Breach of Duty

Question 1

Negligence (unintentional tort)

Answer 1

Requires fault
1) duty of care
2) breach of duty
3) actual cause
4)proximate cause
5) damages

Question 2

What are the outer bounds of breach of duty?

Answer 2

Reasonable foreseeability
If harm is not reasonably foreseeable, then failing to act to avoid or minimize that harm cannot be a breach of duty. However, simply foreseeing an accident does not automatically mean that ordinary care requires for that accident to be prevented, cost-prevention must also be considered

Question 3

Calculus of risk

Answer 3

An act or omission is a breach so long as the burden of eliminating a potential loss “b” is less than the probability of injury/loss “p” multiplied by the extent of injury/loss “L”

Question 4

2 ways to reduce risk

Answer 4

1) take action to reduce or eliminate a foreseeable risk
2) warn those who might be harmed of the risk so that they may avoid it

Question 5

Cost-prevention

Answer 5

Even if harm is foreseeable, a person is only negligent if the preventative measures could be implemented at a reasonable cost. If cost is not reasonable, this is where warning preventions should take effect.

Question 6

Reasonable person standard

Answer 6

Bethel v. New York Transit Authority

to derive a standard of acceptable conduct against which to measure the actor’s conduct

Question 7

constructive notice

Answer 7

existence of a set of circumstances from which the court will conclusively presume a person received notice, whether or not he actually did receive notice

Question 8

Why might an appellate court not review an issue for appeal?

Answer 8

1) any error was non-prejudicial “harmless error” (i.e. did not harm the appellant). In other words, the aggrieved party must show that the error would have affected the decisions below.
2) waiver (i.e., failure to preserve the issue for appeal). The attorney for the aggrieved party must have brought the alleged error to the attention of the lower court judge (via “objection” or “motion”)

Question 9

is the breach standard objective or subjective?

Answer 9

Objective

Question 10

is the reasonable person test modified to take into account physical disabilities?

Answer 10

Yes, if they are significant and objectively verifiable. R3, 11, comment b

Exception: a person who know or should know that their physical disability may render them unable to live up to the standard and nevertheless engages may breach their duty despite their physical impairment

Question 11

is the reasonable person test modified to take into account sudden incapacitation?

Answer 11

Yes, but the actor may breach the duty of care if the actor was negligent in not foreseeing the sudden incapacitation and taking precautions. R3, 11b, comment d

Question 12

is the reasonable person test modified to take into account mental or cognitive disabilities?

Answer 12

No. R3, 11(e)

Question 13

is the reasonable person test modified to take into account youth?

Answer 13

judged by intelligence and perception of children of like age and experience, though some so young they cannot be negligent at all as a matter of law R3, 10a. Children under five completely immune from negligence liability. R3,10b.

exception: when minors engage in dangerous adult activities, their conduct is judged by the reasonable person sa=

Question 13

contributory negligence

Answer 13

barely any states follow this regime
Is the defense that the defendant may have breached duty of care but they are not liable because plaintiff also breached their duty of care
o These states will more likely allow a plaintiff be judged based on their capabilities rather than some external objective standard so plaintiff who is harmed is not barred from all recovery
o 99% d’s fault, 1% p’s fault, no recovery for p

Question 13

comparative negligence

Answer 13

suggests that plaintiff may recover the percentage of damages that the defendant is at fault for, regardless, if the plaintiff was negligent as well

d at 40% fault, p at 60% fault, p may recover 40% of damages

Question 14

Is whether a driver must exit a car to attempt to see whether a train is coming a question of fact or a question of law?

Answer 14

Both! What is the legal obligation of the plaintiff with regard to exercising due care for themselves but it is in a particular factual context because it depends on the circumstance.

Question 15

Rationales for admissibility of custom evidence

Answer 15

1) provides jury with a metric by which to judge the actor’s conduct
2) custom shows feasibility or lack thereof
3) custom shows the defendant knew or should have known a safer way

Question 16

prima facie

Answer 16

a party having a burden of production has succeeded in shouldering it

Question 17

burden of production

Answer 17

determines who loses if no evidence or insufficient evidence is adduced
 Ordinarily on plaintiff for cause of action, for affirmative defense typically on defendant

Question 18

burden of persuasion

Answer 18

determines who loses if sufficient evidence is adduced for a reasonable jury to conclude that either side should prevail on an issue
 Preponderance of evidence

Question 19

Negligence per se

Answer 19

if you have a statutory violation, it demonstrates prima facie case and shifts burden of persuasion to give an excuse for the violation

Question 20

What excuses will the court at least allow the jury to consider for statutory violations?

Answer 20

R3, 15, comments
o C – reasonable does not know they are not in compliance
o B- unable with reasonable diligence to comply
o Confronted by emergency not due to his own conduct
o E- compliance would involve a greater risk to others
o D- traditionally, ignorance of the law has not been an excuse, but at least in this context, error of law caused by confusion in the law can be an excuse
o Other excuses when the law is so obscure, unknown, outdated, or arbitrary to make its adoption as a standard for reasonable care inequitable

Question 21

New York Notice Rule

Answer 21

Negri v. Stop & Shop
Gordon v. American Museum of Natural History

They know or should have known. “Actual Notice” or “Constructive notice”

you can’t use negligence on prior occasions to show that defendant was negligent on the specific occasion being discussed.

