Negligence Flashcards
(41 cards)
Elements of Negligence
1-Duty
2-Breach
3-Cause
4- Damages
Reasonable Person Test
What would a reasonable person do under the same circumstances? (Stone. Bolton- Risk of harm was 1/5000. Reasonable person would do nothing)
A person has a legal duty to use the same level of ordinary care that would be exercised by a reasonable person. (Vaughn v. Menlove) Jury will determine what is a reasonable standard for that community.
Duty
A duty is owed to everyone around us to not create situations of harm.
Reasonable person test con’t
a person has a legal duty to use the same level of ordinary care that would be exercised by a reasonable person. (Roberts. v. Ring)
People with disabilities are held to the same standard as a person with the same disability. What would a reasonable person under the same circumstances do? (Fletcher v. City of Aberdeen
Reasonable Person Standard-Age
Age is an exception to the reasonable person standard as long as ∆ is not engaged in an adult activity AND if ∆ is acting in a reasonable manner.
If engaged in a dangerous activity, age doesn’t matter. The public is entitled to a standard of care (Daniels v. Evans)
Insanity Defense to RPS
Were delusions foreseeable? When mental incapacity can be reasonable foreseen a pe, a person who suffers mental incapacitation will be held liable if any damages or harm is caused by their incapacitation.
Insanity can be a defense but the person cannot be on notice of delusions.
This defense uses a sane person’s standard for a person who is mentally incapacitated, which imposes a double standard on the mentally ill. (Breunig v. American Family Insurance)
Calculus of Risk/ Hand Formula/ Common Sense Standard
There is a duty of care to protect others from the harm when the burden (B) of taking adequate care is less than the product of the probability (P) of the resulting harm and the loss (L). If B
Problems with Hand Formula?
- Contributory negligence- HF doesn’t account for contributory negligence
- Economic analysis falls short because it conflicts with our moral instincts.
- It works in cases like Carrol Towing because the economics are obvious, but when people’s lives are concerned it becomes more difficult to justify the loss of life on a number.
- Standard creates a cliff that fails to punish people just above standard line and punishes those below severely.
- Courts don’t always weigh evenly and may disproportionately punish when injury is severe but risk was very low…think about Bolton.
Custom
What is the best measure for common sense? Economic, beliefs, custom?
Custom sets the standard within industry but is not always conclusive.
1-Custom can be used neither as sword or shield
2- Custom is not dispositive
3- Custom is only some evidence establishing duty
4- Custom is evidence that actor’s conduct is not negligent but does not preclude a finding of ngeligence
Pros of Custom
1-Fairness rationale- courts should’t hold one responsible for following industry standard
2-If we dismissed custom, we are susceptible to hindsight bias
3- Certainty/Predictability-provides more certainty than Hand Formula or Reasonable Person
4- Administerability -easier to administer than other standards
Cons of Custom
1-Industry may be lag behind safety standards-lag behind technological advances and this seen as too rigid/deters innovation
2-Not best balance of risk/benefits since employer has unequal bargaining power
3-Not always east to determine because custom may be controversial
4-Differences between local and national custom
Custom cases
Titus v. Bradford- Where an employer is using business practices that constitute customary practice throughout the industry, he is not liable in negligence for any injury that may result from such practices
Mayhew v. Sullivan Mining Co.- Even when a custom is universal, it may still fail to meet the standard of ordinary care required by an employer
T.J. Hooper (critical point in development of custom and duty)- The standard of care in a negligence case changes with advances, knowledge and new devices of demonstrated worth.
-Hand RUle: Where a business practice known to exist can measurably increase the safety, or in this case seaworthiness, it should be adopted, irrespective whether it is yet customary. Courts in the end must say what the standard of care is and not rely on custom
Hand rejects relying on custom b/c some precautions are just so obvious.
Medical Malpractice
Custom is different in medicine than in ordinary industry. Unlike mining companies and RR companies, who maximize profit for shareholders, the medical field is dominated by the bottom line.
Lama v. Barra- doctor is held liable for medical malpractice where the national standard in
Doctor has a specialized duty of care and physicals have a specialized expertise. The physical is in control of the situation and this is held to a standard similar to the common carrier- heightened duty.
Problems with Custom in Medical Field
1- Causation is difficult in the medical field because patients are already unhealthy
2-It is difficult to decide on a particular custom-national v. local
3- Autonomy v. Custom- do we give patient more leeway in deciding her own proper treatment or is it better to follow established custom?
Informed Consent in Medicine
Canterbury v. Spence- A doctor has a duty to volunteer information, such as risks of surgery, when it it material to a patient’s autonomous decision of whether to undergo a certain treatment or opt for alternatives.
Court holds that patient has an autonomous right to know the full effects of his decision
Not the majority view. See Bly v. Rhoads
Pros of custom for medical malpractice
1- courts are not professions in the industry and therefore professionals not judge/juries should be deciding duty of care
2- We live in a world of under deterrence- massive amount of medical error
3- Medical malpractice is good at warding people who are injured but may not necessarily be result of negligence
Cons of custom for medical malpractice
1-Custom may be lagging behind changes in technology
2-Over-deterrence-doctors with less incentive to practice
3-Most people don’t bring claims forward because of expense and difficulty in pinpointing blame
4- Information deficit- Doctors are worried about being sued so they withhold information
Express Cause of Action
If a statute expressly says that a person has a private cause of action, then the case is an easy one because the statute was meant to prevent that class of individuals
Three-part analysis for determining implied right of action
- Class of victims: who is protected?
- Ask, who is the statute designed to protect? (Osborne v. McMasters- if a If a statute imposes upon any person a specific duty for the protection or benefit of others, and a person neglects to perform that duty, he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute was designed to protect that proximately arise from that neglect. - What type of risks is the statute designed to protect?
- Gorris v. Scott- Sheep owner could not recover because statute was not designed to protect against harm of falling overboard but only for contagious diseases. - What do you do when you have a statute and common law in conflict?
- Tedlia v. Ellman- COurt must intrepret intention-ruled for common law pbased on policy grounds.
- Uhr v. East Greenbush Cent. School
Negligence Per Se
An actor is negligent if, without excuse, the actor violates a statute that is designed to to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. (Martin v. Herzog)
Some Negligence
Evidence is not dispositive; you must also show evidence using reasonable person standard, custom, or hand formula
Negligence Question
Did breach of duty cause the wrongdoing?
(Brown v. Shyne- unlicensed chiropractor operated on π. Ct ruled it was not his carelessness or negligence that caused injury, which had nothing to do with him being unlicensed.)
Misfeasance
Misfeasance occurs when an act is legal but is performed illegally or in an improper manner. A ∆ is responsible for misfeasance when they willfully commit a wrong that causes harm to the plaintiff or breaches their duty of care by performing the legal act.
Examples of misfeasance in a professional context: a lawyer who is mistaken about a deadline and files an important legal document too late, an accountant who makes unintentional errors on a client’s tax return, or a doctor who writes a prescription and accidentally includes the wrong dosage (.
Non-feasance
The failure to act when a duty to act existed
