Negligence (Breach) Flashcards
CL Standard of care RULE –>defining breach
is defined as acting as a reasonable person of ordinary prudence under the circumstances
CL SofC Hand Test
To determine whether person acted as a reasonable person there must be:
Probability of harm
Severity
*Burden of taking precautions
Burden/costs to defendant
*Availability of reasonable alternatives to D’s conduct
That involve less risk
*Social utility of D’s conduct
Is it beneficial to society/specific group
Child SofC RULE
A child is only held to the same standard of care of that of a child with the same age, experience, and knowledge
Child SofC Exception
If child is engaging in dangerous adult activity –> is held to SofC of an adult
CL Professional SofC RULE
acting as a reasonable person/______ with knowledge, training, and skill of an ordinary member of the profession under the same or similar circumstances
CL Professional Standard FACTOR 1
- Possession of knowledge or skill
* Generally professionals are not expected to know everything, just what the ordinary member of the profession does
* Ex. Attorneys follow the laws of the state, their customary practice
CL Professional Standard FACTOR 2
- AND/OR Exercise of best judgment
* As long as you are making a tactical decision–>you won’t be held liable
o Also, even if you consult with other fellow members of your profession or disagreement develops to your course of action professional using best judgment will not be liable
CL Professional Standard FACTOR 3
- AND/OR use of due care
* Ex. Just a prime example is a lawyer who fails to file a suit before the running of the statute of limitations
CL Expert Testimony Req for Pro SofC
Generally, expert testimony is required to assess if there is a breach of the Pro SofC
Professional SofC Expert Testimony EXCEPTION
However, when dealing with common knowledge –> won’t need an expert testimony
If you comply with custom–>it is evident you are not negligent but not conclusive proof you are not negligent
In order to find breach of duty related to medical pros–>
there needs to be testimony of what is required for that type of surgery!!
NOT what is relevant to the standard of care, that is your expert saying that he would have done it differently and you wouldn’t have the specific injury to your body ——> insufficient to establish a breach of the standard of care for the _____ /profession
Majority approach to Standard of Medical Pros
physicians must follow the national standard
- 1st Minority rule: similar community Test
o Here the test is used as one of factors to be considered, along with advances in the profession, availability of facilities, and whether health care provider was specialist or general practitioner
- 2nd minority rule: look at the exact same community
o Here you compare an ordinary physician with the same knowledge and skill of another physician within the same community in which the D practices
Informed Consent Doctrine (Deals only with physicians)
Minority Approach
Patient Centered Approach is the Minority Approach
- What a reasonable patient would want to know in order to make an intelligent choice
- There are 3 Exceptions when doc doesn’t have to disclose
(minority approach for patient centered)
o 1) If everyone knows or you know–>doc doesn’t have to disclose
o 2) if you tell patient–>it would be detrimental care, so its in their best interest to not disclose of material effects
o 3) is if there is an emergency & the patient is no condition to determine for himself whether the treatment should be administeredthen doc does not have to disclose
at CL what physician interests must be disclosed to the patient under the Minority Patient-Centered Approach
non-medical interest (ex. financial interests) must be disclosed when dealing with patient’s informed consent bc a reasonable patient would want to know this when they are consenting to a procedure
Informed Consent Doctrine (Deals only with physicians)
Majority Approach
- What a reasonable ordinary physician would want to disclose to the patient regarding their health
Informed Consent Doctrine (Deals only with physicians)
Materiality
- If it’s likely to affect patient’s decision–>its then material
- Something can still be material even if there is a low probability of you being harmed/dying
o Low probability and severity is high–>its material!!
Negligence Per Se = Violation of a Statute
- To see whether the court will find negligence per se –> they ask the following 3 questions:
o 1) Is the P within the class of Persons statute is trying to protect
o 2) Is the harm the type the statute was intended to protect against
o 3) AND is it appropriate to use this statute
Neg Per Se
After Neg Per Se Test is met –>apply what else…
Once the test is met–> thereafter P must then prove the causation and damages elements of negligence
Cause in Fact
And Proximate cause
And Damages
Neg Per Se
OR if the first 3 Q’s of the Neg Per Se test is not met
–> then we default back on the regular CL reasonable person standard and then apply regular negligence elements
o Then conclude that D is prima facie negligent or is not depending on jurisdiction approach–>see approaches
- Under regular circumstances for NEG PER SE, a reasonable person typically obeys the law, not that they always obey the law –>and when statute says you must follow something–>and you don’t follow statute–>
then that is used as evidence!
What does Neg Per Se (violation of statute) establish on negligence elements
- A violation of a Statute deals with only the first 2 Elements of Negligence (finding of Prima Facie Negligence)
how this depend on the majority or minority appraoch applied
Neg Per Se
Majority approach: neg per se
If D violates a statute–>and you do not have an excuse–>you are neg per se –> the jury finds breach of duty (2 elements met) and cannot find otherwise–> D is found prima facie negligent
If D has evidence of excuse–>won’t be found to breached your duty. Otherwise jury must then find prima facie negligence
Neg Per Se
Minority approach to NEG PER SE: Rebuttable presumption
RULE: As long as P puts on evidence that D violated statutes–> there is a presumption that D breached their duty –> thus D has burden to to put evidence to show an excuse for violating the statute
If D does not provide an excuse–> then D breached their duty
Minority approach to NEG PER SE: Rebuttable presumption
Excuses List
o (a) the violation is reasonable in light of the actor’s childhood, physical disability or physical incapacitation;
o (b) the actor exercises reasonable care in attempting to comply with the statute;
o (c) the actor neither knows nor should know of the factual circumstances that render the statute applicable;o (d) the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or
o (e) the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.
