Ch. 4 Negligence Flashcards
Elements of Negligence
(1) Duty, (2) Breach, (3) Causation, (4) Damages
Learned Hand Balancing Test
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
Utility vs. Risk Formula
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
What is duty?
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
What is the standard of care?
What a reasonably prudent person would have done under the circumstances. Custom is evidence but not determinative of what the RPP would have done.
Is there a lowered standard of care based on ability?
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).
Sudden Emergency Doctrine
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.
Children’s Standard of Care
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
Professional Standard of Care
Professionals are held to the knowledge, training, and skill of an ordinary member of the profession. Often requires expert testimony to be established.
Specialist’s Standard of Care
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).
Locality rule and National Standards of Care
Old rule: customs of the community
Minority rule: national standards
Majority rule: “similar community in similar circumstances” standard
Superior Abilities Rule
A person with superior skill, training, or
experience must exercise those abilities
Legal Malpractice
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
Informed Consent as Medical Malpractice
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
Negligence Based on Violation of a Statute
Negligence Per Se
Does the statute set the standard of care?
A statute defines the standard of care if (1) the legislation says it does; OR (2) the court says it does
When will a court apply negligence per se?
(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.
What excuses does the court recognize for violation of a statute?
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
How can negligence be proved?
With direct and circumstancial evidence:
Direct: evidence of the fact in question
Circumstantial: evidence from which the fact in question may be inferred
What is the burden of proof?
Plaintiff must prove by a preponderance of the evidence. First burden of production, then burden of persuasion.
Negligence and Notice
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.
What is Res Ipsa Loquitur Evidence?
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
What is the majority rule for R.I.L.?
RIL evidence is a permissible inference that can be presented to the jury. RIL applies but does not condemn.
Why would a plaintiff present RIL?
It allows a plaintiff to survive motions to dismiss in the absence of direct or circumstantial evidence.
