Torts - Umlaw

Front 1

Six elements of the negligence prima facie case?

Back 1

Act or Actionable omission
Duty
Breach
Cause in fact
Proximate cause
Damages

Front 2

Reasonable person standard

Back 2

Each person owes a duty to behave as a reasonable person would under the same or similar circumstances.

Front 3

Is the reasonable person standard a objective or subjective test?

Back 3

Objective: The issue is not what the defendant believed, but rather how the resonable person of ordinary prudence would have acted.

Front 4

T/F. Although the care we use and the conduct we exhibit varies, the reasonable person standard always remains the same.

Back 4

True. The standard is always what a reasonable person would have done under the same or similar circumstances.

Front 5

T/F. In an emergency situation an act may be deemed reasonable whereas the same act outside the presence of an emergency situation would be unreasonable.

Back 5

True, because the need for immediate action in the emergency justifies the act.

Front 6

Common carriers are held to

Back 6

...a higher standard of care.

Front 7

With regards to the duty element, custom is admissable as what and to what extent?

Back 7

Evidence, but it is never conclusive. Customary acts within a community may be negligent.

Front 8

How are children held to the reasonable person standard?

Back 8

Subjectively, in terms of how a child of like age, intelligence, and experience would act under the circumstances.

Front 9

What is the exception to how children are held to the reasonable person standard?

Back 9

When the child is engaging in adult activities. Then the child is held the objective standard for which would be the same for adults.

Front 10

How are persons with physical deficiencies held to the reasonable person standard?

Back 10

Subjectively, how a reasonable individual with like or similar disability would act under the circumstances.

Front 11

T/F. Intoxicated individuals are held to a subjective standard allowing for their intoxication similar to that of the physical disabled?

Back 11

False. Intoxication is not considered. This person would be held to the normal objective standard.

Front 12

How are mentally impaired individuals held to the reasonable person standard?

Back 12

Objectively. No allowance is made for their disability and they are held to the same adult reasonable person standard.

Front 13

What is the rationale behind preventing individuals who are mentally disabled from using a subjective reasonable person analysis for a negligence duty analysis?

Back 13

Possibility for fraud, the difficulty of applying a reduced standard because of the disability, and fear of complicating tort law.

Front 14

Where would a person with a mental disability have some measure of respite in terms of negligence?

Back 14

Contributory negligence.

Front 15

T/F. Everyone is held to a minimum standard of reasonable care, but if you have special skills/knowledge you owe a higher duty.

Back 15

True.

Front 16

What standard of due care do you owe to an individual within the area of your profession or trade?

Back 16

The standard of care normally excercised by members of that profession/trade.

Front 17

With regards to negligent medical care and the applicable standards theirein, what must the plaintiff show in order for the plaintiff to prevail?

Back 17

1. Plaintiff must establish that a particular level of medical care existed and that there was a departure from that standard.

Front 18

Informer consent maintains that:

Back 18

Doctors have a duty to disclose relevant information about benefits and risks inherent within a proposed treatment, alternatives to that treatment, and the likely results if the patient forgoes the treatment.

Front 19

If a doctor uses a surgical technique that is controversial, in which medical expert opinions differ as to which technique is the best, what will the courts do?

Back 19

The court will allow the doctor to follow either technique, even if only a reputable minority use it.

Front 20

Must a doctor seek informed consent in an emergency situation?

Back 20

No.

Front 21

If a patient is "unstable" must a doctor seek informed consent?

Back 21

No, but if a negligence action is brought against the doctor the doctor will maintain the burden of showing that the patient was unstable.

Front 22

When can a patient revoke consent to a medical procedure?

Back 22

As long as medical options exist. If a patient revokes consent the doctor must reaquire it.

Front 23

Generally, when is a duty of care not owed?

Back 23

When a reasonable person would not have foreseen an injury to anyone.

Front 24

According to Andrews a duty of care runs to whom?

Back 24

Everyone.

Front 25

According to Cardozo a duty of care runs to whom?

Back 25

Those within the zone.

Front 26

If a defendant owed a duty to a person, does that defendant also owe a duty to that persons rescuer?

Back 26

Yes. Danger invites rescue.

Front 27

If a defendant owed a duty to a person, does that defendant also owe a duty to that person when his/her injuries are exascerbated by a rescuer?

Back 27

Yes. The exacerbated injuries are also attributable to the defendant.

Front 28

If a defendant was himself rescued, and in so doing that rescuer was injured, is the defendant liable for rescuers injuries?

Back 28

Yes.

Front 29

What is the exception to where a defendant will be held liable for the actions of a rescuer?

Back 29

When that rescuers actions were foolhardy.

Front 30

Does a defendant owe a duty to person who comes to the aid of another (for which the defendant imperriled), and that rescuer is injured if he/she is a "professional rescuer"?

Back 30

No.

Front 31

T/F. Crushing liability is a reason that the courts have used to withhold liability to a defendant?

Back 31

True.

Front 32

T/F. When a doctor/psychologist knows that his patient is likely to cause harm, he has a duty to warn the victim or notify the police?

Back 32

False. ONLY when there is an intended specific victim.

Front 33

Once it is shown that the defendant owed a duty of reasonable care to a plaintiff, what must then be shown?

Back 33

That the defendant breached that duty through an act or omission which exposed others to an UNREASONABLE risk of harm.

Front 34

What are the two types of evidence which may be used to determine breach in a negligence case?

Back 34

1. Direct evidence.
2. Circumstantial evidence.

Front 35

What is risk under the breach element?

Back 35

Combination of the severity of the potential damages, and the probability that those damages might occur.

Front 36

What is benefit under the breach element?

Back 36

Usually measured in terms of the expense or convenience - i.e. of not taking certain precautions.

Front 37

Generally, a defendants conduct will be determined to be unreasonable when:

Back 37

the magnitude of the risk would be perceived in advance by a reasonable person in the defendants position, which would outweighs its utility.

Front 38

Generally, when there is a low risk of injury and a high cost for preventing that injury, a defendant will be reasonable or unreasonable?

Back 38

Reasonable.

Front 39

Generally, when there is a medium to high risk of injury and a low cost for preventing that injury, a defendant will be reasonable or unreasonable?

Back 39

Unreasonable.

Front 40

The more probable and more grevious the harm the...

Back 40

greater the effort and expense which must be undertaken to avoid that risk.

Front 41

What are the three elements of res ipsa loquitor?

Back 41

1. The accident was a type which generally does not occur without negligence.

2. The negligence can be attributed to the defendant.

3. Neither the plaintiff, nor a third party contributed to or caused the plaintiffs injuries.

Front 42

T/F. Expert testimony is always required for res ipsa loquitor?

Back 42

False. Not when someones negligence is obvious to a lay juror.

Front 43

To what degree must negligence be attributable to a defendant in a res ipsa case?

Back 43

More likely than not attributable to the defendant.