Negligence (Breach)

Question 1

CL Standard of care RULE –>defining breach

Answer 1

is defined as acting as a reasonable person of ordinary prudence under the circumstances

Question 2

CL SofC Hand Test

To determine whether person acted as a reasonable person there must be:

Answer 2

Probability of harm

Severity
*Burden of taking precautions

Burden/costs to defendant
*Availability of reasonable alternatives to D’s conduct

That involve less risk
*Social utility of D’s conduct

Is it beneficial to society/specific group

Question 3

Child SofC RULE

Answer 3

A child is only held to the same standard of care of that of a child with the same age, experience, and knowledge

Question 4

Child SofC Exception

Answer 4

If child is engaging in dangerous adult activity –> is held to SofC of an adult

Question 5

CL Professional SofC RULE

Answer 5

acting as a reasonable person/______ with knowledge, training, and skill of an ordinary member of the profession under the same or similar circumstances

Question 6

CL Professional Standard FACTOR 1

Answer 6

1. Possession of knowledge or skill
   * Generally professionals are not expected to know everything, just what the ordinary member of the profession does
   * Ex. Attorneys follow the laws of the state, their customary practice

Question 7

CL Professional Standard FACTOR 2

Answer 7

2. AND/OR Exercise of best judgment
   * As long as you are making a tactical decision–>you won’t be held liable

o Also, even if you consult with other fellow members of your profession or disagreement develops to your course of action  professional using best judgment will not be liable

Question 8

CL Professional Standard FACTOR 3

Answer 8

3. AND/OR use of due care
   * Ex. Just a prime example is a lawyer who fails to file a suit before the running of the statute of limitations

Question 9

CL Expert Testimony Req for Pro SofC

Answer 9

Generally, expert testimony is required to assess if there is a breach of the Pro SofC

Question 10

Professional SofC Expert Testimony EXCEPTION

Answer 10

However, when dealing with common knowledge –> won’t need an expert testimony

If you comply with custom–>it is evident you are not negligent but not conclusive proof you are not negligent

Question 11

In order to find breach of duty related to medical pros–>

Answer 11

 there needs to be testimony of what is required for that type of surgery!!

 NOT what is relevant to the standard of care, that is your expert saying that he would have done it differently and you wouldn’t have the specific injury to your body ——> insufficient to establish a breach of the standard of care for the _____ /profession

Question 12

Majority approach to Standard of Medical Pros

Answer 12

physicians must follow the national standard

Question 13

• 1st Minority rule: similar community Test

Answer 13

o Here the test is used as one of factors to be considered, along with advances in the profession, availability of facilities, and whether health care provider was specialist or general practitioner

Question 14

• 2nd minority rule: look at the exact same community

Answer 14

o Here you compare an ordinary physician with the same knowledge and skill of another physician within the same community in which the D practices

Question 15

Informed Consent Doctrine (Deals only with physicians)

Minority Approach

Answer 15

 Patient Centered Approach is the Minority Approach

• What a reasonable patient would want to know in order to make an intelligent choice

Question 16

• There are 3 Exceptions when doc doesn’t have to disclose

(minority approach for patient centered)

Answer 16

o 1) If everyone knows or you know–>doc doesn’t have to disclose

o 2) if you tell patient–>it would be detrimental care, so its in their best interest to not disclose of material effects

o 3) is if there is an emergency & the patient is no condition to determine for himself whether the treatment should be administeredthen doc does not have to disclose

Question 17

at CL what physician interests must be disclosed to the patient under the Minority Patient-Centered Approach

Answer 17

non-medical interest (ex. financial interests) must be disclosed when dealing with patient’s informed consent bc a reasonable patient would want to know this when they are consenting to a procedure

Question 18

Informed Consent Doctrine (Deals only with physicians)

Majority Approach

Answer 18

• What a reasonable ordinary physician would want to disclose to the patient regarding their health

Question 19

Informed Consent Doctrine (Deals only with physicians)

Materiality

Answer 19

• If it’s likely to affect patient’s decision–>its then material
• Something can still be material even if there is a low probability of you being harmed/dying
  o Low probability and severity is high–>its material!!

Question 20

Negligence Per Se = Violation of a Statute

• To see whether the court will find negligence per se –> they ask the following 3 questions:

Answer 20

o 1) Is the P within the class of Persons statute is trying to protect

o 2) Is the harm the type the statute was intended to protect against

o 3) AND is it appropriate to use this statute

Question 21

Neg Per Se

After Neg Per Se Test is met –>apply what else…

Answer 21

Once the test is met–> thereafter P must then prove the causation and damages elements of negligence
 Cause in Fact
 And Proximate cause
 And Damages

Question 22

Neg Per Se

OR if the first 3 Q’s of the Neg Per Se test is not met

Answer 22

–> then we default back on the regular CL reasonable person standard and then apply regular negligence elements
o Then conclude that D is prima facie negligent or is not depending on jurisdiction approach–>see approaches

Question 23

• Under regular circumstances for NEG PER SE, a reasonable person typically obeys the law, not that they always obey the law –>and when statute says you must follow something–>and you don’t follow statute–>

Answer 23

then that is used as evidence!

