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9 Cards in this Set
- Front
- Back
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What is the definition of Negligence? Also include the 4 elements in your answer.
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Failure to act with reasonable skill and care for the protection of others. There was a duty (standard of care) owed to P, a breach of that duty, D was the cause of the harm to P and P suffered actual damages.
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What is the Rule of Law for a Breach?
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D's failure to conform with a set standard of care to others and creation of an unreasonable risk.
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What tests do we use to determine the existence of a breach?
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1. Balancing Test
2. Reasonably Prudent Person standard. |
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what is the balancing test?
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Forseeability is a major elements:
1 the existence of some REAL likelihood of some damage 2. the likelihood of some damage is of some APPRECIABLE WEIGHT 3. to induce action to avoid it. PL > B P = forseeability of the harm L = degree of resulting harm B = D's burden (cost) of avoiding the harm. |
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who establishes the standard of care due?
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Plaintiff!
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what are some factors you want to be aware of before diving into answering what is the standard of care due?
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are we dealing with a child?
are we dealing with a professional? are we dealing with a special trade/custom? are we dealing with a person who is mentally impaired or disabled? are we dealing with a emergency situation? |
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The professional, what do we say in this situation?
who would establish the standard of care for the jury? |
it is a reasonably prudent person of [insert profession] who has the same knowledge, skill and training as a member of that profession in good standing.
expert witnesses would establish it. |
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what is the locality rule vs national rule and when would we see it being discussed?
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first, you would see it being discussed in regards to establishing what the standard of care would be for professionals.
locality rule - look to the geographical area around D (professional) to see what the standard of care is for other professionals around in the are (similar community in similar circumstacnes). national rule - is the D (professional) someone who abides by a national standard of care like a doctor who must be board certified nationally? |
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what is the Doctrine of Informed Consent and when would we see it being applied?
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In cases where were seeing if a breach existed for doctors, a doctor MUST inform/disclose patient of all material risks involved or he could be held liable.
* furthers principle of self-determination an that patient is master of his body elements: 1. duty to inform: Doc must disclose all material risk involved (material risks are those which would affect patients decision if he had knowledge of it) 2. causation: if patient was informed of the risks, he would not have consented. 3. injury: the undisclosed risk must manifest itself and cause injury to P |
