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Torts > Breach > Flashcards

Breach Flashcards

1
Q

Breach is the _____ element under negligence

A

second

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2
Q

Define breach

A

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

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3
Q

FOUR ways to establish the standard of care

conduct/law/non-tort/expressly

A

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)

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4
Q

The general rule for standard of care

A

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

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5
Q

T/F: Reasonable is measured by an objective standard

A

True

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6
Q

Define prudent

A

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

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7
Q

Define an objective viewpoint

A

Viewing something from an impersonal perspective

Without personal interest

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8
Q

Define an subjective viewpoint

A

Viewing something from a personal perspective

Considering personal weaknesses, strengths + emotions

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9
Q

T/F: Custom sets the standard of care

A

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

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10
Q

The standard of care for sudden emergency

A

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

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11
Q

Analysis for sudden emergency

A

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

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12
Q

The standard of care for physical disability

A

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

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13
Q

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

A

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

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14
Q

The standard of care for mentally disabled/illness

A

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

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15
Q

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

A

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

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16
Q

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

A

Sudden Mental Disability Rule

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17
Q

Sudden mental disability rule

A

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.

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18
Q

Caretaker Exception

A

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.

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19
Q

The standard of care for minors

A

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

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20
Q

Exception to the minor standard

A

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.

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21
Q

Rule of 7s in NC

A

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.

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22
Q

The standard of care for professionals

A

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

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23
Q

Types of professions

A

Lawyers, doctors, dentists, etc

24
Q

THREE implied warrants from a professional to client

A

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.

25
Q

Medical professional standard of care

A

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.

26
Q

Breach under medical professional standard of care

A

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

27
Q

3 Jx approaches under the medical professional standard of care

A 
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

28
Q

Doctrine of Informed Consent

A

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.

29
Q

T/F: If treatment is completely unauthorized, it is a battery

(Informed Consent)

A

True

30
Q

3 ways informed consent is actionable

A

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. .

31
Q

Define material under Informed consent

A

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.

32
Q

Majority + Minority for non-disclosure under informed consent

A

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)

33
Q

Exceptions to informed consent

A

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.

34
Q

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

A

False

35
Q

Rules of Law

A

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.

36
Q

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

A

Court

37
Q

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

A

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.

38
Q

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

A

strictly
rebuttable presumption OR
evidence of negligence

39
Q

Rebuttable presumption (negligence per se)

A

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

40
Q

Evidence of negligence (negligence per se)

A

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

41
Q

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

A

False; statute DOES set the standard

42
Q

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

A

True

43
Q

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

A

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.

44
Q

Direct evidence v Circumstantial evidence

A

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

45
Q

Direct evidence is:

A

Physical evidence, documentary evidence and witness testimony

BASED ON PERSONAL KNOWLEDGE

46
Q

T/F: Direct evidence needs inference or presumption

A

False

47
Q

Circumstantial evidence is:

A

evidence based on inference, not personal knowledge or observation

48
Q

T/F: Circumstantial holds the same weight as direct

A

True

49
Q

Example of circumstantial evidence

A

Handprint on wet concrete, blackened, flattened banana

50
Q

Constructive knowledge v Constructive notice

A

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

51
Q

Standard for slip + fall cases

A

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

52
Q

Breach of standard in slip + fall cases

A

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).

53
Q

THREE ways to establish breach for slip + fall cases

A
  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.
54
Q

Actual v Constructive Notice under slip + fall cases

A

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.

55
Q

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

A

True

56
Q

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.

A

considered

jury

presumption

ultimate burden; defendant; preponderance of the evidence.

57
Q

Res Ipsa Loquitur elements

A

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.

Torts (7 decks)

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