4LawSchool.com Outlines Bank
Author:
Professor: Professor Bell
TORT LAW
(3) Types of Torts-
1.
Negligence
a.
duty
b.
breach
c.
causation
d.
injury
2.
Strict Liability
3.
Intentional Harm
I.
NEGLIGENCE: failure to exercise due care under the
circumstances
(D did not intend to bring about certain result, but
has merely behaved carelessly)
A.
Development of
Fault Liability
To establish prima facie case of negligence:
· An act or omission by a D
· Duty: to exercise due, reasonable care to conform to a standard of conduct so as to avoid unreasonable risks to others. The D must have a duty to P not to create an unreasonable risk.
· Breach of the duty by D
· Causation: relationship between D’s conduct and P’s harm (actual and proximate)
· Injury: an actual damage must be shown; one may recover for nominal damages
Hammontree v. Jenner:
D had past history of epileptic seizures. After 14 years without a seizure, one
occurred causing him to have a car accident in which P was injured. D had a valid driver’s license and the
authorities knew of his condition. P
sued on strict liability.
Held: - Strict liability is not an appropriate theory for recovery when sudden illness renders an automobile driver unconscious.
-The theory of negligence is adequate for auto accidents since drivers share the roads and should allocate damages based on fault. Since D used reasonable care to control his seizures, no negligence is proven.
B. The Central Concept
1. Standard of Care: the degree of care which a reasonably prudent person should
exercise to guard against probable danger.
Degree of duty depends on
· lawful act
· harm must be reasonably foreseeable
· BPL formula
· Risk of harm must be reasonable
· Custom
D’s dog and P’s dog were fighting. D repeatedly struck the dogs with a stick to separate them, but accidentally hit P in the eye.
Issue: Is there liability for injuries that are inadvertent and unintentional?
Rule: No. D committed a lawful act and was not at fault. If unintentional (without fault) harm then not recovery. Fault is the standard for liability. One is liable for damages resulting from actions conducted in a negligent or careless manner. No fault if the act in which D was engaged at the time of incident was necessary and thus lawful, and while committing this act he exercised ordinary care (extraordinary care is not the normal standard) and too precautions.
P (12 year old) was electrocuted when the eight foot long wire he was arraying struck the overhead wire of the D’s trolley.
Rule:
a duty exists to adopt all reasonable precautions to minimize possible
peril. A party is not negligent for not
providing protection against an unforeseeable, extraordinary injury that would
be extremely difficult to prevent. Harm must be reasonably foreseeable.
In determining degree of care, the courts have used B<PL-If the burden of taking precaution is less than the probability of the harm and resulting injury then there is negligence. If the burden is more, then there is no negligence.
B= burden of adequate precautions on society
P= probability of accident occurring
L= gravity of resulting injury (pain and suffering, injure, loss of caring)
When considering negligence cases, courts consider:
· prudent foreseeability
· practicality of taking precautions
· frequency of similar accidents
· passage of time
· D’s awareness of surrounding environment
-P’s barge broke loose from its moorings and sunk because of employee of D’s negligence in leaving the barge unattended for 21 hours. At the time, barges were constantly being towed in and out of the harbor and it was during full tide of war activity. P sued for damages and D claimed P was contributorily negligent for not having employee aboard.
Held: P’s employee was contributorily negligent in being ahore.
Barge owner’s burden (B) was less than the probability that the barge would break away (P) multiplied by the gravity of resulting injury (L), therefore, barge owner is negligent.
2. Reasonable Person: the general standard of care which must be exercised is that
conduct which the average reasonable person of ordinary prudence would follow
under the same or similar circumstances.
Exceptions:
1. Physical disabilities: standard of a reasonable person with the same physical disabilities.
2. Mental attributes: ordinary reasonable person is not deemed to have the particular mental characteristics of the D. Only applies to insanity, but not always the case.
3. Imbecility: a mental state so low that it must be considered imbecile or moronic; renderance of negligence usually impossible
4. Intoxication: D is not permitted to claim intoxication as a defense, he will be held RPP.
5. Children: held to standard expected of children of like age, intelligence, and experience except when undertaking an adult activity (driving). Most courts that use conclusive presumptions do so for children under 7 and commonly also employ a rebuttable presumption that children between 7 and 14 are incapable of negligent behavior.
