Nature

Question 1

What are the four degrees of Negligence? (From low to high)

Answer 1

Negligence Per Se, Lower Standard, Reasonable Person, Utmost Care

Question 2

What is the standard of care (Nature) for Negligence Per Se?

Answer 2

An existing statute may establish the standard of reasonable care in which case the statutory standard imposed by the statute will replace the general common law standard of reasonable care.
Note: they can be adjusted/disregarded for safety or other reasons justifying the violation

Question 3

When does Negligence Per Se apply? (four criteria)

Answer 3

1. P must prove that the statute is a safety provision.
2. P is in the class of victims the statute was designed to protect
3. The statute is relevant.
   It is the type of accident that occurred.
   It is the type of harm intended to be avoided
   It is the type of hazard intended to protect against.
4. The statute applies a standard of conduct (what to do or not to do)

Question 4

What are the exceptions to Negligence Per Se (when statutory standard of care does not apply)?

Answer 4

Generally:
Compliance is more dangerous than non-compliance
Compliance is impossible under the circumstances
Specific Restatement Section 15:
Reasonable in light of the actor’s childhood, physical disability, or incapacitation
Reasonable in attempting to comply
Neither knows nor should know of the factual circumstances that render the statute applicable
Violation is due to confusing way requirements are presented
Compliance poses a greater risk of physical harm than noncompliance

Question 5

what is the difference between negligence and absolute liability?

Answer 5

Absolute liability is liability based on no facts other than whether the actor caused the victim harm (most restrictive) while negligence is the standard of reasonable care dependent on the facts of the case and the individuals actions

Question 6

What is the definition of a writ of trespass? What standard of care applied to a trespass?

Answer 6

Defn: D inflicted injuries through DIRECT and IMMEDIATE application of force
Care: Strict liability
Defense: inevitable accident, no volition

Question 7

What is the definition of case? What standard of care applied to an action on the case?

Answer 7

Defn: D inflicted injuries that did NOT involve direct and immediate force
Care: Reasonable person test/care
Defense: Exercise of reasonable care

Question 8

How was the standard of care unified in Brown v. Kendall? What substantive and procedural did the justices adopt?

Answer 8

Unification indicated that the reasonable person standard was used for tort and negligence cases.
Substantive: Ordinary care (reasonable person)
Procedural: Burden of proof on the plaintiff to establish lack of reasonable care

Question 9

What is the common law definition of the negligence principle?

Answer 9

negligence is the failure to act with the level of care that a reasonable person would exercise in the same or similar circumstances

Question 10

What is the economic definition of negligence?

Answer 10

Hand Formula
B < P * L
if an individual fails to take precautions when the marginal costs to prevent the injury from occurring (B) is less than then probability that the harm would occur (P) multiplied (*) by the magnitude of the resulting harm (L) then the individual has failed to act as a reasonable person and a
breach may result.

Question 11

What are the key elements of the reasonable person test?

Answer 11

1. Observe the conduct of the defendant rather than their state of mind
2. Utilize an objective standard of performance rather than a subjective standard.
3. Can include accommodations depending on the party and their age, mental and physical superior abilities.

Question 12

When is the reasonable person test modified? What is the modification to the care?

Answer 12

Three Modifications:
Physical disability: standard of care changes to “a reasonably careful person with the same disability”
Youth: standard of care becomes “a reasonably careful person of the same age, intelligence and experience” (unless less than 5 then incapable or child engaging in adult activity which is no accommodation)
Increased intelligence (more mature) so standard can shift upward
Decreased intelligence so lower standard
More experience = more professional conduct which means a higher standard
Superior Attributes: “reasonable person with those special skills” only modified when the D’s skill can be measured via certification or licensure.

Question 13

What is the Lower Standard of Care?

Answer 13

the lower standard of care requires a higher degree of negligence to be held liable.

Question 14

When does the Lower Standard of Care Apply?

