Breach

Question 1

Breach is the _____ element under negligence

Answer 1

second

Question 2

Define breach

Answer 2

A breach occurs when a person fails to meet their duty.

Question 3

FOUR ways to establish the standard of care

conduct/law/non-tort/expressly

Answer 3

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)

Question 4

The general rule for standard of care

Answer 4

The standard of care is what a reasonable prudent person would do under the circumstances

Question 5

T/F: Reasonable is measured by an objective standard

Answer 5

True

Question 6

Define prudent

Answer 6

Acting with thought and care for the future (considers the consequences of their actions)

Question 7

Define an objective viewpoint

Answer 7

Viewing something from an impersonal perspective

Without personal interest

Question 8

Define an subjective viewpoint

Answer 8

Viewing something from a personal perspective

Considering personal weaknesses, strengths + emotions

Question 9

T/F: Custom sets the standard of care

Answer 9

FALSE! It may inform what a reasonably prudent person would do

Question 10

The standard of care for sudden emergency

Answer 10

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

Question 11

Analysis for sudden emergency

Answer 11

Consider the circumstances and place the reasonably prudent person in the circumstances of the emergency

Question 12

The standard of care for physical disability

Answer 12

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

Question 13

T/F: Superior physical capability/knowledge determines if an actor behaved as a reasonably, prudent person

Answer 13

False; the knowledge/skills are merely circumstances to be taken into account to determine the standard

Question 14

The standard of care for mentally disabled/illness

Answer 14

Generally, a person with a mental disability must act the way an ordinary reasonable person would act.

Question 15

T/F: a mentally ill person should still be held responsible for their actions

Answer 15

True; Court does not want people pretending to be mentally ill to avoid liability

Question 16

_______ ______ _____ _______ is the exception to the general standard of care for mentally disabled/illness

Answer 16

Sudden Mental Disability Rule

Question 17

Sudden mental disability rule

Answer 17

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.

Question 18

Caretaker Exception

Answer 18

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.

Question 19

The standard of care for minors

Answer 19

A child is held to the same standard of conduct as a child of like age, mental capacity, and experience.

Question 20

Exception to the minor standard

Answer 20

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.

Question 21

Rule of 7s in NC

Answer 21

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.

Question 22

The standard of care for professionals

Answer 22

A professional person is expected to exhibit the same skill, knowledge, and care as another practitioner in the same profession/community.

Question 23

Types of professions

Answer 23

Lawyers, doctors, dentists, etc

Question 24

THREE implied warrants from a professional to client

Answer 24

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.

Question 25

Medical professional standard of care

Answer 25

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.

Question 26

Breach under medical professional standard of care

Answer 26

Breach occurs because the doctor must have done something forbidden or failed to do something required.

Question 27

3 Jx approaches under the medical professional standard of care

Answer 27

``` 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

Question 28

Doctrine of Informed Consent

Answer 28

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.

Question 29

T/F: If treatment is completely unauthorized, it is a battery (Informed Consent)

Answer 29

True

Question 30

3 ways informed consent is actionable

Answer 30

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. .

Question 31

Define material under Informed consent

Answer 31

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.

Question 32

Majority + Minority for non-disclosure under informed consent

Answer 32

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)

Question 33

Exceptions to informed consent

Answer 33

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.

Question 34

T/F: The standard of a reasonable prudent person applies to a rule of law

Answer 34

False

Question 35

Rules of Law

Answer 35

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.

Question 36

The _____ sets the standard of care as a fixed issue/rule

Answer 36

Court

Question 37

A violation of a statute or regulation constitutes negligence as a matter of law (per se) when: (4 questions)

Answer 37

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.

Question 38

Negligence per se can be ______ applied, permit _______ _____, or can be used as ________ __ ___

Answer 38

strictly rebuttable presumption OR evidence of negligence

Question 39

Rebuttable presumption (negligence per se)

Answer 39

presumption of prima facie elements of negligence but may be rebutted by the showing of a valid excuse by the defendant.

Question 40

Evidence of negligence (negligence per se)

Answer 40

presents the violation as evidence to the jury and the jury decides.

Question 41

T/F: Under negligence per se, the statute does not set the standard

Answer 41

False; statute DOES set the standard

Question 42

T/F: An excused violation of a statute or administrative regulation is not negligence.

Answer 42

True

Question 43

Unless the statute or regulation is construed not to permit such an excuse, a violation is excused when:

Answer 43

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.

Question 44

Direct evidence v Circumstantial evidence

Answer 44

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

Question 45

Direct evidence is:

Answer 45

Physical evidence, documentary evidence and witness testimony BASED ON PERSONAL KNOWLEDGE

Question 46

T/F: Direct evidence needs inference or presumption

Answer 46

False

Question 47

Circumstantial evidence is:

Answer 47

evidence based on inference, not personal knowledge or observation

Question 48

T/F: Circumstantial holds the same weight as direct

Answer 48

True

Question 49

Example of circumstantial evidence

Answer 49

Handprint on wet concrete, blackened, flattened banana

Question 50

Constructive knowledge v Constructive notice

Answer 50

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

Question 51

Standard for slip + fall cases

Answer 51

The premises owner/operator has a duty to exercise reasonable care to keep premises safe.

Question 52

Breach of standard in slip + fall cases

Answer 52

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).

Question 53

THREE ways to establish breach for slip + fall cases

Answer 53

1. D created the dangerous condition and failed to fix it (whether D had notice or not) OR 2. Although D didn’t create the dangerous condition, D was made aware of it (actual notice) and failed to fix it; OR 3. 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.

Question 54

Actual v Constructive Notice under slip + fall cases

Answer 54

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.

Question 55

T/F: Res Ipsa Loquitur means "The thing that speaks for itself"

Answer 55

True

Question 56

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.

Answer 56

considered jury presumption ultimate burden; defendant; preponderance of the evidence.

Question 57

Res Ipsa Loquitur elements

Answer 57

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.