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63 Cards in this Set

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Elements of Consent
Georgia Statute
1) Free (no coercion)
2) No obtained by fraud (or misrepresentation)
3) Of a sound mind
4) capable to consent (age,impairment)
How do you determine Implied Consent?
What would the D have understood from the actions & circumstances at the time?

O'Brien v. Cunard SS Co.
held: Dr. on ship reasonable understood woman to consent to shot, so Implied Consent.

Sports.
held: No S.J. assuming Implied Consent to battery when Bengal's fullback smacked Bronco's player.
Standards for Medical Implied Consent?
GA Code list of who can give consent.

1) Person need immediate attention
a) life-threatening
b) disfigurement threatening
2) Person authorized to give consent not readily available
Battery if hospital violates a Do Not Resuscitate Order, or Medical Implied Consent?
Battery, but limited damages.
Can you sue for Wrongful life or birth?

(like when hospital ignores DNR or baby is born after tubes tied or after supposed abortion?)
Courts can't measure death vs. life & impaired condition.
Consent not effective if:
Restatement
1) Lack of capacity(age, intoxication, etc.)
2) Restricted (they exceed the:)
a) Time
b) Place
c) Purpose
3) Misrepresentation or Mistake of substantial matter
a) said/not said... who knew what?
4) Duress/Force/Coercion
Is it Trespass to Land of the business if they consent to your presence based on a misrepresentation in your resume?
Maybe.

Food Lion vs ABC TV
held: trespass when reporter lies on resume to get job at Food Lion
(might argue trespass because exceeded scope of employment)
Can consent to criminal conduct bar recovery?
Courts split.
GA- appears consent is not effective.

Consent not usually effective if statute targets particular group for protection: e.g. statutorily raped girl who consents to sex can sue for battery
Elements of Defense of "Self Defense"
1) Is D privileged to use any force in defense of self?
[no privilege for retaliation or mere words]
[reasonable belief that force is necessary]
[GA: No privilege if you're the initial agressor, unless it's excessive or you withdraw]
If so...
2) What kind of force?
3) What degree of force?
Death: Only if reasonable believe necessary to prevent death
Duty to Retreat in Self Defense?
Many states: no absolute duty.

If duty, no requirement ot enganger yourself to retreat.

Bradley v. Hunter (grandmothers)
held: 2 grandmothers had NO DUTY TO RETREAT when 28 y/o male w/ bad reputation came at them in face of shotgun presence.

Yoshi Hatari v. Paris (halloween)
held: DUTY TO RETREAT when man could have gone back in house instead of shooting boys in halloween costumes.
Is it assault if someone Threatens more in Self Defense than he's Privilged to use?
No, per the Restatement.
OK to threaten "I'll blow your head off" to deter someone in self defense.
If you make a mistake, do you still have a Defense of Others defense?
GA- you can make reasonable mistakes

Some jxn- step into the shoes of the person you are defending.
Are you justified to use deadly force in defense of property?

Exceptions?
Rarely.
In GA: only defend property w/ reasonable force.

Exceptions
In GA: deadly force only if personal violence (Defense of Self or Others), or person coming on property is attempting/committing a felony.
Is there a Defense of Necessity?
2 Types?
(threat of harm no posed by P, by from natural source or 3rd party)
Rarely do courts weign in.

Cases split on Public v. Private necessity.
Defense in Public Necessity (Surocco Case: defense when fire warden bulldozes your property to create a fire break) [May be a takings under Constitution]

Private cases: Privilege to trespass, so OK to preserve your property, but pay for the damage that you do.
Is "Discipline" a defense?
Generally- No. Must come from state law.

Parents generally have discipline right b/c most states have parental immunity (except for Willful Injury)

"Yes" case: Sindle v. New York City Transit Authority. held: school bus driver drives rowdy kids to police station. No FI b/c of justification.
What is it called if you leave something dangerous with someone?

