Nature

Question 1

Reasonable care as defined by cost-benefit analysis and community norms UNLESS…

Answer 1

1. There is a highly dependent relationship: Utmost Care - InC
   i) INN-keper/Guest
   ii) COMMON-carrier/Passanger (except Bethel)
2. Or you impose lower standards: Gross Negligent - GROi) GOOD Samaritan Laws
   ii) RECREATIONAL landowner status
   iii) OFFERING a resource free of charge

Question 2

Doctrines that help define reasonableness - List

Answer 2

1. Negligence per se
2. Res Ipsa Loquitur
3. Custom (professionals)
4. Informed consent
5. Business Practice Rule

Question 3

Defining reasonableness - Negligence Per Se

Answer 3

1/5 - Negligence Per Se

Statute may make alterations to the standard of care

Question 4

Defining reasonableness - Res Ipsa Loquitur

Answer 4

Circumstantial evidence rule
Constructive control (right of control)

Question 5

Defining reasonableness - Custom (professionals)

Answer 5

3/5 - Custom (professionals)

Custom does NOT define standard of reasonable care in tort UNLESS MEDICAL MALPRACTICE (courts treat customary practice as synonymous with reasonable care

1. Scope:
   a) Same locality
   b) Same/Similar locality
   c) National
2. Frequency (Numerousity + Influence)
   a) Substantial minority
   b) Industry leaders

+Scope of similar field

Question 6

Defining reasonable care - Informed Consent

Answer 6

4/5 - Informed Consent

Need to disclose:
- Material risks of recommended treatment; and
- Risks and benefits of alternt treatments (including foregoing treatment)

Need NOT disclose:
- Common knowledge/minor
- Remote risks
- Dr traits

Forgo:
- Emergency
- Incompetent
- Patient requests
- Dr. finds psychologically incapable

Tests
1. Reasonable physician (reasonable procedure)

2. Reasonable Patient (allowing patient the freedom to choose their treatment)
   a) Subjective
   b) Objective
   c) Hybrid

+ PLUS TEXAS RULES BASED APPROACH (lists things doctor must disclose)

Question 7

Defining reasonable care - Business Practice Rule

Answer 7

5/5 - Business Practice Rule/Mode of Operation (self-service)

• No actual or constructive notice
• Risk continuous/foreseeable

so business must take reasonable steps to reduce the risks that inhere in the use of self service operation

Question 8

Accommodations

Answer 8

Lower Standard
1. Physical disabilities (obvious and measurable)
2. Youth
- 0-5 = incapable of negligence
- Reasonable child of age, intelligence, experience
- Child engaged in adult activity = reasonable person standard

Higher Standard
- Superior Abilities (skills quantifiable and measurable)