Standard of Care
A REASONABLE PERSON: Has the ___________________________ characteristics as the ___________________, an average ______________________________, and the ___________________________________ as an average member of the community.
EMERGENCY: The standard of a reasonably prudent person in a ___________________ _____________________________.
A REASONABLE PERSON: Has the SAME PHYSICAL characteristics as the DEFENDANT, an average MENTAL ABILITY, and the SAME KNOWLEDGE as an average member of the community.
EMERGENCY: The standard of a reasonably prudent person in a SIMILAR SUDDEN EMERGENCY.
****UNLESS EMERGENY IS OF THE DEFENDATS OWN MAKING.
NEGLIGENCE PER SE: The ______________ must prove:
(1) __________________
(2) __________________ of the statute.
(3) Plaintiff ________________________ because of the ___________________.
(4) Plaintiff is in a ____________________________ intended to be ________________ by the statute.
(5) The ____________ is intended to be _______________ by the statute.
NEGLIGENCE PER SE: The PLAINTIFF must prove:
(1) STATUTE
(2) VIOLATION of the statute.
(3) Plaintiff SUFFERED AN INJURY because of the VIOLATION.
(4) Plaintiff is in a CLASS OF PERSONS intended to be PROTECTED by the statute.
(5) The HARM is intended to be PREVENTED by the statute.
For Res Ipsa Loquitur plaintiff MUST show:
Defendant had _________________ and ______________ of the __________________ that caused the Plaintiff’s harm
The type of harm that occurred does not normally occur _________________________.
Plaintiff must _________________________________.
Plaintiff MUST show:
Defendant had EXCLUSIVE CARE and CONTROL of the INSTRUMENTALITY that caused the Plaintiff’s harm
The type of harm that occurred does not normally occur WITHOUT NEGLIGENCE.
Plaintiff must NOT ALSO BE NEGLIGENT.
What are the four elements of Negligence?
1. ___________
2. ___________
3. ___________
4. ___________
Four elements of Negligence:
1. Duty
2. Breach
3. Causation
4. Damages
Boater Bill was out on his boat on a warm summer afternoon. He was enjoying himself with a great day at the lake. Bill enjoyed seeing just how fast his boat would go and was pushing it to full throttle. Since it was such a beautiful day, Bill was going as fast as he could while looking around at the lovely scenery. Bill failed to notice that another boater was pulling a water skier in the water. Bill ran right at the water skier and hit her. The water skier, Jane, suffered serious personal injury. Jane sued Bill in negligence for those injuries. Bill claimed that he was doing the best he could in light of the warm day and beautiful scenery. Will that argument relieve Bill of liability?
A. No. Bill will be held to the standard of a reasonable person of ordinary prudence under similar circumstances.
B. Yes. Negligence requires that Bill use his own best judgment and skills. The facts indicate that Bill was “doing the best he could.”
C. No. Bill will be held liable for intentionally driving the boat.
D. Yes. Boating is a hazardous activity and all people upon the water are responsible for their own safety. The skier cannot sue someone else for injury.
A is correct. Negligence does not allow a defendant to use their own best judgment or skills. Negligence requires that a defendant use the care and skill of a reasonable person of ordinary prudence under similar circumstances.
When does negligence per se apply?
a. in jurisdictions that do not recognize assumption of the risk as a defense to negligence liability
b. in all cases arising out of the course and scope of employment
c. when there is no evidence of the contributory negligence or comparative negligence of the plaintiff
d. when a defendant has violated a statute designed to protect the class of individuals to which the plaintiff belongs from a certain type of harm
D is Correct when a defendant has violated a statute designed to protect the class of individuals to which the plaintiff belongs from a certain type of harm
Tom was jogging along a sidewalk that was beside a large hardware store. He was suddenly hit on the head, and injured, by a piece of roofing material. Not being sure where the material came from, Tom sued the large hardware store for his injuries. Clearly someone should have had a duty to keep from hitting Tom on the head with roofing material. What should Tom try to prove on the issue of breach?