6. Emergency doctrine: when a person is faced with a sudden situation where he had not time to think or deliberate, or caused the person to be reasonably disturbed then the person must make a speedy decision without taking into consideration alternative course. People in such circumstances are held to a standard of a reasonably prudent person in an emergency situation.
7. Professionals: doctors, lawyers are held to the standard of their professions.
C. The Roles of Judges and Juries
When the dangers and necessary precautions are clear and obvious, judges may determine the standard of conduct as a matter of law.
-D truck driver’s view of tracks was obstructed as he crossed railroad tracks he was hit by an oncoming train.
Holding: D was contributorily negligent. A person who has failed to exercise reasonable care to avoid an accident is not entitled to recover damages from the other party.
Note: Although ordinary questions of due care are left to the jury to decide, when the standard of conduct is clear it should be laid down once and for all by the court. When one cannot see whether an train is coming or not, the standard is the stop, look and listen rule. (not good, no questions of due care are left to jury).
-P hit by train after not getting out of car to stop, look and listen. His view was obstructed. There was a possibility that a train would have crossed by the time he got back to his car.
Rule: unless reasonable minds could not differ on the standard of care which measure actions of P and D, the jury would decide. Failure to get out of a vehicle and look before crossing a railroad track is not contributory negligence as a matter of law. The duty varies with circumstances P should be given the chance to let the jury decide the extent to which negligence contributed to accident.
1. Role of Custom: where the customary conduct was followed such conformity may be introduced as evidence of reasonable care. However, custom is merely evidence of the standard of care owed, the test is still whether the average reasonable person would have so acted under the circumstances.
Trimarko v. Klein
-P tenant was badly cut when he fell through the glass door that enclosed the tub in his apartment. Custom was to use shatter proof glass to meet accepted safety standards.
Rule: Evidence of business custom can be used to indicate D’s proper standard of care. Custom does have to be universal but it is enough to define will and show that D had knowledge of it and negligently ignored it. Evidence of custom is not conclusive, but evidence of conformity to custom may show due care and evidence of failure to follow custom may show failure to use reasonable care. In deciding on the evidence, jury decides on the reasonableness of the behavior (whether a reasonable person would adhere to it). Other factors are cost of the adherence, ready availability of necessary materials, and whether previous standard was disregarded by new one.
2. Role of Statutes: some standards of care are defined by statutes. There are generally two views.
Negligence Per se – majority view which finds violation of a statute as a conclusive presumption of negligence.
· Statutes do not advocate standard of care
· Compliance with a statue is not always enough to vacate negligence
· Violation is excused if:
-violation is safer and reasonable (Tedla)
-statutory purpose does not include the harm that occurred (Dehaen)
-licensing statute
· Violation of statutory duty is excused if compliance would be more dangerous than noncompliance
· Statutory purpose – when harm is different than what the statute intended, courts are unwilling to apply statute.
-P’s husband was killed when the buggy he was driving at night without lights (in violation of statute) collided with D car which was driving over the center line.
Rule: unexcused failure to perform a statutory duty constitutes negligence per se, which can be prima facie evidence of negligence. P was found contributorily negligent by violating statute.
Note: In most states, violation of a statute establishes prima facie case of negligence shifting the burden of proof and in others only evidence of negligence shifting the burden of production.
Evidence of negligence: minority view that an unexcused violation of a statute is only evidence of negligence for the jury to determine.
Exceptions
1. Violation
is safer:
-Ps were walking with backs to traffic (on left side of highway) in violation of statute and were hit by a car. There was heavy traffic on the right side of the road, whereas traffic was light on the left side.
Rule: It is not negligence as a matter of law for one to violate a statute, if by doing so he is likely to prevent rather than cause the harm which is the statute’s purpose to avoid.
2. Statutory purpose does not include harm that occurred. To invoke a violation of a statute as evidence of negligence, P must show that that the injury sustained was of the type the statute was intended to prevent.
3. Licensing Statutes: generally not used to set standards of care. The purpose of such statutes are to protect the public from unskilled persons. If that is the purpose, P must prove that D lacked required skill – in effect, proving negligence.
4. Compliance with statute may not exculpate negligence.
D. Proof of Negligence
Three types of proof:
· Real Evidence: documentary evidence
·
Actual Notice:
a direct positive knowledge of fact or information sufficient to put a
reasonable prudent person on notice of such fact.
