Negligence (Breach)

Question 1

CL Standard of care RULE –>defining breach

Answer 1

is defined as acting as a reasonable person of ordinary prudence under the circumstances

Question 2

CL SofC Factor Test

To determine whether person acted as a reasonable person there must be:

Answer 2

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

Question 3

Child SofC RULE

Answer 3

A child is only held to the same standard of care of that of a child with the same age, experience, and knowledge

Question 4

Child SofC Exception

Answer 4

If child is engaging in dangerous adult activity –> is held to SofC of an adult

Question 5

CL Professional SofC RULE

Answer 5

acting as a reasonable person/______ with knowledge, training, and skill of an ordinary member of the profession under the same or similar circumstances

Question 6

CL Professional Standard FACTOR 1

Answer 6

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

Question 7

CL Professional Standard FACTOR 2

Answer 7

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

Question 8

CL Professional Standard FACTOR 3

Answer 8

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

Question 9

CL Expert Testimony Req for Pro SofC

Answer 9

Generally, expert testimony is required to assess if there is a breach of the Pro SofC

Question 10

Professional SofC Expert Testimony EXCEPTION

Answer 10

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

Question 11

In order to find breach of duty related to medical pros–>

Answer 11

 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

Question 12

Majority approach to Standard of Medical Pros

Answer 12

physicians must follow the national standard

Question 13

• 1st Minority rule: similar community Test

Answer 13

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

Question 14

• 2nd minority rule: look at the exact same community

Answer 14

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

Question 15

Informed Consent Doctrine (Deals only with physicians)

Minority Approach

Answer 15

 Patient Centered Approach is the Minority Approach

• What a reasonable patient would want to know in order to make an intelligent choice

Question 16

• There are 3 Exceptions when doc doesn’t have to disclose

(minority approach for patient centered)

Answer 16

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 administeredthen doc does not have to disclose

Question 17

at CL what physician interests must be disclosed to the patient under the Minority Patient-Centered Approach

Answer 17

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

Question 18

Informed Consent Doctrine (Deals only with physicians)

Majority Approach

Answer 18

• What a reasonable ordinary physician would want to disclose to the patient regarding their health

Question 19

Informed Consent Doctrine (Deals only with physicians)

Materiality

Answer 19

• 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!!

Question 20

Negligence Per Se = Violation of a Statute

• How do they decide whether statute should apply to the fact scenario before the court? Brings up test to see if it applies

Answer 20

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

Question 21

• If a statute doesn’t apply to the P’s case bc the statute elements aren’t met??

Answer 21

• –>then we default back on the regular CL reasonable person standard

Question 22

• 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–>

Answer 22

then that is used as evidence!

Question 23

What does Neg Per Se (violation of statute) establish on negligence elements

Answer 23

• 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

Question 24

Majority approach: neg per se

Answer 24

 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

Question 25

Minority approach to NEG PER SE: Rebuttable presumption

Answer 25

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

Question 26

Minority approach to NEG PER SE: Rebuttable presumption

Excuses List

Answer 26

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.

Question 27

Minority approach to NEG PER SE: Permissible Inference

Answer 27

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.

Question 28

Neg Per Se in relation to statutes–> what do the statute create?

Answer 28

• 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

Question 29

Breach element on Circumstantial Evidence

Answer 29

The circumstantial evidence take 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