CHAPTER 4

TORT LAW - SPECIAL DOCTRINES

T.P.I. - Civil

Number

A. Res Ipsa Loquitur

Res Ipsa Loquitur	4.01

B. Intoxication

Intoxication - Definition	4.10

Intoxication as Negligence	4.11

C. Assumption of the Risk

Express Assumption of the Risk	4.15

D. Dangerous Activity

Care Required When One Must Work in a Dangerous Activity	4.20

High Duty of Care in Dangerous Activity	4.21

Duty When Engaged in Electrical Activity	4.22

Ultra-Hazardous Activities - Strict Liability	4.23

E. Volunteers

Volunteers	4.30

Duty to Render Aid	4.31

F. Emotional Distress

Intentional Infliction of Emotional Distress	4.35

Negligent Infliction of Emotional Distress - (Stand Alone Claim)	4.36

Negligent Infliction of Emotional Distress - (Bystander Claim)	4.37

G. Rescue Doctrine

Emergency Situation - Rescue of a Person	4.50

Emergency Situation - Rescue of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .	4.51

T.P.I. - CIVIL 4.01

RES IPSA LOQUITUR

In this case, plaintiff contends you should infer from the occurrence that defendant was negligent and the defendant's negligence caused the occurrence. In order to draw this inference, you must find:

1.	That the device [activity] does not ordinarily cause such an occurrence unless it has been carelessly [constructed] [inspected] [used]; and

2.	That defendant was in exclusive control or management of the device [activity] at the time of the occurrence.

If you find these elements exist you may infer defendant was negligent unless you decide there is sufficient evidence to overcome that inference. The defendant may overcome the inference of negligence by showing that defendant did use due care or that the occurrence was brought about by a cause other than the defendant's negligence.

T.P.I. CIVIL 4.10

DEFINITION

A person is intoxicated when that person's physical and mental abilities are impaired as a result of [drinking an alcoholic beverage] [or] [the use of any drug]. The impairment must be to the extent that the person is unable to act with ordinary or reasonable care, as would a sober person under the same or similar circumstances.

T.P.I. - CIVIL 4.11

INTOXICATION AS NEGLIGENCE

An intoxicated person is held to the same standard of reasonable care as a sober person. Intoxication is not an excuse for the failure to act as a reasonably careful person.

In determining whether or not a person was negligent, you should consider whether or not that person was intoxicated at the time of the occurrence together with all other evidence.

[A person who has become voluntarily intoxicated is required to use the same care as that of a sober person.]

T.P.I. - CIVIL 4.15

EXPRESS ASSUMPTION OF THE RISK

Express assumption of the risk occurs when a person knowingly, willingly and expressly consents to be exposed to a dangerous condition or activity. A person who expressly assumes a risk cannot recover for a resulting injury.

The defendant must prove by a preponderance of the evidence that, prior to the time of the injury, the plaintiff agreed to accept the particular risk of harm that caused the injury. The agreement to accept the risk may be by release, waiver, or other words excusing responsibility.

If you find that the plaintiff has agreed to assume the risk of harm arising from the defendant's negligent conduct, you will return a verdict for the defendant.

T.P.I. - CIVIL 4.20

CARE REQUIRED WHEN ONE MUST WORK IN A

DANGEROUS ACTIVITY

In determining the degree of care required of a person who must work in a dangerous occupation or activity, you should consider the following:

1. Whether the occupation or activity involves unusual risks of injury;

2. Whether the occupation or activity requires the person to take risks that a reasonable person would avoid; and

3. Whether and to what extent the requirements of the occupation or
activity limit the care that a person can take for safety.

T.P.I. CIVIL 4.21

HIGH DUTY OF CARE IN DANGEROUS ACTIVITY

Because of the great danger involved in (Describe activity) a reasonably careful person will use extreme caution in that activity.

T.P.I. - CIVIL 4.22

DUTY WHEN ENGAGED

IN ELECTRICAL ACTIVITY

The handling of electricity is a dangerous activity. Anyone who works with or is in the business of transmitting electricity is required to use the highest degree of care.

When suppliers of electricity have used the high degree of care required of them, the acts of a person who needlessly and heedlessly comes in contact with electricity may be found to be the legal cause of any resulting injury.

T.P.I. – CIVIL 4.23

ULTRA-HAZARDOUS ACTIVITIES -

STRICT LIABILITY

is an ultra-hazardous activity. One engaged in an ultra-hazardous activity is responsible for injuries or damages legally caused by that activity although the defendant has used the utmost care to prevent the harm. The care or lack of care used by the defendant in carrying out the activity should not be considered in determining fault.

