Negligence

Question 1

Negligence created to

Answer 1

Protect members of society from unreasonable risk of harm

Question 2

Negligence still requires what kind of act

Answer 2

Volitional act

Question 3

Duty Exist when

Answer 3

The burden of taking precautions against possibility of risk may manifest is less than the gravity/magnitude of that risk, duty exist.
B< P*L

Question 4

Define Duty

Answer 4

To act as a reasonably prudent person under the same & similar circumstances

Question 5

What does a RPP take on & not take on

Answer 5

Takes on physical characteristics of person. Does not take on any mental deficiencies

Question 6

RPP Child standard and when does it not apply

Answer 6

To as a reasonably prudent child of like age & intelligence. Does not apply when they are doing activities usually reserved for adults… also depends on if there are any jurisdictional dictations.

Question 7

RPP Professional standard

Answer 7

To act as a reasonably prudent professionals under same & similar circumstances.

Question 8

Professional:

Answer 8

Someone belonging to a learned profession or whose occupation requires a high level of proficiency.

Sometimes this can be a question for the fact finders

Question 9

Rpp_Professional does not care about

Answer 9

Licenses,
Customary practices maybe relevant but not determining factor.

Question 10

In order to prove Malpractice or breach of duty under RPprofessional, you must use as a part of prima facie

Answer 10

Must use an expert to establish SOC.

Question 11

Informed Consent

Answer 11

Physicians have a duty to provide inform consent to patients as a part of Duty of care

Question 12

Informed Consent includes (6)

Answer 12

Treatment protocols, available alternatives, Colleterial risk, Material risk, any economic or research interest involved.

Question 13

What are the affirmative defenses to Informed Consent

Answer 13

Emergency
Where full disclosure would be detrimental to patients treatment protocol ( Therapeutic Privilege)

Question 14

Explain how causations comes to play in informed consent

Answer 14

• Harm caused must be the the harm that was not disclosed…i.e doctor failed to inform you of a risk and that risk is what has happened.
• Had you known about such risk or alt available, you would not have gone through with procedure.

Question 15

Explain whether courts look at for Duty & Causations in Informed Consent cases?

Answer 15

What a RPPhysican would have disclosed or what a RPPatient would want to know ( under duty)

Under causation : Objectively would a reasonable patient decline treatment ?

Under causation: Subjectively looks at what plaintiff would have done if they had known ?

Jurisdictions will mix and match ..think of chart

Question 16

Breach of Fiduciary Duty and the rememdy

Answer 16

Defendant was in position of trust to the plaintiff & breached the obligation. Requires no proof of actual damages.

Remedy: Disgorgement of fees/economic benefit ( any money made goes to plaintiff).

Question 17

4 ways to establish duty

Answer 17

RPP
Rule of Law
Non Tort Statutory
Tort Statutory

Question 18

Duty as Rule of Law

Answer 18

Court makes proclamation of what The standard of care is all the time

Question 19

3 Prong Test for Non Tort Statute

Answer 19

1. Needs to be a member of the class of legislature intended to protect AND
   The hazard that occurred was one legislature intended to prevent AND Imposition of the tort liability is appropriate

Question 20

Effect of Proof when Non-Tort statute is used to establish duty? Jurisdictional

Answer 20

Rebuttal - Majority
Negligence Per Se
Some of evidence of negligence is relevant but not determinative

Question 21

Non Tort Rebuttal Jurisdiction

Answer 21

Jury required to conclude D/B has been established UNLESS it is rebutted by credible excuse by party violating the statute.

Question 22

Credible Excuses (5)

Answer 22

Violation reasonable b/c of actor’s incapacity

He neither knows nor should know of the occasion for compliance

He is unable after reasonable diligence or care to comply

He is confronted by an emergency not due to his own misconduct

Compliance would involve greater risk of harm to actor or to others.

Question 23

Negligence Per Se (negligence itself) Jurisdiction

Answer 23

Unexcused violation is negligence itself

Conclusive evidence of d/b ( violation of statute)

Court makes determination regarding validity of excuse as matter of law

Question 24

Res Ispa Loquitor

Answer 24

Accident does not ordinarily happen w/out negligence

Instrumentality of harm within exclusive control of defendant

Not caused by plaintiff

Question 25

Procedural Effect of Res Ispa Loquitor (3)

Answer 25

Permits an inference of negligence but not require a find of negligence (Majority Jurisdiction) Raises a presumption of negligence that the defendant must rebut or they lose (Minority Jurisdiction) Raises presumption/inference of negligence and shifts burden of proof to defendant to disapprove negligence. (Minority Law)

Question 26

Presumption of Evidence =

Answer 26

Requires certain results unless overcome with other evidence_ Must be taken as a rebuttal _ Minority Law

Question 27

Rebuttal of Evidence

Answer 27

To refute, oppose or counteract by evidence, argument or contrary proof

Question 28

Inference

Answer 28

Conclusion may be reached by considering other facts

Question 29

Causation under but for

Answer 29

Sine Qua Non - Without/which not

Question 30

CIF deals with probabilities or possibilities

Answer 30

Probabilities

Question 31

Loss of Chance Doctrine

Answer 31

Minority Law Acknowledges dr negligence probably did not cause death but Plaintiff should be able to get something for reduced survival due to negligence.

