Negligence Flashcards
Negligence created to
Protect members of society from unreasonable risk of harm
Negligence still requires what kind of act
Volitional act
Duty Exist when
The burden of taking precautions against possibility of risk may manifest is less than the gravity/magnitude of that risk, duty exist.
B< P*L
Define Duty
To act as a reasonably prudent person under the same & similar circumstances
What does a RPP take on & not take on
Takes on physical characteristics of person. Does not take on any mental deficiencies
RPP Child standard and when does it not apply
To as a reasonably prudent child of like age & intelligence. Does not apply when they are doing activities usually reserved for adults… also depends on if there are any jurisdictional dictations.
RPP Professional standard
To act as a reasonably prudent professionals under same & similar circumstances.
Professional:
Someone belonging to a learned profession or whose occupation requires a high level of proficiency.
Sometimes this can be a question for the fact finders
Rpp_Professional does not care about
Licenses,
Customary practices maybe relevant but not determining factor.
In order to prove Malpractice or breach of duty under RPprofessional, you must use as a part of prima facie
Must use an expert to establish SOC.
Informed Consent
Physicians have a duty to provide inform consent to patients as a part of Duty of care
Informed Consent includes (6)
Treatment protocols, available alternatives, Colleterial risk, Material risk, any economic or research interest involved.
What are the affirmative defenses to Informed Consent
Emergency
Where full disclosure would be detrimental to patients treatment protocol ( Therapeutic Privilege)
Explain how causations comes to play in informed consent
- Harm caused must be the the harm that was not disclosed…i.e doctor failed to inform you of a risk and that risk is what has happened.
- Had you known about such risk or alt available, you would not have gone through with procedure.
Explain whether courts look at for Duty & Causations in Informed Consent cases?
What a RPPhysican would have disclosed or what a RPPatient would want to know ( under duty)
Under causation : Objectively would a reasonable patient decline treatment ?
Under causation: Subjectively looks at what plaintiff would have done if they had known ?
Jurisdictions will mix and match ..think of chart
Breach of Fiduciary Duty and the rememdy
Defendant was in position of trust to the plaintiff & breached the obligation. Requires no proof of actual damages.
Remedy: Disgorgement of fees/economic benefit ( any money made goes to plaintiff).
4 ways to establish duty
RPP
Rule of Law
Non Tort Statutory
Tort Statutory
Duty as Rule of Law
Court makes proclamation of what The standard of care is all the time
3 Prong Test for Non Tort Statute
- Needs to be a member of the class of legislature intended to protect AND
The hazard that occurred was one legislature intended to prevent AND Imposition of the tort liability is appropriate
Effect of Proof when Non-Tort statute is used to establish duty? Jurisdictional
Rebuttal - Majority
Negligence Per Se
Some of evidence of negligence is relevant but not determinative
Non Tort Rebuttal Jurisdiction
Jury required to conclude D/B has been established UNLESS it is rebutted by credible excuse by party violating the statute.
Credible Excuses (5)
Violation reasonable b/c of actor’s incapacity
He neither knows nor should know of the occasion for compliance
He is unable after reasonable diligence or care to comply
He is confronted by an emergency not due to his own misconduct
Compliance would involve greater risk of harm to actor or to others.
Negligence Per Se (negligence itself) Jurisdiction
Unexcused violation is negligence itself
Conclusive evidence of d/b ( violation of statute)
Court makes determination regarding validity of excuse as matter of law
Res Ispa Loquitor
Accident does not ordinarily happen w/out negligence
Instrumentality of harm within exclusive control of defendant
Not caused by plaintiff
Procedural Effect of Res Ispa Loquitor (3)
Permits an inference of negligence but not require a find of negligence (Majority Jurisdiction)
Raises a presumption of negligence that the defendant must rebut or they lose (Minority Jurisdiction)
Raises presumption/inference of negligence and shifts burden of proof to defendant to disapprove negligence. (Minority Law)
Presumption of Evidence =
Requires certain results unless overcome with other evidence_ Must be taken as a rebuttal _ Minority Law
Rebuttal of Evidence
To refute, oppose or counteract by evidence, argument or contrary proof
Inference
Conclusion may be reached by considering other facts
Causation under but for
Sine Qua Non - Without/which not
CIF deals with probabilities or possibilities
Probabilities
Loss of Chance Doctrine
Minority Law
Acknowledges dr negligence probably did not cause death but Plaintiff should be able to get something for reduced survival due to negligence.
