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97 Cards in this Set
- Front
- Back
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What are the elements of negligence?
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1. Duty
2. Breach 3. Causation 4. Harm |
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True or False: As the risk gets more dangerous you must act with more care.
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True
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Is the standard for reasonable person subjectified?
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Generally no.
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Is there subjectification for emergencies?
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Yes. Reasonable people do not act the same in emergencies.
Cordas. v. Peerless Transportation Co. -- hijacked cab |
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What constitutes as an emergency?
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Unforeseen, sudden, and unexpected
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Is there subjectification for physical disabilities?
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Yes.
Roberts v. State of LA -- blind post office worker |
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Is there subjectification for insanity?
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No unless:
Sudden Stricken Unforeseeable Bruenig v. American Family Ins. Co. -- Batman case |
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Is there subjectification for professionals?
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Yes. Usually professionals are held to a higher standard of care. Subjectify for the profession's knowledge, not the individual's.
ex: reasonable, prudent, knowledge of ordinary member of profession |
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What are the three possible standards for informed consent?
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Reasonable physician standard
Reasonable patient standard Specific patient standard |
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What is the standard for medical malpractice?
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1. Must have skill and learning of an ordinary member in good standing
2. Must apply that skill and learning 3. Act in accordance with recognized good medical practice in the community |
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What are the three possible standards for recognized good medical practice (custom):
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1. Local custom
2. National standard 3. *Same or similar circumstances standard |
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Battery does not require expert witnesses. Does lack of informed consent?
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Yes.
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What makes a risk material?
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If it would likely affect a patient's decision. This is a matter of fact for the jury. Physicians are required to disclose all material risks.
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What are some of the defenses against medical malpractice disclosure cases?
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Proof plaintiff knew the risk.
Emergency. Full disclosure would not have been in best interest. |
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What are some of the things we learn from the Moore v. University of CA -- spleen case?
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Custom is definitive in malpractice
Person has control over their own body Consent must be informed to be effective Physicians must disclose all material facts Patient has right to a physician operating separate from private, economic motives. Physicians must close personal interests. Malpractice requires affirmative evidence and expert witnesses. |
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What are some of the problems with the b<pl analysis?
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People are poor judges of risk.
When talking about human life, cost is hard to agree upon Calculus must be made before the risk is encountered |
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Do you have to anticipate unforeseeable events?
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NO.
Blyth v. Birmingham Waterworks -- heavy frost case |
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Who is responsible for preventing injury?
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The person most likely to know the condition of the product.
Ex: Defendants in Gulf Refining Co. v. Williams more likely to know of defect in gas drum and better able to prevent fire. |
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What case do we get b<pl from?
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United States v. Carroll Towing
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What does b<pl mean?
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If the burden is less than the probability of loss, then risk lies with defendant.
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Are trespassors sometimes foreseeable?
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Yes.
Chicago, B. & Q.R. v. Kayenbuhl -- 4 yr old's foot cut off |
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What is the definition of duty?
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Requires the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks
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If you are going to engage in potentially harmful activity, what are your responsibilities?
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To become knowledgeable about the hazards
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Is constructive notice sufficient with duty?
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Yes.
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Is duty subjectified?
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Yes for people with disaiblities, children and insane people.
With insanity only: Sudden, Stricken, and unforesseable With children: for reasonable, prudent child of that age. |
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What role does custom play in malpractice cases?
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Does not set the standard of care but does determine reasonableness.
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When are attorneys not liable for malpractice?
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1. Has necessary skill
2. Exerts best judgment 3. Exercises reasonable and ordinary care in application of his knowledge to his client's case |
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What is the majority standard for informed consent?
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The reasonable physician standard
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If a physician breaches duty of consent is it negligence or battery?
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Negligence
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A patient suing under theory of informed consent must prove:
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1. Physician failed to inform him of material risks
2. If patient had been informed he would not have consented 3. The adverse consequences that were not made known did in fact occur and there was injury as a result of the treatment |
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What should you look at in determining the reasonableness of rule of law?
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Look at the reasonableness standard of the duty of care set through courts through common law and stare decisis.
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What is negligence per se?
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Negligent as a matter of law -- the unexcused violation of a statute.
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Can criminal statutes be used in lieu of the common law reasonable person standard to establish the duty of care?
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Sort of ... most jurisdictions find such a violation to be only evidence of negligence not conclusive proof of negligence.
*Violation only proves duty and breach, not causation and damages. |
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When can a criminal statute apply?
