Final Exam Flashcards

Question

Informed consent doctor- duty

Answer 1

Custom not definitive Test: 1- doc failed to inform of material risks (RPPatient) 2- patient would not have consented if informed (actual patient) 3- adverse consequences occurred, patient injured

Answer 2

1. Is there an applicable statute? 2. Is plaintiff type of person law intended to protect? Is injury the type of harm law intended to prevent? 3. Perry factors (Indirect cause of harm, too broad, no common law duty or notice, inaction is criminal, etc) 4. Court decides whether to create duty through procedural treatments: a- negligence per se b- rebuttable presumption (def. burden of proof, jury) c- Evidence (persuasive, jury)

Answer 3

Direct evidence Res Ipsa Circumstantial BPL analysis

Answer 4

Fact pattern suggest obvious breach with obvious evidence

Answer 5

Common Law Restatement

Answer 6

1- accident 2- exclusive control of defendant 3- wouldn't happen w/o negligence

Answer 7

1- Not ordinary w/o negligence 2- Other responsible causes sufficiently eliminated 3- Within scope of def. duty to plaintiff

Answer 8

1- Matter of law 2- Rebuttable presumption 3- Inference/evidence of negligence

Answer 9

Used w/o direct evidence Plaintiff must show: 1- actual or constructive (more likely than not) notice (assumed for something foreseeable) 2- Unreasonable risk of harm 3- No reasonable care by def. to reduce/eliminate 4- Failure proximately caused harm

Answer 10

Factual causation/ Cause In Fact causation Proximate cause/legal cause

Answer 11

But for or substantial factor

Answer 12

Harm would not occur w/o Speculation is not enough

Answer 13

1- multiple forces combine to cause harm 2- Any sufficient alone to cause harm 3- Impossible to tell which force caused harm

Answer 14

Goal: judge determines reliable and relevant expert/scientific testimony Can use statistic doubling for causation in fact trust the experts

Answer 15

1- loss of substantial chance of recovery/better medical outcomes 2- Plead w/ specificity lost chance, percentage/quality w/ expert 3- Recover based on unfavorable damages in proportion

Answer 16

Mostly related to DES/drugs Relaxes causation rules Policy implications Factors 1- Least cost avoider 2- Incentivizes corporate responsibility 3- Time lag (harm happens decades later, can still sue) 4- Access to info is disproportionate (manufacturers more likely to know)

Answer 17

Foreseeability Natural/probable cause Direct vs Remote Scope of Risk Intervening/superseding cause Eggshell

Answer 18

1. Def negligent to person rescued and negligence caused appearance of 2. Peril imminent 3. RPP would conclude peril existed 4. Rescuer acted with reasonable care in rescue

Answer 19

Eggshell, take them as they are Duty to all (causation must be direct for liability) Not too many intervening causes or too far removed (generations)

Answer 20

Cardozo: -scope of risk /zone of danger - time, space, foreseeability -limits duty sooner

Answer 21

-Liable only for immediate results (maybe next adjoining) -Foreseeability of exact type of harm

Answer 22

Possibility of harm foreseeable (don't have to anticipate exact harm) Foreseeable enough, even if risk was remote

Answer 23

Unknown- nothing Known- ordinary care (not willful/wanton)

Answer 24

Social guest- warn of hidden dangers, take premises as they find them

Answer 25

On premises for owner's business reasonable care (warn of hidden dangers too)

Answer 26

Merges Invitee and Licensee categories, maybe trespasser known

Answer 27

-Physical impact at time of trigger + manifestations -severe E.D. (no duty to prevent fright)

Answer 28

(easier to recover) Physical manifestations from E.D., impact unnecessary Normal person, no hypersensitivity Underlying negligent act

Answer 29

Contributory Negligence Comparative Negligence Assumption of the Risk Immunities

Answer 30

If P is negligent at all, no recovery

Answer 31

Pure: proportional, only recover for % you did not cause, 99-1. Modified: can only recover up to half or 49%

Answer 32

Express & implied (fold into comparative, but aware and voluntarily accept it)

Answer 33

1. look at specific language, is harm in scope of clause contract? 2. can assume risk UNLESS -party protected by clause intentionally causes harm, reckless, wanton, gross, etc -grossly unequal bargaining power (contracts of adhesion, could they go somewhere else?) -Involves public interest

Answer 34

Federal- FTCA waives in certain circumstances (discretionary function exception - retains immunity) State/Local- jurisdiction specific waivers Absolute vs Qualified

Answer 35

(pay attention to the facts and hit all of those) -Max recovery rule: judge can adjust if jury goes over it -5 Cardinal Elements Past physical and mental pain Future physical and mental pain Future medical expenses Loss of earning capacity Permanent disability & disfigurement -Economic (reasonable medical expenses, etc) -Non Economic (disfigurement, etc)

Answer 36

Only when conduct is really bad/egregious

Answer 37

1. Plaintiff harmed? 2. Employer v contractor? 3. Scope of enjoyment (foreseeable)?

Answer 38

Detour- sufficiently related Frolic- personally, wholly abandon job Dual purpose venture = personal + business, typically liable

Answer 39

Nondelegable duties: activity w/ high risk of harm cannot delegate duties

Answer 40

Blackburn (keep mischief from escaping) Cairns (natural v non natural) 520 (RS) (6 factors)

Answer 41

Focus on the activity, the point of the thing

Answer 42

Custom informative Pets- ok to trespass but one bite rule Barnyard- not ok to trespass Wild- always SL

Answer 43

1. Proximate cause/foreseeability of harm "from that which makes activity abnormally dangerous" (Minks) 2. Intervening/superceding causes (act of God or 3rd party) 3. Comparative negligence/assuming the risk- voluntarily and unnecessarily put yourself in harms way knowing probably consequences

Answer 44

1. Negligence 2. Warranty 3. Strict liability

Answer 45

(focus on duty) Duty to inspect if: 1. Reasonably certain/probable to place life/limb in danger if negligently made 2. Used by persons who won't inspect *proximity/relation is a factor

Answer 46

Express: irrespective of privity of contract, dealer and manufacturer could both be liable. Opinion v fact/guarantee (look @ wording) Implied: Can't use express to limit implied warranty, proximate cause analysis, no substantial changes/modifications

Answer 47

Focus on activity 3 types manufacturing design warning/notice

Answer 48

Common law duty No fault liability Harm (comes from violation of the statute) Definition clear or vague? Public on notice Disproportionate liability

Answer 49

NO duty UNLESS -special relationship -created the harm

Answer 50

Combine licensee and invitee Keep reasonably safe Warn of danger

Answer 51

Amaya- able to be hurt by def negligent in order to recover, zone of danger Dillon- closely related, reasonably foreseeable Thing 1. Closely related by blood or law Present at scene of injury and aware 2. S.E.D. (more than a disinterested party) 3. Not abnormal reaction to circumstances

Answer 52

-Intent -Setting -Time consumed -Work hired for -Incidental Acts reasonably expected by employer -Freedom allowed for employee’s responsibilities

Answer 53

High risk Great harm Inability to eliminate w/ due care Common Usage Location appropriate? Value

Answer 54

-in the business of selling (sellers + manufacturers) -knowing it won't be inspected -defective product -unreasonably dangerous EVEN THOUGH -all possible care -no privity of contract