12) Neg - SOC + Breach

Question 1

SOC: def

Answer 1

measures duty owed to P

Question 2

breach: def

Answer 2

failure to meet SOC

Question 3

SOC: kinds

Answer 3

1) RPP
2) children
3) stautory neg/ neg per se
4) professionals

Question 4

SOC: default

Answer 4

RPP

Question 5

RPP: def

Answer 5

reasonably prudent person under the same or similar circumstances

Question 6

RPP: rule

Answer 6

objective standard of care – measure D’s conduct against external (mythical) RPP under the same circs

Question 7

RPP: circs NOT considered

Answer 7

mental ability
insanity
reflexes
experience
etc.

Question 8

RPP: circs YES consider

Answer 8

1) physical condition

2) emergencies not of D’s own making

Question 9

RPP: circs to consider: result

Answer 9

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

Question 10

RPP: Breach: def

Answer 10

failure to act as a RPP

Question 11

RPP: breach: factors

Answer 11

1) probability of harm
2) likely magnitude of harm
3) burden on D of avoiding harm

(balance 1+2 against 3)

Question 12

RPP: breach: custom: rule

Answer 12

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

Question 13

children: def

Answer 13

under 18

Question 14

children: majority rule

Answer 14

child-D SOC: did child behave as a reasonable child of same age, experience, intelligence (more subjective than adults)

Question 15

children: minority rule

Answer 15

under 6: conclusive presumption incapable of neg
7-13: rebuttably presumed not neg
14+: rebuttably presumed capable of neg

Question 16

children: exception

Answer 16

if child engaging in inherently dangerous adult activity, then SOC is objective RPP (adult) under similar circs

Question 17

statutory negligence: rule

Answer 17

statute that provides for civil liability (a statute about a tort) supersedes CL

Question 18

negligence per se: rule

Answer 18

if there’s a law (not about torts) + judge decides it applies, then
the statute may set the SOC

Question 19

neg per se: judge decides if it applies: elements

Answer 19

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

Question 20

neg per se: result: majority

Answer 20

unexcused violation of statute conclusively establishes that D breached his duty to P (the q. is just was statute violated)

Question 21

neg per se: result: minority

Answer 21

violating the statute either:

1) raises rebuttable presumption that duty breached OR
2) prima facie evidence that duty breached

Question 22

neg per se: exceptions

Answer 22

statute DOES NOT APPLY if:

1) excused violation of statute
2) licensing statute (ex. dl)

Question 23

neg per se: exceptions: excused violation: exs

Answer 23

1) emergency not of D’s own making
2) more dangerous to comply than not
3) sudden incapacity (sz)

Question 24

neg per se: exceptions: result

Answer 24

if statute dn apply, then will not be used to set standard of care –> proceed w nl RPP SOC

Question 25

professionals: def

Answer 25

lawyers, doctors, accountants + architects

Question 26

professionals: rule

Answer 26

custom of the profession establishes the SOC

Question 27

professionals: breach: rule

Answer 27

deviation from the custom of the profession = breach

Question 28

medical malpractice: rule

Answer 28

drs are required to have + use the knowledge, skill, training of other drs in good standing in the relevant geographic community

Question 29

med mal: relevant geographic community: def

Answer 29

1) specialists: national focus

2) general practitioners: local focus (same or similar locality rule)

Question 30

med mal: lack of informed consent: potential rules

Answer 30

1) battery
2) negligence: traditional dr rule
3) negligence: patient materiality rule

Question 31

med mal: informed consent: rule trending towards

Answer 31

patient materiality rule

Question 32

informed consent: battery: rule

Answer 32

MD liable for battery if failed to properly inform P re risks/alternatives –> negates consent

Question 33

informed consent: battery: use today

Answer 33

is traditional rule

STILL USED FOR gross deviation from consent

Question 34

informed consent: traditional dr rule

Answer 34

Drs must divulge risks that are customarily divulged

Question 35

informed consent: patient materiality rule

Answer 35

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

Question 36

informed consent: patient materiality: def of material risk

Answer 36

risk reasonable pt would want to know in deciding whether to undergo the procedure

Question 37

legal malpractice: rule

Answer 37

for P to previal, must show that if not for malpractice, P would have MLTN prevailed int he underlying action

Question 38

P BOP in tort

Answer 38

preponderance (MLTN), on each element of prima facie case

Question 39

how to prove breach

Answer 39

identify specific alleged unreasonable conduct

if can’t, consider RIL

Question 40

circumstantial evidence: de

Answer 40

evidence from which reasonable inference can be drawn

Question 41

slip + fall case: standard of proof

Answer 41

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?)

Question 42

res ipsa loquitur: when to use

Answer 42

can’t ID what D did wrong but seems like D was negligent

Question 43

RIL: elements

Answer 43

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

Question 44

RIL: P did not contribute: caveat

Answer 44

less impt now bc of comparative fault

Question 45

RIL: result

Answer 45

jury can draw inference that there was breach

Question 46

RIL: limitation

Answer 46

only applies in negligence and only to proving breach

Question 47

RIL: adequate control: def

Answer 47

exclusive control is not required anymore – enough to show that D is probably the rp party

Question 48

RIL: med mal: common knowledge exception

Answer 48

usu need an expert to prove medmal, but where equipment / sponge left in P, dnn expert to show neg

Question 49

RIL: multiple defendants: rule

Answer 49

usu CANT use RIL if multiple Ds

Question 50

RIL: multiple Ds: exception

Answer 50

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