Negligence - Duty, Standard of Care

Question 1

What are the elements of Negligence?

Answer 1

To est. a prima Facie Case, P must prove:

1. Duty
2. Breach of Duty
3. Causation (actual & proximate) AND
4. Damages

Question 2

What is the rule for the duty element of negligence ?

Answer 2

When D has a legal duty & must act according to a certain std. to protect P against unreas. risk of injury

• Majority View - Duty is owed to any foreseeable person who may be injured (Foreseeable Zone of Danger)
• Minority View - Everyone is a foreseeable Victim

Question 3

What is the duty of the Defendant to unforeseeable plaintiffs?

Answer 3

None, a duty is only owed to foreseeable plaintiffs

Question 4

Who are foreseeable Plaintiffs?

Answer 4

Person who could reas. be injured based on the nature of the defendant’s negligent acts

Question 5

What is the duty to non-professional resuers?

Answer 5

All rescuers are per se foreseeable plaintiffs & are owed a duty of care

• Injuries to rescuers are foreseeable

Question 6

When is there a legal duty to act?

Answer 6

A person doesn’t have an affirm. duty to act (No Good Samaritan Law - no duty to rescue)

Question 7

When does the duty to rescue or aid occur?

Answer 7

There’s a duty to act if reas. under the circumstances

1. Voluntary Assumption of Care - If vol., there’s an oblig. to act with a reas. std. of care
2. Creation of Peril - Where ▵s conduct creates a peril, there’s a duty to act
3. Relationship Between Parties - Legal duty to act based on rel. b/w the parties
   
   • Familial Relationship - Parent-child or spousal
   • Common Carriers = Duty to Customers
   • Innkeepers = Duty to Guests
   • Shopkeepers = Duty to Customers
   • Prison Officers = Duty to Prisoner

Question 8

When a defendant creates a duty by undertaking a rescue act, what is the defendant liable for?

Answer 8

1. Some Jurisdictions - D only liab. if they leave D in a worse position
2. Good Samaritan Statutes
   
   • D who rescues another will not be liable for a negligent rescue
   • D is only liable if the D is reckless or intentional harm is caused

Question 9

When does a defendant create a reliance to rescue or aid that gives rise to a duty ?

Answer 9

When the plaintiff reasonably relies on the assurances of the defendant for rescue

Question 10

What is the default duty to control/warn third parties ?

Answer 10

There is no duty to control the conduct of a 3d pers. as to prevent him from causing phys. hamr to another

Question 11

When is there a duty to control/warn third parties?

Answer 11

1. When D should know of the dangerousness of a 3d party AND
2. D controls the 3d party
   
   • b/c special relationship exists b/w the actor & 3d pers.
   • that imposes duty upon the actor to control the 3d party’s conduct

Question 12

What is the liability of a provider of alcohol?

Answer 12

Generally, a provider of alcohol is not responsible for the acts of a recipient

Question 13

What is the exception to alcohol provider liability?

Answer 13

State Statute Dram Shop Acts

• Imposes liab. on certain Ds (such as commercial est.)
• For providing alcohol to a patron they know or should know is intoxicated

Question 14

What is the zone of danger?

Answer 14

Area where P was reasonably at risk of suffering phys. harm from the defendant’s conduct

Question 15

What are the different standards of care?

Answer 15

1. Reasonable Prudent Person
2. Child
3. Statute/Negligence Per Se
4. Professional

Question 16

What is the reasonable prudent person std. of care?

Answer 16

Standard of Care imposed is that of a reasonable purdent person under the circumstances

• Objective Std
• Must exercise the care that a reas. pers. under the same circ. would recog. as nec. to avoid or prevent an unreas. risk ofharm to another

Question 17

Standard of Care - Mental & Emotional Characteristics

Question 18

What is the Standard of Care for a child defendant?

Answer 18

Subjective Test

• What a reas. pers. of that age, experience & intelligence would do under sim. circumstances
• Exception - Adult Activities
  
  • If child engages in activity that’s norm. pursued only by adults,
  • child will be held to std. of care that a reas. adult would exhibit while engaged in the activity

Children Under 4 - Incapable of negligence, do not owe a duty

Question 19

What factors of a defendant affect the reasonably prudent standard of care?

Answer 19

1. Physical conditions (blind, deaf, missing limb)
2. Emergencies not of the Defendant’s making
3. Defendant is a child

Question 20

Standard of Care - When is evidence of custom relevant?

Answer 20

Admissible to demonstrate the presence or absence of reas. care BUT such ev. is not conclusive

• Deviation - favors plaintiff
• Compliance - Favors defendant

Question 21

What is the standard of care for Intoxicated individuals ?

Answer 21

Held to the same standard of care as a sober pers. unless the intoxication was involuntary

Question 22

Standard of Care - Mental Characteristics

Answer 22

A mentally disabled person is held to the std. of someone of ord. intelligence and knowledge

• D is presumed to have average mental abilities & the same knowledge as an avg. member of the community
• D’s mental or emotional disability is not considered in considering if he was negligent

Question 23

Standard of Care - Physical Charcteristics

Answer 23

D’s phys. char. (e.g. blindness) are taken into account

• The reasonableness of the conduct of D w/ a phys. disability is determined based on:
  
  • a reasonably careful pers. with the same disability

Question 24

What is the standard or care for professionals?