Question 32

Exceptions to CIF traditional “but for” analysis (4)

Answer 32

- Independent , sufficient causes - Alternative Liability - Concert of Actions Market Share Liability

Question 33

Independent, sufficient causes

Answer 33

Each defendant's breach of SOC is cause in fact as long as breach was substantial factor in bringing out plaintiff's harm

Question 34

Alternative Liability

Answer 34

All defendant's breach SOC but unable to determine whose breach caused plaintiff injury All defendants who breach SOC are all responsible for CIF All defendants are CIF and BOP on CIF shifts to defendants to prove they (individual defendant) is not responsible.

Question 35

Concert of Action

Answer 35

Does tortious act in concert with the other or pursuant to common design with him OR Knows that the other’s conduct constitutes a breach of duty & gives substantial assistance or encouragement to the other so to conduct himself OR gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the 3rd person.

Question 36

Market Share Liability 

Answer 36

Substantial share of market, cross compliant permitted, encourages defendants to bring in other defendants , encourages plaintiff to sue as many defendants Opt out may be available depending on jurisdiction .

Question 37

Joint & Several Liability

Answer 37

All defendants are together responsible and each liable for 100% of plaintiff’s damages

Question 38

Several Liability

Answer 38

Each defendant responsible for their % of liability

Question 39

Liability breakdown for Exceptions to CIF traditional “but for” analysis

Answer 39

J&S = Alternative Liability, Concert of Actions, Independent, Sufficient Causes Several = Market Share Liability

Question 40

Unforeseeable Consequences

Answer 40

Direct Causation Reasonable Foreseeability Zone of Danger

Question 41

Direct Causation and majority or minority

Answer 41

Minority Law Negligent act is legal cause of injury if defendant could foresee or anticipate SOME HARM

Question 42

Reasonable Foreseeability _ Majority or Minority Law (3)

Answer 42

Liable for proximate results but not remote results Defendant responsible for all results which could have been foreseen by exercise of reasonable diligence Defendant must be able to foresee the Type of harm

Question 43

Zone of Danger Test _ Majority or Minority Law

Answer 43

Harm is general type that made conduct unreasonable in the first place AND plaintiff was in zone of danger.

Question 44

Intervening Causes

Answer 44

Defendant breaches SOC at point A and later at point B another independent actor breaches SOC then plaintiff injury occurs at point C in time Defendant will try to argue breach at Point B severs link and plaintiff can only trace injury to point B = Intervening Superseding Causes

Question 45

Intervening Superseding Cause

Answer 45

This may serve link if Extraordinary Not Foreseeable Independent

Question 46

Intervening causes & jurisdictions

Answer 46

Intentional torts are Intervening superseeding causes . _ Majority law Minority Law.. egg skull plaintiff... ex Fuller v. Preis: D who negligently caused a car accident that injured Dr. was found liable for his suicide, bc the injuries Dr. sustained in the accident cause him to have an irresistible impulse to harm himself, which made his suicide involuntary.

Question 47

Social Host Liability Majority & minority

Answer 47

Minority of js say social host is prox. cause of minor and adult drunks Majority of js say social host is prox. cause of minor drunks only

Question 48

Privity of Contract

Answer 48

No longer a bar to recovery for negligence... Plaintiff and defendant DO NOT need to have prior relationship

Question 49

Failure to Act

Answer 49

Majority Law is no common law duty to act affirmatively & no liability in negligence for omission

Question 50

Exception to Failure to Act (3)

Answer 50

- Defendant causes situation which plaintiff needs rescue - Defendant assumes responsibility to act thereby increasing risk of harm or reliance by plaintiff to their detriment - Special Relationship

Question 51

Special Relationship Exception

Answer 51

Relationship arising when one trust the other to exercise a reasonable degree of car AND the other party knows or should know about reliance up that trust. between Defendant & Plaintiff OR Defendant & 3rd party ( who may be the But for of plaintiff injury) Defendant is - Unique position to foresee harm - Must act affirmatively - Reasonable measures *To warn specific, identified, unknowing victim *To contact police Therapist have duty to take reasonable measures to warn specific, identified, and unknowing victim and to contact police

Question 52

Pure Economic Loss

Answer 52

Generally no recovery in economic Loss that does not accompany property or bodily damage is not allowed Except Harm to Plaintiff’s body or property (parasitic & foreseeable b/c accompanied with body/ property damage) Contract ( Privity) w/ Defendant OR Special & narrowly defined relationship between plaintiff & defendant Example: auditor, lawyers, termite inspectors….

