Negligency - Breach

Question 1

Breach - burden of proof

Answer 1

Greater probability than not that D failed to meet standard of care

Failure was a proximate cause of injury and P suffered damages

Question 2

Breach - traditional approach

Answer 2

objective

compare D’s conduct with what a reasonably prudent person would do under the circumstances

Question 3

Modern and Restatement Approach

Answer 3

Cost-benefit analysis (B

Question 4

What is the impact of custom on standard of care in general?

Answer 4

evidence of custom is generally admissible but NOT conclusive in establishing proper standard of care

Question 5

Standard of Care - Professionals

Answer 5

expected to show same skill, knowledge, and care as an ordinary practitioner in same community

specialists may be held to a higher standard

Question 6

What effect does deviation or compliance have on breach analysis for professionals?

Answer 6

evidence of deviation or compliance is ADMISSIBLE and DISPOSITIVE

deviation = establish breach 
compliance = not negligent

Question 7

Do you need an expert to establish the standard of care for professionals?

Answer 7

Generally yes, unless negligence is so obvious that it would be apparent to a layperson

Question 8

Standard of Care - Physicians (majority)

Answer 8

national standard - including specialists

Question 9

Standard of Care - Physicians (minority)

Answer 9

traditional rule - same or similar locale standard

Question 10

Informed consent rule

Answer 10

failure to comply w/informed consent requirement IS medical negligence UNLESS risk is

1. commonly known
2. patient is unconscious
3. patient waives/refuses the info
4. is incompetent, OR
5. disclosure is too harmful

Question 11

negligence per se - elements

Answer 11

1. criminal or regulatory statute imposes a specific duty for the protection of others
2. D neglects to perform the duty
3. D liable to anyone in the class of people intended to be protected by statute
4. from harms of the type the statute was intended to protect against

Question 12

Effect of meeting elements of negligence per se

Answer 12

once the elements are established, D is liable for injuries that were proximately caused by D’s violation

Question 13

Negligence per se - defenses

Answer 13

1. compliance impossible or more dangerous than noncompliance
2. violation reasonable under the circumstances
3. statutory vagueness or ambiguity
4. compliance w/federal regulation preempts common-law tort action

Question 14

Res ipsa loquitur - traditional elements

Answer 14

1. the accident was a kind that does not ordinarily occur in the absence of negligence
2. it was caused by an agent or instrumentality w/in the exclusive control of the defendant AND
3. it was not due to any action o the part of the P

Question 15

Res ipsa loquitur - what does it do

Answer 15

establishes an inference of negligence sufficient to avoid dismissal

does NOT change the standard of care

Question 16

Modern treatment of res ipsa loquitur

Answer 16

loosely apply “p not responsible for injury” element in comparative fault jurisdictions

Generous interpretation of exclusivity requirement

Question 17

Res ipsa loquitur - product liability

Answer 17

Many courts ignore exclusivity for product liability IF manufacturer wrapped the package or it is clear that negligence took place during production

Question 18

Res ipsa loquitur - medical

Answer 18

if any medical personnel had access to P during surgery in malpractice claim, some jurisdictions presume each D has breached a duty of care UNLESS each D rebuts

Question 19

What is breach?

Answer 19

violation of the standard of care