Negligence Flashcards
Duty
Emergencies
“The existences of an emergency does not change the standard of care. It is merely
one factor bearing upon whether the actor behaved reasonably unless the actor created the emergency.”
Duty
Physical Disabilities
a person has duty to act as a reasonably prudent person with the same type of disability (blind, deaf, etc) would under the same or similar circum
Duty
Religious Beliefs
it’s merely a factor of determining the standard of care
Duty
Age
a. “The standard of care for a child will be measured by the degree of care which ordinarily would be observed by children of the same age, intelligence, and experiences under similar circumstances.”
b. “A child will be held to an adult standard of care when the child is engaging in a dangerous activity that is characteristically undertaken by adults.”
Duty
Mental Deficiencies
“Generally, mental deficiencies do not play a factor. However, the restatement states that The rule that a person’s mental disabilities shall be disregarded applies to defenses based on the P’s conduct, as well as to the issue of whether D was negligent.”
Duty
Superior Knowledge, Training,
or Skill
“The actor will be found negligent for failing to perform w/ the degree of knowledge, skill, & diligence possessed or exhibited by an ordinary member of the profession in good standing.”
Duty
Legal Malpractice
“An attorney owes a duty of care to anyone who becomes a client, prospective clients, and no clients in special circumstances. Expert testimony is usually required unless a layperson would have no difficulty to seeing the negligence.
Duty
Medical Malpractice
“A doctor is negligent only if the doctor does what a no reasonably prudent doc could do under the circumstances or fails to do what everyone reasonably prudent doc must do.”
Duty
Informed Consent
“A doctor may be held liable for negligence; if in procuring the consent the doc failed to disclose the risks of & relevant authorities to the proposed course of treatment.”
- The P must prove that if she knew, it would’ve affected her decision & the non-disclosure was catually related to some injury for damages
Duty
Informed Consent
Defenses for Doctors
(no disclosure needed to be made)
a. “If the risk ought to be known by everyone or was in fact already known to the patient”
b. “There is an emergency & the patient is unable to permit treatment.”
c. Based on specific, articulable facts: “full disclosure would be detrimental to the patient’s
care & best interests.” (There is a clear risk of aggravating a patina’s already serious heart
conditions)
Duty
Education Malpractice
Generally, courts do not recognize education malpractice as a cause of action.
Duty
Judge-Made Standard of Care
(types)
- Established by a leg enactment which expressly or implicitly provides for liability
- Adopted by court based on leg enactment, doesn’t implicilty provide for liability
- Established by a judicial opinion w/o reliance on legislation
Duty
Judge-Made Standards of Care
(when/how courts use)
- “When the court is adopting the standard of care, the court will look at if whether the statute applies to whether the P is within the class of persons that statute was intended to protect and whether the harm is one of the type that was intended to be prevented.”
- Even if the P does not prevail, they are able to move forward with the reasonable person standard test.
Duty
Judge-Made Standard of Care
(Negligence Per Se)
“The jury is told what the statute requires & what, if anything, constitutes an acceptable excuse. The jury is instructed that if it finds the facts establish an unexcused violation of statute, it may inquire no further into the issue of negligence bc the D’s conduct is negligent per se (in itself).
Duty
Judge-Made Standard of Care
(Prima Facie)
“A presumption of negligence may be rebutted by a reasonable excuse or reasonable care. The jury is directed that if the facts show that there was a violation of the statute but no excuse or proof of care was exercised, the court must conclude that D was negligent.