Minority approach to NEG PER SE: Permissible Inference
RULE: If there is a statute violation–>its something jury will consider as evidence–>
- ex. Although the Safety Statute Test applies & is met its permissble inference but only jury will find if there was breach of duty
- ex. advisory codes, industry standards, or ethical codes–>all can be admissible evidence to make inference
If D does not provide excuse–>then again jury must find whether D breached their duty.
Neg Per Se in relation to statutes–> what do the statute create?
- Certain Statute/Acts prevent does not permit excuses bc the act is essentially a form of strict liability
o Ex. Pure Food Act–> bars excuses–> will find D liable
Breach element on Circumstantial Evidence
The circumstantial evidence taken most favorably to the P must show that an inference can be made by evidence to show that D’s conduct breached their duty owed to P
must apply this when there you P doesn’t have direct evidence
Breach
on Slip and Fall cases in relation to circumstantial evidence
P’s requirement
- P must provide with circumstantial evidence as burden of showing that D had constructive notice of the defect/dangerous conditiono However, in the end its up to the jury to decide whether there was a precise limitation on something critical where that something is reasonable or unreasonable for purpose of constructive notice
Breach on Slip and Fall cases in relation to circumstantial evidence
When D creates the hazard and knows..
- If the D created the hazard –> and D has knowledge/notice of defect/dangerous condition –> P’s requirement to provide circumstantial evidence of P’s notice isn’t required
Res Ipsa Loquitur
what is it and what do you use it for?
Doctrine that uses circumstantial evidence
* Keep in mind that if we know who did what on how accident happened–>you can’t use res ipsa doctrine–> must then use the regular CL SofC rule!!!
Res Ipsa requires what from P…
Res Ipsa requires that P has the burden of pleading and burden of production
Majority approach to Res Ipsa RULE
- 1) Event ordinarily wouldn’t happen without negligence
- 2) AND that more likely than not, it was the D’s negligence
Res Ipsa
Majority approach
on first element–> what to look for..
o P doesn’t have to eliminate other potential causes –> just find that even ordinarily wouldn’t happen without negligence
o The common-knowledge EXCEPTION to the expert testimony rule applies
ET is required to establish that the even does not ordinarily occur in the absence of negligence to find D breached their standard of care
* However, when dealing with common knowledge of how ’s conduct does occur in the absence of negligence cannot use expert testimony to find an inference that ’ injury was caused by the failure of in control to exercise due care
ET Exception will typically be used for medical malpractice cases
Res Ipsa
Majority approach
on second element–> what to look for..
1) That is it was under D’s Exclusive control over the instrumentality of harm at the time of negligent act or injury
AND Note that P does not have to rule out other causes –> just has to say it was more likely than not it was D’s negligence!
2) AND P doesn’t have to eliminate other actors
Res Ipsa
Majority approach
on second element–> Joint Control Exception
- If more than one D caused P’s negligence–> the doctrine applies and all D’s have burden to prove evidence that it wasn’t them
Res Ipsa
what to keep in mind…
D’s superior knowledge is not an element requirementat least for prof Hnylka’s final exam
- As D, you want your counter argument to be that it could have been other actors and/or other causes to P’s injuries
o Provide one or at least 2 cause(s) to ’s injuries to negate both elements of Res Ipsa - If it was P’s had equal fault or greater fault than D’s–> then you can’t use the doctrine
Res Ipsa
after setting Majority Approach elements–>apply the 3 legal effects of Res Ipsa
what are the 3 legal effects?
1) Majority rule: Permissible Evidence
2) Minority rule: Rebuttable Presumption
3) Minority Approach: Raises Rebuttable Presumption & Shifts the burden of Proof
Res Ipsa
Legal effect
Majority rule: Permissible Inference
o Is that it warrants a mere permissible inference of negligence–>
RULE: which means that res ipsa is established if: 2 elements are met –>
Then the jury is not obligated to find negligence, rather they consider it as permissible inference
up to you whether jury do or not as your final conclusion***
Res Ipsa
legal effect
Minority rule: Rebuttable Presumption
o Raises a rebuttable presumption approach which requires the jury to find negligence if the defendant does not produce evidence sufficient to rebut
- If the presumption is not rebutted by D –> then jury may find prima facie negligence
Res Ipsa
legal effect
Minority rule: Raises RP & Shifts burden of Proof to D(s)
If the (s) fail on both rebutting presumption and fail to provide evidence of proof of other causes jury will find prima facie negligence
usually dealing with multiple D's when we don’t know who did what exactly
Res Ipsa
what can’t we do with slip and fall cases…
Hnylka said we can’t use res ipsa for slip and fall cases