Exceptions to CIF traditional “but for” analysis (4)
- Independent , sufficient causes
- Alternative Liability
- Concert of Actions
Market Share Liability
Independent, sufficient causes
Each defendant’s breach of SOC is cause in fact as long as breach was substantial factor in bringing out plaintiff’s harm
Alternative Liability
All defendant’s breach SOC but unable to determine whose breach caused plaintiff injury
All defendants who breach SOC are all responsible for CIF
All defendants are CIF and BOP on CIF shifts to defendants to prove they (individual defendant) is not responsible.
Concert of Action
Does tortious act in concert with the other or pursuant to common design with him OR
Knows that the other’s conduct constitutes a breach of duty & gives substantial assistance or encouragement to the other so to conduct himself
OR gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the 3rd person.
Market Share Liability
Substantial share of market, cross compliant permitted, encourages defendants to bring in other defendants , encourages plaintiff to sue as many defendants
Opt out may be available depending on jurisdiction .
Joint & Several Liability
All defendants are together responsible and each liable for 100% of plaintiff’s damages
Several Liability
Each defendant responsible for their % of liability
Liability breakdown for Exceptions to CIF traditional “but for” analysis
J&S = Alternative Liability, Concert of Actions, Independent, Sufficient Causes
Several = Market Share Liability
Unforeseeable Consequences
Direct Causation
Reasonable Foreseeability
Zone of Danger
Direct Causation and majority or minority
Minority Law
Negligent act is legal cause of injury if defendant could foresee or anticipate SOME HARM
Reasonable Foreseeability _ Majority or Minority Law (3)
Liable for proximate results but not remote results
Defendant responsible for all results which could have been foreseen by exercise of reasonable diligence
Defendant must be able to foresee the Type of harm
Zone of Danger Test _ Majority or Minority Law
Harm is general type that made conduct unreasonable in the first place AND plaintiff was in zone of danger.
Intervening Causes
Defendant breaches SOC at point A and later at point B another independent actor breaches SOC then plaintiff injury occurs at point C in time
Defendant will try to argue breach at Point B severs link and plaintiff can only trace injury to point B = Intervening Superseding Causes
Intervening Superseding Cause
This may serve link if
Extraordinary
Not Foreseeable
Independent
Intervening causes & jurisdictions
Intentional torts are Intervening superseeding causes . _ Majority law
Minority Law.. egg skull plaintiff… ex Fuller v. Preis: D who negligently caused a car accident that injured Dr. was found liable for his suicide, bc the injuries Dr. sustained in the accident cause him to have an irresistible impulse to harm himself, which made his suicide involuntary.
Social Host Liability Majority & minority
Minority of js say social host is prox. cause of minor and adult drunks
Majority of js say social host is prox. cause of minor drunks only
Privity of Contract
No longer a bar to recovery for negligence… Plaintiff and defendant DO NOT need to have prior relationship
Failure to Act
Majority Law is no common law duty to act affirmatively & no liability in negligence for omission
Exception to Failure to Act (3)
- Defendant causes situation which plaintiff needs rescue
- Defendant assumes responsibility to act thereby increasing risk of harm or reliance by plaintiff to their detriment
- Special Relationship
Special Relationship Exception
Relationship arising when one trust the other to exercise a reasonable degree of car AND the other party knows or should know about reliance up that trust.
between
Defendant & Plaintiff OR
Defendant & 3rd party ( who may be the But for of plaintiff injury)
Defendant is
- Unique position to foresee harm
- Must act affirmatively
- Reasonable measures
*To warn specific, identified, unknowing victim
*To contact police
Therapist have duty to take reasonable measures to warn specific, identified, and unknowing victim and to contact police
Pure Economic Loss
Generally no recovery in economic Loss that does not accompany property or bodily damage is not allowed
Except
Harm to Plaintiff’s body or property (parasitic & foreseeable b/c accompanied with body/ property damage)
Contract ( Privity) w/ Defendant OR
Special & narrowly defined relationship between plaintiff & defendant Example: auditor, lawyers, termite inspectors….
