NEGLIGENCE Flashcards
1174
Except in cases expressly specified by the law or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which though foreseen were inevitable.
Test of Negligence in Picart v. Smith
Did the defendant, in doing the alleged negligent act use reasonable care and caution which an ordinary prudent person would have used in the same situation?
If not, then he is negligent.
Reasonable foresight of harm followed by ignoring of the suggestion to take care = necessary for negligence to exist.
ROLE OF CUSTOM
Where reasonable care is employed in doing an act not itself illegal or inherently likely to produce damage to others, there will be no liability although there might be damage.
- Acts that have not been proven to be destructive or injurious
- which have been acquiesced by society for so long a time that they have ripened into custom
- Acts cannot be held to be of themselves unreasonable or imprudent
Practice that is inherently dangerous to human life cannot ripen into custom which will protect anyone who follows.
Doctrine of Attractive Nuisance
One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises.
Rationale - so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children
Standard in jewelry shops / industry
Sarmiento v. Cabrido
Did the defendant in doing the alleged negligent act observe the diligence required of ordinary person in the trade / industry? If no, negligent!
Look at industry practice.
Degree of diligence of physically disabled
Degree of care and diligence that an ordinary prudent person with the same disability would observe
Degree of negligence expected of person handling dangerous weapons or substances
A higher degree of care is required of someone who has in his possession or under his control an instrumentality extremely dangerous in character such as dangerous weapons or substances.
DUTY TO TAKE EXCEPTIONAL PRECAUTION TO PREVENT INJURY
PREMISES LIABILITY RULE
It is enough that guests are injured while inside the hotel premises to make the hotel keeper liable.
Test of negligence in Makati Shang v. Harper
The test of negligence is objective. Courts measure the act or omission of the tortfeasor with a perspective as that of an ordinary reasonable person who is similarly situated.
Liability of the defendant is based on the fact that it was in a better position to foresee and prevent the happening of the injurious occurrence.
Degree of diligence required of banks
HIGHER DEGREE OF DILIGENCE THAN THAT OF GOOD FATHER OF FAMILY
- Bank is under the obligation to treat accounts with meticulous care, always having in mind the fiduciary nature of relationship
- High standards of integrity and performance
ELEMENTS OF MEDICAL MALPRACTICE
- Duty
- Breach
- Injury
- Proximate Cause
Degree of diligence of doctors (NEIGHBORHOOD DOCTRINE)
Duty to exercise the same degree of care, skill, and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases
Medical Malpractice
Failure of physician or surgeon to apply to his practice that degree of skill or care which is ordinarily employed by the profession generally under similar conditions
Degree of diligence of physicians
Same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances
standard contemplated is not what is actually the average merit among all known practitioners from the best to the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good physicians
Doctrine of Apparent Authority in determining liability of Hospital
- Hospital or agent acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital
- Where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge / acquiesced to the act
- Plaintiff acted in reliance upon the conduct of the hospital or agent, consistent with ordinary care and prudence
Doctrine of Informed Consent
Physician has duty to disclose what a reasonably prudent physician in the medical malpractice community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against probable health benefits.
Scope of Disclosure in Medical Malpractice
General Rule and Exceptions
(Casumpang v. Cortejo)
No duty to give crash course on medicine but a REASONABLE EXPLANATION on the therapy alternatives open to him, goals expectably to be achieved and the risks that may ensue from a particular treatment or no treatment
General Rule: not obliged to discuss minor risks inherent in common procedures when it is common knowledge that such risks inhere in procedure is of very low incidence
Except:
1. Patient unable to evaluate data as when patient is incompetent
2. Emergency cases
3.
Test for determining scope of disclosure
Materiality to patient’s decision
Elements of Medical Malpractice based on Doctrine of Informed Consent
- Duty to disclose material risks
- Failure to disclose or inadequately disclosed risks
- As a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to
- Plaintiff injured by the proposed treatment
5 instances when res ipsa loquitor was applied in medical malpractice suit according to Rosit v. Davao Doctors
- Leaving a foreign object in the body of the patient after an operation
- Injuries sustained on a healthy part of the body which was not under, or in the are of treatment
- Removal of the wrong part of the body when another part was intended
- Knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils
- Loss of an eye while the patient was under the influence of anesthetic during or following an operation for appendecities
Degree of diligence of attorneys
Not bound to observe extraordinary diligence but a reasonable degree of care and skill, having reference to the character of the business he undertakes to do.
Emergency Rule
When carrier’s employee is confronted with a sudden emergency, the fact that he is obliged to act quickly and without a chance for deliberation must be taken into account and HE IS NOT HELD TO THE SAME DEGREE OF CARE AS ANY ORDINARY PRUDENT PERSON WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND CONDITIONS and failure to do exercise the best judgment does not establish lack of care and skill on his part which renders company liable.
Diligence of Public Utilities
public utility has the obligation to discharge its functions with utmost care and diligence
Public utility - vital public interest , impressed with certain obligations towards its customers
Proof of Negligence
Burden of proof is upon the plaintiff to establish the negligence of the defendant.
Pursuant to Rule 131 Section 3(d), there is a disputable presumption that a person takes ordinary care of his concerns.
