Ch. 4 Negligence

Question 1

Elements of Negligence

Answer 1

(1) Duty, (2) Breach, (3) Causation, (4) Damages

Question 2

Learned Hand Balancing Test

Answer 2

Conduct is negligent if the Burden of prevention is outweighed by the gravity of the Loss times the Probability of the harm.
B < L x P

Question 3

Utility vs. Risk Formula

Answer 3

Utility:
1) Social value of the interest to be advanced
2) Likelihood of advancement
3) Availability of alternatives 
(Technical feasibility, Costs, Efficacy)

Risk:

1) Social value of the interest imperiled
2) Likelihood of harm
3) Extent of harm
4) Number of persons affected

Question 4

What is duty?

Answer 4

Judge decides what reasonable care needed to be taken to prevent harm.

Factors include foreseeability of risk, past experience, ability to mitigate risk, burden of mitigation, likelihood of harm

Question 5

What is the standard of care?

Answer 5

What a reasonably prudent person would have done under the circumstances. Custom is evidence but not determinative of what the RPP would have done.

Question 6

Is there a lowered standard of care based on ability?

Answer 6

No lower standard of care for physical handicap or mental illness. Sometimes lowered based on youth, emergency, or age-related infirmity. Some jurisdictions have an age under which there can be no liability (5 yrs old in the RS).

Question 7

Sudden Emergency Doctrine

Answer 7

Standard of care lowers when defendant had to make a stress-based choice in light of an emergency event.
Applies when: (1) event was sudden and unforeseen; (2) the event was not of the defendant’s own making.

Question 8

Children’s Standard of Care

Answer 8

Children held to the standard of what is reasonable to expect from children of like age, intelligence, and experience.

BUT When the activity a child engages in is inherently dangerous (driving machinery), the child should be held to the adult standard

Question 9

Professional Standard of Care

Answer 9

Professionals are held to the knowledge, training, and skill of an ordinary member of the profession. Often requires expert testimony to be established.

Question 10

Specialist’s Standard of Care

Answer 10

A specialist who holds himself to have higher skill is held to that heightened level of skill. (ex. an orthopedic surgeon is held to the ordinary surgeon not the ordinary doctor).

Question 11

Locality rule and National Standards of Care

Answer 11

Old rule: customs of the community
Minority rule: national standards
Majority rule: “similar community in similar circumstances” standard

Question 12

Superior Abilities Rule

Answer 12

A person with superior skill, training, or

experience must exercise those abilities

Question 13

Legal Malpractice

Answer 13

An attorney implicitly represents that he or she:

1) Possesses the ordinary degree of learning, skill, and ability
2) Will exercise his or her best judgment
3) Will be diligent and careful in using professional skill and knowledge

Generally, there is:

4) No liability for a mere error of judgment on which reasonable lawyers may differ
5) No guarantee of success

Question 14

Informed Consent as Medical Malpractice

Answer 14

The failure to obtain informed consent is professional negligence even if treatment is skillfully rendered.
A physician must disclose all material risks and alternatives, except if:
1) The information is, or should be, known to the patient; 2) Disclosure would be detrimental to the patient’s best interests; 3) There is an emergency

Question 15

Negligence Based on Violation of a Statute

Answer 15

Negligence Per Se

Question 16

Does the statute set the standard of care?

Answer 16

A statute defines the standard of care if (1) the legislation says it does; OR (2) the court says it does

Question 17

When will a court apply negligence per se?

Answer 17

(1) If plaintiff is within class of persons intended to be protected; (2) If the injury is the type of harm intended to be prevented; and (3) Appropriateness for adoption as standard. 
Statutes often broadly interpreted.

Question 18

What excuses does the court recognize for violation of a statute?

Answer 18

Possible Excuses:

1) Incapacity to comply
2) Ignorance of the need to comply
3) Inability to comply despite diligence
4) Emergency
5) Greater risk of harm

Question 19

How can negligence be proved?

Answer 19

With direct and circumstancial evidence:

Direct: evidence of the fact in question
Circumstantial: evidence from which the fact in question may be inferred

Question 20

What is the burden of proof?

Answer 20

Plaintiff must prove by a preponderance of the evidence. First burden of production, then burden of persuasion.

Question 21

Negligence and Notice

Answer 21

Liability for negligence depends on foreseeability, not notice.
If harm was not otherwise foreseeable, plaintiff must establish that defendant had actual or constructive notice of the danger.
Constructive notice is established by evidence that the danger existed so long that it should have been discovered through the exercise of reasonable care.

Question 22

What is Res Ipsa Loquitur Evidence?

Answer 22

RIL is one kind of circumstantial evidence from which breach of duty may be inferred.
Elements:
1) The event ordinarily does not occur in the absence of negligence
2) Facts indicate that the defendant’s conduct, more likely than not, was a cause of the event
(a) Defendant’s control of or responsibility for the instrumentality
(b) Superior knowledge of or access to the facts

Question 23

What is the majority rule for R.I.L.?

Answer 23

RIL evidence is a permissible inference that can be presented to the jury. RIL applies but does not condemn.

Question 24

Why would a plaintiff present RIL?

Answer 24

It allows a plaintiff to survive motions to dismiss in the absence of direct or circumstantial evidence.