Breach

Question 1

Breach is a question for who?

Answer 1

Question of fact for the jury

Question 2

Malfeasance

Answer 2

doing an illegal act

Question 3

misfeasance

Answer 3

doing a legal act improperly

Question 4

nonfeasance

Answer 4

failing to act

Question 5

If an actor has skills or knowledge that exceed those possessed by most others,

Answer 5

these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person. The standard of care usually flexes toward more care, not less, when taking into account a D’s intelligence and experience.

Question 6

Sudden Emergency Rule

Answer 6

A person who is faced w/ a sudden or unexpected emergency that calls for immediate action is not expected to use the same accuracy of judgment as a person acting under normal circumstances who has time to think and reflect before acting. A person faced w/ a sudden emergency is required to act as a reasonably careful person placed IN A SIMILAR SITUATION. A sudden emergency will not excuse the actions of a person whose OWN NEGLIGENCE created the emergency.

Question 7

Child standard of care

Answer 7

Child soc is that of a reasonable person of like age, intelligence, and experience under like circumstances.

Question 8

Exception to child standard of care

Answer 8

An exception to the rule may arise when then child engages in an activity which is NORMALLY undertaken ONLY by adults, AND for which adult qualifications are required. May be held to standard of adult skill, knowledge, and competence, and no allowance may be made for his immaturity.

Question 9

When negligence per se is applicable

Answer 9

(1) did D violate the statute?; (2) Was the statute a safety statute intended to protect against the event that occurred?; (3) was P in a class the legislature intended to protect?

Question 10

Excuses for violating statute (in negligence per se)

Answer 10

(1) violation is REASONABLE bc of childhood, disability, or incapacitation; (2) REASONABLE CARE was exercised in TRYING to comply; (3) actor did not know and SHOULD NOT HAVE KNOWN of facts that make statute applicable; (4) violation due to CONFUSING way requirements are presented to public; (5) compliance w/ statute would involve GREATER RISK of harm to actor or others than noncompliance.

Question 11

Negligence per se majority rule

Answer 11

If P can show the statute provides the soc and it was violated, then duty and breach are proven and there is no factual question for the jury UNLESS D provides an excuse. I.e. there is a directed verdict on breach.

Question 12

Generally, who decides standard of care?

Answer 12

Normally for the jury bc we want the soc to represent current society and its customs.

Question 13

When does a judge decide standard of care?

Answer 13

(1) when judge determines no reasonable jury could find otherwise; (2) it is a recurring fact pattern (no need to waste judicial resources); (3) there are reasons of normative reasonableness, so that the judge wants to prevent the jury from making a mistake.

Question 14

Baseball rule SOC

Answer 14

Owners need to exercise reasonable care by (1) screening most dangerous section of the field and (2) the screening must be sufficient for those spectators reasonably anticipated to have access to the protected seating. This is an example of a court making up a SoC.

Question 15

Liability per se

Answer 15

No excuses statutes

Question 16

BPL Rule

Answer 16

Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury. B<PL = negligence liability, where B is the burden of adequate precautions, P is the probability of injury, and L is the gravity of the injury itself.

Question 17

Medical standard of care

Answer 17

(1) learning skill care and diligence of average practitioner; (2) in the same profession or specialty (or performing the same task; (3) in the same or similar locality (at least for GPs) or judged by national standards; (4) in the same or similar circumstances; (5) at the same time.

Question 18

How do courts find out what medical standard of care is?

Answer 18

An expert witness from the medical community would typically be required from P. EXCEPTION: In extreme cases no medical standard of care witness is needed, such as (1) operating on wrong organ or body part; (2) leaving a foreign object in a patient’s body; (3) giving an unprescribed substance to a patient; or (4) res ipsa loquitur.

Question 19

Medical Informed Consent Rule

Answer 19

A physician owes a duty to their patient to disclose in a REASONABLE manner ALL medical info that the physician possess or reasonably SHOULD POSSESS that is MATERIAL to an intelligent decision by the patient whether to undergo a procedure. Bc many procedures carry a seemingly unlimited number of risks, patient’s right to decide must be balanced against unduly burdening the physician w/ excessive disclosure. REMEMBERRRRRRR P must show causation, that neither the plaintiff NORRRRRR a reasonable person would have undergone the procedure after receiving proper informed consent.

Question 20

Lack of informed consent claim elements

Answer 20

(1) duty to disclose required info (all medical info that physician SHOULD or reasonably should possess that is MATERIAL to an intelligent decision by patient whether to undergo procedure); (2) breach: physician does not provide required info; (3) causation: nondisclosure caused patient to have procedure in circumstance where neither properly informed patient nor reasonable person would have had the procedure w/ proper disclosure; (4) injury: injured plaintiff physically OR emotionally. NOTEEEEE: There is NO BURDEN on P to ask questions.

Question 21

Res ipsa loquitur creates

Answer 21

an allowable inference of D’s lack of due care (breach) when (1) the occurrence itself ordinarily bespeaks negligence; and (2) the cause of the injury was within D’s exclusive control. The burden is on the DEFENDANT to show that negligence did not occur.