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28 Cards in this Set

  • Front
  • Back
Ordinary Prudent Person
* Reasonable man of ordinary Prudence
* in like conditions and circumstances
* identical [in physical ability] to the actor
* of the same profession/specialty
RP required to use extraordinary care?
Objective or Subjective Standard?
Objective - negligence is not determined separately for each person. Although the "RP" is tailored to this person's physical ability, profession, etc, it is not entirely (or even mainly) subjective.
Excuse - Y or N? :
*lack of knowledge
*failed memory - forgot
*failed to use a higher degree of skill (e.g. doctor didn't act like a doctor, but merely a RP)
*emergency conditions
-lack of knowledge NOT an excuse; RP has duty to inquire;
-failed memory NOT an excuse; unless it is reas. to forget (lapse of time, reas. distraction, etc.)
-didn't use higher degree of skill - split, most courts say NOT required to use extra care
-custom NOT an excuse - helps determine standard, but not conclusive
-emergency IS excuse - RP under emergency conditions not held to an ordinary standard of reas.
Physically Handicapped Persons (e.g. blind)
-courts split
-std. is RP with same handicap
-must use precautions - more or less than an ordinary RP - a RP with similar handicap would use
-Normal Activities
-Dangerous activities
-GR - flexible standard
-normal - std. reasonably expected from children of like age, intelligence, and experience
-hold to adult standard
-some courts allow for different standards for elderly with physical and mental deficiencies of old age
-focus is on infirmities and not age
Insane Persons
GR - not valid excuse
-look to kind and nature of insanity. Is the person's ability to understand and appreciate the dutyto exercise reasonable care affected?
-if notice or forewarning - not a defense
-sudden mental incapacity (heart attack, seizure, etc.) IS valid defense
-if mental faculties are diminished, but not to total insanity - not held to RP std.
-RP defined
-obj. or subj. test
-locality rule
-many courts define RP to be someone of same profession/specialty in "similar community in similar circumstances"
-test balances Obj. and Subj. std.
-locality rule outdate - locality is just one of many factors to consider
-"average" person std. wrong - half do not meet this std.
-std. not modified for pro-bono services
Professionals: Proof
-But-For test
-P would have succeeded but-for D's negligence
-P would have recovered but-for doctor's malpractice
-P would have won suit but-for lawyers's negligence
Professionals: Expert Testimony & custom
-if D's area of expertise is not common knowledge, P must give expert testimony

-expert saying "wouldn't do what D did" not enough; must testify D's conduct was not recognized as valid

-proof of customary practice amongst similar professionals very influential and helpful
Malpractice Claims
1. licensed DR is assumed to have proper skill and will apply that skill
2. DR did something standard forbids/requires
3. std. must be proven (experts, regulations, etc.) - jury can't guess
4. negligence not presumed, must be affirmatively proven
5. must have expert unless error is blatantly obvious
6. testimony of what other DR would do not enough; must establish std.
Doctors & Informed Consent

1) Duty - DR must do what's best for patient, must disclose all relevant and material information; Exception - DR thinks full disclosure would cause alarm to patient, or emergency and patient can't evaluate and choose treatment.
Doctors & Informed Consent

2) causation - prove that patient would have chosent no treatment or alternative if there was full disclosure; use obj. RP standard; minority allow subj. std.
Doctors & Informed Consent

3) injury - there must be risk of injury or actual injury (NOTE -OR- actual injury not required)
Doctors & Informed Consent

-Personal Interests of DR
-DR must disclose personal interests unrelated to patient's health (research or economic) that may affect DR's professional judgment.
-failure to do so --> lack of informed consent, and br/fiduciary duty
Negligence Per Se
*2 main inquiries
* breach of duty defined by statute; violation is clear and conlusive negligence

1. does P belong to class of people statute meant to protect?
2. injury sustained is type statute meant to prevent?
Negligence Per Se -
duty defined by ...
-common law
-statutory law
-criminal law
-duty same whether defined by common law or statutory law
-criminal statute does not automatically establish negligence under tort law. there must usually be a provision for civil remedy. but courts may accept standard defined by criminal stat. if they choose. it will be influential regardless.
Negligence Per Se
-federal law
-administrative regulations
-advisory codes & voluntary industry standards
-federal law - no negligence per se exists
-ordinances - treat as if statute
-administrative regulations - not given as much weight as violation of statute
-advisory codes & voluntary industry standards - persuasive only, not binding
Negligence Per Se
-third party intervention
1. what was legislative intention?
2. is violation of statute direct and proximate cause of injury?
3. did third party break causal connection?

--> causation issue
Negligence Per Se - compared to common law
-common law recognizes same standard - no problem

-common law does not recognize duty or standard - evaluate:
-does statute clearly define standard?
-would application of negligence per se impose liability >> seriousness of D's conduct?
-was injury direct result of violation?
Negligence Per Se - Effect
-unexcused violation = negligence per se, no question for jury
-violation is only evidence of negligence, jury decides
-violation establishes rebuttable presumption - D has burden of rebutting
-excused violation of law is NOT negligence
Negligence Per Se - excuses
-excuse defined by law
-violation reas. due to actor's incapacity
-actor has no reason to know of occasion for compliance
-actor unable to comply even after reasonable dilligence and care
-actor facing emergency not brought on by himself
-compliance would present greater risk of harm
Proof of Negligence - Circumstantial Evidence
-evidence based on inference and not personal knowledge or observation
-EX. Banana Peel cases

-owner is allowed reasonable time to discover and correct condition
-UNLESS - condition is direct result of owner's dangerous/negligent acts
Res Ipsa Loquitur

-2 elements
"the thing speaks for itself"

1. instrumentality causing injury was in D's exclusive control
2. in the ordinary course of events, the accident would not happen without negligence by person in control
Res Ipsa Loquitur - degree of proof
-P not required to eliminate with certainty all other possible causes or inferences
-P only required to show it was more likely than not there was negligence
-modern cases focus on eliminating other possible causes
Res Ipsa Loquiture - divided responsibility of instrumentality
-GR - res ipsa does not apply, D must have exclusive control
-Exception - medical cases - P usually unconscious, impossible for P to identify which individual was in control,
Res Ipsa - how it fits into establishing Negligence
-res ipsa shows there was negligence
-but must still establish causation