Negligence Flashcards
What TN case established the standard of care for doctors in TN in regards to the Informed Consent doctrine?
Ashe v. Radiation Oncology Associates.
A doctor in TN is liable for malpractice under the Informed Consent doctrine when…
- They failed to inform a patient of a risk of harm,
- The harm actually occurred,
- A reasonable person in the patient’s situation would have refused the treatment, had they known of the risk.
A doctor in TN is held to the same standard of care as…
A doctor in the same profession in the same or a similar community.
What are the four elements of negligence?
- Duty
- Breach
- Causation
- Damages
What is the standard of care in TN for an attorney?
What a reasonable attorney in Tennessee would do.
Is leaving sporting equipment lying around intrinsically dangerous and negligent?
No
What is the Learned Hand formula?
Burden of taking precaution < possibility of risk x gravity or cost of potential harm OR B < PL
What is Gross Negligence?
Very great negligence OR failure to exercise caution that even a careless person would exercise OR failure to exercise even a tiny bit of caution.
Is intellectual deficiency a defense for a lower standard of care?
No - it is an objective standard of care for a reasonably prudent person
What roll do customs of a community play in determining a standard of care?
They are factors in determining the standard of care but are not controlling (the reasonably prudent person standard still applies.)
How is the standard of care for an industry determined?
Based on standards that have been adopted by the whole industry. Voluntary programs do not establish a standard of care.
In what states does a passerby have a duty to act?
Vermont and Minnesota
What is the good Samaritan law?
If the defendant did not cause the plaintiff’s dangerous situation but negligently harmed them while trying to help, they are not liable for such injuries.
In Tennessee, are medically licensed individuals covered by the Good Samaritan laws if there actions are in the course of duty?
No, unless they were grossly negligent.
What is the standard of care for a disabled person?
It is that of a reasonable person with the same disability.
What is the standard of care for a minor doing an adult activity, such as driving?
The same as a reasonably prudent adult.
Is using a firearm or hunting considered an exclusively adult activity?
No. Therefore a minor is not held to an adult standard of care while hunting or using a firearm.
What supreme court case established the “stop, look, listen and exit” rule when crossing a railroad?
The Baltimore & O.R. Co. v Goodman
What Supreme Court case established the “stop, look, listen” rule when crossing a railroad, but does not require the driver to exit the vehicle?
Pokora v Wabash Railway Co
What is negligence per se?
Violation of a statue is negligence “in itself”.
What are the excuses for negligence per se under the majority view?
(1) Incapacity prevented adherence to the statute (2) you did not know or have reason to know of statute (3) you were unable to comply after due diligence and care (4) there was an emergency not due to your misconduct or (5) complying with the statute would have brought a greater risk of harm
What is a dram shop act?
A statute which governs the liability of liquor seller that give or sell alcohol to a visibly intoxicated or minor person who then injures or kills a third party in an accident
What elements must be shown to establish liability in a store in a slip and fall case?
(1) Employees had knowledge or notice of a condition (2) the condition posed unreasonable harm (3) they did not exercise care to reduce or eliminate the risk and (4) failure to use care proximately caused injury
What is direct evidence of negligence?
Fact that come from personal knowledge or observation
