Breach Flashcards
Breach is the _____ element under negligence
second
Define breach
A breach occurs when a person fails to meet their duty.
FOUR ways to establish the standard of care
conduct/law/non-tort/expressly
1 - Determining the conduct of the reasonable prudent person under the facts of the case
2 - Applying the rule of law previously formulated by a binding court
3- Applying a non-tort specific statute or administrative regulation (negligence per se)
4- Applying a statute or admin. regulation that expressly defines the standard of care (negligence per se)
The general rule for standard of care
The standard of care is what a reasonable prudent person would do under the circumstances
T/F: Reasonable is measured by an objective standard
True
Define prudent
Acting with thought and care for the future (considers the consequences of their actions)
Define an objective viewpoint
Viewing something from an impersonal perspective
Without personal interest
Define an subjective viewpoint
Viewing something from a personal perspective
Considering personal weaknesses, strengths + emotions
T/F: Custom sets the standard of care
FALSE! It may inform what a reasonably prudent person would do
The standard of care for sudden emergency
The standard of care in a sudden emergency is to act the way a reasonable, prudent person would act in an emergency.
Cannot create the emergency
Analysis for sudden emergency
Consider the circumstances and place the reasonably prudent person in the circumstances of the emergency
The standard of care for physical disability
The standard of care of a person with a physical disability is to act the way a reasonable, prudent person with the same physical disability would under the circumstances
T/F: Superior physical capability/knowledge determines if an actor behaved as a reasonably, prudent person
False; the knowledge/skills are merely circumstances to be taken into account to determine the standard
The standard of care for mentally disabled/illness
Generally, a person with a mental disability must act the way an ordinary reasonable person would act.
T/F: a mentally ill person should still be held responsible for their actions
True; Court does not want people pretending to be mentally ill to avoid liability
_______ ______ _____ _______ is the exception to the general standard of care for mentally disabled/illness
Sudden Mental Disability Rule
Sudden mental disability rule
When a person is suddenly overcome, without forewarning, by a mental disability or disorder that incapacitates him from conforming his conduct to the standards of a reasonable person under the circumstances, mental disability can be a defense.
Caretaker Exception
When an institutionalized person is in the hands of a caretaker, and has no control over their conduct, they cannot be liable for injuries caused to caretakers who are employed for financial compensation.
The standard of care for minors
A child is held to the same standard of conduct as a child of like age, mental capacity, and experience.
Exception to the minor standard
If a child is engaged in adult activities, then the child is held to the conduct of a reasonable prudent adult in the same circumstances.
Rule of 7s in NC
Under 7- No negligence as a matter of law because they cannot form an appreciation of risk
7-14- Presumption that they are not negligent. Can be disproved if there are facts to show a past appreciation of risk
14-18 - Presumption is that they can be held to a reasonable prudent person standard of care.
The standard of care for professionals
A professional person is expected to exhibit the same skill, knowledge, and care as another practitioner in the same profession/community.
Types of professions
Lawyers, doctors, dentists, etc
THREE implied warrants from a professional to client
She possesses the requisite degree of learning, skill, and ability, necessary to practice and which others similarly situated ordinarily possess AND
She will use best judgment (objective) AND
She will exercise reasonable and ordinary care and diligence in the use of the skill and in the application of the knowledge to the client’s cause.
Medical professional standard of care
Someone who is licensed to practice medicine is presumed to possess the degree of skill and learning which is possessed by the reasonable and ordinary member of the medical profession in good standing.
Breach under medical professional standard of care
Breach occurs because the doctor must have done something forbidden or failed to do something required.
3 Jx approaches under the medical professional standard of care
National Standard (general): Applies to specialists What would a person in the medical profession with the same skill and training do?
Locality rule (applies to the same local community): Conduct is measured by what a doctor in the same area or locality/community would do. Not really used today because of standardized medical training
Same/similar Community Rule (NC Follows this):
Similarly situated communities
What persons in the medical profession with same/similar skill and training in the same/similar community would do.
Things to look for: geographical setting, population, available resources
Doctrine of Informed Consent
Under the doctrine of informed consent, a patient’s consent to a particular treatment, or procedure must be based on the professional’s disclosure of adequate information about the treatment, material risks of complications, and alternatives to the proposed conduct so that patient can make an informed decision as to whether to consent.
T/F: If treatment is completely unauthorized, it is a battery
(Informed Consent)
True
3 ways informed consent is actionable
1- Doctor failed to inform the patient of material risks
2- If patient had been informed of material risk, they would not have consented to the treatment OR would have chosen a different treatment
3- The undisclosed potential risk did in fact occur AND injured the plaintiff. .