Answer 24

Community Std. - Must act w/ the level of knowledge and skill that is commonly possessed by members of the profession or occupation in good standing in similar communities

Not a national std.

Question 25

What is the standard of care for doctors?

Answer 25

Traditional Std. - Same or Similar Community Std.

• Did his actions comport with those customarily employed by doctors in the same locale or in sim. localities

National Standard - Did doctor conform her conduct to the customary practice of other doctors in sim. circ.

Some juris. now require:

• med. specialists to comply with the national std.
• General Practitioners to same or sim. locale std.

Question 26

What duty does a Psychotherapist have?

Answer 26

Duty to warn a reas. identifiable indiv. who her patient has made a credible threat

• No duty to warn indiv. who is member of indeterminate class against whom patient has made threats
• Considerations of privacy & confidentiality lead courts to deny a duty on part of therapist to non-patients when only the patient herself is at risk

Question 27

What is the impact of a professional complying with the customs of his profession?

Answer 27

They have complied with the std. duty of care

Question 28

What is the impact of a professional deviating from the customs of his profession?

Answer 28

There is a malpractice

• Unless, the prof. uses a respected alternative

Question 29

What is a doctor’s standard of care in providing informed consent?

Answer 29

Must disclose risks of medical procedure to patient in advance of their decision to consent to treatment

Majority Rule - Req. level of disclosure of risks is governed by custom

Minority Rule - Phys. must disclose any “material risk”

• Any risk that might make a dif. to a reas. pers. in deciding whether to proceed w. the surgery or other med. treatment

Question 30

What if a physician fails to divulge a material risk?

Answer 30

Malpractice

• so long as plaintiff can show they would have refused the procedure had they known of the risk

Question 31

In order to prevail in a legal malpractice action, what must the Plaintiff prove?

Answer 31

1. Attorney deviated from custom AND
2. Had the deviation not occurred, plaintiff would have won the underlying action

Question 32

When does negligent entrustment arise?

Answer 32

A duty is owed to any foreseeable Plaintiff if:

1. D gives something dangerous to someone
2. To someone the D knows or should know
3. Is incapable of handling the dangerous object

Question 33

When are doctors not under an obligation to disclose material risks ?

Answer 33

1. Risk is commonly known
2. Patient is unconscious or incapable of giving consent (emerg. treat.)
3. Patient waives or refuses info.
4. Patient incompetent (but phys. must still make reas. attempt to get informed consent from a guardian) OR
5. Disclosure would be detrimental to the patient (would upset patient enough to cause extreme illness, like heart attack)

Question 34

When does negligenc per se apply?

Answer 34

When the standard of care is determined by statute

Question 35

What is the effect of violation of a statute?

Answer 35

Majority of Juris. - Establishes negligence as a matter of law

• Presumption of duty & breach

Minority - Merely ev. of negligence

• Rebuttable presumption as to duty and breach

Question 36

What are the elements of Negligence Per Se?

Answer 36

1. Crim. or Reg. Statute imposes a penalty for violation of a specific duty
2. D violates the statute by failing to perform that duty
3. P is in the class of people intended to be protected by the statute,
4. Harm is of the type the statute was intended to protect against, AND
5. Plaintiff’s injuries were prox. caused by the D’s viol. of statute

Question 37

What is the effect of an unexcused violation of statute?

Answer 37

Negligence Per se

• Conclusively Establishes that ▵ was neg. (Est. duty & breach of that duty)
• ∏ must still prove causation & damages
• Compliance w/ Statute Doesn’t nec. Est. Due Care

Question 38

Negligence Per Se - Defenses

When is there an excused violation of a statute ?

Answer 38

1. Compliance would have involved greater risk of phys. harm to D than noncompliance (Emergency)
2. Viol. was reas. in light of D’s physical disab. or incap. or if D is a child
3. D exercised reasonable care in attempting to comply
4. Req. of statute were presented to pub. in confusing way (vague or ambiguous wording)
5. Reasonable ignorance

Question 39

Negligence Per Se - What is the effect if a Plaintiff violates a statute?

Answer 39

Violation of statute by Plaintiff may be contributory negligence per se

Question 40

When will liab. be imposed upon an emergency dept. for an inadequate response?

Answer 40

1. Special rel. b/w P and emerg. dept. that creates reliance in Plaintiff OR
2. The emerg. dept. has increased the danger beyond what would otherwise exist

Question 41

When a defendant is a utility company, what is the duty?

Answer 41

1. Duties exist to plaintiffs in privity of K of the utility AND
2. Plaintiffs injured on premises where the K applies

Question 42

Duty of Care & Fetuses

Answer 42

A fetus is owed a duty of care if they are viable at the time that the injury occurred

Question 43

What duty is owed by a store owner to a patron who only wishes to use the bathroom?

Answer 43

Invitee, Duty to:

1. Inspect the prem. for non-obv., unknown dangers AND
2. Warn invitees of the dangers that make it unsafe

Question 44

What duty is owed by D to resuers?

Answer 44

For all vol. resuers, D is liable for:

1. Injuries to rescuer AND
2. Injuries the rescuer causes during neg. rescue

Question 45

Where the Plaintiff is a prof. resuer and is injured doing her job, what is the liability of the Defendant for creating need for the plaintiff?

Answer 45

Plaintiff can’t sue the D who creates the need for them to do their job

Question 46

What is the firefighters rule?

Answer 46

Public safety officers are prohibited from tort recovery for personal injuries suffered while in the line of duty