Negligence (Breach) Flashcards

1
Q

CL Standard of care RULE –>defining breach

A

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

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2
Q

CL SofC Factor Test

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

A

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

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3
Q

Child SofC RULE

A

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

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4
Q

Child SofC Exception

A

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

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5
Q

CL Professional SofC RULE

A

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

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6
Q

CL Professional Standard FACTOR 1

A
  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
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7
Q

CL Professional Standard FACTOR 2

A
  1. 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

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8
Q

CL Professional Standard FACTOR 3

A
  1. 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
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9
Q

CL Expert Testimony Req for Pro SofC

A

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

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10
Q

Professional SofC Expert Testimony EXCEPTION

A

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

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11
Q

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

A

 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

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12
Q

Majority approach to Standard of Medical Pros

A

physicians must follow the national standard

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13
Q
  • 1st Minority rule: similar community Test
A

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

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14
Q
  • 2nd minority rule: look at the exact same community
A

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

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15
Q

Informed Consent Doctrine (Deals only with physicians)

Minority Approach

A

 Patient Centered Approach is the Minority Approach

  • What a reasonable patient would want to know in order to make an intelligent choice
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16
Q
  • There are 3 Exceptions when doc doesn’t have to disclose

(minority approach for patient centered)

A

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

17
Q

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

A

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

18
Q

Informed Consent Doctrine (Deals only with physicians)

Majority Approach

A
  • What a reasonable ordinary physician would want to disclose to the patient regarding their health
19
Q

Informed Consent Doctrine (Deals only with physicians)

Materiality

A
  • 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!!
20
Q

Negligence Per Se = Violation of a Statute

  • To see whether the court will find negligence per se –> they ask the following 3 questions:
A

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

21
Q

Neg Per Se

After Neg Per Se Test is met–>apply what else..

A

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

22
Q

Neg Per Se

OR if the first 3 Q’s of the Neg Per Se test is not met

A

–> 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

23
Q
  • 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–>
A

then that is used as evidence!

24
Q

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

A
  • 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

25
Q

Neg Per Se

Majority approach: neg per se

A

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

26
Q

Neg Per Se

Minority approach to NEG PER SE: Rebuttable presumption

A

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

27
Q

Minority approach to NEG PER SE: Rebuttable presumption

Excuses List

A

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.

28
Q

Minority approach to NEG PER SE: Permissible Inference

A

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.

29
Q

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

A
  • 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
30
Q

Breach element on Circumstantial Evidence

A

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

31
Q

Breach on Slip and Fall cases in relation to circumstantial evidence

P’s requirement

A
  • 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
32
Q

Breach on Slip and Fall cases in relation to circumstantial evidence

When D creates the hazard and knows..

A
  • If the D created the hazard –> and then D has knowledge/notice of defect/dangerous condition–> P’s requirement to provide circumstantial evidence of P’s notice isn’t required