SOC and Breach Flashcards
Define “Standard of Care”
The level of conduct demanded of a person so as to avoid liability for negligence. Failure to meet this standard is characterized as breach of duty.
How do you assess the “reasonable person” standard?
Objective. Look at the conduct and compare it to the external standard of a reasonable person. Measured by the knowledge and understanding generally held by members of the community.
Define “sudden emergency.”
- A sufficiently unusual event
- That requires a decision within an extremely short duration
- So that the actor cannot draw on a ready body of personal experience or general community knowledge as to which choice of conduct is best.
How do you assess “same or similar circumstances”?
The context of the injury causing event: look at weather, time, other conditions, other people, etc.
What conditions can you consider when assessing a “reasonable person?”
physical conditions: height, weight, blindness, deafness, disability, etc. NOT mental disability
Define the heightened ability or superior skill standard
RPP still sets minimum conduct - how would a reasonable person use this skill if they possessed it? Used in breach analysis
Define the “common carrier” standard
If a person or commercial enterprise transports passenger or goods, the measurement would be the reasonable “airline” “cruise liner” etc.
Define the reasonable child standard of care
what would a reasonable child with the same (1) age, (2) experience, (3) Intelligence, and (4) maturity do under similar circumstances? (Objective/subjective – reasonable child/child’s experience)
Define inherently dangerous or adult activity
These are activities that if a child engages in them it would change their standard of care to RPP e.g. waterskiing, using a chainsaw
Define Negligence Per Se
When a violation of a statute is used as the substitution for a breach (minority, negligence as evidence of breach)
What are the elements of negligence per se?
(1) Did D violate a statute?
(2) Show protected class of person. was the law designed to protect the plaintiff?
(3) Show type of harm. Was the law designed to protect from the type of harm that resulted?
How can you negate Negligence Per Se?
Negate one of the elements, show that the statute wasn’t violated, or by excuse:
(1) Incapacity
(2) No knowledge
(3) Sudden emergency (not of party’s own making)
(4) Violation of the statute was less harmful than compliance with it
What are the types of standard of care?
(1) RPPSSC
(2) Child SOC
(3) Statutory (NPS)
(4) Professional
What is the breach analysis for RPPSSC?
BPL (+custom/slip & fall) or RIL
What is the breach analysis for Child SOC?
BPL with age, intelligence, maturity, experience (+custom/slip & fall) or RIL
What is the breach analysis for Statutory (NPS)?
Violation of statute or (jx split) Some evidence
(1) Was the statute written to protect this class of person?
(2) Was the statute designed to protect from this type of harm?
What factors can influence the RPPSSC?
(1) Same or similar circumstance
(2) Physical condition
(3) Emergency (sudden, not of own making)
Define BPL
B = the burden of avoidance
P = the probability of harm
L = The gravity of the likely harm
How to measure the burden of avoidance
Measure how high the burden of avoiding the conduct is.
1. Cost
2. Inconvenience
3. Possible alternatives,
4. Utility of the approach to the conduct
5. Extent to which society values the conduct.
H/M/L
Define probability of harm
How probable is it that the conduct would cause any harm (to another) to occur? H/M/L
Define gravity of harm
What would a reasonable person see as the likely harm? How great is that harm? H/M/L
What are the 3 steps to introduce custom evidence?
(1) Must show that it is a well-established custom (65% adherence or more)
(2) Show that the reason for custom is relevant to the injury that occurred
(3) Must show deviation or adherence
What are the elements of Res Ipsa Loquitor?
Party cannot identify conduct
(1) Must show that the harm would not have happened absent negligence
(2) The incident was caused by an instrumentality that was in D’s control
(3) The injured party in no way contributed to the injury
What is the SOC expected of a professional?
A professional is expected to use their knowledge, training, and skills the same as other professionals in good standing in the field and in a similar locality.
* Unless they are a board certified specialist in which case the standard of care is a national standard.
How to determine failed performance for professional SOC
It is determined by the custom.
* An expert would set the custom.
* Compliance with the custom or deviation from the custom would determine the breach
What requirements must an expert meet to be eligible to set the custom for a professional SOC?
- Expert must be knowledgeable in relevant area of medicine and
- Expert must be of a similar geographic area
* Unless specialist, in which case must be board certified and geographic area is irrelevant
Elements for RIL in medical malpractice:
Unable to show conduct (normally because patient is unconscious)
(1) Harm could not have occurred absent malpractice
(2) The body of the patient is in control of the medical professionals (can be several)
(3) The patient did not contribute to the harm
Medical malpractice for informed consent, Physician’s Rule:
An expert sets the custom:
1. A doctor is required to divulge the risk that other doctors in good standing in the relevant community would customarily divulge.
2. Breach determined by compliance or deviation.
Medical malpractice for informed consent, Patient’s Rule:
(1) The doctor must inform the patient of all material risks a reasonable patient would want to know when deciding to undertake or forgo a procedure
(2a) Majority: Would a reasonable patient have consented if they knew the risk?
(2b) Minority: Would this patient have consented if they knew the risk?
How do you handle it when a child violates a statute in a negligence case?
Child standard of care remains, however, violation of the statute factors in as evidence when assessing the breach.
