Negligence

Question 1

What TN case established the standard of care for doctors in TN in regards to the Informed Consent doctrine?

Answer 1

Ashe v. Radiation Oncology Associates.

Question 2

A doctor in TN is liable for malpractice under the Informed Consent doctrine when…

Answer 2

1. They failed to inform a patient of a risk of harm,
2. The harm actually occurred,
3. A reasonable person in the patient’s situation would have refused the treatment, had they known of the risk.

Question 3

A doctor in TN is held to the same standard of care as…

Answer 3

A doctor in the same profession in the same or a similar community.

Question 4

What are the four elements of negligence?

Answer 4

1. Duty
2. Breach
3. Causation
4. Damages

Question 5

What is the standard of care in TN for an attorney?

Answer 5

What a reasonable attorney in Tennessee would do.

Question 6

Is leaving sporting equipment lying around intrinsically dangerous and negligent?

Answer 6

No

Question 7

What is the Learned Hand formula?

Answer 7

Burden of taking precaution < possibility of risk x gravity or cost of potential harm OR B < PL

Question 8

What is Gross Negligence?

Answer 8

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.

Question 9

Is intellectual deficiency a defense for a lower standard of care?

Answer 9

No - it is an objective standard of care for a reasonably prudent person

Question 10

What roll do customs of a community play in determining a standard of care?

Answer 10

They are factors in determining the standard of care but are not controlling (the reasonably prudent person standard still applies.)

Question 11

How is the standard of care for an industry determined?

Answer 11

Based on standards that have been adopted by the whole industry. Voluntary programs do not establish a standard of care.

Question 12

In what states does a passerby have a duty to act?

Answer 12

Vermont and Minnesota

Question 13

What is the good Samaritan law?

Answer 13

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.

Question 14

In Tennessee, are medically licensed individuals covered by the Good Samaritan laws if there actions are in the course of duty?

Answer 14

No, unless they were grossly negligent.

Question 15

What is the standard of care for a disabled person?

Answer 15

It is that of a reasonable person with the same disability.

Question 16

What is the standard of care for a minor doing an adult activity, such as driving?

Answer 16

The same as a reasonably prudent adult.

Question 17

Is using a firearm or hunting considered an exclusively adult activity?

Answer 17

No. Therefore a minor is not held to an adult standard of care while hunting or using a firearm.

Question 18

What supreme court case established the “stop, look, listen and exit” rule when crossing a railroad?

Answer 18

The Baltimore & O.R. Co. v Goodman

Question 19

What Supreme Court case established the “stop, look, listen” rule when crossing a railroad, but does not require the driver to exit the vehicle?

Answer 19

Pokora v Wabash Railway Co

Question 20

What is negligence per se?

Answer 20

Violation of a statue is negligence “in itself”.

Question 21

What are the excuses for negligence per se under the majority view?

Answer 21

(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

Question 22

What is a dram shop act?

Answer 22

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

Question 23

What elements must be shown to establish liability in a store in a slip and fall case?

Answer 23

(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

Question 24

What is direct evidence of negligence?

Answer 24

Fact that come from personal knowledge or observation

Question 25

What is indirect evidence of negligence?

Answer 25

Facts inferred from other evidence, but not personally seen

Question 26

Suzy, the wife of the now-dead Paul, sues his boss for wrongful death and loss of consortium. She receives $10,000 on the loss of consortium claim. Are these earnings taxable?

Answer 26

No. Compensatory damages are not taxable.

Question 27

Suzy, the wife of the now-dead Paul, sues his boss for wrongful death and loss of consortium. She receives $10,000 on the loss of consortium claim. David, a banker who loaned money to Paul, wants the loan repaid out of Suzy’s winnings, since she is the administrator of Paul’s estate. Can he collect out of Suzy’s damages?

Answer 27

No. David can be paid out of Paul’s estate, including winnings for wrongful death, but David cannot collect out of Suzy’s award because it is her money.

Question 28

Suzy, the wife of the now-dead Paul, sues his boss for wrongful death and loss of consortium. She is awarded $300,000 in compensatory damages. What is the maximum amount of punitive damages she can receive in TN, assuming no exceptions apply?

Answer 28

$600,000. TN law states a punitive award cannot be more than two times the compensatory damages, or $500,000; whichever is greater. As the 2x amount is higher, it is the cap.

Question 29

Suzy, the wife of the now-dead Paul, sues his boss for wrongful death and loss of consortium, and proves the employee who injured and killed Paul was high at the time. She is awarded $300,000 in compensatory damages. What is the maximum amount of punitive damages she can receive in TN?

Answer 29

There is no cap. When drugs or alcohol are involved in a negligent act, there is no limit on punitive damages.

Question 30

Paul, who barely survived an accident at work, had to have his left leg and arm amputated. What is the maximum may he receive in non-economic losses in TN?

Answer 30

1 million dollars. The cap for recovery is raised when an individual loses two limbs.

Question 31

Paul, while working, stuck his hand into a powered-down machine to pick up his dropped wedding ring. Maria, his coworker, turned on the machine without checking to be sure it was clear of obstructions, causing Paul to lose his arm and leg. The court finds Maria 49% liable for Paul’s injuries and Paul 51% liable. Can Paul recover in TN? How much?

Answer 31

Paul cannot recover because the court found him to be more liable than Maria in this scenario.

Question 32

Paul, while working, stuck his hand into a powered-down machine to fix a misaligned gear. Maria, his coworker, turned on the machine without checking to be sure it was clear of obstructions, causing Paul to lose his arm and leg. The court finds Maria 85% liable for Paul’s injuries and Paul 15% liable. Can Paul recover in TN? How much?

Answer 32

Paul may recover for 85% of his injuries.

Question 33

What five states follow the contributory negligence rule?

Answer 33

Alabama, DC, Maryland, Virginia, and North Carolina.