What if you employ someone for which they're not suited?
Negligent Entrustment

Negligent Hiring
Elements of Negligence?
1) Duty (q of law) - This D owe a duty to this P?
2) Breach
Std. of care
failure to exercise it
3) Causation
4) Damages (must be Actual)
Some examples when no duty is owed?
No duty to:
Rescue
Control 3rd parties
someone leaving my party drunk: maybe
Two parts of causation in negligence?
1) Cause in Fact- "but for"


2) Proximate Cause = Legal Cause
not if too removed in time/distance
Negligence if:
1) leave golf club in yard & kid hits another kid with it?
2)leave 10 inch stump in yard and trespassing neighbor kid trips over it?
3) don't yell Fore when hit golf ball into wrong fairway?
1) golf club- no N b/c not intrinsically dangerous
2) stump- Held: not forseeable. (arguably forseeable though)
3) no c/i/f because substitute the yell and person still gets hit
Economic Analysis of Breach
& Considerations
b<p*l
1) character & location of premises
2) purpose for which used
3) prob. of injury
4) precautions nec. to prevent
5) benefecial use of premises
{would precaution change the essential use of the item/premises?}
Does the existing level of safety technology influence evaluation of Breach?
Sometimes.
Davison v. Snohomish County
held: county had flimsy guardrails on bridge; no breach because civil engineering not advanced yet.

Opthamologists now have to test for glaucoma b/c easy & cost effective.
Is Self-Preservation a breach?
No.
Thurmond v. Pepper (lead pipe truck)
held: "nonbreach" of refusing to slam on brakes NOT REQUIRED when might lead to death of driver
Example of no cause-in-fact?

(hint: sliding glass door)
McCarty v. Pheasant Run
held: when woman didn't lock the door, and presented no evidence to cost of non-breach, D's alleged breach not cause-in-fact.
Is it a breach not to follow a standard of care based on a statute that has not yet taken effect?
Might be.
See Pinto case- Ford avoiding using a new safety standard for gas tanks that was about to take effect.
Under whose perspective do we judge what is "reasonable care"?

If person is moron- what's reasonable for THEM?
No personal standard. Use community standard.

Vaughan v. Menlove
held: guy who is "not very swift" responsible for making hay rick which burned up.
Ordinary Standard of Care in GA?
"that degree of care which is exercised by Ordinarily Prudent persons under the same or similar circumstances"
OCGA
Do we impute Constructive Knowledge in negligence cases?
1) Knowledge of the facts that give rise to the risks
2) Appreciation fo the risk

RULE?
Standard for Reasonable Care?
1) General "reasonable care" std
2) Custom Usage or practice
(landlord responsible for safety glass in bathtubs; Ford should have redesigned after failed crash test)
expert testimony & literature
Negligence Defense of Emergency in GA
1) factual circumstances of emergency
2) D did not cause emergency
3) D no time to assess options

LA snake case
held: no emergency when D drove forward suddenly b/c D put the snake in the car
Vary std. of care for:
1) bad judgement
2) emergency
3) "think fast"
4) disability
5) voluntary intoxication
6) children ?
7) mental impairment?
1) bad judgement - NO
2) emergency - YES
3) "think fast" - YES
4) disability - YES (in '75 GA case: no)
5) voluntary intoxication - NO
6) children - Sometimes
7) NO
Why might a jury instruction modifying the std. of care not help the defendant.
(ex: for the "reasonable pedophile" )
Might argue that pedophile should exercise EXTREMELY high care around children.
Modify Std. of Care for elderly?
Sometimes. Reduce to childlike std:
"age, training, experience, ability" and be more subjective.
Child Standard of Care generally?

Exception?
Yes. (I T.A.M.E)
intelligence, training, age, maturity, experience.
GA <7 conclusively presumed incapable of breach

No if doing particularly dangerous or adult-only activity.
Std. of care for Malpractice?
Not training & experience of the individual (Heath v. Swift Wings Inc- bad instruction re pilot)

Reasonable "pilot", vet, etc.. Use expert testimony
Attorney Standard of Care
1) Requisite Degree of Training
2) Will Exert your best judgment
3) reasonable and ordinary care in use of skill and application of knowledge
-If statutes or major decisions, atty should find them (Woodruff v. Tomlin)
-Should use due diligence
Cause-in-fact in Legal Malpractice
GA: P must prove that D would have won
LA: D must prove that P would NOT win
some courts: P should get at least settlement value of case

