Torts- Negligence

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Torts: Negligence

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what are the 4 elements of the plaintiff's prima facie case for negligence

1) Duty 2) Breach 3) Causation 4) Damages

Definition of Duty

Duty is a legally recognized relationship between parties. Every person in society has a general duty to refrain from exposing others to a foreseeable risk of harm. (more on duty later). REMEMBER: to have a duty, there has to be a foreseeable risk of harm.

Definition of Breach

Failure to meet the standard of care

Definition of Causation for general definition of negligence

There must be Cause in fact- the plainitff's harm must have the required connection to the defendant's breach of duty. Defendant's negligence must also be the Proximate cause of plaintiff's injury- which measures for policy reasons to relieve D of liability.

Definition of Damages for general definition of negligence

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Definition of Standard of Care

The required level of expected conduct

What is the General Standard of Care

Every person owes a duty to act with the care of a resonably prudent person in the same or similar circumstances to avoid creating a foreseeable risk of harm.

Policy for having a Standard of Care

We will not be able to function in society if we don't hold people to a standard of care. Compensation--> the negigent defendant should bear the costs of plaintiff's injury, not the innocent plaintiff. Deterrence- Holding individuals liable for negligence encourages them to act with greater care.

Why decides when a person has met the standard of care (normally, not the exceptions)

The Jury. Reflects community standards and knowledge in the community.

What is the Standard of care for a child

To act with the care of the child of like age and experience under the same or similar circumstances

Is the Child standard of care objective or subjective

Both.

Are there any exceptions to the child standard of care:

Yes. When the child is (1) engaging in adult activities, or

What are "adult activities"

things that are - inherently dangerous, - require a license, -operating a large motor vehlice

Why do we have a separate standard of care for children

children are thought to be immature and reckless and generally have less experience, we want to allow them some freedom from constant supervision, and their physical attributes carry shows their level of maturity (they carry their own warning)

What are the "Circumstances taken into account" in Negligence

1) Emergency, 2) Involuntary Intoxication, 3) Physical Disabilities 4) Extra Knowledge

What are the circumstances we wont consider:

Mental illness, mental deficiency, voluntary intoxication, mostly all situations where judgment is impaired.

The General Rule for Emergency:

The RPP may act with less perception & foresight when thrust into an emergency when: (a) there is NO time to think (b) The actor is TOO DISTURBED to weigh the alternatives. BUT if you create the emergency, this doesn't apply to you.

The General Rule for Physical Disability:

the RPP w/like infirmity

The General Rule for Involuntary Intox:

The RP intoxicated person.

The General Rule for Special Knowledge

Actors who have more than minimum knowledge possessed by the RPP are required to exercise their superior qualities in a manner reasonable under the circumstances.

What is the Calculus of Risk:

This is the Learned Hand Formula: We use this to show how the reasonable person thinks, how he balances factors to reach a decision. Forces us to look at overall society wide efficiency. We look for the most cost efficient way to avoid liability.

Whats the Learned Hand Formula

B < P x L = Negligence. If the Burden of prevention is less than the probability of harm times the level of foreseeable harm, then the defendant is negligent.

What do you do if you have a Polycentric problem

A polycentric harm is when you have two harms and by decreasing one, it increases the other. avoid the greater harm.

What will we do if the burden would require the defendant a complete loss of a Utility

A Utility is when the risks are justified because the public receives a benefit. We consider the utility when considering if D was negligent or not. In General: The lower the utility, the more it looks like negligence. And the higher the utility, the less likely it will be found negligent. But, there are circumstances where even if the social utility is high, it can be negligent.

Negligence Per Se:

The Judge borrows the standard of care from the Criminal Statute. But the Borrowing from the Criminal Safety Statute is ONLY appropriate if the statute is designed to protect:

What are the 3 criteria to borrow the statute:

(1) when the P is in the class of person that the statute was created to protect, (2) when P is w/in the class of harm the statute was designed to protect and (3) when the statute is more specific than the RPP standard.

Once we determine NPS, then what happens:

The determination that D wasd neligent per se for

What does it mean to use Custom as a sword

This is when the plaintiff is using custom to say that the defendant's conduct was below the custom, (that D sub-confirmed) which offers a strong persumption of negligence. But it is not irrebutable.

