1. Megan James
6 October 2013
Case Problem 1
I. The General Areas of the Law
Plaintiff
Defendant Theory Defense
Alice JBanks  Dr. RobertBoyce  ResIpsa Loquitur
 Medical
Malpractice
 Comparative
Fault
Alice JBanks  ElksLodge  JointLiability
 Proximate Cause
 Comparative
Fault
 Superseding
Cause
ElksLodge  Dr. RobertBoyce  Superseding
Cause
 Comparative
Fault
ElksLodge  Cumberland
Manor
 Comparative
Fault  Superseding
Cause
 Comparative
Fault
Dr. Robert
Boyce
 ElksLodge  Superseding
Cause
 Comparative
Fault
 Resipsaloquitur
Dr. Robert
Boyce  Cumberland
Manor
 Comparative
Fault
 Superseding
Cause
 Comparative
Fault

2. II. Explain Legal Theories/Defense
Proximate cause plays a major role in this case. Proximate cause is defined as a natural
and probable consequence of the wrong, that is, such as consequence as, under the surrounding
circumstances ought to have been foreseen as likely to flow from the wrong (Proximate Cause,
4). Proximate cause has a foreseeability test, meaning when Alice Banks sat in the chair at the
Elks Lodge, the Elks Lodge should have inspected all chairs to make sure none were defective.
Superseding cause also comes from proximate cause, the difference is superseding cause was not
originally foreseeable by the wrongdoer (Proximate Cause-Intervening and Concurrent Cause,
5). Meaning, the Elks Lodge could use the defense of superseding cause because the chair
breaking was not foreseeable in their eyes; therefore they feel they are not at fault for the broken
chair causing Alice Bank’s injuries. Joint liability also plays a major role in this case due to all
the people who were liable for Alice Bank’s injuries. Joint liability is defined as where two or
more people owe another a common duty, and by a common neglect of that duty the other person
is injured (Persons liable-joint and several liability, 8). Because the Elks Lodge was responsible
for the defective chair and Dr. Robert Boyce was responsible for the inaccurate surgery, both
parties are responsible for her injuries. Superseding cause also applies to joint liability because
had the chair not collapsed on Alice Banks, the surgery would not have been needed. When
several are at fault for liability, each person is only responsible for his or her own tort (Persons
liable-joint and several liability, 8). The Medical Malpractice Act is what Alice Banks will sue
Dr. Robert Boyce for. The Medical Malpractice Act states that one must file a claim in Indiana
with the medical review panel before taking the case to a trial court. This step can be skipped
however, if the claimant and all defendants agree to skip this step. If so, signatures in writing are
needed from all involved (Filings subject to medical review procedure, 18). To file a claim under

3. the Medical Malpractice Act in Indiana, there is a statute of limitations; the claim must be filed
within two years after the alleged act, omission, or neglect (Statue of limitations, 22). According
to Medical Malpractice in Indiana, Alice Banks cannot sue Dr. Robert Boyce for comparative
fault because The Comparative Fault Act does not apply to medical malpractice actions against
qualified health care providers (Medical Malpractice, 63). A medical malpractice plaintiff must
prove: (1) a duty owed to the plaintiff by the defendant; (2) a breach of the duty by allowing the
conduct to fall below the applicable standard of care; (3) a compensable injury that was
proximately caused by the defendant’s breach of duty (Physicians and surgeons, 12). This statue
applies to Alice Banks injuries because she can prove Dr. Robert Boyce breached his duty of
care to her when he performed surgery on the wrong vertebrae. Her injuries were a direct result
of Dr. Boyce’s negligence. Physicians are not held to a duty of perfect care, instead, a physician
must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful,
and prudent practitioners in the same class to which he or she belongs, acting under the same or
similar circumstances (Physicians and surgeons, 12). This states that the theory of medical
malpractice can be used against Dr. Boyce because his degree of care and skill showed up
careless as he continued to operate on the wrong vertebrae in Alice Banks’s back. Res ipsa
loquitur applies in this case because the definition of res ipsa loquitur states “the facts speak for
themselves.” And in this case, they do. The doctor performed surgery on the wrong vertebrae in
Alice Banks back, requiring a second operation. Those are cut and dry facts. Res ipsa loquitur
also says a hospital owes a duty of reasonable care to its patients. To establish a break of this
duty, a plaintiff must proffer expert testimony that the care provided by the hospital failed to
accord with the average degree of skill possessed and exercised by hospitals operating in similar
localities (Negligence, 15). Any expert Alice Banks asked would agree that either the doctor or