Question 53

Negligent Infliction of Emotional Distress

Answer 53

General rule is no liability in negligence for pure emotional damages Except Physical Impact Rule Physical Manifestation Zone of Physical Danger Bystander Recovery

Question 54

“Physical” Impact Rule

Answer 54

accompanied with (offensive) bodily contact that doesn’t result a physical injury but emotional injury

Question 55

Physical Manifestation Rule

Answer 55

Definitive, objective physical injury produced by emotional distress Recovery Limited to Reaction expected of “normal” people( Typical reaction) AND Physical manifestation Must be natural consequence of emotional distress

Question 56

Zone of Physical Danger Jurisdiction

Answer 56

Physical Manifestation Test + Plaintiff is physically w/in zone of (physical) danger ( Plaintiff in physical danger)

Question 57

Bystander Recovery Jurisdiction ( NIIED) (4)

Answer 57

Close relationship w/ negligently injured victim AND Plaintiff was present at the injury producing event & aware AND AND Results suffers serious emotional distress (beyond what would be anticipated in a disinterested witness might suffer & which is not an abnormal response to circumstances). Serious Emotional Distress = Reasonable person would be unable to to adequately cope with mental distress engendered by the circumstances of the case.

Question 58

Negligent Misrepresentation

Answer 58

Defendant in performance of trade or profession AND Carelessly provides erroneous information that is used by Plaintiff to the Plaintiff’s detriment AND Plaintiff was injured thereby One who in the course of business or profession supplies information for guidance of others in their business transactions is liable for negligent misrepresentation that induce detrimental reliance.

Question 59

Owners & Occupiers of Land

Answer 59

Duty of care owed by the owner or occupier changes depending upon legally status of plaintiff at the time the plaintiff was injured. “Premises Liability”

Question 60

Duty of care owed to Trespassers

Answer 60

- No Duty of care owed to Trespasser unanticipated and defendant not aware of trespassers presence - Upon discovery of trespasser _ Must use reasonable care to avoid injury, not to wantonly injure

Question 61

Duty of care owed to Licensee

Answer 61

One who enters owner land by permission but for licensee’s own purpose; Duty owed to Licensee _Warn licensee of hidden dangers unknown to the Licensee and owner has actual knowledge of ( DOES NOT ENCOMPASS WHAT THE LAND OWNER SHOULD HAVE KNOWN)

Question 62

Duty of care owed to Invitee

Answer 62

1) Enters by invitation express or implied AND 2) Entry connected w/ owner’s business or w/ activity the owner conducts/ permits to be conducted on the land AND 3) Mutuality of benefit or benefit to owner •Duty to use reasonable care in keeping premises in reasonably safe condition •Warn of hidden dangers known to owner (actual knowledge) & dangers owner should be aware of = Constructive knowledge •May extends toward including responsibility to protect from criminal activity

Question 63

Attractive Nuisance

Answer 63

-Exception to no duty owed to trespasser ( described like this b/c if you have a social guest over that doesn’t necessarily mean you give them permission for the whole house) Applies when o The trespassing child is anticipated/foreseeable o Inherently/unreasonably dangerous condition of premises AND o Condition likely to incite curiosity of minors

Question 64

Strict Liability

Answer 64

Liability imposed w/out regard to Defendant’s intent or breach of duty to use reasonable care.

Question 65

Strict Liability & Animals

Answer 65

Qualifying animal is classified as a wild animal, Harm is type of harm characteristic to the dangerous propensity of that kind of wild animals

Question 66

Wild Animal

Answer 66

Type of animal that imposes abnormal risk to the particular community in which animal is kept

Question 67

Strict Liability & Activities 1st restatement

Answer 67

ultra-hazardous activity and risk of harm cannot be eliminated w/ due care & not of common usage. To determine if activity is ultra hazardous, focus on activity itself.

Question 68

Strict Liability & Activities 2nd restatement

Answer 68

Abnormally dangerous activities and appropriateness of activity to location

Question 69

Factors of abnormally dangerous activity under 2nd restatement

Answer 69

1.Inability to eliminate risk by reasonable care. 2.Inappropriateness of activity to the place 3.Existence of risk of harm 4.Likelihood that the harm will be great. 5.Whether activity is matter of common usage 6.Whether it’s value to the community is outweighed by its dangerous attributes

Question 70

3rd restatement of strict liability (4)

Answer 70

abnormally dangerous activity foreseeable & significant risk of physical harm and cannot be eliminated w/ due care & activity is not common usage

Question 71

Which restatement of strict liability is majority

Answer 71

2nd restatement _ abnormally danger activity