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TORTS > Breach > Flashcards

Breach Flashcards

1
Q

defnintion

A

failure to use ordinary care (reasonable person standard) do something or failing to do somehting that reasonable person would do

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2
Q

Reasonable person standard

A

Objective standard of care

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3
Q

Negligence Standard for children

A

different jurisdictions have different standards; under 4=no negligence; 4-7 is range for when incapable of neglignece

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4
Q

Illinois rule

A

below 7 not capable of negligence; 7-14 presume negligence; 14 and up capable of negligence

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5
Q

modern trend

A

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

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6
Q

MD rules

A

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

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7
Q

Cost/benefit analysis

A

cant hold value of life at infinity; safety must be balanced aginst costs, safety as a matter of degree

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8
Q

(B)urden v (P)robability(L)oss

A

when burden of preventing accident is less than PL there is negligence; no negligence when B is greater than PL

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9
Q

Risk Neutrality

A

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

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10
Q

Advantages of BPL

A

implicit analysis; good to be reminded that not every accident has the same probability

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11
Q

Disadvantages of BPL

A

often impossible for reasonable person to know in advance; dont know if people are risk neutral or adverse; can be expensive to do calculations

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12
Q

Breach of Statute

A

negligence in fact; negligence in law; violation of statute;

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13
Q

negligence in fact

A

facts show that D’s behavior was unreasonable

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14
Q

negligence in law

A

conduct was negligent, not giving to jury, clearly negligent

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15
Q

Breach of statute

A

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

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16
Q

Violation of a Statute

A

no excuses; presumption of negligence; evidence of negligence (with jury charge);evidence of negligence (without jury charge weakest)

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17
Q

MD rule

A

violation of statue is evidence of negligence

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18
Q

Breach of custom

A

actors compliance or deterrence from one’s field is SOME evidence of negligence but not conclusive

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19
Q

3 possible outcomes of Breach of custom

A

evidence of negligence w/ jury charge; evidence of negligence without jury charge; not admitted at all

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20
Q

Res Ipsa Loquitor

A

dont need to prove negligence because the accident could not have occurred without one party being negligent

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21
Q

Requirements for Res Ipsa

A

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

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22
Q

Advantages of Res Ipsa

A

saves P litigation expenses; Burden on D to come forward with what happened; ignores remote issues like earthquakes

23
Q

disadvantages of Res Ipsa

A

can disadvantage the rights of the D; ignores remote issues like earthquakes

24
Q

Control requirement of res ipsa

A

strict: need control by D from time of manufacture to end of accident; many jurisdictions do not permit expert witnesses

25
Q

Liability scale

A

no tort liability; lower standards; negligence; higher standards; SL; RIL;

26
Q

RIL and MedMal

A

does not apply b/c it is a rare injury; requires that occurrence more likely b/c of negligence than something else

27
Q

MD RIL

A

99% of doctors do nothing wrong; no RIL in MedMal;

28
Q

Multi Party RIL

A

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;

29
Q

Advantages of MPRIL

A

one party is negligent; insurance: makes all parties responsible knowing they will pass cost onto the patients

30
Q

Disadvantages of MPRIL

A

at least one or more parties have done no wrong but have to pay; absent joint venture; penalizes everyone for one person’s wrong

31
Q

MD RIL

A

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

32
Q

Mental defect/incapacity

A

insanity or other mental deficiencies are not recognized as defense to negligence

33
Q

Innocent victims should be compensated

A

system wide efficiency; behavior mod: encourage care takers to look after mentally ill

34
Q

Sudden Mental Incapacity Doctrine

A

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

35
Q

Sudden Emergency

A

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

36
Q

Unavoidable accident

A

not negligent if there is nothing the driver can avoid the accident by using reasonable care

37
Q

common carrier

A

greater care required of one who distributes the product, inherent character poses high risk of injury

38
Q

Standard of care for Physicians

A

national standard; degree of care of an average competent practitioner; higher standard of care for specialists;

39
Q

Good Samaritan doctors

A

only liable for gross negligence

40
Q

Standard of care for hospitals

A

no standard from small hospital to big hospital; smaller hospital should transfer patients if possible;

41
Q

MD MedMal

A

national standard; one standard for general physician vs a specialist; physician must disclose material risks and reasonable possible alternatives

42
Q

Negligence Spectrum

A

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

43
Q

Causation

A

duty comes from policy; breach comes from facts;

44
Q

need to prove 2 elements for causation

A

cause in fact and proximate cause

45
Q

cause in fact

A

D conduct causes the accident “but for”; substantial factor (D conduct was a substantial factor in bringing the injury

46
Q

Proximate cause

A

not many intervening events; if too many it is not foreseeable; couldnt plan for the accident;

47
Q

what breaks prox cause

A

1 human action that was unforeseeable; 10 foreseeable actions; non-human action (bolt of lightening); criminal acts

48
Q

Joint Venture Causation

A

if 2 or more persons are united in JV and their conduct results in harm then negligence can be attributed to both

49
Q

Joint and Several Liability

A

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

50
Q

Duplicative Cause Teste

A

2 actors cause the injury and fault cannot be apportioned; bot but for causes; Both parties are held

51
Q

Market Share Liability

A

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

52
Q

4 exceptions to Market Share

A

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

53
Q

Shifting BOP

A

P must prove case more likely than not; RIL; Substantial factor causation; JV; SL; Duty from statute; Master/servant

TORTS (7 decks)

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