Standard Of Reasonable Care and causation

Question 1

Exception to enforcement of voluntary regulations in the industry

Answer 1

Violation of a company’s rules is not negligence in and of itself where such rules require a standard that transcends reasonable care. In such instances breach of the rule is not evidence of negligence

Question 2

Doctors and negligence general rule

Answer 2

1)Use of an unsuccessful treatment is not negligence if the treatment chosen was an accepted treatment based on the info available at the time the physician made the choice.
However….
A doctor must use reasonable care to obtain information needed to exercise professional judgment. An unsuccessful method of treatment chosen because of failure to use reasonable care is negligence
Expert testimony required to establish prima facile case

Question 3

Res ipsa loquitur

Answer 3

This is an outcome that 1) ordinarily does not occur in the absence of negligence where 2) the instrumentality was in the exclusive control of the defendant and 3) the plaintiff did not contribute to the accident

Question 4

Special relationship in municipality

Answer 4

For a P to establish a special relationship there must be:

1) an assumption of municipal to act on behalf of P
2) knowledge by the D that inaction could lead to harm
3) direct contact between municipal agents and plaintiff
4) justifiable reliance (must be detrimental reliance)

Question 5

Industry custom when there isn’t a statute or industry regulation

Answer 5

When there isn’t an industry custom or statute for the industry but a company induces reliance one can find a basis for liability.

Question 6

Vicarious liability

Answer 6

Respondeat superior- let the master answer
Applies when the master serpent relationship exists and the employee was acting in the course of employment when the negligent act occurred

Question 7

Ira S. Bushey & sons v. U.S.

Answer 7

US sail man returned to vessel he worked and lived on from a night of heavy drinking and while walking up to the vessel turned some wheels that ended up controlling water coming into dry dock.

Judge Friendly- Employer was liable because employee was in scope of employment. Men do not discard their personal qualities when they go to work. The proclivity of seamen to find solace for solitude by drinking while ashore is so well known. Even if specific act wasn’t foreseeable the risk that seamen going to and from might cause damage to the dry dock is enough to make it fair

Question 8

Doe v. Guthrie Clinic Ltd

Answer 8

nurse text personal info on patient w/ std.

Piggot- the hospital did not authorize the texting and it was entirely motivated by personal reasons, thus not within the scope of employment

Rivera- hospital should be directly liable for its own failure to prevent breaches of confidentiality by employees. Patients have little to say on the matter and they disclose personal info trusting the medical corporation will keep it confidential

Question 9

Vicarious liability exception and its exception

Answer 9

Independent contractors

Unless…

The work is inherently dangerous (blowing some up)
Or the work is a non delegable duty (getting breaks repaired)

Question 10

Steps in causation

Answer 10

Step 1: cause in fact
D negligence must always cause P’s harm in fact
Use “but for” test- Identify breach, identify injury,
take the breach out of the picture, would the injury have occurred w/o it?

Step 2: proximate cause
What are the foreseeable risks that make the behavior unreasonable? Do the harms that actually resulted from the breach match the harms that are in the list of foreseeable risks?

Question 11

Standard of reasonable care

Answer 11

The standard or care is the conduct of a reasonable person of ordinary prudence under the circumstances

There is no duty greater than ordinary care under the circumstances

Question 12

Ways to measure reasonable care

Answer 12

1) The hand formula (B > P x L)
2) industry custom
3) objective assessment
4) statutory and regulatory standards

Question 13

The hand formula

Answer 13

Reasonable using the hand formula is a function of three variables: 1) the cost to prevent the harm that could result from the conduct 2) probability of harm caused by the conduct and 3) magnitude of harm from the conduct.

Is the cost of prevention is greater than the probability and magnitude of harm then we should let that action happen

B> P x L
Burden- burden of taking a precaution to prevent harm
P- probability of loss
L- magnitude of loss

Must emphasize that implementing the prevention won’t interfere or create new risks

Question 14

What is the D can’t afford the to take proper precaution?

Answer 14

What the prevention will cost and whether D can manage is a separate question. If one can’t pursue the activity without reasonable care to others then they are negligent to even pursue the activity

Question 15

Industry custom

Answer 15

Reasonableness measured by looking to statutes violated, industry custom that wasn’t followed or if the D induces reliance by establishing its own practice.

e.g. Erie R. Co. v. Stewart- railroad company decided to implement watchman. Public relied on his presence to know if it was safe to cross

vs.

Gilson v. Metro opera- company rule was to escort ticket holders to their seat when the lights were out. P fell but violation of internal rule is not negligence where such rules require a standard that exceeds reasonable care

Question 16

Industry custom for professionals- physicians

Answer 16

A doctor must use reasonable care to obtain information needed to exercise his or her professional judgment, and an unsuccessful method of treatment chosen because of failure to use reasonable care would be negligence.

