Torts - Negligence - Flashcards PDF

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Learned Hand Definition in words Overall formula Variables in Learned Hand formula What is B? What is P? What is L? What is PL?

RPP standard for adults Must always take into account ____ for the RPP adult standard Role of the customary i i RPP d l

If the burden for the party of avoiding a risk o than the risk itself, then the party is negligent undertaking that burden. Negligence = B < PL

Cost of taking steps to avoid the risk and the sacrificed as a result. (If there are substitutes, B.) Probability of it occurring Magnitude of harm if it occurs Risk of harm (conduct falls below reasonable PL)

Objective with some subjective components Ordinary intelligence, perception, and memor Physical characteristics, abilities, and disabili and any relevant additional specialized knowl experience that the actor has

Context of the specific situation in found him/her self Can be used as evidence of care (o h f) i db bl

When children are held to the more adult (objective) standard

When children are engaged in adult activities Would usually need to involve motorized vehic equipment

Insanity

In most states, insanity is NOT a defense to neg As with other cases involving general mental co (GMC), the insane are held to the standard of a ordinary intelligence, perception, and memory.

Who is a professional? Is the standard for professionals objective or subjective?

What is the standard for specialists? Custom of the profession

Doctors, nurses, lawyers, pharmacists, accountants, pi And others in jobs that require lots of training and edu governed by detailed and coherent internal standards Purely objective Standards of an ordinary member of the profess Expected to exercise the skill, knowledge, and c possessed and exercised by other members of th

Standards of other ordinary membe specialty, if the specialty is relevan case. Generally dispositive of the issue of the duty o regardless of its reasonableness If you comply (not negligent). If you don't com Purely objective Typically requires an expert witness

Liability for malpractice a mere disagreement or a failure of cannot be premised on or tactics ____ Professional standard in medical malpractice cases What doctors in the same or a

of medical malpractice) Duty of care in informed consent (no majority rule) Baseline professional duty of care "Reasonable patient" rule

Causation in informed consent Majority rule Doctors also have a duty to disclose any ______ of theirs underlying their treatment

π must show that the ordinary level o care (customary practice) mandates d thus, the failure to disclose the risk is duty Doctor must disclose risks that a reas would want to know and carefully co Canterbury: π must show objective and sub Objective: a reasonable patient in π's positio learning of the risk, would have changed he had the procedure done Subjective: usual baseline subjective showi herself would have changed her mind had th occurred

profit or research inte

Negligence per se

Proving a violation of a "statute" may establish duty and breach elements of Often easier to do than using usual st Must analyze NPS and RPP separatel

Before the statute can be used to provide a duty in this way, what must the court first find?

The injury at issue is of the sort that t to prevent The victim is of the sort that the statu protect

5 factors courts consider when deciding if the statute is appropriate for translation into a civil duty

1. Creates difficulty in proving causation 2. Creates a new duty 3. Provides liability that is too strict (too detached of care) 4. Provides for disproportionate liability 5. Represents too vague of a duty

Majority rule for

Duty and breach are automatically established

3. 4. Emergency Greater harm from compliance than violation

Excuses for NPS Minority rule 1 for effect of NPS

Burden shifts to ∆ to show more generally that reasonable care (which does not, in practice, le are all that different from the majority rule) Creates a “rebuttable presumption” of duty and

Minority rule 2 for NPS is only evidence of unreasonab effect of NPS a reasonable jury could draw the inferences (or chain of infe Circumstantial Ifparty is trying to establish, then it is permissible for the jury to on the evidence that produced those inferences, however circu evidence evidence may be. Burden of persuasion Definition Who it protects

Burden of production Res Ipsa Loquitur (RIL) Definition The point

Who loses if scales are perfectly in b (50/50) ∆

Who loses if case is decided now bas evidence (prima facia case)

If π cannot allege what exactly ∆ has done, it may suffic negligence through negative inference Have extreme circumstantial evidence to satisfy (infer) d causation (you still must show damages separately)

implications with RIL

May provide enough to allow π to win a directed verdict, b necessarily; especially once the evidence is no longer view most favorable to π, the jury may decide that ∆ should win...