-
Duty is
the failure to exercise Reasonable Care to prevent harm to another and it is determined by the Standard of Care
-
Custom is
only Evidence of the Standard of Care and not conclusive to show that the defendant did or did not follow the custom
-
The Child standard of care is
A subjective one based on the a child of similar age, maturity, and intelligence. Exception: a Child is held to an Objective standard of care if he engages in adult or inherently dangerous activities
-
NC's Rule of 7s:
A child under the age of 7 is Incapable of negligence. A child between 7 and 14 is Incapable of negligence but can be proven Capable. A child over the age of 14 is Capable of negligence but can be proven Incapable.
-
The Standard of Care for an Intoxicated person is
the that of a Reasonable Person unless the intoxication is Involuntary
-
The Standard of Care of a Mentally disabled person is
that of a Reasonable Person under the same mental disability
-
The Standard of Care of a Physically disabled person is
that of a Reasonable Person under the same disability
-
Under Cardozo, a duty is owed to
any Foreseeable Plaintiff within the Zone of Danger
-
Breach is
falling below the established Standard of Care
-
The General Rule for Medical Malpractice is
A professional is the medical field is presumed to possess a certain level of knowledge and skill as another medical professional in the field in good standing
-
The Elements for a Medical Malpractice claim are:
The plaintiff must prove that the defendant: (1) is a physician who failed to disclose a Material Risk to the patient; (2) the patient would Not have Consented to treatment had the risk been disclosed; and (3) Adverse Consequence occurred and caused the Plaintiff harm
-
The Elements for a Legal Malpractice claim are:
-
The Elements for an Informed Consent claim are:
(1) a physician failed to disclose a Material Risk to the patient; (2) the patient would Not have Consented to treatment had the risks been disclosed; and (3) the Adverse Consequence occurred as a result of non disclosure and caused the Plaintiff harm
-
Exceptions to Informed Consent:
A physician may not be liable for nondisclosure if (1) the patient Knew or Should Have Known of the material risks; (2) in an Emergency situation (unconscious) the patient could Not have consented; or (3) informing the patient would result in Detrimental Harm to the patient
-
Violation of Statute: The (3) Jurisdictional Approaches are:
(1) Negligence per Se; (2) Evidence of Negligence; and (3) Rebuttable Presumption
-
The Elements of a Negligence Per Se claim are:
(1) violation of a statute; (2) designed to Prevent the Type of Harm that occurred; and the Plaintiff is a member of the Class the statute is designed to Protect
-
The Elements of a Res Ipsa Loquitor claim are:
(1) the Plaintiff was injured; (2) the harm would not have occurred absent some negligent act; and (3) the instrumentality that caused the harm was under the exclusive Management and Control of the Defendant
-
The Exception to the doctrine of Res Ipsa Loquitor is:
The Plaintiff cannot be the cause of the harm
-
The (2) types of Slip and Fall cases are:
(1) Notice and (2) Method
-
Under the Notice method:
The Plaintiff is required to show that the Defendant had (1) actual or (2) constructive notice of the dangerous condition and failed to act to prevent injury
-
Under the Method approach:
The Plaintiff is Not required to prove the defendant had notice because the conditions are always inherently dangerous
-
Causation requires the Plaintiff prove
the Defendant's negligent conduct was both the actual and proximate cause of the Plaintiff's injuries
-
Actual causation results when
the harm suffered by the Plaintiff would not have occurred but for the Defendant's negligence
-
Substantial Factor results when
Actual cause cannot be established but due to Concurrent causes (two or more causes) that the Plaintiff is unable to determine who caused, but at least one of which was a Substantial Factor in causing the Plaintiff's harm
-
Proximate cause occurs when
a Foreseeable or Unforeseeable act results in the Plaintiff's harm
-
Under the Polemis/minority approach
the Foreseeable risk must be a direct result of the Plaintiff's harm
-
Under the Wagonmound/majority approach
the type of harm that occurred is one that is expected from the Defendant's negligence