Adequacy of knowledge is looked at across the board. keeping up w/ info and general standards is required of every physician despite their location.

Must have an expert testimony to establish prima facie case

Question 17

Physicians as defendants for failure to disclose. Steps to look at:

Answer 17

Step 1: Does a relationship already exist?
Step 2: Scope of disclosure
•materiality (info material to the decision)
— patient would have chosen something different
— what a reasonably prudent person would have chosen
•customary (what is customary to disclose for that time of procedure)
Step 3: causation- the unrevealed risks materialized

Question 18

Customary standard for determining breach of duty to warn (failure to consent)

Answer 18

Must have expert to establish what is customary to disclose to a patient and what the risks are for disclosing

Question 19

Materiality standard to determining failure to disclose

Answer 19

All info material to the decision as to whether a P would say yes or no to the having the procedure

(No expert required)

But if the standard is what the profession would call for then an expert is needed

P must show a disclosure of the omitted info would have resulted in a different choice by asking
- what would a reasonably prudent person on that situation have chosen?
(May be tailored by patients age, gender etc.)

Question 20

Exception/excuse to failure to disclose

Answer 20

Therapeutic privilege- professionals are not required to disclose info that if disclosed could result in harm to the P

Professional must show why disclosing the info would be bad
Risks and causation (risk inherent in procedure and risks made greater because of P’s conduct)

Question 21

What if D follows what is customary in the profession (I.e. using procedure on target groups only) and P is injured from being deprived of the opportunity?

Answer 21

Reasonable prudence- There are precautions that are so imperative that even their universal disregard will not excuse their omission

E.g. Helling v. Carey- Doctor using eye pressure test only on those that fall within a certain age group. This was the universal standard. P (outside the age group) got glaucoma that could have been prevented had the test been used
Hand formula used in these situation

Question 22

Industry custom: attorneys

How to sustain a cause of action?

Answer 22

A party must show that an attorney failed to exercise reasonable skill and knowledge commonly possessed by the members of the legal profession in that area (different expectations by state)

Other than not adhering to a state statute, expert testimony is required to say what is customary

Question 23

Industry custom: Educational standards

Answer 23

An education professional’s judgment is not negligence because:
• there’s a lack of satisfactory standard of care by which to evaluate an educator
•inherent uncertainties about cause and nature of damages
• potential flood of litigations against school
•threatens to embroil the court overseeing the day to day operations of schools

Question 24

Objective assessment of reasonable care

Answer 24

What did the person know and how did they act in light of the circumstances. Requires considering:

• emergency of the situation
• whether P had superior knowledge
• physical limitations

Lack of reasonable care:

• good faith (doing best you could is not a satisfactory standard)
• ignorance of the activity/instrument the D engaged in is a lack of reasonable care (I.e. not knowing when car tires have gone bad)

Question 25

Reasonable care for persons with physical limitation

Answer 25

A person with a physical limitation must take precaution which the ordinary reasonable person with that physical limitation would take

Question 26

P's Super knowledge when assessing whether D used reasonable care

Answer 26

education, experience, becoming aware of the circumstance before the injury Jewell v. Beckstine- P slipped in milk parlor, saw mud on steps before, plus grew up in the profession, plus did regular business there

Question 27

Statutory and regulatory Standards of Care

Answer 27

Negligence for not adhering to a statute is a question about the purpose of the statute and who is class the statute intended to protect

Question 28

Steps for determining statutory violation

Answer 28

Proof that a party failed to adhere to a particular rule and that failure resulted in harm is negligence per se Step 1: negligence per se (breach is taken care of by the statutory obligation) Is the person intended to be protected by the statute and did they sustain the harm the statute was intended to protect? Step 2: risk-benefit analysis (possible excuses for violation) - actor's incapacity - he didn't know or shouldn't have known of the occasion for compliance - unable after reasonable diligence or care to comply - confronted w/ emergency not due to his own conduct - compliance would cause a greater risk of harm to himself or others Step 3: causation. Was violation the proximate cause of the injury?

Question 29

When to go to the judge or jury?

Answer 29

If reasonable minds could differ then the question belongs to the jury

Question 30

Judge or jury case example | Kohlman v. Hyland

Answer 30

Employee strayed from route set by employer and ended up hitting another car. Was he working within the scope of his employment? Majority: Its expected that an employee will start a bit. Permissible zone to stray in should be considered Minority: there was no authority to use the vehicle any other purpose except that set my the employer Goes to show reasonable minds can differ. Case belonged to jury.

Question 31

Duty of reasonable care to rescue rule statement

Answer 31

A defendant who has not created a risk of physical or emotional harm to the plaintiff does not have a duty of reasonable care unless the defendant has a special relationship or previous relationship with the plaintiff. If a defendant understates an act to rescue then the D has a duty of reasonable care in carrying out the act.