Negligence (Breach) Flashcards
Respondeat Superior
Under respondeat superior, an employer is vicariously liable for the torts of an employee if the employee’s conduct was within the scope of their employment. The conduct must be about the employer’s business, substantially within the hours and spatial boundaries of employment, and motivated, at least in part, by the purpose of serving the employer’s interests. Acts within the scope of employment are so closely related to what the person is employed to do and so fairly incidental to it that they may be regarded as methods of carrying out its objectives.
Apparent Agency
A principal is vicariously liable for the torts of a non-employee if the person is acting as the principal’s agent or the principal represents that the person is acting as their agent or knowingly permits the appearance of it.
Negligence (Broad)
Negligence is doing something a reasonable person would not do or failing to do something a reasonable person would do under the circumstances. In other words, negligence is the failure to use ordinary or reasonable care.
Ordinary Care
Ordinary or reasonable care is the degree of care to which persons of ordinary prudence would use to avoid injury to themselves or others under similar circumstances. Adjustments are made for people with physical disabilities, children, or people with special training.
Common Carriers
Common carriers were traditionally held to a higher standard of care, the highest degree of care that human prudence and foresight can suggest (Bethel)
Notice
Typically, the defendant must have had actual or constructive notice of the risk. In other words, they know of the risk or a reasonable person should have known of the risk or dangerous condition.
Custom
To demonstrate proof of negligence, a plaintiff may present evidence that the defendant’s conduct departed from customary practice. This evidence is sufficient for a jury to determine whether the defendant was negligent but is not conclusive. The defendant may present evidence demonstrating conformity to custom to establish due care.
Negligence Per Se
Under negligence per se, a defendant may be found negligent if they failed to comply with a statute whose purpose is safety. Failure to comply may be excused when compliance would result in greater danger than non-compliance. (Tedla)
Res Ipsa Loquitur
Under res ipsa loquitur, negligence may be inferred if the accident is a type that would not ordinarily occur without negligence and the instrumentality that caused the accident was within the exclusive control of the defendant. The burden of proof shifts from the plaintiff to the defendant. (Byrne v. Boadle)
Doctors
A doctor must exercise the same degree of care that is commonly exercised by other members of the profession who are engaged in the same type of practice. Under the doctrine of informed consent, a doctor must disclose all information material to a patient’s informed decision concerning treatment including medically reasonable alternatives and their probable risks or outcomes.