4. one of the many nurses involved in the case should have noticed the error made in the vertebrae
before the operation. Comparative fault plays a major role within this case because the Elks
Lodge and Dr. Boyce are both responsible for Alice Banks injuries. In 1983, Indiana became the
40th state to adopt the Comparative Fault Act. The act provides a scheme for allocating liability
among those whose fault has contributed to an injury (Negligence, 57). Therefore, the Elks
Lodge is responsible for the chair collapsing and Dr. Robert Boyce is responsible for the wrong
operation meaning both are at fault and both are liable for Alice Banks injuries. Cumberland
Manor can also be sued for comparative fault because Alice Banks contracted a staph infection
while under the care of the manor. Dr. Robert Boyce could also sue the manor for comparative
fault because he feels he is not the only one liable for the damages of the surgery.
III. Identify the Issues
The main issues revolving around this case are that is the most at fault, how much
compensation can be recovered, and what appropriate defenses can be used to help the
defendants save money. Determining who is the most at fault is a main issue in this case.
Proximate causes states the Elks Lodge is responsible for the broken chair, but Dr. Robert Boyce
is also responsible because he performed the wrong surgery. Therefore, Dr. Robert Boyce claims
an issue with his liability because had it not been for the chair the Elks Lodge provided, he
would have never had to perform surgery on Banks.
A second issue within this case comes from Medical Malpractice. For the Medical
Malpractice theory to work, a claim for Medical Malpractice must be filed within two years of
the incident (Hospitals, 18). Meaning, if Banks waited even a day over two years Dr. Robert

5. Boyce’s liability in the case would be dropped. Also for Medical Malpractice to work Banks
must file a complaint to a medical review panel. If Banks chooses not to use the medical review
panel, she cannot sue Dr. Robert Boyce for over $15,000 (Hospitals, 18).
Another issue involving the Comparative Fault Act states, a defendant is only liable for
the degree he or she is responsible for the claimant’s injuries or damages (Negligence, 57). This
is an issue because it creates more complication in dividing up who is at fault for what. This
states that the Elks Lodge will be responsible for the damage done by the broken chair, Dr.
Robert Boyce will be responsible for the incorrect surgery, and the manor is partly responsible
for not treating or cleaning the staph infection well enough.
The issue involving superseding cause comes from who is responsible for the damages,
but who is responsible for the damages that occur during a specific time. The court recognizes
that it would be unjust to hold the defendant liable for damages following the superseding event
(“Defenses of Negligence). This means that the defendant is reliable for events that took place
before the superseding cause, but not responsible for all the events that took place after. For
example, Dr. Boyce would be responsible for the incorrect surgery, but not responsible for the
staph infection. The Elks Lodge is responsible for the injuries Alice Banks incurred from the
broken chair, but the Elks Lodge is not responsible for any of the surgeries or infections that took
place afterwards.
A final issue involved in this case comes from res ipsa loquitur. Res ipsa loquitur means
“the facts speak for themselves.” The issues surrounding this means the plaintiff must prove the
injuries came from someone else’s negligence and do not normally occur. This could be seen in