· Direct Evidence: eyewitness
· Circumstantial Evidence: create an inference of what happened.
-constructive evidence
-Res Ipsa Loquitor
-Mode of Operation
1. Constructive notice: circumstantial evidence giving rise to negligence. Must be visible and apparent and must exist for a sufficient time prior to accident: knowing of the danger, or have known of the danger, which D has control over and takes no steps to remedy the situation.
Negri v. Stop and Shop
-P slipped and fell in D’s store and alleges that broken jars of baby food on the floor were the cause of her fall. Evidence showed that the food was dirty, that no jar had broken within 20 minutes prior to the accident, and that the floor had been cleaned 50 minutes and two hours before the accident.
Rule: A prima facie case of negligence may be established by circumstantial evidence that a party did not act to remedy a potentially hazardous condition of which the party had constructive notice. The court said there is no reason to believe that circumstantial evidence was insufficient to permit the jury to draw the necessary inference that a slippery condition was created by the jars which had fallen a sufficient length of time prior to the accident to peril D to discover and remedy the condition. Thus, it should have been left to the jury to decide if D had constructive notice.
Gordon v.
-P slipped and fell on D’s steps. P blamed fall on a slip of wax paper from
concession stand contracted by D and which D failed to discover and remove.
Rule: General awareness that litter may be present is not sufficient enough to charge owner with constructive notice. To constitute “constructive notice” a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit D’s employees to discover and remedy it. (Negri) In this case, there is not evidence which indicates that anyone including P observed the piece of white paper prior to the fall nor did anyone describe the paper to be dirty, which would have been an indication that it had been present for some time. Thus, paper could have been deposited there minutes or seconds before the accident.
2. Mode of Operation: Ps not required to prove actual or constructive notice because proprietor (knows danger of his own business) could reasonably anticipate that hazardous conditions would regularly arise.
3. Res Ipsa Loquitur: (the thing speaks for itself) RIL is a rebuttable presumption of negligence that is invoked when parties, especially P, don’t know what caused the injuries and when D has better access to evidence concerning the cause of injury. NOTE: RIL is used to establish negligence, and can and should be treated separately from causation (but not always). Also, RIL presumes negligence. Important: RIL is used to establish that D had to be negligent, unless he can disprove it. But when there is more than one D, a problem arises when the facts show that not all D could have been negligent, but rather only one had to be negligent (Ybarra).
Three elements of res ipsa loquitur
· The accident must be of a kind which ordinarily does not occur in the absence of negligence.
· Must be caused by an agency or instrumentality within the exclusive control of D.
· Must not have been due to any voluntary action or contribution on the part of P.
-P struck by barrel of flour from D’s shop which deals in flour although P did not see where the barrel came from, a witness confirmed.
Held: Case can go to jury simply by showing that there was an accident and it was caused by the barrel. It is only necessary that reasonable persons would say that more likely than not there was negligence. The falling barrel is prima facie evidence of negligence. D was in custody of the barrel and is responsible for the acts of his servants. If there are any facts inconsistent with negligence, D must prove them.
-P was hit by a light fixture when it fell 16 feet from the ceiling of a store. Sylvania (D) was contracted to service and maintain the lighting fixtures and could not do anything without store owner (D) approval. D employees during the year had changed lamps.
Holding:
An inference of negligence exists that renders summary
judgement invalid.
Reversed in part and remanded for further proceedings. Since a light
fixture does not fall from a ceiling without negligence, res
ipsa loquitur is
applicable. Even if
·
Rebuttable presumption of negligence: burden of production of
evidence shifts to D if 3 conditions are met.
If D sufficiently rebuts RIL, burden shifts back to P.
· RIL can be applied to two or more D even though only one was negligent if they were all involved with the activities surrounding the injury and it is difficult to pinpoint the persons who actually caused the injury.
· RIL and Medical Malpractice: RIL applies to all Ds who have control over the instrumentalities which may cause injuries to P while unconscious. The Doctrine of Respondeat Superior applies in medical cases where liability is imputed to the surgeon as a result of the negligence of his aids and assistants.