No expert needed on statute of limitations
Med Mal standard of care- what evidence need?
Need a Dr. in that kind of medicine to answer "yes" when asked EXPRESSLY if what D did was a breach of the standard of care.
Special GA requirement for malpractice cases?
Georgia: Affidavit from expert requirement when file the complaint

TX & LA prescreen medmal cases
Locality standard of care in malpractice?

exception?
Old relic. GA rejected.

exception: facilities & equipment at hospitals
What is the requirement that Dr. ask permission to do a procedure?
Informed Consent.
Dr. has to ask, and tell of the risks, else it's a battery.
Is consent a defense to medical malpractice?
No. Consent is a defense to intentional torts.
Standard for Informed Consent- objective or subjective?
Not sure. I think Subjective
Effect of written consent form on Informed Consent?
Rebuttable presumption of Informed Consent.
What's is called when we try to use a law or policy on the books as the Standard of Care in a negligence case?

2 things court looks at?
Violation of Statute.

1) Was the injured in the class being protected by the statute?
2) Was the injury the type of injury being avoided by the statute?
Exam tip for when doing Violation of Statute
Always Hedge w/ the effect of using the statute.
Consider alternative of "reasonable care under the same or similar circumstances"
Effect of COMPLIANCE w/ statute by D?
Does not mean "no breach" per se.
Just goes to jury.
Jury may require more than the statute.
What P have to prove for premises liability?
1) D had actual or constructive knowledge of hazard
(constructive knowledge in Banana peels there a long time... should have known. Circumst. evid.)

2) P lacked knowledge of hazard despite exercise of ordinary care
What is latin for "the thing speaks for itself"?

example
Res Ipsa Loquitor

Byrne v. Boadle (Know this!)
Guy hit in head by a barrel of flour.
Elements of Res Ipsa Loquitor?
1) unusual or unexplained
(cows falling into crowd)
2) wouldn't happen w/o a breach
(airplane crashes)
3) D has exclusive control over the thing
(hotel no exc. ctl. over chairs in rooms)
Does Res Ipsa apply ...
...in Med Mal?
...in cars leaving the road?
MedMal: Not in GA. Courts say there's enough complexity that need to show the breach.

Cars: Yes. don't usually leave road w/o breach.
Possible Standards for Cause-In-Fact element of Negligence?

Burden of persuasion?
1) But-For Cause (main std.)
2) Substantial Factor (sometimes)
3) Played a Role

Preponderance of the evidence.
Cause In Fact If:
1)Train wreck & we're not sure if wreck still occurs if train slows down?
2)Drowning if problem w/ life boats but not sure when they fell off boat?
3)Step is bad, guy trips, but we're not sure he tripped on step?
No, No, No.
Is lost chance of survival a cause-in-fact?
35 states have addressed. Ga hasn't.
Who can recover in wrongful death?
surviving spouse
children
estate administrator
parents for minors (some c/l on adult kids)
measure of damages in wrongful death?
value to society
companionship
services to family
support.

Majority: Money person contrib to family
Damages for lost chance of survival?
Full recovery of wrongful death
Multiple full recovery * lost change %
Ask the jury to figure it out
How analyze Contributory negligence within cause-in-fact?
Duty
Breach
Causation
Damages
5 considerations in proximate cause?
1) Describe breach
2) people harmed & likely harms from breach (forseeable?)
3) other events intervene?
4) time pass? (remote in time?)
5) the results match up w/ #2 ?
Polemis test for proximate cause?
Direct consequences = direct causation =directly traceable

Take the harm & track backwards (looks for something inbetween to break causation)
Mechanism Rule (principle) on prox. cause?
If the kind of harm & person harmed are the kind expected, even though strange circumstance, still Causal.
GA instruction on prox cause?
That which, in the natural and continuous sequence, unbroken by other causes, produces an event and without which the event would not have occured
Wagon Mound test for prox cause?
Forseeability or Scope of the Risk test

(GA sometimes uses this test)

held: No liability for fire when oil spilled in water burns, because not forseeable. We anticipated pollution.