-
Under Andrews,
A Defendant is liable for Plaintiff''s harm regardless of how reasonably Foreseeable or not the harm may be unless the harm is shown to be too remote to be liable
-
Eggshell Skull Theory requires
that a Defendant takes the Plaintiff as he finds him. If Defendant may be liable for pre-existing injuries the Plaintiff had prior to Defendant's negligence
-
Expert testimony is used when
introducing scientific evidence to determine causation typically in the medical context
-
The (2) Types of Scientific Evidence Tests are
(1) the Frye test and (2) the Daubert test
-
Under the Frye Test
scientific evidence is admissible if it is Generally Accepted by the Scientific community
-
Under the Daubert Test (*"the DT is GAS that is PRP and has been Tested and ROE is Acceptable")
Four factors are considered in determining whether evidence is admissible: (1) if it is Generally Accepted by the Scientific community; (2) that has been Peer Reviewed and Published; (3) has been Tested; and (4) the Risk of Error is Acceptable
-
Loss of Chance/Survival Rule applies when
the Defendant's negligence may excuse liability from all the Plaintiff's harm where death is inevitable
-
If an act is Intervening, does it break the chain of liability?
Yes. An Intervening act is a Foreseeable subsequent act that is a result of a normal and natural consequence of the initial negligent conduct. Defendant's liability for Plaintiff's injuries are therefore not cut off.
-
Superseding Acts are
intervening acts that are unforeseeable, bizarre consequences that Would cut off the Defendant's liability as they interrupt the chain of causation
-
Suicide:
Generally, one is Not liable for acts of suicide unless the negligent act caused the mental incapacityjQuery112406900941545402728_1525090450954??
-
Elements of the Rescue Doctrine are
-
Rescue Doctrine:
Generally, there is No duty to aid or assist; however if the Defendant caused the Plaintiff to be in a position of peril, the Defendant must provide assistance/seek help for the Plaintiff
-
-
Assault is the
Intentionally causing Imminent Apprehension of Harmful or Offensive contact to another with the Apparent Ability to Effectuate the Threat
-
Assault requires _________ but does not include __________ alone
Awareness; Words
-
Battery is the
Intentional Harmful or Offensive contact of another or something so closely connected to the person
-
Battery does NOT require _______
Awareness
-
False Imprisonment under the Restatement requires:
Intentional, Unauthorized confinement/restraint of another with No Reasonably means of escape and the Plaintiff is Aware of and Harmed by the confinement
-
False imprisonment as a result of __________ or ________ ___________ do NOT _______________
Duress or Moral Persuasion do NOT impose liability
-
Intentional Infliction of Emotional Distress is the
Intentional, Extreme or Outrageous conduct of another that causes Severe emotional distress
-
Bystander Rule requires that
(1) the Defendant is Aware of the Plaintiff's presence; (2) Defendant's conduct is directed at Plaintiff or a member of Plaintiff's family; and (3) the Plaintiff suffers distress as a result (does Plaintiff have to be physically harmed??)
-
Severe distress is
Something diagnosable
-
Trespass to Land is the
Intentional, Unauthorized entrance upon the land of another that extends above and below the property
-
Trespass to Land also includes
Exceeding the scope of consent and No nominal damages
-
Trespass to Chattel is the
Intentional, Interference or Intermeddling of personal property of another for a Substantial amount of time
-
Demand by Return
If the Plaintiff demands return of the item, the Defendant must immediately return. However, return of the item does not excuse Defendant from liability but may reduce Plaintiff's damages
-
Conversion is the
Intentional, Disposition of chattel of another that so Seriously interferes with the owner's right of Dominion and Control over the the item so much so that the Defendant may be liable to pay the full value of the item
-
Conversion and Third Parties:
Where a third party receives stolen goods, he IS liable for conversion because title does NOT pass; however, where a third party obtains goods via fraud, he is NOT liable for conversion, because title does pass
|
|