Answer 14

Applies to situations and relationships where the defendant may have acted in a grossly negligent matter or where the defendant offers a service. (e.g. Good Samaritan Laws, Recreational Land Owner, Automobile-Guest)

Question 15

What is the policy justification for Lowering the Standard?

Answer 15

the legislature seeks to shield the defendant from internalizing costs of accidents that are associated with making the resource available.
The legislature subsidize’s people’s good behavior of providing their service or resources to the public for free.

Question 16

What is the Reasonable Person standard?

Answer 16

the actions and conduct of the actor are compared to what a reasonable person in those same circumstances would have done.

Question 17

When does the Reasonable Person Standard apply?

Answer 17

This is the default standard of care that courts use to determine if negligence has occurred

Question 18

What is the Utmost standard of Care?

Answer 18

a standard more stringent than general reasonable person. Liable for even slight negligence to passengers or guests
Because of the power imbalance for control and safety decisions
Defendant is in a better position to fix risk and spread losses/costs

Question 19

When does the Utmost standard of Care apply?

Answer 19

Usually applies to special fiduciary relationships where there is a power imbalance for control and safety decisions, and where the defendant is in a better position to absorb and spread the costs of liability
(e.g. innkeeper-guest, common carrier-passenger)

Question 20

What is the evidentiary effect of Negligence Per Se?

Answer 20

The only evidence that the plaintiff must provide is that the defendant’s violation of the statute caused the harm suffered.
The violation of the statute establishes a conclusive presumption of duty/breach of duty.
This simplied the burden of proof on the plaintiff which turned a flexible standard into a bright line set of rules.

Question 21

Why have courts sought to limit the evidentiary effect of negligence per se?

Answer 21

Because NPS relied on hard-and-fast rules rather than a flexible standard like negligence courts found the doctrine to be restrictive.
The addition of exceptions and excuses reinstated a flexible standard giving juries more discretion

Question 22

How is Custom defined?

Answer 22

Custom is the common practice in the relevant community and is typically set by private actors in the same calling or business. It establihses whether the defendant had succeeded or failed to do what is customarily done ot label as negligent or not. Custom is defined by its scope and its frequency.

Question 23

How does a court determine whether a custom is pertinent to evaluating the standard of care?

Answer 23

Custom is relevant evidence on the question of care but is not dispositive.
Compliance with custom is not definitive proof of reasonable care.
Nor is non-compliance automatically proof of a breach of the duty of reasonable care.

Question 24

What is frequency? (professional malpractice)

Answer 24

How common is the practice? Does it constitute a substantial minority?
Are the doctors leaders in their field? (the more substantial or influential the less witnesses needed)

Question 25

what is scope? (professional malpractice)

Answer 25

Is it one that is in the same calling or profession as the defendant?
Geographic: same locality, same or similar locality, national
Calling or profession: “consipiracy of silence” makes obtaining a testimony difficult. The narrower the speciality the fewer experts will be available

Question 26

What is the evidentiary weight given to custom in evaluating whether a duty of care was breached? Why does custom play this role?

Answer 26

Relevant evidence as to whether standard of reasonable care was met, but is not dispositive
The fact that a practice is customary means that a defendant could learn about it and could feasibly implement it which is very impactful to the outcome of a case.

Question 27

What are the limitations of Custom (Professional)?

Answer 27

Rare and Do Not Often Succeed
Reluctance to sue
Arbitration clauses
Legislation limiting recovery
Case-by-case analysis so there is no criticism or evaluation of system disparities

Question 28

What is the evidentiary effect of Custom (Professionals)?

Answer 28

In cases involving malpractice by professionals the courts do treat custom as synonymous with reasonable care.

Question 29

How does informed consent differ from a claim of malpractice in administering treatment?

Answer 29

Malpractice focuses on whether the doctor used a reasonable course of treatment.
Informed consent focuses on whether the doctor respected the patient’s right to choose among reasonable treatments.

