Medical Malpractice Crisis
CHAPTER 10 Torts Affecting Business 305
parking, had specifically warned against such a bombing and recommended:
“Eliminate all public parking at the World Trade Center.” Citing potential
loss of revenue, the Port Authority had declined to follow the report’s
Willful and Wanton Negligence A special type of aggravated
negligence is willful and wanton negligence. Although this does not reveal
intent, it does show an extreme lack of due care. Negligent injuries inflicted
by drunk drivers show willful and wanton negligence. The significance of this
type of negligence is that the injured plaintiff can recover punitive damages
as well as actual damages. For example, following the Exxon Valdez oil spill
in Alaska, commercial fishers sued Exxon for damage to their livelihoods.
A jury awarded substantial actual and punitive damages when it found that
Exxon was willful and wanton in allowing the ship captain to be in charge of
the ship when they knew he was an alcoholic.
In 2005 a New Jersey state court awarded a 2-year-old boy $105 million
for an accident that left him permanently paralyzed from the neck down. A
drunken Giants football fan had caused the accident. Before driving, the fan
consumed at least 12 beers sold to him by a Giants Stadium concessionaire.
The award for willful and wanton negligence against the concessionaire is the
largest ever for the careless sale of alcohol. The award included $30 million in
compensatory and $75 million in punitive damages.
Because employers are also liable for the intentional torts of employees
in advancing the interests of their employers (see Chapter 14), employers face
punitive damage awards in those instances even when they are also liable for
simple negligence, or have not acted negligently at all. (See Sidebar 10.8 .)
* Willful and wanton
an injured plaintiff
to recover punitive
as well as actual
The caller identified himself as a police officer and
told the McDonald’s assistant manager that Louise
Ogburn had stolen the purse of a customer who had
recently left the restaurant and should be searched.
For more than an hour the assistant manager and
other McDonald employees detained, searched, and
even committed sexual battery against Ogburn at the
instruction of the caller. However, the caller was not a
police officer and the call was a hoax.
Ogburn sued McDonald’s and the jury awarded
her a million dollars in actual damages for pain and
suffering and $5 million in punitive damages against
the company. To understand why McDonald’s is liable,
you have to understand that numerous instances
of such hoaxes were known to the company involving
various fast-food restaurants, yet the jury found that
the company had not reasonably trained its employees
such calls might be hoaxes.
If McDonald’s negligence were extreme, that
is, willful and wanton, that would justify the $5 million
punitive damage award, but McDonald’s is also
liable for the intentional torts of its employees that
justify awarding punitive damages. In this case the
employees committed such intentional torts as false
imprisonment and battery in the course of Ogburn’s
detention. Such detention advanced the interests of
McDonald’s in dealing with dishonest employees and
made the intentional acts accompanying Ogburn’s
treatment the company’s responsibility when they
turned out to be wrongful.
>> sidebar 10.8
Strip Search Hoax Costs McDonald’s $6.1 Million
306 PART 3 Legal Foundations for Business
12. CAUSATION IN FACT
Before a person is liable to another for negligent injury, the person’s failure
to use reasonable care must actually have “caused” the injury. This observation
is not so obvious as it first appears. A motorist stops by the roadside
to change a tire. Another motorist drives past carelessly and sideswipes the
first as he changes the tire. What caused the accident? Was it the inattention
of the second motorist or the fact that the first motorist had a flat tire? Did
the argument the second motorist had with her boss before getting in the car
cause the accident, or was it the decision of the first motorist to visit one more
client that afternoon? In a real sense, all these things caused the accident.
Chains of causation stretch out infinitely.
Still, in a negligence suit the plaintiff must prove that the defendant actually
caused the injury. The courts term this cause in fact. In light of the many
possible ways to attribute accident causation, how do courts determine if a
plaintiff’s lack of care, in fact, caused a certain injury? They do so very practically.
Courts leave questions of cause in fact almost entirely to juries as long
as the evidence reveals that a defendant’s alleged carelessness could have been
a substantial, material factor in bringing about an injury. Juries then make
judgments about whether a defendant’s behavior in fact caused the harm.
A particular problem of causation arises where the carelessness of two or
more tortfeasors contributes to cause the plaintiff’s injury, as when two persons
are wrestling over control of the car which strikes the plaintiff. Tort law
handles such cases by making each tortfeasor jointly and severally liable for
the entire judgment. The plaintiff can recover only the amount of the judgment,
but she or he may recover it wholly from either of the tortfeasors or get
a portion of the judgment from each.
Approximately 40 states have limited joint and several liability in certain
cases, for example, medical injury cases. In these states and types of cases,
multiple defendants are each liable usually only for that portion of the damages
juries believe they actually caused.