Torts: Professional Standards Of Care, Owners & Operators Of Land

Front 1

What is the majority view on basic professional's standards of care?

Back 1

"Skill and knowledge ordinarily possessed and exercised by the profession."

If expert testimony can establish the customary oraccepted practice standard in the profession, thatstandard fully describes the professional’sobligatory level of care.

Testimony about what should have been done, if itadvocates deviation from customary care, cannotovercome the controlling power of custom (andought to be treated as not relevant).

Front 2

How do you determine a professional's reasonable care?

Back 2

Reasonable care is determined by comparing anactor’s conduct with the conduct of otherssimilarly situated and with similar professionaltraining.

Front 3

How does federal law define a professional who is held to the professional's standard of care?

Back 3

he work must be predominantly intellectualand non-routine ***

involving the consistent exercise of discretionand judgment ***

and must not be standardized in terms oftime.***

The position also must require knowledgecustomarily acquired by specialized study inan institution of higher learning.

Front 4

What locality standards have been applied to the professional's standard of care?

Back 4

The professional standard has beenapplied with locality rule, modifiedlocality rule, and nationalstandard.

The national standard fits modernconditions best.

Front 5

What is the exception to the professional's standard of care

Back 5

A common knowledge exception withdrawsthe requirement of expert testimony aboutprofessional standards in some medicalmalpractice cases.

Those cases involve gross lack of care, non-complex matters of diagnosis, andcustodial or routine hospital care.

Front 6

How does res ipsa loquitur apply to medical malpractice?

Back 6

When a patient is injured while unconscious,all those who participated in the patient’scare will be jointly and severally liable forthe damages, with each having the ability toavoid judgment by proving that he or she wasnot negligent or that his or her negligencewas not a cause of the plaintiff’s harm.

Front 7

What is the duty of informed consent?

Back 7

Physicians owe patients a duty of informed consent thatmandates providing patients with information priorto patients agreeing to medical work.

Front 8

How do courts differ on the duty of informed consent?

Back 8

One view defines the needed information according toa professional standard; another view asks whatinformation a prudent patient would want to have.

Causation is an element in these cases, so thatwhatever standard defines the required information,a plaintiff who claims injury because of inadequateinformation must show that the lack of informationcaused the patient to undergo the procedure.

Front 9

What duty does a landowner owe a trespasser?

Back 9

In most places, the duty a landowner owes toa trespasser is to refrain from intentional orwanton injurious conduct.

Front 10

What is the attractive nuisance doctrine?

Back 10

Attractive nuisance doctrine protects some childtrespassers from application of the ordinary limited dutyrules applicable to trespasser-landowner cases.

(i) There is a dangerous condition present on the land of which the owner is orshould be aware (usually artificial)

(ii) The owner knows or should know that young persons frequent the vicinity of thisdangerous condition;

(iii) The condition is likely to cause injury, i.e., is dangerous, because of the child’sinability to appreciate the risk; and

(iv) The expense of remedying the situation is slight compared with the magnitude ofthe risk.

Front 11

What duty does a landowner owe to an invitee?

Back 11

Duty owed to invitee is to exercise ordinarycare with respect to risks the land possessorknows or should know with reasonableinspection.

Front 12

What duty does a landowner owe to a licensee?

Back 12

Duty to licensee is ordinary care to warnabout or make safe a danger that thepossessor knows and the licensee does notknow.

Front 13

What qualifies a person as a invitee?

Back 13

A land entrant is an invitee if he or she isinvited to enter or remain on the land:

1) as a member of the public for a purpose forwhich the land is held open to the public; or

2) for a purpose connected with businessdealings with the possessor of the land.

Front 14

What qualifies a person as a licensee?

Back 14

A land entrant is a licensee if he or she is invited in any other way or for any other purposes. Social guests are usually licensees.

Front 15

What must a plaintiff prove to succeed in a slip and fall case?

Back 15

A plaintiff must do morethan show that a hazard was on the floor of a defendant’spremises.

The plaintiff must show that the hazard wasunreasonable by finding that the hazard wasknown or reasonably knowable to the defendant.

There are two ways of showing this...

Front 16

What is the constructive notice doctrine?

Back 16

Allows a plaintiff tosatisfy the reasonably knowable element with circumstantialevidence about the hazard itself (supporting a finding thatthe hazard was on the floor for a significant period of time).

Front 17

What is the mode of operation doctrine?

Back 17

Allows a plaintiff to satisfythat element with evidence showing the overall nature of thedefendant’s enterprise (supporting a finding that hazards arealways likely to be on the floor).

Front 18

How do courts determine whether landowners owe a duty to protect an invitee from third party actions?

Back 18

Land owners and occupiers owe aduty to invitees to protect them fromforeseeable criminal conduct by thirdparties.

Courts use different tests fordefining the foreseeability required forthis duty: prior similar incidents andtotality of circumstances.

Front 19

What factors do courts look at to determine prior similar incidents and totality of circumstances for foreseeable criminal conduct?

Back 19

1.Undisclosed dangerous conditions knownto lessor and unknown to lessee.

2.Conditions dangers to persons outside thepremises present at time of lease.

3.Premises leased for admission of thepublic.

4.Parts of premises retained in lessor’scontrol.

5.Instances where lessor contracts to repair.

6.Instances of lessor’s negligence in making repairs.

Front 20

Are landlords liable to tenants and their guests for injuries on their premises?

Back 20

Landlords generally are immunefrom liability to tenants and tenantsguests for injuries related todangerous conditions on theleased premises, although anumber of exceptions limit theimmunity.

Front 21

What is the trichotomy and how do modern precedents deal with it?

Back 21

The trespasser-licensee-invitee system has beenhard to administer and does not seem toprovide fair results in cases involving legalentrants on land.

The trichotomy is rejected, and a a two-categorysystem is adopted, treating entrants in twoclasses: legal entrants and non-legal entrants.

A duty of reasonable care is owed to legalentrants.

Front 22

What is the open and obvious danger doctrine?

Back 22

The obviousness of a riskis relevant in assessing whether a defendant exercisedreasonable care, but it does not automatically precludeliability.

Front 23

What duty does a landowner owe to a trespasser?

Back 23

Duty a landowner owes to a trespasser is torefrain from intentional or wanton injuriousconduct.

Front 24

What are some exceptions to the general rule that landowners

Back 24

1. Undisclosed dangerous conditions known to lessorand unknown to lessee

2. Conditions dangers to persons outside the premisespresent at time of lease.

3. Premises leased for admission of the public

4. Parts of premises retained in lessor’s control

5. Instances where lessor contracts to repair

6. Instances of lessor’s negligence in making repairs.