SOC and Breach

Question 1

Define “Standard of Care”

Answer 1

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.

Question 2

How do you assess the “reasonable person” standard?

Answer 2

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.

Question 3

Define “sudden emergency.”

Answer 3

1. A sufficiently unusual event
2. That requires a decision within an extremely short duration
3. 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.

Question 4

How do you assess “same or similar circumstances”?

Answer 4

The context of the injury causing event: look at weather, time, other conditions, other people, etc.

Question 5

What conditions can you consider when assessing a “reasonable person?”

Answer 5

physical conditions: height, weight, blindness, deafness, disability, etc. NOT mental disability

Question 6

Define the heightened ability or superior skill standard

Answer 6

RPP still sets minimum conduct - how would a reasonable person use this skill if they possessed it? Used in breach analysis

Question 7

Define the “common carrier” standard

Answer 7

If a person or commercial enterprise transports passenger or goods, the measurement would be the reasonable “airline” “cruise liner” etc.

Question 8

Define the reasonable child standard of care

Answer 8

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)

Question 9

Define inherently dangerous or adult activity

Answer 9

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

Question 10

Define Negligence Per Se

Answer 10

When a violation of a statute is used as the substitution for a breach (minority, negligence as evidence of breach)

Question 11

What are the elements of negligence per se?

Answer 11

(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?

Question 12

How can you negate Negligence Per Se?

Answer 12

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

Question 13

What are the types of standard of care?

Answer 13

(1) RPPSSC
(2) Child SOC
(3) Statutory (NPS)
(4) Professional

Question 14

What is the breach analysis for RPPSSC?

Answer 14

BPL (+custom/slip & fall) or RIL

Question 15

What is the breach analysis for Child SOC?

Answer 15

BPL with age, intelligence, maturity, experience (+custom/slip & fall) or RIL

Question 16

What is the breach analysis for Statutory (NPS)?

Answer 16

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?

Question 17

What factors can influence the RPPSSC?

Answer 17

(1) Same or similar circumstance
(2) Physical condition
(3) Emergency (sudden, not of own making)

Question 18

Define BPL

Answer 18

B = the burden of avoidance
P = the probability of harm
L = The gravity of the likely harm

Question 19

How to measure the burden of avoidance

Answer 19

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

Question 20

Define probability of harm

Answer 20

How probable is it that the conduct would cause any harm (to another) to occur? H/M/L

Question 21

Define gravity of harm

Answer 21

What would a reasonable person see as the likely harm? How great is that harm? H/M/L

Question 22

What are the 3 steps to introduce custom evidence?

Answer 22

(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

Question 23

What are the elements of Res Ipsa Loquitor?

Answer 23

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

Question 24

What is the SOC expected of a professional?

Answer 24

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.

Question 25

How to determine failed performance for professional SOC

Answer 25

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

Question 26

What requirements must an expert meet to be eligible to set the custom for a professional SOC?

Answer 26

1. Expert must be knowledgeable in relevant area of medicine and
2. Expert must be of a similar geographic area
   * Unless specialist, in which case must be board certified and geographic area is irrelevant

Question 27

Elements for RIL in medical malpractice:

Answer 27

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

Question 28

Medical malpractice for informed consent, Physician’s Rule:

Answer 28

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.

Question 29

Medical malpractice for informed consent, Patient’s Rule:

Answer 29

(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?

Question 30

How do you handle it when a child violates a statute in a negligence case?

Answer 30

Child standard of care remains, however, violation of the statute factors in as evidence when assessing the breach.