Negligence: Standard of Care

Question 1

What is the measure of the duty owed to others (the standard of care)?

Answer 1

• The reasonable prudent person standard (RPP): Did the defendant use the level of care and caution that a reasonable prudent person would have used under the circumstances?

Question 2

Is the reasonable person standard an objective or subjective test?

Answer 2

• Objective test – D’s conduct is measured against expectation of conduct within community.

Question 3

Does the reasonable person standard take a person’s physical conditions into account?

Answer 3

• It does. If D had a physical condition (blind, deaf, amputee), then D will be held to the standard of a RPP with that condition.

Question 4

Does the reasonable person standard take a person’s mental ability into account?

Answer 4

• The law does not generally take into account mental ability, speed of reflexes, or mental health under the RPP standard

Question 5

Does the RPP standard take emergencies into account?

Answer 5

• Emergencies not of D’s own making considered by jury may be considered (e.g., rushing to hospital because child is dying).

Question 6

What is the formula used to analyze a breach of the standard of care?

Answer 6

• The Hand Formula:
  o What is the probability of harm occurring from D’s conduct?
  o What is the likely magnitude of the harm going to be?
  o What is the burden on D to avoid the harm?
• EXAMPLE: Dunco trolley company decides to build a trolley line using uninsulated wires. Peter is walking across the bridge carrying a metal pole and the pole makes contact with the wires, shocking him. The above factors must be used to determine whether the standard of care was met.

Question 7

Are child defendants subject to the reasonable person standard for negligence?

Answer 7

• Majority Rule: Minor D’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence as D would have done.

Question 8

Under what exception would children be judged as a reasonable prudent adult to prove negligence?

Answer 8

• Children engaging in adult, inherently dangerous activities are held to an adult standard of care (ex: driving).
  o EXAMPLE: 11-year-old Darla is driving her parents’ car and collides with, and injures, Paula. In the ensuing lawsuit, Darla will be held to the standard of a reasonably prudent person (adult), because she was driving a car which is an adult activity and is inherently dangerous.

Question 9

What is statutory negligence?

Answer 9

• When statutes that provide civil liability supersede common law of torts
  o EXAMPLE: A state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort. Thus, if P was not wearing a seatbelt when injured in a car accident, P cannot recover in a negligence action).

Question 10

What is negligence per se?

Answer 10

• Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes (ex: criminal traffic law).

Question 11

When is negligence per se applicable?

Answer 11

• P is member of a class the law is designed to protect; and
• Injury caused by D’s conduct is the type the statute sought to protect.
  o EXAMPLE: Legislature in the state of Panic passes a law that says “anyone driving after sundown without headlights is guilty of an infraction punishable by up to a $1,000 fine.” This is a criminal law. Dana is driving after dusk without headlights and cannot see Tracy crossing the street, Dana runs over Tracy, injuring him. Tracy sues Dana in negligence and would prefer that the judge use the statute to set the standard of care because it limits the jury’s role.
• If statute applies (majority rule): Unexcused violation of the law establishes that D breached a duty to P, but P still needs to prove causation and damages.

Question 12

Under what exceptions would a negligence per se statute not apply?

Answer 12

• Exception: Excused statutory violation, like an emergency not of D’s own making, or when it’s more dangerous to comply with the law.
• Exception: Licensing statutes - Not having a license does not create liability.
  o Expired driver’s license is not negligence per se.

Question 13

What happens if a negligence per se statute does not apply?

Answer 13

• When the statute does not apply, that does not necessarily defeat the negligence claim. The statute will not set standard of care, but the case still proceeds under RPP, not under negligence per se.
  o EXAMPLE: State of Joy passes a statute that requires all railroads to construct secure fences between their property and neighboring property, failure to do so results in a fine up to $1,000. Dunn Railroad constructs a flimsy fence between their land and Pierre’s. Railroad workers mow the lawn next to the fence. On the other side of the fence is Pierre’s cow. Cow knocks the fence over and eats herself to death on the freshly cut grass. The statute is not designed to protect cows from overeating; therefore, it will not apply

Question 14

What establishes the standard of care for professionals?

Answer 14

• Custom establishes standard of care for professionals

Question 15

What is the standard of care owed by medical doctors?

Answer 15

• Physicians are required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community. Otherwise they may be subject to medical malpractice

Question 16

What is the distinction between the standard for medical specialists and the standard for general practitioners?

Answer 16

• Specialists = national standard.
• General practitioners = locality standard.
  o EXAMPLE: Dr. Dean is an anesthesiologist and administers anesthesia to Peter. After two hours, Peter gets up and then falls and suffers injury. Peter sues Dr. Dean for medical malpractice. Evidence shows that other anesthesiologists allow patients to rest for four hours, not two hours, after anesthesia. This evidence shows deviation from custom, Dr. Dean will lose. If however, Dr. Dean can show that two hours is customary, Peter loses because Dr. Dean has complied with custom.

Question 17

What was the traditional rule for physicians who treated patients without informed consent?

Answer 17

• Physician is liable for battery (an intentional tort) if the physician obtained no informed consent from the patient about risks.
• In that case, the patient’s consent is negated because of lack of disclosure. This is still the case when there is a gross deviation from actual consent (ex: P agrees to tonsillectomy, but leg is amputated instead).

Question 18

What is the more modern rule for physicians who treated patients without informed consent?

Answer 18

• Physician must divulge all material risks, meaning risks that a reasonable patient would want to know in deciding whether to undergo the procedure or treatment (patient rule).
• Failure to divulge material risk is malpractice if P can show she would have refused the procedure if the physician divulged the risk.