Negligence

Question 1

Elements of Negligence

Answer 1

1. Duty- standard of care
2. Breach- non-conformity to standard of care
3. Cause- cause in fact and proximate/legal cause
4. Injury- harm, actual loss

Question 2

Formulation and Factors

Answer 2

Unreasonable risk- a reasonable person would recognize as involving a risk of harm to another

Neg. law is about balancing public good benefit against possible dangers

Question 3

Learned Hand Formula

Answer 3

B is greater than P x L

Liability depends on this formula, a cost benefit analysis

Question 4

Reasonable Prudent Person

Answer 4

objective standard of care, what would the reasonable person do

custom is taken into consideration, but is not conclusive

takes into consideration the physical attributes of P

does not take mental deficiencies into account

Question 5

Standard of Care for a Child

Answer 5

what a child of the same age in a similar situation would do, unless they are doing something normally reserved for adults

Question 6

Reasonable Prudent Professional

Answer 6

Objective standard, what the RPP would do under the same circumstances. Specialists are held to a higher standard

Question 7

Legal Malpractice

Answer 7

P must prove:

1. Attorney’s employment
2. Attorney’s neglect of a reasonable duty
3. Neg. resulted in and was the proximate cause of damage

question of fact for jury, wherein expert testimony is required

TN is statewide standard

Question 8

Medical Malpractice

Answer 8

degree of care and skill expected of a member of the medical profession under the same circumstances

P must allege and prove:

1. D physician failed to inform him of adequately of a material risk before securing his consent to treatment
2. if he had be informed, he would not have consented
3. the adverse consequences that were not made known, did occur, and he was injured as a result of submitting to the treatment

Question 9

National SoC

Answer 9

the standard is national where all professionals are held to the same standard

Question 10

Locality Rule SoC

Answer 10

set by the community and surrounding communities of the professional

Question 11

Similar Locality Rule SoC

Answer 11

Locations and communities similar to the professional are standard

Used in TN

Question 12

Informed Consent Doctrine

Answer 12

Req. full disclosure of all material risks. Burden is on patient

1. Phys. must inform patient of treatment protocol, available alternatives, and collateral risks
2. Req. phys. to disclose, research, economic or personal interests unrelated to the patient’s heath that may affect his judgement
3. Patient must prove by expert testimony that a reasonable med. professional in the same or similar community would have disclosed to a patient and that the phys. departed from the norm

causation is assessed by:
Subjective (minority)
Objective (majority)
Hybrid

Question 13

Defenses to Informed Consent

Answer 13

1. The issue is common knowledge
2. Full disclosure would be detrimental to the patient’s total care
3. it is an emergency

Burden of proof is on D to prove defenses

Question 14

Ashe v. Radiation Oncology Assoc.

Answer 14

Chemo causes paralysis in woman

Question 15

Contributory Negligence

Answer 15

when P contributes to the negligence that caused them harm

Question 16

Baltimore & O.R. Co. v. Goodman

Answer 16

Driver must stop, look, listen, and exit their car

When standard of conduct is clear, it should be laid down by the courts

Question 17

Pokora v. Wabash Ry. Co

Answer 17

There is a need for caution in framing standards of behavior that amount to rules of law. Jury should decide if P engaged in reasonable conduct

Question 18

Majority Rule vs. Pennsylvania Rule

Answer 18

Majority Rule: stop, look, listen if necessary

Penn. Rule: mandated an unyielding duty to stop, look, and listen no matter how clear it is

Question 19

Pokara Rule vs. Goodman Rule

Answer 19

Pokara Rule: You do not have to exit your car, a driver who stops and listens has done enough. There is no SC decision that suggested there was a duty to stop

Goodman Rule: if a driver is unsure, he should stop, look, listen, and exit his car

Question 20

Statues for Non-Negligence

Answer 20

Can be used when:

1. P is in class of persons the statute is designed to protect
2. harm suffered is the type of harm the statute is designed to protect

Question 21

Negligence Per Se

Answer 21

When a violation of a statute establishes a duty and breaches elements of a negligence action and when:

1. Injured party is in a class of persons whom the statute is designed to protect
2. the harm caused is the kind the statute is designed to prevent
3. statute or regulation is an appropriate measure for awarding civil damages for negligence

Question 22

Effect of Violation, 3 categories

Answer 22

1. Proof of Duty and Breach of duty as a matter of law that may be rebutted upon by showing a credible excuse. Jury makes determination regarding the validity of excuse
2. Negligence Per Se (majority)- Violation is negligence in itself, usually arises from a determination regarding validity of excuse. Negligence established as a matter of law
3. Only evidence of negligence (minority)- merely evidence of negligence, unless specifically stated; liability will be imposed for violation

Question 23

Good Samaritan Law

Answer 23

D did not create P’s dangerous condition but D tries to help P

Law grants immunity if:

1. Person acts voluntarily
2. person renders emergency care
3. person acts in good faith
4. person is not grossly negligent

Question 24

Firefighters Rule

Answer 24

prohibits emergency personnel from holding a person liable for injuries suffered when responding to a situation created or caused by that person

Question 25

Dram Shop Laws

Answer 25

various state statutes that govern places that sell alcoholic beverages that establish civil liability for sale of drinks to visibly intoxicated persons or minors who in their drunkenness caused harm to another

Question 26

Direct Evidence

Answer 26

evidence of fact, sought to be proven by personal knowledge or observation

Question 27

Circumstantial Evidence

Answer 27

evidence from which the fact sought to be proved may be inferred

Question 28

Res Ipsa Loquitur

Answer 28

1. The accident does not ordinarily occur without someone’s negligence
2. Accident was caused by an agency or instrumentality within D’s exclusive control
3. Accident was not due to any voluntary act by P

Majority: creates a permissive inference of negligence from which a reasonable jury may conclude that D is negligent but is not required

Minority: creates a rebuttable presumption that entitles P to win if the D does not rebut P’s claim (D must rebut P’s claim by presenting evidence or suffer a judgement as a matter of law)