Negligence Flashcards
Res ipsa loquitor
To sustain a claim under res ipsa loquitor, the claimant must establish that:
(1) The accident was of a kind that ordinarily does not occur in the absence of negligence;
(2) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
(3) It was not due to any action on the part of the plaintiff.
The procedural effect of res ipsa loquitor is to foreclose a directed verdict for the defendant—i.e., allowing the plaintiff to make a prima facie case without direct evidence of negligence.
Res ipsa loquitor continues to be recognized in comparative negligence jurisdictions.
Standard of care
The default standard of care is that of a reasonably prudent person under the circumstances.
There are modified standards for:
(a) Defendants with certain physical disabilities, e.g., blindness;
(b) Children, unless engaged in high-risk adult activities, e.g., driving a car;
(c) Defendants who are involuntarily intoxicated.
Informed consent to medical procedures: breach of duty
A medical provider’s failure to explain the risks of a procedure to a patient in advance of a patient’s decision to consent to treatment can:
(1) Constitute a breach of her duty of care; and
(2) Be actionable as medical malpractice, i.e., medical negligence.
The plaintiff, however, must establish the other elements of negligence.
Standard of care: bailors and bailees
Various standards apply when a bailee temporarily takes possession of another’s (the bailor’s) property—e.g., when a driver leaves a car with a valet:
(1) The bailor must warn a gratuitous bailee of known dangerous conditions;
(2) If the bailor receives the sole benefit, the bailee has a lesser duty;
(3) If the bailee receives a benefit, then she has a higher duty of care, i.e., even slight negligence can result in liability.
Breach of duty: custom
(1) Generally:
Custom is admissible but not dispositive.
(2) Professionals:
Custom is admissible and dispositive.
Compliance with the custom is a shield, whereas deviation from the custom is a sword.
(3) Physicians:
They are evaluated on a national standard (whereas traditionally, they were evaluated on a local one).
Res ipsa loquitor: modern trends
(1) In medical malpractice:
A few jurisdictions have shifted the burden by holding all medical personnel defendants jointly and severally liable unless they can exonerate themselves;
(2) In products liability:
Many courts ignore the exclusivity requirement when it is clear that the defect originated upstream;
(3) In many comparative fault jurisdictions:
Courts loosely apply the plaintiff fault requirement.
Res ipsa loquitor: Third Restatement approach
(1) The accident is of the type that ordinarily happens as a result of negligence of a class of actors;
(2) The defendant is a member of that class.
Damages
A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover in negligence.
Firefighter’s rule
An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.
Actual authority to control the actions of another
Parties who have the actual authority to control the actions of another have the duty to exercise reasonable control over the other’s actions.
E.g., when parents know that their child is apt to act in a harmful way.
Negligent infliction of emotional distress (NIED): bystander recovery
A bystander can recover for NIED if she:
(1) Is closely related to, i.e., a family member of, the person injured by the defendant;
(2) Was present at the scene of the injury; and
(3) Personally observed the injury.
Informed consent to medical procedures
Medical providers must explain risks of medical procedures unless:
(a) The risks are commonly known;
(b) The patient is unconscious;
(c) The patient waives or refuses the information;
(d) The patient is incompetent; or
(e) The patient would be harmed by the disclosure—e.g., if it would cause a heart attack.