What does it mean to use Custom as a shield

This would be the defendant argiung that they werent negligent because they complied with the custom. This is a weal inference of reasonable care. Going with the notion that "common prudence is reasonable prudence"

When is it that Common prudence isnt reasonable prudence/AKA when is it that the custom in the industry wouldn't be enough:

when the custom develops out of: Inadvertence, carelessness, indifference, cost-cutting, It's the custom, but it isnt actually followed.

When do you apply Res Ipsa Loquitur

When you can not find the defendant's negligent act

Definition of Res Ipsa

"The thing itself speaks" This doctrine is invoked when there is little to no evidence as to the negligent act- the law allows a certain inference of breach of duty.

Allows the jury to...

infer negligence from certain patterns of circumstantial evidence.

What are the Traditional 3 criteria for Res Ipsa to infer Negligence

(1) the event normally doesn't occur in the absence of someones negligence (2) caused by the agency or instrumentality w/in exclusive control of D (3) Not due solely to any voluntary action or contribution by P

who has the burden of proof in Res Ipsa

The plaintiff

What is the procedural effect of Res Ipsa

MAJ: it raises a premissive inference of negligence. The jury may infer negligence, but they don't have to. Or MIN: Its mandatory that the jury infers negligence. It is a presumption of negligene.

What are the 2 ways that D can rebut the presumption:

(1) The stronger way, which is to present evidence of someone elses fault or (2) to present evidence that they acted reasonably, that they arent at fault

What is the absent evidence inferernce

This is when the defendant has evidence that would bolster their case and they don't use it. Then its presumed that it will be disfavorable to them.

Can Res Ipsa be applied to multiple D's

Usually: no. But, yes when (1) the multiple D's are vicariously liable (2) there is shared control.

Medical Malpractice

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Medical Malpractice: what is the MEDICAL Standard of care

the degree of care, skill, and proficiency commonly exercised by reasonably careful, skillful, and prudent [relevant professional in the same class], at the time of the procedure [strict, modified, or no locality rule] under the circumstances

What are the 3 "Locality Rules"

1) Strict Locality, 2) Same or Similar Locality, 3) National Standard

What is the Strict Locality

The old view- the MIN- limits the standard of care for Dr.'s to that of what other Dr.'s in the same community would do. The degree of care, skill and proficiency commonly exercised by reasonably careful, skillful and prudent (medical professionals) at the time of the procedure, in the same community under the circumstances." Bad b/c of conspiracy of silence

what is the Same or Similar Locality

The MAJ- this is the standard for General Practitioners. "The degree of care, skill and proficiency commonly exercised by reasonably careful, skillful an prudent [medical professional] at the time of the procedure in the same or similar community under the circumstances."

What is the National Standard

The standard for Specialists. This extends the standard of care to that of what other specialists nationwide would do. The degree of care, skill and proficiency commonly exercised by reasonably careful, skillful and prudent anesthesiologist at the time of the procedure under the circumstances."

Who sets the Medical Standard of care

Experts

What are the 3 Exceptions to the Expert Set Medical Standard of care:

Gross Negligence/Common knowledge. The Hospital Rule. The Drug Rule

What is the Hospital Rule:

The degree of care and skill expected of a reasonably competent hospital in the same or similar circumstances

What is the Drug Rule

This is an exception to the Expert set Medical Standard of care- when there are warnings and instructions which accompany the drug and establish the standard of care for use and administration.

Medical Informed Consent: Whats going on here

This is when the plaintiff is suing the physician for failure to inform of a material risk

What are the elements of P's Prima Facie case against D for lack of informed consent

1) Duty, 2) Breach 3) Causation 4) damages

What is the MAJ Standard of Duty of the Physician to INFORM

The material risk standard- the physician has a duty to disclose all material risks. A material risk is the significance that an RPP in the patients position would attatch to the disclosed risk in deciding whether to submit to the procedure/treatment.

When is it that a physician breaches his duty of Informed Consent

when he fails to disclose material risks

What is another important element of Informed Consent:

The failure to disclose the material risk has to be the cause in fact of the plaintiff's injuries. Run the BUT FOR test. ii. BUT FOR the medical professional's] failure to inform P of the [risk], would P have refused the [treatment] and thus avoided the [injury]?

What is "reverse causation" as relating to Informed Consent

this is when the standard is different because the Dr's failure to warn the plaintiff of the risks of the plaintiff's refusal of treatment was the cause in fact of the injury. So But for physicians failure to inform P of the risk of REFUSING the treatment, would P HAVE HAD the treatment and avoided the harm.

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