Question 22

Preservation of evidence letter

Answer 22

if the plaintiff comes to you quickly enough, you can send the potential defendant a letter directing them to preserve evidence
o If the potential defendant nevertheless destroys the evidence, and it is actually material to the outcome, defendant may suffer negative consequences, such as adverse inference that the evidence would be harmful to them

Question 23

New Jersey Mode of Operation

Answer 23

Established in Wollerman v. Grand Union

Defendant failed to do what is reasonably necessary to protect the customer from the risk of injury mode of operation is likely to generate
o Testimony about prior risk is admissible. It bears on the level of risk involved in the store’s mode of operation and the retailer’s knowledge of that risk

Question 24

What is the relationship between “reasonable foreseeability” and “notice” requirements?

Answer 24

o Absence of reasonable foreseeability is an inability to see potential harm when an actor knows all the relevant facts.
o Absence of notice is the inability to see harm because the actor does not know critical facts. The actor is reasonably unaware of the conditions endangering others. If they don’t know, then there’s no reasonable foreseeability.

Question 25

Test to establish Res Ipsa Loquitor

Answer 25

1) An event that would not ordinarily happen in the absence of negligence and
2) defendant’s exclusive control (we are looking for more constructive control)

Question 26

What is a possible third element of res ipsa?

Answer 26

the unusual event leading to injury is not due to a voluntary act of the plaintiff. plaintiff may have some negligence but has nothing to do with the unusual event

Question 27

pleading in the alternative

Answer 27

asserting in the pleading (i.e, the complaint or answer) multiple inconsistent theories of liabilities or defenses.

Question 28

What is the effect of establishing res ipsa?

Question 29

Two rationales for res ipsa

Answer 29

o Prosser: res ipsa is a good inference i.e., it is more likely to reflect the truth, namely that the defendant was negligent
o Wigmore: res ipsa avoids unfairness to the plaintiff, who reasonably does not know precisely how defendant was negligent

Question 30

What are the 2 types of mm causes of action?

Answer 30

o lack of competence or failure to exercise skill vindicates patients’ interest in avoidance of physical injury
o lack of informed consent vindicates patients’ interest in bodily autonomy

Question 31

How is autonomy protected in mm?

Answer 31

Informed consent doctrine
o Based on the principle that every human being of adult years and sound mind has a right to determine what shall be done to their own body. Surgeons and other doctors are thus required to provide their patients with sufficient info to permit the pt to make informed and intelligent decisions on whether to submit a proposed course of treat. (Korman v. Mallin)

Question 32

What is needed to establish mm departure from the professional standard?

Answer 32

Expert testimony

Question 33

What is the exception to the need to establish deviation from the professional standard?

Answer 33

Plaintiff can establish breach of duty without proving violation of the professional standard
1) common knowledge of laymen sufficient
2) failure to follow explicit instructions on a pharmaceutical

Question 34

Any expert testimony is not sufficient if they merely testify that:

Answer 34

o 1) they would do something differently
o 2) a different approach is better (in terms of a risk/utility analysis)
o 3) most doctors would take a different approach

Question 35

R(2) 299A comment C:

Answer 35

The physician’s obligation to provide competent treatment does not depend on contract

Question 36

R(2) 299A comment f:

Answer 36

A physician need only conform with the standard of their own school of thought

Question 37

Must the treatment be invasive for informed consent obligations to apply?

Answer 37

NO (matthies v. mastromanaco)

Question 38

What is the standard for determining whether the disclosure on a required subject was adequate?

Answer 38

1) Reasonable physician rule (the professional standard)
2) Reasonable pt rule

Question 39

Agreements to take non-standard medical approach (R3-11)

Answer 39

o A medical professional or institution may agree to take an approach to care different from standard of care to the extent that a reasonable informed pt:
 1) refuses one or more elements of recommended care
 2) affirmatively seeks a different approach that does not violate public policy; or
 3) agrees to a different approach where public policy affirmatively favors allowing such an agreement to foster improvement of medical care, provided that the agreement is voluntary and the provider reasonably believes that the pt has actual knowledge of the approach’s known risks and potential drawbacks.

Question 40

Exceptions to the need for expert testimony?

Answer 40

R3-6
(a)
* 1) res ipsa loquitor applies to the case
* 2) common knowledge of laymen sufficient
* 3) provider admits breaching the standard of care

(b) proof that the provider complied with a practice guideline established by an authoritative body is sufficient to support, although not compel, finding that provider did not breach standard of care

Question 41

mm res ipsa loquitor

Answer 41

R3-7: Factfinder may infer that a medical provider breached the standard of care, if more likely than not:
 1)the harm that the pt suffered is the result of negligence, and
 2) the negligence is attributable to the medical provider rather someone else

Question 42

Reasonable patient rule 2-step analysis

Answer 42

Korman v. Mallin
1) Define the existence & nature of the risk and the likelihood of its occurrence (some medical testimony necessary to establish the risks)
2) trier of fact has to decide whether the probability that type of harm is a risk a reasonable pt would consider in deciding on treatment

Question 43

For consent to be reasonably informed, the pt must be told about the following, in a manner reasonably designed to convey the info

Answer 43

(R3-12b)
o The general nature of, & reasons for, the proposed treatment;
o The proposed treatment’s material risks and benefits; and
o Material and substantially different alternatives, if any to the proposed treatment

Question 44

The materiality of information is determined as follows

Answer 44

R3-12c
1) in patient-centered jurisdictions, info is material if a reasonable person, in what the providers knows or should know to be the patient’s position, would likely attach significance to the info in deciding whether to consent to the treatment
2) in provider-centered jurisdicitons, info is material if the standard of care requires its disclosoure