Define material under Informed consent
1- A fact is material if a reasonable person could change his position had he known it.
2- A risk is material if so substantial and important as to influence the party.
Majority + Minority for non-disclosure under informed consent
Majority: whether the nondisclosure would have impacted the decision of A REASONABLE patient (objective)
Minority: whether the nondisclosure would have impacted the decision of THAT PARTICULAR patient. (subjective)
Exceptions to informed consent
The doctor may act in absence of consent if:
1- The patient is unable to give it
2- There is a risk of serious bodily harm if treatment is delayed
3- A reasonable person would consent to the treatment under the circumstance
4- There is no reason to believe the patient would refuse treatment under the circumstance.
T/F: The standard of a reasonable prudent person applies to a rule of law
False
Rules of Law
Doing something or failing to do something is so obvious and certain that one conclusion and one conclusion only is permissible for rational and candid minds.
The _____ sets the standard of care as a fixed issue/rule
Court
A violation of a statute or regulation constitutes negligence as a matter of law (per se) when:
(4 questions)
the injury that occurs is the type of harm the legislature intended to guard against;
The plaintiff is a member of the class the legislature intended to protect;
The harm would not have occurred if the defendant complied with the statute; AND
It is appropriate to apply the standard.
Negligence per se can be ______ applied, permit _______ _____, or can be used as ________ __ ___
strictly
rebuttable presumption OR
evidence of negligence
Rebuttable presumption (negligence per se)
presumption of prima facie elements of negligence but may be rebutted by the showing of a valid excuse by the defendant.
Evidence of negligence (negligence per se)
presents the violation as evidence to the jury and the jury decides.
T/F: Under negligence per se, the statute does not set the standard
False; statute DOES set the standard
T/F: An excused violation of a statute or administrative regulation is not negligence.
True
Unless the statute or regulation is construed not to permit such an excuse, a violation is excused when:
The violation is reasonable because of the actor’s incapacity;
He neither knows nor should know of the occasion for compliance;
He is unable after reasonable diligence or care to comply;
He is confronted by an emergency not due to his own conduct; or
Compliance would involve a greater risk of harm to the actor or to others.
Direct evidence v Circumstantial evidence
Direct: evidence that directly proves a fact, unnecessary for the fact finder to infer
Circumstantial: evidence that requires the use of several factors to reach a logical conclusion
Direct evidence is:
Physical evidence, documentary evidence and witness testimony
BASED ON PERSONAL KNOWLEDGE
T/F: Direct evidence needs inference or presumption
False
Circumstantial evidence is:
evidence based on inference, not personal knowledge or observation
T/F: Circumstantial holds the same weight as direct
True
Example of circumstantial evidence
Handprint on wet concrete, blackened, flattened banana
Constructive knowledge v Constructive notice
Knowledge: Would have known if she or he had had exercised reasonable care
Notice: Notice is construed to have occurred because of surrounding facts which indicates that the defendant had sufficient notice as matter of law
Standard for slip + fall cases
The premises owner/operator has a duty to exercise reasonable care to keep premises safe.
Breach of standard in slip + fall cases
Plaintiff needs to demonstrate that premises owner/operator failed to use reasonable care which led to a dangerous condition (dangerous condition caused plaintiff’s injuries).
THREE ways to establish breach for slip + fall cases
- D created the dangerous condition and failed to fix it (whether D had notice or not) OR
- Although D didn’t create the dangerous condition, D was made aware of it (actual notice) and failed to fix it; OR
- Although D didn’t create the dangerous condition and was not aware of it, D should have been aware of it (constructive notice) and D failed to fix it.
Actual v Constructive Notice under slip + fall cases
Actual Notice – D actually knew of the dangerous condition.
Constructive Notice – D did not know, but should have known, and he would have known if D inspected as reasonable care requires.
T/F: Res Ipsa Loquitur means “The thing that speaks for itself”
True
Procedural effect for Res Ipsa Loquitur:
Court decides if Res Ipsa Loquitur is _____
The ____ decides if the inference should be drawn
If ________ is drawn, it raises a presumption of negligence
Then, the ______ ______ is shifted to the _______ + requires him to prove by a __________ ____ _____ ______ ______ that the injury was not caused by his negligence.
considered
jury
presumption
ultimate burden; defendant; preponderance of the evidence.
Res Ipsa Loquitur elements
Plaintiff must show there was an accident
Plaintiff must show that the accident would not ordinarily happen without the negligence of someone in control.
Plaintiff must show the defendant was in exclusive control.