Question 30

What is the “reasonable physician rule”?

Answer 30

The “reasonable physician” rule
looks at customary disclosure among physicians in the same field as the defendant to determine standard of care and information required to explain and introduce risks that is reasonable.

Question 31

What is the “reasonable patient” rule?

Answer 31

The “reasonable patient” rule
looks at what information is material to a patient’s decision about medical treatment. The standard is typically objective and is not defined by the custom in the medical community

Question 32

How does the “reasonable patient” rule differ from the “reasonable physician” rule?

Answer 32

Besides the definition differences the “reasonable patient” rule also include disclosure requirements and includes exceptions.
Disclosure:
material risks and benefits of recommended treatment
alternative courses of treatment including no treatment
risks and benefits associated with alternatives
Exceptions
Patient requests withholding of info
Incompetent patient (age/mental disability with no guardian present)
Non-material risks
Emergency situations
Physician determines psychologically incapable of proccessing info
Common-knowledge risks

Question 33

What are the hybrid/objective and
subjective approaches to defining what a patient would
want to know?

Answer 33

Subjective approach: they look at risks material to a particular patient and their unique traits and the doctors must look into all specific traits that are “known or should be known” and act as a detective to these traits.
Hybrid/Objective approach: Unique traits that the doctor is aware of/told about by the patient and the doctor only has to use actual knowledge or “knows or has reason to know” (not a detective)

Question 34

What information must a physician typically disclose?
When is non-disclosure permitted?

Answer 34

Disclose:
material risks and benefits of the recoommneded treatment
alternative courses of treatment (including foregoing treatment)
the material risk and benefits associated with those alternative treatments
Non-disclosure permitted:
risks that are common knowledge
non-material risks
Emergency situations
Incompetent patient (age or mental disability with no guardian present)
Patient requests withholding of info (controversial)
Physician determines psychologically incapable of processing information (controversial)
Does not apply to the characteristics of the doctor (inexperience or substance abuse; financial interest to do the procedure)

Question 35

What is the role of informed consent forms?

Answer 35

doctors rely on these forms to establish the important and all known risks leaving the patient to sign consent

Question 36

What was the nature of the duty to third parties from psychotherapists under Tarasoff I?

Answer 36

Duty to warn the victim or foreseeable victim

Question 37

What was the nature of the duty to third parties from psychotherapists under Tarasoff II?

Answer 37

A duty to take reasonable steps to protect identified or reasonably identifiable third parties as risk of death or serious bodily injury to a third party

Question 38

What was the nature of the duty to third parties under the legislative Cal. Civil Code?

Answer 38

Reasonable efforts to communicate the threat to victim(s) and to a law enforcement agency
Essentially duty to warn but to BOTH victims and law enforcement

Question 39

What was the nature of the duty to third parties from psychotherapists under the Texas approach?

Answer 39

Protect confidentiality → therapists not required to report concerning conduct to potential victims

Question 40

What is the tort of negligent entrustment?

Answer 40

One who supplies directly or through third person a chattel to someone whom they know or has reason to know could lead to unreasonable risk of physical harm is subject to liability for any harm resulting.

Question 41

What is the difference between “know or have reason to know” and “know or should have known” under a negligent action?

Answer 41

“knows or has reason to know” refers to the actual knowledge in the defendants possession. Even if you do not have actual knowledge if the facts in your possession would lead a reasonable person to inder the victim was in harms was/was not in harms way.
(There is no need to investigate further)

Question 42

What are the two approaches to negligent entrustment?

Answer 42

an approach that focuses on the time of the accident or the time when a chattel is conveyed

Question 43

What is the basic obligation owed to Trespassers?

Answer 43

No willful, wanton or intentional misconduct
Occupier cannot injure a trespasser or recklessly disregard the trespasser.

Question 44

What is the standard of care for Frequent Trespassers?