6. the example of the Elks Lodge providing a broken chair in which Alice Banks sat on and
inquired injuries.
After reviewing all the information gathered, one can conclude that the Elks Lodge is
definitely not the only ones responsible. Dr. Robert Boyce also shares great responsibility for
Alice Banks injuries as he required not one but two surgeries. This case turns out to have
superseding cause as the leading factor as opposed to proximate cause. Had the incidents been
foreseeable, proximate cause would be the only argument and would leave only the Elks Lodge
responsible for Alice Banks injuries. However, superseding cause is the argument needed to be
used because more than one party is at fault, and the second party is at fault because of the first
party. All defendants showed negligence in their actions leading to multiple injuries to Alice
Banks.
IV. Argue Both Sides
The most important argument to be made in this case is superseding cause as mentioned
earlier. Negligence played a part in every aspect of this case from all the defendants. Superseding
cause has also played a major role in numerous court cases. For example, in the case Paragon
Family Restaurant v. Bartolini, superseding cause was also a main issue. In this case a bar fight
occurred one night in the bar’s parking lot. The plaintiff was severely injured, and was beaten by
another person at the bar who turned out to be underage. The plaintiff sued for the injuries he
faced, but he did not only sue the person who beat him, but also the bar. The superseding cause
was that had the bar not served alcohol to an underage person, the fight in the parking lot would
not have occurred. The ruling was in the favor of the plaintiff. This case relates to Alice Banks’s
case because in Banks case all defendants were negligent and superseding cause caused all

7. multiple defendants to be at fault. In Alice Banks’s case, the same rules apply. Banks sat in a
broken chair provided by the Elks Lodge in which caused her injuries. But then when Banks
received the wrong surgery on the wrong vertebrae in her back, Dr. Robert Boyce was also liable
for the injuries she sustained after that requiring a new surgery. And then when Banks contracted
a staph infection, Cumberland Manor is also at fault for lack of proper care. Each defendant is
guilty of negligence, but each defendant played a part because of the negligence of the other
defendants.
In the case Sharp v. Labrec Inc., res ipsa loquitur played a major role in the deciding
factor of the case. “Res ipsa loquitur recognizes that the defendant’s negligence may be inferred
where physical cause of injury and attendant circumstances are such that, in light of ordinary
experience, the plaintiff’s injury would probably not have happened if those who had
management or control of causative instrument of injury had exercised proper care” (58 Ind D
2d-384). This states that had the people in charge of the crane that hit Sharp had exercised more
care, the accident would not have happened. The same would go for Alice Banks case. Had the
Elks Lodge management, or someone working for the Elks Lodge showed more care, they would
have realized the chair was faulty and in bad condition, removing it from the Lodge, and
preventing Alice Banks’s injuries. The Elks Lodge was in fact careless when they left a broken
or damaged chair out for guests to sit in, and because of that statement, the facts speak for
themselves on what happens when one sits in a broken chair.
Banks v. Elks Lodge could however take an interesting route, because the Elks Lodge
could use a defense stated in American Jurisprudence, “The mere fact a customer in a store falls
from a chair, or that a seat or chair collapses, does not of itself establish negligence where there
is no showing that it was defective, or where the properties of the chair or stool are readily

8. apparent and observable and where an invitee admittedly can perceive no danger from the use of
the stool.” (62a Am. Jur. 2d Seats §557). This defense could be used to help persuade a jury or
judge that had the chair not been obviously broken or damaged visibly, then the Elks Lodge had
no way of knowing the chair had a chance of collapsing. This defense also mentions the invitee
seeing the chair and not noticing anything unordinary or sketchy about the chair, which Banks
had no mention of believing the chair was broken, and sat in it anyways. This helps to show that
because the chair is not visibly broken and Alice Banks did not visibly see signs of the chair
being broken, this should not constitute as negligence on the Elks Lodge’s part.
V. Make your decision
The first case of Alice Banks v. Elks Lodge, I would favor Alice Banks because of the
Elks Lodge’s negligence and proximate cause. Had the plaintiff’s injuries not have happened in
the Elks Lodge, neither would any of the other injuries Alice Banks incurred. The Elks Lodge
was liable for the initial incident which then later created more incidents. Even if the Elks Lodge
uses the defense of not being able to visibly see the broken chair, I still feel they are responsible
for the injuries that took place. The Elks Lodge in my eyes becomes increasingly responsible
because all other incidents never would have happened had the faulty chair been removed from
the lodge or had the chair been unavailable to be seated in.
In the second case of Alice Banks v. Dr. Robert Boyce, I would also favor the plaintiff,
Alice Banks. This woman was just trying to fix the injuries she got at the Elks Lodge and
because of the extreme negligence of Dr. Robert Boyce and the nurses involved she would have
never had to endure a second surgery. Dr. Robert Boyce is liable for the second surgery due to
Medical Malpractice. The doctor or at least one of the surgical nurses should have been able to

