Negligence - Breach of Duty Flashcards

1
Q

Breach of Duty

A

Duty. If you find that a duty exists you must determine whether the defendant acted as a reasonable and prudent person would have acted under the same or similar circumstances. In determining breach you have to prove what happened and prove that what defendant did was not reasonable. Thus we are attempting to determine if defendant met the standard of care

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2
Q

Special Situations - general

A

The situations change but the standard remains the same – reasonable person under the same or similar circumstances

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3
Q

Special Situations - Physical Attributes of Defendant

A

– held to the standard or a reasonable person with a physical disability. Knowledge of one’s disability is relevant. Therefore one can be liable if he engages in activity that a reasonable disabled person would not attempt.

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4
Q

Special Situations - Intoxication

A

those who become intoxicated either voluntarily or negligently are held to the same standard as a sober person

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5
Q

Special Situations - Mental Capacity

A

An adult’s intelligence is not taken into consideration in determining that which is reasonable

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6
Q

Special Situations - Children

A

the standard is a child of like age, intelligence and experience unless the child is engaged in an adult activity. In that situation the reasonable adult standard applies. The general view is that below a certain age (4) children cannot be held liable for negligence. In other states the ages range from seven to fourteen.

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7
Q

Special Situations - Knowledge

A

Every person must give the appropriate amount of attention to their surroundings unless they are legitimately distracted. For example, an inexperienced driver is held to the same standard as an experienced driver would be held

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8
Q

Special Situations - Superior skill, knowledge and intelligence

A

The law demands conduct consistent with that superior skill or knowledge. For professionals the standard is a reasonable member of that profession. For physicians, the locality rule may come into play. Informed consent may be an issue as well. For lack of informed consent to be actionable you must still establish causation (the patient would not have undergone the procedure if fully informed). There are also three exceptions when informed consent is not required: emergency and the patient is unconscious; therapeutic meaning the patient is too distraught to require the doctor to explain the situation; doctor does not have to disclose that this is his first surgery.

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9
Q

Special Situations - Custom and Usage

A

– may provide the standard of care if the custom and usage is reasonable. Custom in the community is evidence of the standard of care but is never conclusive.

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10
Q

Special Situations - Emergency

A

the standard of care is the reasonable person under an emergency situation

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11
Q

Special Situations - Good Samaritans

A

statutes may provide that medical providers are not liable under certain situations or may not be liable unless conduct is grossly negligent.

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12
Q

Special Situations - Temporary Insanity

A

Sudden mental disability may require a standard other than the reasonable person but the situation is rare

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13
Q

Rules of Law

A

established by judicial decision. This standard is difficult to apply because of change in the composition of the courts, change in policies and change in facts

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14
Q

Violation of Statute

A

Compliance with the statute is admissible but not conclusive of reasonable conduct.

  1. Statute must be relevant to the issue of due care.
  2. The statute must provide a clear standard of conduct.
  3. The statue must be designed to protect a particular group of people of which plaintiff is a member.
  4. The standard must be designed to protect against the type of injury sustained by plaintiff.
  5. Effect of violating the statute – excuse
    a. No excuse is given:
    (1) Majority = negligence per se.
    (2) Minority = rebuttable presumption.
    (3) Minority = evidence only.
    b. An excuse is offered:
    (1) Majority = trial judges determines validity of excuse.
    (2) Minority = rebuttable presumption.
    (3) Minority = evidence only.
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15
Q

Proof of Breach by Circumstantial Evidence

A

In situations where you do not have direct evidence of breach, circumstantial evidence may be sufficient

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16
Q

Res Ipsa Loquitur - Definition

A

If you know what happened to cause the harm res ipsa does not apply. But res ipsa may be used as a theory if the evidence regarding what happened is thin

17
Q

Res Ipsa Loquitur - Elements

A
  1. Does not ordinarily happen in the absence of negligence.
  2. Instrumentality is within the control of the defendant and the accident is of a type that the defendant had a duty to guard against. But the better view is that control is only one way of proving defendants responsibility.
  3. Injury is not due to a voluntary act on the part of the plaintiff or a third person.
  4. Effect of establishing res ipsa:
    a. Majority = inference of negligence which the jury may or may not accept.
    b. Minority = rebuttable presumption of negligence.
    c. Minority = disappearing presumption