 2011 8:58 pm

Extension_Cord wrote:So if I jump out behind a wall just to scare you and nothing elese and dust kicks up and the sand is blown into your eyes, I committed a battery even though that contact was not intended because I intended apprehension?


First, apprehension doesn't equal assault. Assault is putting someone in apprehension of imminent harmful or offensive bodily contact. But the principle is the same. The intent to commit assault suffices for battery should a battery result. Doesn't matter if that battery is a tiny one or a major one. The distinction between dust in the eyes or a bullet to the stomach is irrelevant. Thats just a matter of what degree of harm resulted. If by jumping out from behind the wall, he intended to cause apprehension of imminent harmful or offensive bodily contact, and battery resulted (with the scare being an actual and proximate cause of the battery) then all elements of battery are met.

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Re: Torts Question

Postby bk1 » Mon Nov 28, 2011 9:29 pm

Additionally:

(1): firing at the top of the door could also be seen as reckless enough to satisfy the intent element for battery.
(2): waving a gun around could also be seen as reckless enough to satisfy intent element for battery (though I'd say probably not).
(3): see (1) (but I think negligence fits better).
Last edited by bk1 on Mon Nov 28, 2011 9:32 pm, edited 1 time in total.

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Re: Torts Question

Postby ph14 » Mon Nov 28, 2011 9:31 pm

bk1 wrote:Additionally:

(1): firing at the top of the door could also be seen as reckless enough to satisfy the intent element for battery.
(2): waving a gun around could also be seen as reckless enough to satisfy intent element for battery (though I'd say probably not).
(3): see (1).


I thought my professor said that reckless was not enough intent for an intentional tort.

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Re: Torts Question

Postby kaiser » Mon Nov 28, 2011 9:33 pm

bk1 wrote:Additionally:

(1): firing at the top of the door could also be seen as reckless enough to satisfy the intent element for battery.
(2): waving a gun around could also be seen as reckless enough to satisfy intent element for battery (though I'd say probably not).
(3): see (1).


Recklessness isn't the standard we use though. I can't imagine the third one being battery. He meant to leave a note, and decided to off a bug with his gun. Reckless? Sure. But reckless isn't the same as having knowledge of a substantial certainty that harmful or offensive bodily contact will result. He didn't intend to assault or commit a battery. Nor would he have had knowledge of a substantial certainty that assault or battery would result (keep in mind that, in the 3rd example, he doesn't even know if the guy is even home). So I don't at all see how the third one could be either assault or battery.

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Re: Torts Question

Postby Extension_Cord » Mon Nov 28, 2011 10:31 pm

New question:

Doctor prescibes pills to patient that he should not have, patient overdoeses on the pills and committs suicide.

actual cause?
proximate cause?

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Re: Torts Question

Postby kaiser » Mon Nov 28, 2011 10:35 pm

Extension_Cord wrote:New question:

Doctor prescibes pills to patient that he should not have, patient overdoeses on the pills and committs suicide.

actual cause?
proximate cause?


Are we even talking about battery here? There is so much missing that we couldn't even begin to break this down, but at least clarify what tort we are even referring to, since this sounds like the setup for negligence (unless of course the doctor distributed pills with the intent of harming his patient, or with knowledge of a substantial certainty that harm would result).

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Re: Torts Question

Postby ph14 » Mon Nov 28, 2011 10:40 pm

Extension_Cord wrote:New question:

Doctor prescibes pills to patient that he should not have, patient overdoeses on the pills and committs suicide.

actual cause?
proximate cause?


Actual cause-- may or may not be met. If the patient would have overdosed had the correct pills been issued anyways, then but-for cause might not be met. But if the pills he accidently prescribed were more powerful and killed him whereas the correct ones wouldn't have, then but-for cause is met.

Proximate cause is trickier. Is it reasonably foreseeable that a patient would overdose on the pills? If they hadn't shown any suicidal tendencies, then it probably isn't reasonably foreseeable. The kind of harm that is foreseeable for mis-prescribing pills is that the patient would get adverse reactions while taking the required dosage.

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Re: Torts Question

Postby bk1 » Tue Nov 29, 2011 12:04 am

kaiser wrote:Recklessness isn't the standard we use though. I can't imagine the third one being battery. He meant to leave a note, and decided to off a bug with his gun. Reckless? Sure. But reckless isn't the same as having knowledge of a substantial certainty that harmful or offensive bodily contact will result. He didn't intend to assault or commit a battery. Nor would he have had knowledge of a substantial certainty that assault or battery would result (keep in mind that, in the 3rd example, he doesn't even know if the guy is even home). So I don't at all see how the third one could be either assault or battery.


My prof wasn't entirely clear on whether it could apply. He basically said recklessness straddles the line between intentional torts and gross negligence. He made it seem as if we could argue that if willful/wanton/reckless meant that the person was heedless of the consequences it might satisfy the element.

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Re: Torts Question

Postby gdane » Tue Nov 29, 2011 12:14 am

Your first hypothetical could be argued under an intentional tort and negligence theory.

Ordinarily, the neighbor had no duty of any kind toward his real estate agent neighbor, no special relationship presumably. However, when he took a loaded gun to his real estates neighbors home, he created a risk and a court may find that a duty was created.

