Negligence Standard of Care

Question 1

What are the four elements for Negligence?

Answer 1

1. Duty
2. Breach
3. Causation
4. Damages

Question 2

What is the general rule for duty?

Answer 2

A duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Question 3

Is there an affirmative duty to act?

Answer 3

NO, even if the failure to act appears to be unreasonable.

Question 4

What is the rule on foreseeability of harm?

Majority and Minority

Answer 4

Majority- Duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed as a result of the defendant’s negligent conduct.

Minority- if the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone harmed as a result of his breach.

Question 5

Are rescuers foreseeable plaintiffs?

Answer 5

Yes

Question 6

When is there an duty to aid someone?

5 situations

Answer 6

1. Assumption of Duty- voluntary aids
2. Placing another in peril
3. By Contract
4. By Authority
5. By relationship

Question 7

What is the standard of care?

Answer 7

That of a reasonably prudent person under the circumstances.

This is an objective standard.

Question 8

Under the standard of care, does a persons mental and emotional characteristics factor in?

Answer 8

No- presumed to have average mental abilities and the same knowledge as an average member in the community.

Unless the defendant is a child-different standard.

Question 9

Under the standard of care, does a persons physical characteristics factor in?

Answer 9

Yes-

taken into account and the reasonableness of the conduct of a defendant with a physical disability is determined based upon a reasonably careful person with the same disability.

Question 10

Are intoxicated people held to a different standard than sober people?

Answer 10

No

Question 11

What is the standard of care children are held to?

Answer 11

That of a reasonable child of similar age, intelligence, and experience.

Question 12

When is a child held to and adult standard?

Answer 12

When a child engaged in an high-risk activity that is characteristically undertaken by adults.

Question 13

What is the standard of care for professionals?

Answer 13

Expected to exhibit the same skill, knowledge, and care as another practitioner in the same community.

Question 14

What is the standard of care for specialist?

Answer 14

Held to a higher standard.

Question 15

What is standard of care for Informed Consent?

Answer 15

Physicians have an obligation to explain the risks of a medical procedure to patient in advance of a patient’s decision to consent to treatment.

Question 16

What is the majority rule on Informed Consent?

Answer 16

The require level of disclosure of risks is governed by custom among medical practitioners.

Question 17

What is the minority rule on Informed Consent?

Answer 17

The physician must disclose and material risk- any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment.

Question 18

What doesn’t a doctor have to disclose?

Answer 18

1. The risk is commonly known risk
2. The patient is unconscious or otherwise incapable of giving consent
3. The patient waives or refuses the information
4. The patient is incompetent or
5. The disclosure would be detriment to the patient

Question 19

What is Negligence Per Se?

Answer 19

Standard of care determine by statute

Question 20

What are the 5 element of Negligence Per Se?

Answer 20

1. A criminal or regulatory statute
2. The defendant violates the statute by failing to perform that duty
3. The plaintiff is in the class of people intended to be protected by the statute
4. The harm is of the type the statute was intended to protect against and
5. The plaintiff’s injuries were proximately caused by the defendant’s violation of the statute.

Question 21

What is the defense to Negligence Per Se?

Answer 21

1. Defendant must show that complying with the statute would be even more dangerous than violating the statute.

Question 22

What is the standard of care for Common Carriers and Innkeepers?

Answer 22

Common law- highest duty of care

Majority- Only Common Carriers held to highest duty of care.
*Innkeepers- held to ordinary negligence.

*applies only to customers and guest

Question 23

What is a Bailor’s duty of care?

Answer 23

To inform the gratuitous Bailee only of known dangerous defects in personal property but must inform a Bailee for hire of defects that are known or should have been known by the bailor had he used reasonable diligence.

Question 24

What is a Bailee’s duty of care?

Answer 24

If the bailor receives the sole benefit, the Bailee has a lesser duty.

If the Bailee receives a benefit, he has a higher duty of care; even slight negligence can result in liability.

Question 25

What is the attractive nuisance doctrine?

Answer 25

A land possessor may be liable for injuries to children trespassing on the land if:

1. An artificial condition exists in a place where the la d possessor knows or has reason to know that children are likely to trespass;
2. Than land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children;
3. The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
4. The utility to the land possessor of maintaining the condition and the burden of eliminating the danger and slight compared to the risk of harm presented to children; and
5. The la d possessor fails to exercise reasonable care to protect children from the harm.

Question 26

What is an invitee?

Two type

Answer 26

1. Public invitee- someone invited to enter or remain on the land for the purposes for which the land is held open to the public; or
2. Business visitor- someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor.

Question 27

What duty does a land possessor owe an invitee?

Answer 27

Land possessive owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them.

• The duty a reasonable care owed to the invitee,
does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond the scope.

Question 28

What is a licensee?

Answer 28

Someone who enters the land of another with express implied permission of the land processor or with a privilege.

• social guest
• emergency personnel

Question 29

What duty is owed to licensees?

Answer 29

A duty to either direct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her.

Must exercise reasonable care in conducting activities on the land.

Question 30

What duty does a landlord owe to lessor once the lesser takes possession?

Answer 30

Landlord must maintain safe common areas, must warn of Hidden dangers especially for premises that are lease for public use, and must repair hazardous condition