9. catch the error before he operated on the wrong vertebrae. For a room full of certified, practicing
nurses and one certified physician, the error should have easily been detected and corrected
before advancing in the surgery.
As for the case of Dr. Robert Boyce v. Elks Lodge, maybe Dr. Robert Boyce’s
compensation to Alice Banks could have been reduced because of the superseding cause between
the doctor and the lodge, but both defendants of Alice Banks are equally guilty of negligence.
Dr. Robert Boyce would not have had to perform surgery had it not been for the negligence on
the Elks Lodge’s part, but Dr. Robert Boyce is still negligent in the sense he incorrectly
performed surgery on the wrong vertebrae in Alice Banks’s back.
Alice Banks v. Cumberland Manor should also favor the plaintiff, Alice Banks. I feel this
way because a staph infection is very serious, and possibly could have been prevented by proper
care. There is a possibility her wounds were not cleaned or treated correctly at Cumberland
Manor, and now Alice Banks suffers yet again, another injury. Even if not at full fault,
Cumberland Manor still owes Alice Banks compensation for their negligence in properly treating
her while she used their facility as a rehabilitation center.
Comparative fault ties together the Elks Lodge, Dr. Robert Boyce, and Cumberland
Manor. Each played a partial role in the plaintiff, Alice Banks’s injuries. Each defendant is
responsible for paying what they owe to Alice Banks.
VI. Consequences
Negligence is the overall ethical issue in each case. For the Elks Lodge, their name will
probably remain good in the eyes of the public. This case could be seen as a simple, careless
accident. The Elks Lodge will probably not lose much business over the issue, again, because

10. people will probably be more understanding of a simple chair break. As unfortunate as it is,
Alice Banks will sue and win compensation for her injuries that occurred at the Elks Lodge, but
they probably will not endure any loss of business or negative publicity. However, I bet the Elks
Lodge is much more careful in the furniture for guests in the future.
In Dr. Robert Boyce’s case however, he will probably face much loss of business.
Personally, if hearing he performed surgery on the incorrect vertebrae in Alice Banks’s back, I
would be far less trusting in him than in another licensed physician. Not only will he lose much
money to Alice Banks for her injuries, once the news spreads of what happened people will
begin questioning his practice and his name will probably be discussed of negatively. Dr. Robert
Boyce will probably lose the most money out of this case due to medical malpractice.
Cumberland Manor will also lose money, but they will probably lose more business than
money. Cumberland Manor will also be spoken about negatively, just as Dr. Robert Boyce. As a
patient in a hospital or rehabilitation center, a patient puts a great amount of trust into the trained
and licensed professionals taking care of them, and once that trust is broken which in Banks’s
case it was, word will spread of this and Cumberland Manor will also have trouble finding
patients who will want to have them responsible when such a large negligence case was filed.
While looking at all the defendants in this case, it is clear who most at fault for Banks’s
injuries. Because the incident took place at the Elks Lodge, they are most responsible for what
happened. Though Dr. Robert Boyce will probably pay the most money wise, they are less liable
for what happened ultimately, but still more liable than Cumberland Manor. In my opinion,
Cumberland Manor is least at fault, but still owes Alice Banks for the injuries she got while

11. staying there. Overall, had the defective chair not been available for Alice Banks to sit in, she
would never have had to get surgery from Dr. Robert Boyce or recover at Cumberland Manor.