Breach Flashcards
defnintion
failure to use ordinary care (reasonable person standard) do something or failing to do somehting that reasonable person would do
Reasonable person standard
Objective standard of care
Negligence Standard for children
different jurisdictions have different standards; under 4=no negligence; 4-7 is range for when incapable of neglignece
Illinois rule
below 7 not capable of negligence; 7-14 presume negligence; 14 and up capable of negligence
modern trend
case by case; negligence based on degree of care by children of similar age judgment education and intelligence; held to adult standard when engaging in adult activity
MD rules
below 7 incapable of negligence; 7-14 reasonable person of same age standard; held to adult standard for adult activity; parents not responsible for torts of children unless they induce them
Cost/benefit analysis
cant hold value of life at infinity; safety must be balanced aginst costs, safety as a matter of degree
(B)urden v (P)robability(L)oss
when burden of preventing accident is less than PL there is negligence; no negligence when B is greater than PL
Risk Neutrality
decisions are not affected by degree of uncertainty in set of outcomes, so a risk neutral party is indifferent between choices of equal expected payoffs
Advantages of BPL
implicit analysis; good to be reminded that not every accident has the same probability
Disadvantages of BPL
often impossible for reasonable person to know in advance; dont know if people are risk neutral or adverse; can be expensive to do calculations
Breach of Statute
negligence in fact; negligence in law; violation of statute;
negligence in fact
facts show that D’s behavior was unreasonable
negligence in law
conduct was negligent, not giving to jury, clearly negligent
Breach of statute
breach of duty imposed on some person; was P member of class intended to be protected; statute intended to protect against the kind of harm that occurred
Violation of a Statute
no excuses; presumption of negligence; evidence of negligence (with jury charge);evidence of negligence (without jury charge weakest)
MD rule
violation of statue is evidence of negligence
Breach of custom
actors compliance or deterrence from one’s field is SOME evidence of negligence but not conclusive
3 possible outcomes of Breach of custom
evidence of negligence w/ jury charge; evidence of negligence without jury charge; not admitted at all
Res Ipsa Loquitor
dont need to prove negligence because the accident could not have occurred without one party being negligent
Requirements for Res Ipsa
D has exclusive control of the thing causing injury; incident would not occur without negligence; no evidence that P or 3rd party was contrib neg
Advantages of Res Ipsa
saves P litigation expenses; Burden on D to come forward with what happened; ignores remote issues like earthquakes
disadvantages of Res Ipsa
can disadvantage the rights of the D; ignores remote issues like earthquakes
Control requirement of res ipsa
strict: need control by D from time of manufacture to end of accident; many jurisdictions do not permit expert witnesses
Liability scale
no tort liability; lower standards; negligence; higher standards; SL; RIL;
RIL and MedMal
does not apply b/c it is a rare injury; requires that occurrence more likely b/c of negligence than something else
MD RIL
99% of doctors do nothing wrong; no RIL in MedMal;
Multi Party RIL
no way no one is negligent; must find one party negligent; BOP on D; everyone must prove why not negligent; exclusive control precludes RIL against multi Ds;
Advantages of MPRIL
one party is negligent; insurance: makes all parties responsible knowing they will pass cost onto the patients
Disadvantages of MPRIL
at least one or more parties have done no wrong but have to pay; absent joint venture; penalizes everyone for one person’s wrong
MD RIL
P can go to jury and argue; no expert testimony; no MedMal; no MPRIL; evidence in exclusive control of D; accident wouldn’t have happened w/o negligence; cannot plead negligence and RIL
Mental defect/incapacity
insanity or other mental deficiencies are not recognized as defense to negligence
Innocent victims should be compensated
system wide efficiency; behavior mod: encourage care takers to look after mentally ill
Sudden Mental Incapacity Doctrine
sudden unexpected episode; D not negligent; NEED: absence of forewarning (no prior notice of potential to be disabled); disability renders the person incapable of conforming to standards of ordinary care
Sudden Emergency
person placed in a position of danger and sufficient time to determine best course to pursue; if acts to avoid the accident not guilty of negligence; exception: D causes the emergency cant claim this defense
Unavoidable accident
not negligent if there is nothing the driver can avoid the accident by using reasonable care
common carrier
greater care required of one who distributes the product, inherent character poses high risk of injury
Standard of care for Physicians
national standard; degree of care of an average competent practitioner; higher standard of care for specialists;
Good Samaritan doctors
only liable for gross negligence
Standard of care for hospitals
no standard from small hospital to big hospital; smaller hospital should transfer patients if possible;
MD MedMal
national standard; one standard for general physician vs a specialist; physician must disclose material risks and reasonable possible alternatives
Negligence Spectrum
100% perfect (SL); tiny error (liable if SL standard); higher than standard (common carrier); negligence (failure to use ordinary care); gross negligence (failure to use even slight care); reckless (indifferent to rights of others); willful and wanton (gross neg, and they knew, or should have known or failure to act); intentional tort
Causation
duty comes from policy; breach comes from facts;
need to prove 2 elements for causation
cause in fact and proximate cause
cause in fact
D conduct causes the accident “but for”; substantial factor (D conduct was a substantial factor in bringing the injury
Proximate cause
not many intervening events; if too many it is not foreseeable; couldnt plan for the accident;
what breaks prox cause
1 human action that was unforeseeable; 10 foreseeable actions; non-human action (bolt of lightening); criminal acts
Joint Venture Causation
if 2 or more persons are united in JV and their conduct results in harm then negligence can be attributed to both
Joint and Several Liability
one party is responsible for torts of JV partner; if one is bankrupt the other may be held responsible for all the damages; party cant sue for full amount from each though
Duplicative Cause Teste
2 actors cause the injury and fault cannot be apportioned; bot but for causes; Both parties are held
Market Share Liability
liability and damages assigned to D based on their share in the market; P must show injury was caused by D or something under D’s control
4 exceptions to Market Share
unfair for P to isolate D if D is in better position to prove; D active in common plan and knows of others breach of duty; industry wide liability; liability distributed the damages among the Ds
Shifting BOP
P must prove case more likely than not; RIL; Substantial factor causation; JV; SL; Duty from statute; Master/servant
