Chapter 4 - Negligence

Question 1

What are the Elements of a Cause of Action for Negligence? (traditional formula/majority)

Answer 1

(1) failure of the duty to use reasonable care
(2) A breach of the duty
(3) Causation
(4) damages

Question 2

What are the two elements of duty to use reasonable care in negligence?

Answer 2

(1) foreseeable problem
(2) Duty to address

Question 3

What are the two types of causation for the negligence cause of action?

Answer 3

(1) Causation in fact
(2) legal or proximate causation

Question 4

Who does the standard of care apply to in negligence?

Answer 4

the plaintiffs and defendants both

Question 5

In R3 Sec. 3 of Torts, when does negligence exist?

Answer 5

If a person does not exercise reasonable care under all circumstances
(1) foreseeable likelihood that conduct will result in harm
(2) foreseeable severity if harm
(3) burden of precautions to eliminate or reduce harm

Question 6

What does the formula B state?

Answer 6

If the burden to take precautions is less than the probability x liability then negligence exists

Question 7

What is the objective standard of negligence?

Answer 7

Whether the defendant acted as a prudent person would.

Question 8

If a defendant has a shortcoming (like low IQ etc.), does the court consider the shortcoming generally?

Answer 8

No

Question 9

Is custom determinative of standard of care?

Answer 9

No, however, custom may show the standard of care.

Question 10

What is the sudden emergency doctrine?

Answer 10

What would a reasonable person do in an emergency (self-preservation) which os not of his own making.

Question 11

The general rule for children is whether the child exercised discretion and care reasonably exprected from children of like age, intelligence and experience. What is the exception?

Answer 11

When a child is engaged in adult or inherently dangerous activities, the child is held to the standard of care of an adult.

Question 12

Is a mental illness judged differently regarding the standard of care?

Answer 12

No. The mentally ill party is judged by the standard of care of the reasonable person.

Question 13

Does the reasonable person standard within a particular profession vary based on an individuals personal training and experience within that profession?

Answer 13

No, individuals within a particular profession are under a duty to act with the same standard of care as would an ordinary, rational member of the profession.

Question 14

Why is the similar community similar circumstances standard the most common standard out of (1) national v. Local (2) urban v. rural (3) similar community v. similar circumstances?

Answer 14

increased accessibility of expert testimony

Question 15

If a patient is suing for medical malpractice under the theory of informed consent, what must the patient prove?

Answer 15

(1) defendant physician failed to adequately inform the patient of a material risk before securing the consent to the proposed treatment
(2) If patient was informed of the risks he/she would not have consented to the treatment
(3) The adverse consequences that were not made known did in fact occur and he/she was injured as a result of submitting to the treatment

Question 16

How is the standard of care applied to professionals?

Answer 16

Contextualized to the profession to give a norm (excluding clergy and teachers)

Question 17

When applied to a professional, are mistakes always negligence?

Answer 17

No, when acting in good faith and with honest belief that their actions are in the best interest of a client, a professional will not be liable (Hodges v. Carter)

Question 18

What is required to prove the malpractice of a professional?

Answer 18

Expert testimony to show the professional has deviated from the proper standard of care

Question 19

How does custom apply to malpractice?

Answer 19

Custom is admissable in professional cases, and can be influential in deciding whether the professional was negligent

Question 20

Problems with applying Rules of Law to negligence?

Answer 20

Rigid application of standards of care for human behavior creates difficulties in evaluating extraordinary situations

Question 21

Negligence per se

Answer 21

negligence that violates a statute

Question 22

Physician’s informed consent defenses

Answer 22

(1) emergency situation
(2) it’s something everyone knows/ patient has reason to know
(3) disclosure would be detrimental to patient’s best interests

Question 23

An informed consent claim (med mal) must prove

Answer 23

(1) DR failed to inform of a material risk before obtaining consent
(2) If P had known, likely would not have consented
(3) The unknown risk/consequence did occur as a result

Question 24

What is the “but for” test & when is it applied

Answer 24

In determining NPS, whether imposing liability is reasonable
P’s injury would not have occurred “but for” D’s violation of the statute