Ybarra v. Spangard
(departure from the rule of exclusive control)
-P consulted D, who diagnosed appendicitis and
arranged to have an appendectomy to be performed at hospital owned by another
D. Prior to the operation, P was wheeled
into the operating room by D, a nurse, and his body was adjusted on the table
by D, another doctor, who pulled P to the head of the operating table and laid
him back against two hard objects at the top of his shoulders. P awoke the next morning attended by D and
another nurse. P felt sharp pain between
his neck and right shoulder which spread to his lower right arm, although he
had never suffered pain or injury there.
P’s condition worsened to paralysis.
Issue: Could the trial court have used the theory of res ipsa loquitur in these circumstances where P received injuries while unconscious?
Holding: Yes. This doctrine is sometimes uncertain in injury from medical treatment, but it is not fair that in this case because patient was unconscious that it does not apply. If we do not apply this doctrine then P might not recover for damages. Since P was rendered unconscious to receive medical treatment, those entrusted with his care have the burden of explaining. Every D who had custody of P had a duty of ordinary care to make sure he was not unnecessarily injured. Employer is liable for conduct of its employees and under respondeat superior, a doctor is liable for negligence of assistants. Requirements 1 and 3 are easily met in this case. In terms of second requirement, each D had within its control one or more instrumentalities by which P may have been injured. D contends that there is no showing of which instrument or whose instrument caused the injury. But it is unreasonable to expect P, who had been rendered unconscious to identify the negligent D or the instrument. It is enough that P shows injuries resulted from external force.
Note: this rule prevents the “smoking out of evidence” policy used to escape liability by members of the same profession. The flexibility of exclusive is only excepted in medical cases.
E. Medical Malpractice
A. Standard of care (Robbins case)
· set by med custom
· P must bring expert witness to establish standard of care (except when negligence is obvious to lay person)
· D must meet minimum standard of skill and knowledge commonly possessed by members of the profession in good standing
· Two main standards: Local and National
Local standard: a familiarity local standard of care is sufficient and can be shown by study, experience, or both.
National standard: is permissable where the national standard of care is the same as the standard of D medical community. Commonly applies when the physician is a specialist and medical education becomes more uniform.
B. P usually needs an expert witness because of “conspiracy of silence”
C. Physicians judged by reasonable prudent physician standard which allows custom to set the standard.
Jones v. O’Young
-P husband had an accident nd while at hospital he developed an infectious disease in the fractured leg. Doctors then amputated the leg and P sued for malpractice contending that because of the malpractice, his leg needed to be amputated. P brought expert witness to stand who was board certified in infectious diseases and internal medicine, but D moved to bar witness testimony from trial since he did not specialize in same area of medicine as D.
Issue: Does a witness have to specialize in the same field as D to testify regarding standard of care?
Holding: No. The court upheld the decision in Purtill regarding the requirements necessary to demonstrate expert physician’s competence (1) must be licensed in school of medicine for which he testifies (2) must show that he is familiar with methods, procedures, and treatments ordinarily observed by other physicians. It is then up to the trial court to determine if the expert has demonstrated familiarity with the standard of care practiced in that field. If the court decides he is qualified, then D has the burden to prove that he is not in cross-examination.
Connors v.
University Ass. In Obstetrics & Gynecology
-P had undergone surgery so she could become
pregnant. After surgery she lost all
functions in the left leg and sued for medical malpractice. P alleged that a retractor used to keep the
incision open had impinged on a nerve leading to P’s left leg. P’s expert testified as to the requisite of
care that the use of the retractor required and tried to show that it had not
been carefully used. D experts testified
that P’s nerve was abnormally positioned and that the complication was
unavoidable and not attributable to negligence. In this second trial the court charged res ipsa on three elements, but
told the jury that they considered it if they wanted to they were not
compelled. D appeals on error on res ipsa based on that expert
testimony was given on causation and this testimony is direct evidence of the
cause (no res ipsa if
expert testimony). The argument is that
jurors review res ipsa in
that they have a common experience, but if expert is brought to substantiate
inference, it does not come from common experience because of specialized
medical knowledge.
Issue: Did the court err in charging res ipsa when expert testified in a medical malpractice case?
Holding: No. The expert testimony in this case was not a conclusive proof of negligence and jury could have used his testimony, if they found it credible, to reach the inference. In medical cases, we should utilize testimony in res ipsa to “bridge the gap” between the jury’s common knowledge and the uncommon knowledge of experts. The Restatement explicitly encourages that inference be supplied by evidence such as expert testimony which may indicate such an event usually does not occur without negligence. Experts share a common knowledge about whether certain types of injuries occur without negligence, and they can educate the jury with higher knowledge.