Shooting the door construed a breach of that duty b/c a reasonable person would not do so. Furthermore, the neighbor was the least cost avoider since he could have just not shot the gun or even taken it with him. Under a hand analysis, the burden of prevention, not shooting the gun, is almost certainly much less than the PL.

Cause in fact and proximate cause are obvious.

The intentional tort issue is also obvious.

There might also be a trespass issue. More facts are needed to figure that out though.

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Re: Torts Question

Postby $peppercorn » Tue Nov 29, 2011 12:32 am

ph14 wrote:
Extension_Cord wrote:New question:

Doctor prescibes pills to patient that he should not have, patient overdoeses on the pills and committs suicide.

actual cause?
proximate cause?


Actual cause-- may or may not be met. If the patient would have overdosed had the correct pills been issued anyways, then but-for cause might not be met. But if the pills he accidently prescribed were more powerful and killed him whereas the correct ones wouldn't have, then but-for cause is met.

Proximate cause is trickier. Is it reasonably foreseeable that a patient would overdose on the pills? If they hadn't shown any suicidal tendencies, then it probably isn't reasonably foreseeable. The kind of harm that is foreseeable for mis-prescribing pills is that the patient would get adverse reactions while taking the required dosage.


I think the restatement says Suicide is generally unforeseeable and is a superseding cause unless the defendant's tortious conduct induces a uncontrollable impulse or a there is Special relationship that includes knowledge of the π's risk of suicide.

My professor barely touched on it so I may not be completely accurate.

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Re: Torts Question

Postby target » Tue Nov 29, 2011 1:07 am

$peppercorn wrote:
ph14 wrote:
Extension_Cord wrote:New question:

Doctor prescibes pills to patient that he should not have, patient overdoeses on the pills and committs suicide.

actual cause?
proximate cause?


Actual cause-- may or may not be met. If the patient would have overdosed had the correct pills been issued anyways, then but-for cause might not be met. But if the pills he accidently prescribed were more powerful and killed him whereas the correct ones wouldn't have, then but-for cause is met.

Proximate cause is trickier. Is it reasonably foreseeable that a patient would overdose on the pills? If they hadn't shown any suicidal tendencies, then it probably isn't reasonably foreseeable. The kind of harm that is foreseeable for mis-prescribing pills is that the patient would get adverse reactions while taking the required dosage.


I think the restatement says Suicide is generally unforeseeable and is a superseding cause unless the defendant's tortious conduct induces a uncontrollable impulse or a there is Special relationship that includes knowledge of the π's risk of suicide.

My professor barely touched on it so I may not be completely accurate.


Am I crazy to think both of you are correct? I do remember that suicide is an intervening cause. Although you can argue that the doctor knows the patient's medical record and still prescribe him enough drugs to overdose.

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Re: Torts Question

Postby $peppercorn » Tue Nov 29, 2011 1:23 am

target wrote:
$peppercorn wrote:
ph14 wrote:
Extension_Cord wrote:New question:

Doctor prescibes pills to patient that he should not have, patient overdoeses on the pills and committs suicide.

actual cause?
proximate cause?


Actual cause-- may or may not be met. If the patient would have overdosed had the correct pills been issued anyways, then but-for cause might not be met. But if the pills he accidently prescribed were more powerful and killed him whereas the correct ones wouldn't have, then but-for cause is met.

Proximate cause is trickier. Is it reasonably foreseeable that a patient would overdose on the pills? If they hadn't shown any suicidal tendencies, then it probably isn't reasonably foreseeable. The kind of harm that is foreseeable for mis-prescribing pills is that the patient would get adverse reactions while taking the required dosage.


I think the restatement says Suicide is generally unforeseeable and is a superseding cause unless the defendant's tortious conduct induces a uncontrollable impulse or a there is Special relationship that includes knowledge of the π's risk of suicide.

My professor barely touched on it so I may not be completely accurate.


Am I crazy to think both of you are correct? I do remember that suicide is an intervening cause. Although you can argue that the doctor knows the patient's medical record and still prescribe him enough drugs to overdose.


I guess if it comes up I will just argue both. I definitely think it could be reasonably foreseeable. I think courts just have a harder time making someone else liable if its an obvious suicide.

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Re: Torts Question

Postby kaiser » Tue Nov 29, 2011 1:37 am

To figure out if the doctor is the but-for cause, you need to know more about the pill. Would just one pill be fatal (you said that these are pills that the patient "should not have")? If one pill would be fatal, then it won't matter that the patient downed 20 at once, since the first one alone would have killed him anyway.

And in terms of proximate cause, it would be in no way reasonably foreseeable that the patient would take a handful of pills if the doctor specifically told him to just take 1, and the literature that accompanies the prescription verifies the doctor's orders to only take 1.

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Re: Torts Question

Postby $peppercorn » Tue Nov 29, 2011 1:44 am

kaiser wrote:To figure out if the doctor is the but-for cause, you need to know more about the pill. Would just one pill be fatal (you said that these are pills that the patient "should not have")? If one pill would be fatal, then it won't matter that the patient downed 20 at once, since the first one alone would have killed him anyway.

And in terms of proximate cause, it would be in no way reasonably foreseeable that the patient would take a handful of pills if the doctor specifically told him to just take 1, and the literature that accompanies the prescription verifies the doctor's orders to only take 1.


I think a Doctor could very well foresee a patient would not do what he told him to do. And if he should have known the patient wouldn't listen to him then there's a possibility of negligence.




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