12) Neg - SOC + Breach Flashcards
SOC: def
measures duty owed to P
breach: def
failure to meet SOC
SOC: kinds
1) RPP
2) children
3) stautory neg/ neg per se
4) professionals
SOC: default
RPP
RPP: def
reasonably prudent person under the same or similar circumstances
RPP: rule
objective standard of care – measure D’s conduct against external (mythical) RPP under the same circs
RPP: circs NOT considered
mental ability insanity reflexes experience etc.
RPP: circs YES consider
1) physical condition
2) emergencies not of D’s own making
RPP: circs to consider: result
jury will have to decide if P acted as a reasonable (blind person) reasonable (person in an emergency, etc).
not a free pass to liability
RPP: Breach: def
failure to act as a RPP
RPP: breach: factors
1) probability of harm
2) likely magnitude of harm
3) burden on D of avoiding harm
(balance 1+2 against 3)
RPP: breach: custom: rule
P’s proof of D’s deviation from custom is (strong, but not determinative) evidence of D’s breach of duty
similarly, D’s evidnece of compliance with custom may be evidence of no breach
children: def
under 18
children: majority rule
child-D SOC: did child behave as a reasonable child of same age, experience, intelligence (more subjective than adults)
children: minority rule
under 6: conclusive presumption incapable of neg
7-13: rebuttably presumed not neg
14+: rebuttably presumed capable of neg
children: exception
if child engaging in inherently dangerous adult activity, then SOC is objective RPP (adult) under similar circs
statutory negligence: rule
statute that provides for civil liability (a statute about a tort) supersedes CL
negligence per se: rule
if there’s a law (not about torts) + judge decides it applies, then
the statute may set the SOC
neg per se: judge decides if it applies: elements
need both
1) is P member of the class leg intended to protect w this statute
2) is P’s harm the type of harm leg intended to protect
neg per se: result: majority
unexcused violation of statute conclusively establishes that D breached his duty to P (the q. is just was statute violated)
neg per se: result: minority
violating the statute either:
1) raises rebuttable presumption that duty breached OR
2) prima facie evidence that duty breached
neg per se: exceptions
statute DOES NOT APPLY if:
1) excused violation of statute
2) licensing statute (ex. dl)
neg per se: exceptions: excused violation: exs
1) emergency not of D’s own making
2) more dangerous to comply than not
3) sudden incapacity (sz)
neg per se: exceptions: result
if statute dn apply, then will not be used to set standard of care –> proceed w nl RPP SOC
professionals: def
lawyers, doctors, accountants + architects
professionals: rule
custom of the profession establishes the SOC
professionals: breach: rule
deviation from the custom of the profession = breach
medical malpractice: rule
drs are required to have + use the knowledge, skill, training of other drs in good standing in the relevant geographic community
med mal: relevant geographic community: def
1) specialists: national focus
2) general practitioners: local focus (same or similar locality rule)
med mal: lack of informed consent: potential rules
1) battery
2) negligence: traditional dr rule
3) negligence: patient materiality rule
med mal: informed consent: rule trending towards
patient materiality rule
informed consent: battery: rule
MD liable for battery if failed to properly inform P re risks/alternatives –> negates consent
informed consent: battery: use today
is traditional rule
STILL USED FOR gross deviation from consent
informed consent: traditional dr rule
Drs must divulge risks that are customarily divulged
informed consent: patient materiality rule
MDs must divulge all material risks, failure to divulge a material risk is breach of duty/malpractice IF P can show she would have refused procedure had risk been divulged
informed consent: patient materiality: def of material risk
risk reasonable pt would want to know in deciding whether to undergo the procedure
legal malpractice: rule
for P to previal, must show that if not for malpractice, P would have MLTN prevailed int he underlying action
P BOP in tort
preponderance (MLTN), on each element of prima facie case
how to prove breach
identify specific alleged unreasonable conduct
if can’t, consider RIL
circumstantial evidence: de
evidence from which reasonable inference can be drawn
slip + fall case: standard of proof
for P to recover, must show that D was negligent for failing to discover and remedy the dangerous condition (just falling not enough – how long had banana been there?)
res ipsa loquitur: when to use
can’t ID what D did wrong but seems like D was negligent
RIL: elements
1) this sort of thing typically does not happen absent negligence
2) D has adequate control (to prob be resp)
3) P did not contribute to her injury
RIL: P did not contribute: caveat
less impt now bc of comparative fault
RIL: result
jury can draw inference that there was breach
RIL: limitation
only applies in negligence and only to proving breach
RIL: adequate control: def
exclusive control is not required anymore – enough to show that D is probably the rp party
RIL: med mal: common knowledge exception
usu need an expert to prove medmal, but where equipment / sponge left in P, dnn expert to show neg
RIL: multiple defendants: rule
usu CANT use RIL if multiple Ds
RIL: multiple Ds: exception
if
1) unconscious P +
2) Ds are a medical team acting together
then, burden shifts to Ds to prove not resp (if can’t, are jointly/severally liable)
iow, RIL still applies