T.P.I. - CIVIL 4.30

VOLUNTEERS

There is no automatic duty to help a person in danger. If someone having no special duty voluntarily undertakes to aid another person, there is no responsibility for resulting damages unless the aid is rendered in such a manner that it would be considered gross negligence. Negligence is a failure to use ordinary care. Gross negligence includes not only the failure to exercise ordinary care but also a conscious disregard for the rights and safety of others or a callous indifference to the consequences of one's actions or failure to act.

T.P.I. - CIVIL 4.31

DUTY TO RENDER AID

Ordinarily, a person does not have a duty to aid another unless some special relationship between the parties creates a duty to render aid. The duty to render aid created by a special relationship is a duty to use reasonable care under the circumstances.

[A common carrier is required to take reasonable affirmative steps to aid a passenger in peril.] [An innkeeper is required to take affirmative steps to aid guests in peril.] [The relationship between persons on property open to the public and the possessor of that property justifies creation of a duty to render aid.] [A social guest-host relationship creates a duty to render aid.] [In the case of sick persons who are social guests, the person under the duty is not required to give aid to one whom that person has no reason to believe to be ill.]

T.P.I. - CIVIL 4.35

INTENTIONAL INFLICTION

OF EMOTIONAL DISTRESS

Absent a physical injury, the law does not permit the recovery of damages for emotional distress unless the emotional distress is severe. A plaintiff is entitled to recover damages for severe emotional distress:

1.	Actually and proximately caused by the extreme and outrageous conduct of another; and

2.	Done either with the specific intent to cause emotional distress or with a reckless disregard of the probability of causing that distress.

T.P.I. - CIVIL 4.36

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS –

(STAND ALONE CLAIM)

To recover for negligent infliction of emotional distress, the plaintiff must prove all of the following:

1.	The defendant was negligent;

2.	The negligence, if any, caused an emotional injury to the plaintiff; and

3.	The emotional injury to the plaintiff was serious or severe.

A serious or severe emotional injury is one which causes a reasonable person, normally constituted, to be unable to adequately cope with the mental stress arising from the circumstances of the event. The emotional injury must be established by expert medical or scientific proof.

T.P.I. - CIVIL 4.37

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS –

(BYSTANDER CLAIM)

To recover for negligent infliction of emotional distress, the plaintiff must prove all of the following:

1.	The defendant was negligent and caused physical injury to

[ ______________________ ];

2.	The plaintiff saw or heard the event causing the injury;

3.	The plaintiff reasonably believed the physical injury to

[ ______________________ ] was serious;

4.	The negligence of the defendant caused an emotional injury to the plaintiff; and

5.	The emotional injury to the plaintiff was serious or severe.

A serious or severe emotional injury is one which causes a reasonable person, normally constituted, to be unable to adequately cope with the mental stress arising from the circumstances of the event. The emotional injury must be established by expert medical or scientific proof.

T.P.I. - CIVIL 4.50

EMERGENCY SITUATION - RESCUE OF A PERSON

A person who is injured while attempting to rescue another from peril in an emergency situation is not negligent merely because the rescue may be dangerous. The law encourages efforts to save human life and approves of the natural impulse to respond to an urgent call for aid without complete regard for one's own safety. An effort to preserve human life will not be considered negligent unless it is rashly or wantonly made. Conduct is rash or wanton when it is undertaken in total disregard of the consequences.

If a person acted in an emergency situation to rescue another from peril and if the person's conduct was not rash or wanton, the conduct is not negligent. If there was no peril or if the person's conduct was rash or wanton, then you may find that person negligent.

T.P.I. - CIVIL 4.51

EMERGENCY SITUATION - RESCUE OF PROPERTY

A person who is injured while attempting to protect or preserve property is not negligent merely because the rescue may be dangerous. Every person has a right to protect one's own property from loss or damage provided reasonable care for personal safety is used. Reasonable care means that degree of care that a reasonably careful person would use under similar emergency circumstances.

If you find that a person who had an ownership or possessory interest in property was attempting to rescue that property from danger and, under the circumstances, was acting with reasonable care for personal safety, then that person will not be considered negligent. If you find there was no danger to the person's property or that the person did not act with reasonable care for personal safety in attempting to rescue the property, then you may find that person was negligent.