Negligence for Midterm Flashcards
4 elements of a negligent action
(1) duty
(2) breach
(3) cause
(4) harm (damages)
Definition of duty
A duty is a legally recognized obligation to conform to a particular standard of conduct toward another
When deciding negligence, what are the two factors that must be weighed?
(1) public good and benefits
(2) possible dangers
What is the Learned Hand Formula
Duty exists when B < P x L
B = burden of taking precautions
P = possibility of risk
L = gravity of potential harm
4 steps to determine that appropriate SOC
(1) Reasonable Prudent Person
(2) Rule of law
(3) applying a non-tort specific statute
(4) applying a tort specific statute
Describe the RPP
the standard of conduct to which he must conform is that of a reasonable man under like circumstances (objective standard)
What does the RPP take into consideration?
custom/custom or practice of a particular industry
Sudden emergency doctrine
SOC for person facing a sudden emergency, not of his own making is the “reasonable person in an emergency”
How does the RPP apply to those with physical disabiilties?
look at reasonable man under same physical disability
Majority/Minority view of mental disability in relation to negligence
- majority view: Reasonable person standard = mentally disabled adults held responsible in torts they commit regardless of capacity to comprehend actions (exception is sudden mental incapacity)
- minority view: mental disability is taken into account when determining negligence
Is an institutionalized insane person liable for their tortuous conduct
no, not liable for injuries to employed caretaker bc does not have to capacity to control or appreciate his/her conduct
SOC for a child
a. child of like age, intelligence, and experience unless:
I. operating a motorized vehicle
ii. engaged in adult activity
iii. engaged in dangerous activity
Majority view of SOC for child
most states do not apply negligence to children 3 years and younger, but do apply negligence principles to children ages 7 and older
Describe the SOC for the Reasonable prudent professional
- conduct of the reasonably prudent person under same or similar circumstances, unless altered by statute
- skill, training, and knowledge of ordinary member of profession, not the average
3 elements of legal malpractice
a. attorney’s employment (DUTY)
b. attorneys neglect of reasonable duty (BREACH)
c. such negligence resulted in and was proximate cause of damages/loss to client (Causation/damages)
3 SOC rules courts can consider for medical malpractice
a. locality rule: states conduct of medical profession to be measured solely by standard of conduct expected of other medical professionals in same community
b. same/similar locality rule: extending geographical reference group of standard of care to same or similar localities (NYC = Chicago, big cities)
c. National Rule (MAJORITY, at least for board certified physicians): all under same standard of care (this court chose)
informed consent doctrine
physician required to adequately inform patient about treatment protocol, available alternatives, and collateral risks
3 Elements of informed consent
i. Doctor had a DUTY to adequately disclose the material risks of treatment before securing the patient’s consent and failed to do so (BREACH)
ii. If patient had been informed of the risks, they (objective patient) would not have consented to the treatment (CAUSATION)
iii. The adverse consequences that were not fully disclosed actually occurred, and patient was injured as a result of treatment (DAMAGES)
Is informed consent treated as negligence or battery
negligence, unless no consent, then battery
3 standards of Informed consent
a. subjective (minority): established solely by patient’s testimony; individual would not have consented to procedure if known risks
b. objective (majority) (TN): what RPP in patient’s position would’ve decided if adequately informed of all significant perils
c. modified objective standard: from viewpoint of patient acting rationally and reasonably (Hawaii used to use)
Majority v. Minority view on train track cases
vi. Pennsylvania Rule (minority): unyielding duty to stop as well as to look and listen, no matter how clear the crossing or the tracks are on either side
vii. Majority rule: traveler must look and listen, but stopping depends on circumstances (which is jury question)
2 factors necesarry for a Negligence per se claim
- injured party is class of persons whom statute intended to protect &
- injury is type against which statute is intended to protect
Effect of violating statute falls within 1 of 3 categories:
i. Prima facie case of negligence with a rebuttable presumption of negligence based upon a justifiable excuse = few states, including Michigan Rule
ii. negligence per se; if P was using reasonable care it wouldn’t matter; establishes conclusive evidence of negligence = majority
iii. only evidence of negligence = minority
What are dram shop acts
they generally establish civil liability of establishment arising out of sale of alcohol to visibly intoxicated persons or minor who subsequently causes death or injury to a third party as result of alcohol related car crashes and other accidents
Direct v. Circumstantial evidence
i. direct evidence-evidence of testimony by a witness about a matter within personal knowledge
ii. circumstantial evidence-evidence that requires drawing inferences (time banana had been there based off its color)
a. must establish that it is more likely than not (not just
possibility) that dangerous condition existed long
enough to give owner/operator reasonable opportunity
to discover condition
4 elements needed to prevail in a slip and fall case
i. actual or constructive knowledge of some condition on the premises by owner/operator
ii. that the condition posed an unreasonable risk of harm
iii. that owner/operator did not exercise reasonable care to reduce or eliminate risk; and
iv. that owner/operator’s failure to use such care proximately cause P’s injuries
Constructive knowledge could be proved by what 2 things
(1) showing that store employee was present in immediate area and could have easily seen substance and removed it or
(2) by showing that substance had been on floor with such time that it would be discovered and removed if D’s were exercising reasonable care in inspecting premises.
Res ipsa loquitur doctrine
“the thing speaks for itself”; A particular type of circumstantial evidence
3 elements of res ipsa loquitur
a. The accident is of the type that does not happen absent negligence
b. The apparent negligence can be attributed to the D, who had a duty to guard against that type of harm (usually by showing that D had exclusive control over what caused the harm)
i. It may be enough that the D was formerly in control
c. Neither P nor a third party contributed to or caused the accident