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1) If member of class the statute was designed to protect and
2) The type of harm the statute was designed to prevent was suffered |
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What elements of negligence go to the jury?
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Negligence:
Duty, breach, causation, harm Negligence per se: causation, harm |
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Is there a duty to rescue in common law?
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No liability under common or tort law.
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What do you look at to determine if a statute can make the duty to rescue a breach of negligence per se?
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Is it an act of commission or omission?
Is there a common law duty? Would transferring criminal to civil create disproportionate results? How easy is causation to prove Is statue too vague to be applied civilly? Is it better to have bright line rule or standard? |
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What is the Perry analysis?
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1. Acto of omission or commission
2. Is there a common law duty? a. Increased duty b. Notice 3. Would transferring from criminal to civil realm create disproportionate actiaon liability 4. How easy is causation to prove 5. Vagueness |
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What is it called when a plaintiff establishes breach of duty by direct evidence?
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Res ipsa loquitur
This is when the jury can infer breach of duty based on circumstantial evidence? |
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What is involved with res ipsa loquitur?
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A plaintiff has to prove that the defendant had exclusive control and that the is the type of accident that only happens when negligence occurs.
Restatement Second does not require that D have exclusive control |
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Who has the burden of proving the elements of negligence by preponderance of the evidence?
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The plaintiff
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What is sine qua non?
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"But for"
The breach of the duty was more likely than not a "but for" cause of the harm. |
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Before the defendant's conduct can be considered a proximate or legal cause of plaintiff's harm or injury, it must first be a ...
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Cause in Fact.
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What are the tests for cause in fact?
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Sine qua non ("but for") and substantial factor
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What is the approach given in Summers v. Tice?
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When two or more persons act negligently, but only one of them caused the har, and the plaintiff cannot determine which one caused the harm, the burden of proof is shifted to each defendant.
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What is the new standard required for expert testimony?
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1st --
Does testimony reflect "scientific knowledge" whether their findings are "derived by the scientific method" and whether their work product amounts to "good science" 2nd -- is it relevant to the task at hand |
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What is enterprise liability?
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Set forth in Hall and discussed in Sindell -- "concert in action"
Must prove by preponderance of the evidence that negligent product was manufactured by one of the defendants, then they fight it out, all of the defendants were acting independently in concert. |
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What is market-share liability?
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Set forth in Sindell: Court allows liability but only according to market share because manufacturer is in best position to prevent harm through medication
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A reasonable person does not act the same under an emergency. What qualifies as an emergency?
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Unforeseen, sudden, and unexpected.
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What is the negligence standard for children?
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The reasonable, prudent child of that age ... unless they are engaging in dangerous or adult activities
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In non-medical cases, is custom determinative?
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No. But it can be entered as evidence and has to be shown by expert witness unless so ordinary.
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In medical cases, is custom determinative?
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Yes. Custom needs to be proven by expert witnesses and affirmative evidence
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What is the standard for professionals?
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Subjectify up for profession's knowledge.
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What is the standard for medical malpractice
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Skill and learning of member in good standing
Must apply that skill Act in accordance with custom |
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What are the three options for custom?
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Local
National Same or similar circumstances -- this is the majority |
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What is required for informed consent?
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Physician must disclose all material risks -- material = effect the deicison
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What are defenses against informed consent?
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Patient knew of the risks
Emergency Telling about risks was not in patient's best interest |
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Informed consent malpractice happens when:
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Physician fails to inform
The patient would have refused And the harm the physician should have told about happens |
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What do we learn from the spleen case?
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That patient's have a right to a physician acting free from personal, economic motives.
Physicians must disclose any ulterior motives |
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What is the bpl analysis?
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If the burden is less than the probability of the loss, then risk lies with the defendant.
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When determining whether or not to apply a statute, what should be looked at:
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1. Harm
2. Class 3. Apply -- ocd/evb 4. Treatment: Negligence per se Rebuttable presumption Evidence of negligence |
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What does ocd/evb stand for?
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1. Act of ommission or commission?
2. Common law duty? 3. Create disproportionate results? 4. How easy is causation to prove? 5. Is statute too vague to be applied civilly? 6. Bright-line rule or standard? |
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What is res ispsa loquitur?
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The thing speaks for itself:
Allows plaintiffs to bring cause of action even when they don't have all the facts if: 1) The defendant has exclusive control and 2) This is the kind of harm that only happens when negligence occurs |
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Who has the burden to prove "but for" causation?
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The plaintiff
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What are the rules for proximate cause?