Answer 44

Same protections as the normal licensee
* no willful, wanton or intentional misconduct.
* duty to warn of dangers known to them that are unlikely to be discovered by the entrant

Question 45

What is the standard of care for Discovered Trespassers?

Answer 45

Same protection as a licensee
Limited duty of reasonable care
No unreasonable force to expel trespasser, no negligence in acts directed toward trespasser, possible duty of care with respect to active conduct, possible duty to warn of hidden dangers.
Trespasser is permitted to exit the property by most direct route available to them

Question 46

What is the standard of care for Child Trespassers?

Answer 46

Must exercise reasonable care to eliminate the danger of attractive nuisance from artificial conditions:
* Places where the condition exists and the possessor knows or has reason to know children are likely to trespass;
* Condition is one that is known or is reasonable to know
* the possessor knows or should know the condition can lead to unreasonable risk;
* Children cannot personally identify the risk due to immaturity; and
* The possessor has the easy ability to correct the risk/condition.

Question 47

What is the basic obligation owed to all Licensees?

Answer 47

Duties to trespasser plus
Duty to warn of dangers known to landowner or occupier and unlikely to be discovered by entrant

Question 48

What is the basic obligation owed to Invitees?

Answer 48

All duties owed to trespasser and licensee plus
Duty of reasonable care to protect them against both known dangers and those that would be revealed by inspection.
Applies the standard of “know or should know” where it is their duty to search out and address those unknown dangers to the invitee entering the property.

Question 49

What are the enhanced protections for Trespassers and Licensees in some jurisdictions?

Answer 49

Trespassers: refrain from creating traps
artificially created conditions that are inherently dangerous and deceptively innocent
Licnensees: reasonable care with respect to the landowner’s active conduct which is sometimes considered active negligence.

Question 50

What are the reasons for and against unifying the standard of care for entrants?

Answer 50

For unification:
-The landowner or occupier’s duty of care should not depend on the status of the entrant. Their status (the manner in which they entered the property) could be one factor to consider in determining whether a defendant’s behavior was reasonable.
-Modern conditions have evolved in ways that make the classifications unworkable, sometimes harsh and inappropriate. Temporarily stepping onto someone’s property because the sidewalk is obstructed is a modern condition that would be stripped of many protections which is too harsh.
-The common law categories have become riddled with exceptions and modifications that their application has become unpredictable.
Against Unification:
-The categories provide predictability and continuity in the common law.
-Judicial exceptions and modifications have successfully ameliorated the harsh consequences of the common law classifications.
-The categories offer landowners clear guidance on their obligations to entrants, while the reasonable care standard is relatively amorphous and more difficult to figure out

Question 51

What are the Reasonableness Factors for Standard of Care?

Answer 51

FOURTBP
* Forseeability of the harm
* Opportunity and ease of repair or correction or warning
* Use to which premises are put or expected to be put
* Reasonableness of the inspection, repair or warning
* Time, manner and circumstances of entry
* Burden on landownder/community in terms of providing protection
* Purpose of entrant in coming on the premises

Question 52

Why are trespassers sometimes subject to a
separate standard when landowners and occupiers
owe both licensees and invitees a duty of reasonable
care? Is the separate treatment justified? Why or
why not?

Answer 52

Reasonable becuase the standard was not meant to convert defendants into insureres of everybody who comes onto the property. It places too heavy of a burden on landowners.

Question 53

What are the four key classifications for landowners and occupiers?

Answer 53

Common-law classifications/Traditional approach
* Texas maintains the traditional approach
Unified Reasonable care
* California Supreme Court approach
Reasonable care except for trespassers
* Nebraska Supreme Court approach
Reasonable care except for criminal trespassers
* California Legislature’s modification of the CA Supreme court decision.
Note: Rest (3d) of Torts has a standard of reasonable care except for “flagrant” trespassers”
they usurp property rights so offensively it is considered criminal.