Question 24

What does Neg Per Se (violation of statute) establish on negligence elements

Answer 24

• A violation of a Statute deals with only the first 2 Elements of Negligence (finding of Prima Facie Negligence)

how this depend on the majority or minority appraoch applied

Question 25

Neg Per Se Majority approach: neg per se

Answer 25

If D violates a statute-->and you do not have an excuse-->you are neg per se --> the jury finds breach of duty (2 elements met) and cannot find otherwise--> D is found prima facie negligent If D has evidence of excuse-->won't be found to breached your duty. Otherwise jury must then find prima facie negligence

Question 26

Neg Per Se Minority approach to NEG PER SE: Rebuttable presumption

Answer 26

RULE: As long as P puts on evidence that D violated statutes--> there is a presumption that D breached their duty --> thus D has burden to to put evidence to show an excuse for violating the statute If D does not provide an excuse--> then D breached their duty

Question 27

Minority approach to NEG PER SE: Rebuttable presumption Excuses List

Answer 27

o (a) the violation is reasonable in light of the actor’s childhood, physical disability or physical incapacitation; o (b) the actor exercises reasonable care in attempting to comply with the statute; o (c) the actor neither knows nor should know of the factual circumstances that render the statute applicable;o (d) the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or o (e) the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.

Question 28

Minority approach to NEG PER SE: Permissible Inference

Answer 28

RULE: If there is a statute violation-->its something jury will consider as evidence--> * ex. Although the Safety Statute Test applies & is met its permissble inference  but only jury will find if there was breach of duty * ex. advisory codes, industry standards, or ethical codes-->all can be admissible evidence to make inference  If D does not provide excuse-->then again jury must find whether D breached their duty.

Question 29

Neg Per Se in relation to statutes--> what do the statute create?

Answer 29

* Certain Statute/Acts prevent does not permit excuses bc the act is essentially a form of strict liability o Ex. Pure Food Act--> bars excuses--> will find D liable

Question 30

Breach element on Circumstantial Evidence

Answer 30

The circumstantial evidence taken most favorably to the P must show that an inference can be made by evidence to show that D's conduct breached their duty owed to P must apply this when there you P doesn't have direct evidence

Question 31

Breach on Slip and Fall cases in relation to circumstantial evidence P's requirement

Answer 31

* P must provide with circumstantial evidence as burden of showing that D had constructive notice of the defect/dangerous condition o However, in the end its up to the jury to decide whether there was a precise limitation on something critical where that something is reasonable or unreasonable for purpose of constructive notice

Question 32

Breach on Slip and Fall cases in relation to circumstantial evidence When D creates the hazard and knows..

Answer 32

* If the D created the hazard --> and D has knowledge/notice of defect/dangerous condition --> P’s requirement to provide circumstantial evidence of P’s notice isn’t required

Question 33

Res Ipsa Loquitur what is it and what do you use it for?

Answer 33

 Doctrine that uses circumstantial evidence * Keep in mind that if we know who did what on how accident happened-->you can't use res ipsa doctrine--> must then use the regular CL SofC rule!!!

Question 34

Res Ipsa requires what from P...

Answer 34

Res Ipsa requires that P has the burden of pleading and burden of production

Question 35

Majority approach to Res Ipsa RULE

Answer 35

* 1) Event ordinarily wouldn't happen without negligence * 2) AND that more likely than not, it was the D's negligence

Question 36

Res Ipsa Majority approach on first element--> what to look for..

Answer 36

o P doesn't have to eliminate other potential causes --> just find that even ordinarily wouldn’t happen without negligence o The common-knowledge EXCEPTION to the expert testimony rule applies  ET is required to establish that the even does not ordinarily occur in the absence of negligence to find D breached their standard of care * However, when dealing with common knowledge of how ’s conduct does occur in the absence of negligence  cannot use expert testimony to find an inference that ’ injury was caused by the failure of  in control to exercise due care  ET Exception will typically be used for medical malpractice cases

Question 37

Res Ipsa Majority approach on second element--> what to look for..

Answer 37

1) That is it was under D’s Exclusive control over the instrumentality of harm at the time of negligent act or injury  AND Note that P does not have to rule out other causes --> just has to say it was more likely than not it was D’s negligence! 2) AND P doesn't have to eliminate other actors

Question 38

Res Ipsa Majority approach on second element--> Joint Control Exception

Answer 38

* If more than one D caused P's negligence--> the doctrine applies and all D's have burden to prove evidence that it wasn’t them

Question 39

Res Ipsa what to keep in mind...

Answer 39

D’s superior knowledge is not an element requirementat least for prof Hnylka’s final exam * As D, you want your counter argument to be that it could have been other actors and/or other causes to P's injuries o Provide one or at least 2 cause(s) to ’s injuries to negate both elements of Res Ipsa * If it was P's had equal fault or greater fault than D's--> then you can't use the doctrine

Question 40

Res Ipsa after setting Majority Approach elements-->apply the 3 legal effects of Res Ipsa what are the 3 legal effects?

Answer 40

1) Majority rule: Permissible Evidence 2) Minority rule: Rebuttable Presumption 3) Minority Approach: Raises Rebuttable Presumption & Shifts the burden of Proof

Question 41

Res Ipsa Legal effect Majority rule: Permissible Inference

Answer 41

o Is that it warrants a mere permissible inference of negligence--> RULE: which means that res ipsa is established if: 2 elements are met --> Then the jury is not obligated to find negligence, rather they consider it as permissible inference up to you whether jury do or not as your final conclusion***

Question 42

Res Ipsa legal effect Minority rule: Rebuttable Presumption

Answer 42

o Raises a rebuttable presumption approach which requires the jury to find negligence if the defendant does not produce evidence sufficient to rebut * If the presumption is not rebutted by D --> then jury may find prima facie negligence

Question 43

Res Ipsa legal effect Minority rule: Raises RP & Shifts burden of Proof to D(s)

Answer 43

 If the (s) fail on both rebutting presumption and fail to provide evidence of proof of other causes jury will find prima facie negligence  usually dealing with multiple D's when we don’t know who did what exactly

Question 44

Res Ipsa what can't we do with slip and fall cases...

Answer 44

Hnylka said we can't use res ipsa for slip and fall cases