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Ryan rule (first building)
NY Leg. rule (next property to catch fire) Wagon Mound 1 (the specific harm has to be foreseeable) Wagon Mound 2 (the harm is reasonably foreseeable by someone in that position) Polemis (if any harm is foreseeable, then responsible for all harm) Bartolone (take the plaintiff as you find them) |
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When considering unforeseeable plaintiffs, what is the Andrews rule?
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You are liable to everyone that is hurt
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When considering unforeseeable plaintiffs, what is the Cardozo rule?
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You are only liable to foreseeable plaintiffs.
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What is the rescue doctrine?
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Allows injured rescuer to sue party that caused the reason for rescue when. Rescuer must act reasonably and there must be imminence.
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What is the Tarasoff duty?
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To protect third parties against serious dangers which you have special knowledge of because of threats made by someone you have a special relationship with.
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What are defenses to the Tarasoff duty?
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1. Common law does not impose such a duty
2. Statute bars or eliminates duty 3. Good-faith, professionally based decision not to protect third party 4. Danger was to general class |
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What are the 4 Ohio factors?
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1. Ability to control patient
2. Public's interest in safety 3. Difficulty in forecasting whether threat poses risk 4. Goal of placing patient in least-restrictive environment |
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What are the two different standards for landoccupiers?
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1. Rowland
2. Bright-line |
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What is the Rowland standard?
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Requires landoccupiers to warn persons on property to take reasonable care and warn persons of concealed conditions.
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What is the bright-line rule for undiscovered trespassers?
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No duty.
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What is the bright-line rule for discovered trespassers?
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Not to harm by active opration; refrain from willful/wanton acts
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What is the bright-line rule for licensee?
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Warn of hidden dangers
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What is the bright-line rule for invitees?
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Reasonable care in keeping property safe
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How to determine if licensee/trespasser/invitee:
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Nature/open to public?
Engaged in activity open to public when harm happened? Person on personal errand? |
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What is the bright-line rule for undiscovered trespassers?
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No duty.
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What is the bright-line rule for discovered trespassers?
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Not to harm by active opration; refrain from willful/wanton acts
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What is the bright-line rule for licensee?
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Warn of hidden dangers
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What is the bright-line rule for invitees?
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Reasonable care in keeping property safe
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How to determine if licensee/trespasser/invitee:
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Nature/open to public?
Engaged in activity open to public when harm happened? Person on personal errand? |
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When does a person have a duty to children?
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When they have
1. Reason to know children are likely to trespass 2. Realizes the risk will involve unreasonable risk of death or bodily injury 3. Because of youth, trespasser won't recognize danger 4. BPL 5. The possessor fails to exercise reasonable care to eliminate danger or protect children |
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How are public officials usually classified?
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As licensees or invitees.
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What are the exceptions to contributory negligence?
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1. D's conduct willful or intentional
2. "Last clear chance" 3. Violation of statute 4. Strict liability 5. Proximate cause -- left to jury |
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What are the three types of comparative negligence?
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1. Pure
2. less than 50% 3. less than or equal to 50% |
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When are exculpatory clauses enforced?
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When they are unambiguous, clear, specific.
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Why might a court choose not to enforce an exculpatory clause?
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1. Vague language
2. Public policy (legislature 3. Intentional 4. Unequal bargaining power 5. Public interest (essential service) |
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How does a court determine an essential service?
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1. business generally suitable for public service
2. Esential service 3. Willing to perform service for anyone 4. Decisive advantage in bargainst strenght 5. No provision allowing ht epayment of frees to obtain protection against negligence 6. The person or peoperty of the purchaser is placed under control of the seller. |
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What does implied assumption of the risk require?
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1. Actual knowledge of the particular risk
2. Appreciation of its magnitude 3. Voluntary encountering of the risk |
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What is an exception to the Federal Torts Claim Act?
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Discretionary functions
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What are the factors of respondeat superior?
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1) Is the person an employee?
2) Is the action within scope of employment? 3) Slight deviation or a detour? |
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What are the six factors in determining if it was a slight or substantial deviation?
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1. Intent
2. Nature/time/place 3. Time consuemed 4. Work hired for 5. Incidental acts reasonably expected by employer 6. Freedom given to employee |
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What is the test for determining if someone is an independent contractor or an employee?
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The right to control the physical details of the work, supervision, contact, etc.
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When dealing with abnormally dangerous activities, what are the two ruels?
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Blackburn -- act at own peril on property when engaging in abnormally dangerous
Cairns -- non-natural uses of land make you strictly liable |
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Is there strict liability for wild animals?
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Yes.
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