Breach

Question 1

Can you be wrong without being unreasonable?

Answer 1

Yes, Sitts v. United States where surgeon remove material from from wrong area of the spine. D used the standard technique for finding the correct part of the spine. Surgeon was wrong in vertebrae choice but he was not unreasonable

Question 2

Red ipsa loquitur

Answer 2

The doctrine of circumstantial evidence, deals only with permissible inferences from unexplained events. The very happening of this outcome or accident suggest that negligence occurred

We don’t know what happened but we’re drawing a conclusion

These are just permissible inferences to get to the jury.

Question 3

Inferences to get to the jury are found from

Answer 3

Evidence
Expert testimony
Res ipsa loquitur

Question 4

res ipsa loquitur rule statement

Answer 4

This is an outcome that 1) ordinarily does not occur in the absence of negligence, 2) where the instrumentality is in the exclusive control of the D and 3) the P did not contribute to the accident.

Question 5

Red ipsa loquitur can be explained by

Answer 5

1) common knowledge

2) expert testimony

Question 6

When not to use res ipsa loquitur

Answer 6

If you have facts and circumstances that show negligence then you don’t need res ipsa loquitur

Question 7

When to use res ipsa loquitur

Answer 7

In the case of random things happening. The mere happening of the accident does not prove the cause but leaves it open for speculation by the jury

Question 8

When are governments immune from torts?

Answer 8

When the act was during the execution of a statute or regulation, performance of a discretionary function, duty for a federal agency or employee of the government

Question 9

Discretionary functions

Answer 9

New government function which involves exercising personal judgment and a choice to perform or not perform

Typically includes decisions made by executive or ad,industrialists in establishing government plans

Question 10

Ministerial function

Answer 10

The government performing a function that is historically known to be done by the government?
-Procedures and protocols are already in place
(Note this is judge made law and a matter of the courts to decided)

Question 11

Municipal immunity defense-

Public duty doctrine

Answer 11

The government owes a duty to all the people as a whole, it does not owe a duty to any person as an individual.

Question 12

Breaking the municipal immunity defense

Answer 12

A plaintiff must establish that s/he has a special relationship

Then show affirmative defense (whether there was a breach)

Question 13

Special relationship with a municipal rule statement

Answer 13

The establish a special relationship there must be 1) an assumption by the municipality to act on behalf of the P 2) knowledge by the municipal that inaction could lead to harm 3) direct contact between the municipal agent and the P and 4) justifiable and detrimental reliance by the P

Question 14

Proprietary function

Answer 14

A municipality’s conduct that is performed for the profit or benefit of the municipal rather than the general public. Activities that private parties have done all along district from the government.
(Generally not immune from tort liability)
Includes:
- functions of private parties (healthcare facilities, hospitals, transportation systems)

Question 15

Steps to take when faced with government problems

Answer 15

Step 1: Is the function proprietary or government?
If its proprietary use regular negligence rules
If discretionary, go to step 2

Step 2: is there a special relationship?

• if no, government is not liable
• if yes, go to step 3

Step 3: is there a breach?
If no, government is not liable
If yes, then look at discretionary vs. ministerial function

Step 4: discretionary or ministerial?
Discretional- no liable
Ministerial- liable

Question 16

Sufficient evidence v. Insufficient evidence to go to the jury

Answer 16

Insufficient- Judgment as a matter of law (JMOL) for D
Sufficient- Goes to jury

May be determined by inferences- is the evidence reasonable for the jury to draw an inference?

e.g. Winterwood v. Christensen- P fell through baseball stadium floor. Wood was dark, soggy, obviously rotten
Inference= wood was decomposed, not safe to walk on