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43 Cards in this Set

  • Front
  • Back
Six elements of the negligence prima facie case?
Act or Actionable omission
Cause in fact
Proximate cause
Reasonable person standard
Each person owes a duty to behave as a reasonable person would under the same or similar circumstances.
Is the reasonable person standard a objective or subjective test?
Objective: The issue is not what the defendant believed, but rather how the resonable person of ordinary prudence would have acted.
T/F. Although the care we use and the conduct we exhibit varies, the reasonable person standard always remains the same.
True. The standard is always what a reasonable person would have done under the same or similar circumstances.
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.
True, because the need for immediate action in the emergency justifies the act.
Common carriers are held to
...a higher standard of care.
With regards to the duty element, custom is admissable as what and to what extent?
Evidence, but it is never conclusive. Customary acts within a community may be negligent.
How are children held to the reasonable person standard?
Subjectively, in terms of how a child of like age, intelligence, and experience would act under the circumstances.
What is the exception to how children are held to the reasonable person standard?
When the child is engaging in adult activities. Then the child is held the objective standard for which would be the same for adults.
How are persons with physical deficiencies held to the reasonable person standard?
Subjectively, how a reasonable individual with like or similar disability would act under the circumstances.
T/F. Intoxicated individuals are held to a subjective standard allowing for their intoxication similar to that of the physical disabled?
False. Intoxication is not considered. This person would be held to the normal objective standard.
How are mentally impaired individuals held to the reasonable person standard?
Objectively. No allowance is made for their disability and they are held to the same adult reasonable person standard.
What is the rationale behind preventing individuals who are mentally disabled from using a subjective reasonable person analysis for a negligence duty analysis?
Possibility for fraud, the difficulty of applying a reduced standard because of the disability, and fear of complicating tort law.
Where would a person with a mental disability have some measure of respite in terms of negligence?
Contributory negligence.
T/F. Everyone is held to a minimum standard of reasonable care, but if you have special skills/knowledge you owe a higher duty.
What standard of due care do you owe to an individual within the area of your profession or trade?
The standard of care normally excercised by members of that profession/trade.
With regards to negligent medical care and the applicable standards theirein, what must the plaintiff show in order for the plaintiff to prevail?
1. Plaintiff must establish that a particular level of medical care existed and that there was a departure from that standard.
Informer consent maintains that:
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.
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?
The court will allow the doctor to follow either technique, even if only a reputable minority use it.
Must a doctor seek informed consent in an emergency situation?
If a patient is "unstable" must a doctor seek informed consent?
No, but if a negligence action is brought against the doctor the doctor will maintain the burden of showing that the patient was unstable.
When can a patient revoke consent to a medical procedure?
As long as medical options exist. If a patient revokes consent the doctor must reaquire it.
Generally, when is a duty of care not owed?
When a reasonable person would not have foreseen an injury to anyone.
According to Andrews a duty of care runs to whom?
According to Cardozo a duty of care runs to whom?
Those within the zone.
If a defendant owed a duty to a person, does that defendant also owe a duty to that persons rescuer?
Yes. Danger invites rescue.
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?
Yes. The exacerbated injuries are also attributable to the defendant.
If a defendant was himself rescued, and in so doing that rescuer was injured, is the defendant liable for rescuers injuries?
What is the exception to where a defendant will be held liable for the actions of a rescuer?
When that rescuers actions were foolhardy.
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"?
T/F. Crushing liability is a reason that the courts have used to withhold liability to a defendant?
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?
False. ONLY when there is an intended specific victim.
Once it is shown that the defendant owed a duty of reasonable care to a plaintiff, what must then be shown?
That the defendant breached that duty through an act or omission which exposed others to an UNREASONABLE risk of harm.
What are the two types of evidence which may be used to determine breach in a negligence case?
1. Direct evidence.
2. Circumstantial evidence.
What is risk under the breach element?
Combination of the severity of the potential damages, and the probability that those damages might occur.
What is benefit under the breach element?
Usually measured in terms of the expense or convenience - i.e. of not taking certain precautions.
Generally, a defendants conduct will be determined to be unreasonable when:
the magnitude of the risk would be perceived in advance by a reasonable person in the defendants position, which would outweighs its utility.
Generally, when there is a low risk of injury and a high cost for preventing that injury, a defendant will be reasonable or unreasonable?
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?
The more probable and more grevious the harm the...
greater the effort and expense which must be undertaken to avoid that risk.
What are the three elements of res ipsa loquitor?
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.
T/F. Expert testimony is always required for res ipsa loquitor?
False. Not when someones negligence is obvious to a lay juror.
To what degree must negligence be attributable to a defendant in a res ipsa case?
More likely than not attributable to the defendant.