D. Informed Consent
· Professional Rule: doctor has duty to disclose to patient all material risks involved in a medical procedure.
· Patient Rule: Patient has the right to exercise control over her own body making an informed decision concerning whether to submit to a medical procedure.
Conditions which patient must prove to establish violation of Patient Rule
-material risk unknown to patient
-physician failed to disclose risk
-disclosure of the risk would have let a reasonable patient in P position to reject the medical procedure or school a different course of treatment. (Korman)
Materiality Test
-subjective: whether patient would have rejected procedure upon known risk
-objective: whether RPP patient would have rejected procedure upon the known risk (the court adopts objective test)
Exceptions to informing patient of risk (Korman)
-where disclosure may have detrimental effect on physical or psychological well being of the patient
-patient incapable of providing consent due to disability or infancy
-risk is so obvious or known to patient
-procedure is simple, and danger is remote
-physician does not know risk is involved
-P consulted physician to inquire about breast reduction surgery. He showed P videos about the procedure and discussed it with her, informing her of the risks of permanent scarring. He also gave her pamphlets to read. When she asked about the scarring, D told her “not to worry.” D also failed to tell her that smoking increased her chance of scarring by 50%, even though this info. Was in the pamphlets. After surgery, P was very unhappy with the scars she retained and she sued claiming that D had negligently failed to obtain her informed consent to the surgery.
Issue: Whether D satisfied his duty of disclosure as a matter of law.
Holding: No. It is a factual question whether D’s explanation of the risk was adequate to allow a reasonable patient to make an informed and intelligent decision whether to undergo the procedure. The physician is required to explain in “lay terms” the risk and the likelihood of its occurrence. Also, physicians have a duty to respond fully to a patient’s questions concerning treatment. Third, even though P read about the 50% increase in risk from smoking, D didn’t indicate to her the probability of scarring in the first place.
Imp: physician duty of disclosure is weighted on what a reasonable patient would need to know in order to make an informed consent. (scope of disclosure is measure from P standpoint).
II.
The Duty
Requirement: Physical Injuries
Introduction
Definition of Duty: generally it is a legal obligation owed to others to protect them from injury due to the negligence of others. Absent such legal obligation there is no duty to act. P must show that D actually had a duty not to expose P to an unreasonable risk.
Duty can be characterized in three ways:
· Misfeasance: the doing of a proper act in a wrongful or injurious manner
· Malfeasance: the doing of a wrongful or unlawful act (commission)
· Nonfeasance: the total omission or failure to enter upon the performance of some distinct duty which a person had agreed to do. (omission)
Good Samaritan: common law imposed no duty for people to act as good Samaritans unless:
-special relationship (Harper)
-contractual duty (Strauss)
-by statute
-creation of risk
-assumption of risk
-business relations
Policy arguments against imposing a duty to rescue:
-unworkable
-moral argument: legal compulsion squelches moral intention
-political argument: states should not interfere with person’s autonomy
Duty determined by special relationship between the parties. e.g. innkeeper/guest, carrier/passenger, possessor of land who invites public, person who has custody of another where one cannot protect himself.
A. Obligation to Others
1. Controlling third parties: one who takes charge of a third person who he knows or should know to be likely to cause bodily harm to others, if not controlled, is under a duty to exercise reasonable care to control the 3rd person to prevent him from doing such harm.
2. Social Relationship: no general duty to rescue – legal duty exists where there is social relationship between two individuals engaged in a social venture, or a companionship activity. If a person voluntarily initiates assistance duty to finish assistance is imposed to prevent abandonment and isolation of the vistim from aid. (Farwell)
3. Innkeepers/customers: a person has an affirmative duty to exercise care for the safety of his customers who can either be characterized as guests or invitees.
-P was a guest in D’s boat, although the two did not previously know each other. The group decided to swimming. D was familiar with area and knew water was shallow. P asked D if he was going to swim and D responded “later.” P then dove into the water and hit the bottom, severing his spinal cord and was rendered c6 quadriplegic. He sued D claiming he had a duty to warn him that the water was too shallow for diving.
