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QUESTIONS: "What legal claim and defenses should be asserted in the suit by Tommy against Michael? Against Doctor? Discuss."

ANSWERS: Sure, gladly. Here you go.

¶ ONE: INTRODUCTION. This fact pattern raises a number of interesting tort law issues. Such issues arise in this scenario both in the context of traditional common law and the more modern statutory enactments pertaining to medical malpractice.

¶ TWO: LEGAL CLAIMS AND DEFENSES ASSERTED BY TOMMY AGAINST MICHAEL. The heart of Tommy's claim is that: (1) there existed a legal duty of Michael toward Tommy as an invitee; (2) to exercise ordinary, reasonable, prudent care; (3) which was breached by virtue of Michael failing to adequately safeguard his premises; and (4) such conduct proximately caused the injuries for which Tommy is entitled to compensation at law (monetary damages). Tommy claims (through his appointed guardian as next friend along with his legal counsel) that the amusement park constituted an attractive nuisance to a child of his tender age. Tommy further claims that Michael is liable and legally responsible, without regard to the fact that the attendants were physically doing the work, on account of the doctrine of Respondeat Superior. Michael asserts the defense of either contributory or comparative negligence (depending upon jurisdiction) and assumption of the risk on the part of Tommy. Furthermore, Michael claims that the child sneaking away and getting into the grounds was not reasonably foreseeable. Additionally, Michael points to the fact that he made it crystal clear the park was close and thus Tommy lost his capacity as invitee and was now a bare trespasser toward whom Michael did not owe a duty of care.

¶ THREE: LEGAL CLAIMS AND DEFENSES AGAINST THE DOCTOR. Tommy will claim that the physician breached the prevailing standard of care. His medical malpractice cause of action will be supported by an affidavit from an expert medical witness emergency physician who reviewed all the relevant medical records and is also willing to testify at trial. Tommy will assert that he is entitled to a substantial lump sum award in addition to life time medical care through a trust fund which will be established based upon expert actuarial testimony using complex calculations incorporating numerous factors such as lost future earning capacity, project age expectation, cost of present and future medical care, pain and suffering, and so forth. Tommy will be claiming that the physician is independently responsible for his negligence without regard to Michael's liability. In other words, Tommy will be trying to collect from both alleged tortfeasors. In terms of defenses, the physician will claim that Michael is the sole liable party as any medical malpractice, if such existed, was reasonably foreseeable due to the negligence of the true and only tortfeasor (Michael) having caused the injury. This is a bit of a "but for" type of defense argument, meaning had Michael's negligence not caused the laceration in the first place, Tommy never would have presented to the hospital. The physician will also claim that he was treating Tommy as a patient in the midst of a true emergency and will present expert medical testimony that he fully met the prevailing standard of care.

¶ FOUR: CONCLUSION. This confluence of tort law issues has present an intellectually stimulating challenge to address. Ultimately, with each defendant pointing the finger at the other, along with the application of the doctrine of joint and several liability, this will be a complex case for Judge and Jury to dispose of in the end.

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