Negligent Infliction of Emotional Distress
General rule is no liability in negligence for pure emotional damages
Except
Physical Impact Rule
Physical Manifestation
Zone of Physical Danger
Bystander Recovery
“Physical” Impact Rule
accompanied with (offensive) bodily contact that doesn’t result a physical injury but emotional injury
Physical Manifestation Rule
Definitive, objective physical injury produced by emotional distress
Recovery Limited to
Reaction expected of “normal” people( Typical reaction) AND
Physical manifestation Must be natural consequence of emotional distress
Zone of Physical Danger Jurisdiction
Physical Manifestation Test + Plaintiff is physically w/in zone of (physical) danger ( Plaintiff in physical danger)
Bystander Recovery Jurisdiction ( NIIED) (4)
Close relationship w/ negligently injured victim AND
Plaintiff was present at the injury producing event & aware AND
AND Results suffers serious emotional distress
(beyond what would be anticipated in a disinterested witness might suffer & which is not an abnormal response to circumstances).
Serious Emotional Distress = Reasonable person would be unable to to adequately cope with mental distress engendered by the circumstances of the case.
Negligent Misrepresentation
Defendant in performance of trade or profession AND
Carelessly provides erroneous information that is used by
Plaintiff to the Plaintiff’s detriment AND
Plaintiff was injured thereby
One who in the course of business or profession supplies information for guidance of others in their business transactions is liable for negligent misrepresentation that induce detrimental reliance.
Owners & Occupiers of Land
Duty of care owed by the owner or occupier changes depending upon legally status of plaintiff at the time the plaintiff was injured. “Premises Liability”
Duty of care owed to Trespassers
- No Duty of care owed to Trespasser unanticipated and defendant not aware of trespassers presence
- Upon discovery of trespasser _ Must use reasonable care to avoid injury, not to wantonly injure
Duty of care owed to Licensee
One who enters owner land by permission but for licensee’s own purpose;
Duty owed to Licensee _Warn licensee of hidden dangers unknown to the Licensee and owner has actual knowledge of ( DOES NOT ENCOMPASS WHAT THE LAND OWNER SHOULD HAVE KNOWN)
Duty of care owed to Invitee
1) Enters by invitation express or implied AND
2) Entry connected w/ owner’s business or w/ activity the owner conducts/ permits to be conducted on the land AND
3) Mutuality of benefit or benefit to owner
•Duty to use reasonable care in keeping premises in reasonably safe condition
•Warn of hidden dangers known to owner (actual knowledge) & dangers owner should be aware of = Constructive knowledge
•May extends toward including responsibility to protect from criminal activity
Attractive Nuisance
-Exception to no duty owed to trespasser ( described like this b/c if you have a social guest over that doesn’t necessarily mean you give them permission for the whole house)
Applies when
o The trespassing child is anticipated/foreseeable
o Inherently/unreasonably dangerous condition of premises AND
o Condition likely to incite curiosity of minors
Strict Liability
Liability imposed w/out regard to Defendant’s intent or breach of duty to use reasonable care.
Strict Liability & Animals
Qualifying animal is classified as a wild animal,
Harm is type of harm characteristic to the dangerous propensity of that kind of wild animals
Wild Animal
Type of animal that imposes abnormal risk to the particular community in which animal is kept
Strict Liability & Activities 1st restatement
ultra-hazardous activity and risk of harm cannot be eliminated w/ due care & not of common usage. To determine if activity is ultra hazardous, focus on activity itself.
Strict Liability & Activities 2nd restatement
Abnormally dangerous activities and appropriateness of activity to location
Factors of abnormally dangerous activity under 2nd restatement
1.Inability to eliminate risk by reasonable care.
2.Inappropriateness of activity to the place
3.Existence of risk of harm
4.Likelihood that the harm will be great.
5.Whether activity is matter of common usage
6.Whether it’s value to the community is outweighed by its dangerous attributes
3rd restatement of strict liability (4)
abnormally dangerous activity foreseeable & significant risk of physical harm and cannot be eliminated w/ due care & activity is not common usage
Which restatement of strict liability is majority
2nd restatement _ abnormally danger activity
