Negligence Per Se

Question 1

In the vast majority of professional negligence…

Answer 1

negligence determined by jury is not enough to prove professional negligence.

Question 2

A physician has a duty to inform the plaintiffs

Answer 2

A doctor violates her duty when she fails to disclose risks that an ordinary physician would disclose

Question 3

Informed consent (patient rule)

Answer 3

A doctor violates informed consent when she fails to disclose what a normal ordinary patient would want disclosed.

Question 4

Informed objective Causation

Answer 4

if nondisclosure would effect the reasonable patient

Question 5

Subjective Causation

Answer 5

would the nondisclosure affect the patient in this case.

Question 6

Moore court held

Answer 6

a physician must disclose any interests other than the patient’s health such as financial interests or research/

Question 7

A violation of statutory law is negligence as a matter of law

Answer 7

True. The duty of the statute is used to establish what a reasonable person would do. The plaintiff can sue to the defendant for failing to show reasonable care and statutory stands can be used a short cut to prove what the reasonable person would do.

Question 8

When does a court consider when statutory standard becomes a short cut to negligence as a matter of law

Answer 8

1. Was the plaintiff a member of the class that the legislature intended?
2. Type of harm which the statute or regulation was enacted to prevent.
3. Otherwise appropriatee
   - Notice
   - common law duty
   - would it create liability without fault?
   - Did the injury result directly or indirectly from violation of the statute. If direct, it is appropriate. If indirect, inappropriate.

Question 9

If you allege negligence per se negligence is also almost always alleged as a back up. True or false?

Answer 9

True!

Question 10

Negligence and negligence per se have different entitlements to damages. True or false?

Answer 10

False. Negligence per se is just a short cut to negligence!

Question 11

Rescue rule

Answer 11

There is no duty to take affirmative steps to help someone

Question 12

Is statute applicable?

Answer 12

Decision made by judge to see if short cut can be used.

Question 13

If the party has violated an applicable statute, what does that mean for the case?

Answer 13

1) Conclusive evidence of breach (possible but not popular approach)
2) Majority approach: Negligence per se with excuses
- specific list of excuses
3) Presumption of negligence/reasonable not to comply
- general question (reasonable not to comply)
4) Mere evidence of negligence
- was the party reasonable and failure to adhere to statute can only be used as evidence.

Question 14

Evidence necessary for breach

Question 15

When is a defendant liable?

Answer 15

defendants are liable if their employees didn’t act as a reasonable prudent person would given the circumstances and if their lack of action caused the damaged plaintiffs. OR if one of their employees placed the banana peel.

Question 16

Direct versus circumstantial evidence of breach?

Answer 16

Direct: Did the employees know there was a banana peel on the floor?
.
circumstantial: facts that the would allow a jury to infer that the defendants were negligent.
- Abstract: Evidence is offered because it infers another fact.