Issue: Whether D, as a social host, owes a duty of care to warn guests of dangers in the water.
Holding: No. A special relationship must exist in order for a duty to be imposed on one to protect another. P and D relationship does not fall under those which qualify as special relationships – P was able to protect himself. D’s superior knowledge of the dangerous condition is insufficient to establish liability in the absence of a duty to provide protection. D also did not receive financial gain from P.
Farwell v. Keaton (Assumption to aid)
-P and D were on a social venture when P was severely beaten. D drove him around, applied ice to his head, and took him home, but then left him unconscious in a car overnight. He died three days later.
Doctor testified that had he been taken to hospital w/in thirty minutes, he would have had an 85% chance of living.
Holding: D had a duty to aid deceased. Special relation existed between parties since they were engaged in a common undertaking. An understanding exists that if one party is in danger, the other will attempt to rescue as long as he can do so without putting himself in danger. D did not run the risk of danger. D’s attempt to aid deceased established his duty of care since he did realize he should have helped.
4. Contractual Duty: where there is a detriment reliance or otherwise elements of consideration, a contractual relationship exists so as to legally impose a duty on a person to act, to prevent physical harm.
Public
Policy: a public duty based on
privity of contract exists to specific individuals of the community. A duty does not exist to foreseeable noncustomers (to
allow liability in these cases would open the doors for mass tort claims
(Strauss).
Strauss v.
Belle Realty (contractual
relationship)
-P tenant fell down D’s defective steps during a city
blackout. D Con Edison had a contract
with D landlord. P sued landlord for
lack of maintainence and the utility company for
negligence.
Issue: Whether D has a duty toward P for injuries
from a fall on a dark stairway that could have been foreseen.
Rule: Utility company does
not owe duty of care to a tenant because the utility has only contracted with
the landlord. This, like the Moch case, would create unlimited liability. Foreseeability alone did not establish
liability.
B. Obligations to Control the Conduct of Others
1. Duty to warn: once a person knows or should know that his patient presents a real danger to a 3rd party there is a duty to warn or otherwise take reasonable action to prevent the danger (Tarasoff). Note: there is an affirmative duty to 3rd party based on relationship with a patient (see e.e. Tarasoff – psych fails to warn of death threat)
Criteria to
determine duty to control conduct of others:
· Primary purpose of the relationship
· Professional qualifications
Arguments against disclosing danger to
others:
· Warning to police may give rise to arrest under false pretense
· Warning to victim can cause personal adverse effects which may be unjustified
· Breach of confidentiality harms doctor/patient relationship
· Difficulty of predicting violent tendencies and possible harm
Tarasoff v. Regents of the U of
-Doctors at D university hospital knew that a mental
patient they were releasing intended to kill Tarasoff. Ds did not warn P of danger and she was murdered.
Rule: Because of a psychologist’s special relationship with a patient, he has a duty to warn a foreseeable, identifiable third person of the patient’s violent intentions, even if the psychologist has no special relationship with the foreseeable victim. D argues therapists cannot accurately predict violent behavior, yet if serious danger of violence is determined or should have been, the therapist has a duty to exercise reasonable care to protect the foreseeable victims. D’s claim of risk of damaging professional relationship with patient does not negate duty to protect threatened victim. This risk is within the public interest.
Exception to duty to warn:
Vince v.
-P was seriously injured in a car accident with
Rule: A person who knowingly purchases a car for an incompetent driver may be liable for negligent entrustment (liability from the combined negligence of both the negligence in trusting the incompetent driver with the car and the negligent operation of the car).
D Wilson knew nephew had failed driving test several times and that he abused drugs and alcohol.
C. Landowners and Occupiers
Trespasser: One who enters into or remains on property without the consent of the owner. An owner’s duty is to refrain from willful, wanton or intentional injury. An owner is not liable for injuries to a trespasser for failure to exercise reasonable care:
· to put land in a condition which is reasonably safe for trespassers
· to carry on activities so as not to endanger trespassers
Rule: a landowner has duty if he is aware
of the trespasser’s existence and if conditions existing are artificial or
static (e.g., quicksand, stream, entrapment or non-natural device), highly
dangerous and concealed, provided that the owner has knowledge of conditions.
Child trespasser: a landowner is liable for injuries to children trespassing caused by artificial conditions