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

recommendation.

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

negligence allows

an injured plaintiff

to recover punitive

as well as actual

damages.

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.