A. The roofing material came from the roof of the hardware store, the roof was in the exclusive control of the store, and roofing material does not ordinarily fly off roofs unless someone is negligent.
B. The store had exclusive custody or control of the sidewalk beside the store, and sidewalks are ordinarily safe unless someone is negligent.
C. The roofing material was a type normally sold by the store, and there is no evidence of other purchasers in the area at the time of the accident.
D. The roofing material is similar to the type on the roof of the store and the store does not allow customers on the roof.
A is correct. This is obviously a little summary of the elements of res ipsa loquitur. The other selections do not adequately address those elements.
Suzie (age 8) and Billy (age 7) were playing jacks. The game involves bouncing a small ball, picking up little metal stars and then catching the ball. As the game progresses, it is necessary to pick up more of the stars at once. Suzie was clearly winning the game, and Billy was getting frustrated. It was Billy’s turn and he tried to bounce the ball a little too hard. It hit one of the metal stars, caused it to fly up, and hit Suzie in the eye. Suzie suffered a personal injury from this event. If Suzie tries to sue Billy for the injury, the standard of care that would be applied to Billy would be:
A. Reasonable person of ordinary prudence under similar circumstances.
B. A reasonably prudent child.
C. A child of like age, intelligence, and experience.
D. A child of similar age.
C is correct. The usual standard for a child is a child of like age, intelligence and experience. Children are usually not held to the adult reasonable person standard. There are exceptions to that rule. Some of the additional questions will address those exceptions.
Ms. Glena was driving home from work and decided to have a drink before going all the way home. She stopped at a local night spot and had two gin and tonics. She then got in her car and started driving home. She had not gotten more than about 2 blocks before she ran into another car. The police arrived quickly and smelled the gin on her breath. The driver of the other car wants to sue Ms. Glena for the accident.
A. Ms. Glena will not be liable since reasonable people find it necessary to have a couple of drinks after work.
B. Ms. Glena will not be liable since two gin and tonics is a reasonable number of drinks to have before dinner.
C. Ms. Glena will be liable since she failed to drive as a reasonably, ordinarily prudent drunk.
D. Ms. Glena will be liable since reasonable people do not get drunk and drive.
D is correct. Although some physical impairment may be used as a circumstance to consider in the negligence standard, voluntary intoxication is not allowed to affect conduct.
Fred was driving along a side street when he came to an intersection. As he entered the intersection, his car was struck by a car being driven by George. The accident caused injuries to Fred, and Fred sued George for those injuries. At the trial, a local police officer named Officer Smith testified that he had done the investigation of the accident. According to Officer Smith, the intersection was a four way stop and had a stop sign on all of the streets. In addition, it was the expert opinion of Officer Smith that George had run that stop sign. George testifies that he definitely stopped at the stop sign. What should the judge do with Officer Smith’s testimony?
A. Direct a verdict against Fred since Fred had a statutory duty to stop and did not stop. The case is “negligence per se.”
B. Allow the jury to consider the evidence in order to decide whether George did or did not stop at the stop sign.
C. Allow the jury to consider the evidence in order to decide whether Fred was the cause of the accident.
D. Strike the evidence from the record as being inappropriate opinion testimony.
B is correct. The existence of the stop sign and statutes regulating such signs would raise the issue of negligence per se. That doctrine, however, would only allow the judge to determine that the duty to comply with the stop sign was the duty in the case. There is still a question of fact as to whether there was a breach of that duty. Where there is conflicting evidence from which the jury could draw one of two valid decisions, the issue must be sent to the jury.
Carl was walking along a side walk when he was suddenly struck by a delivery truck. The delivery truck was owned and operated by Acme Delivery. The driver of the truck was the authorized driver, and he was on his regular and routine delivery route. Carl was injured, and sued Acme for the injuries. Carl testifies that he doesn’t know what happened. He was just walking along the sidewalk and was suddenly hit from the rear. Several eyewitnesses testify that the truck just seemed to suddenly jump the curb and hit Carl. The driver of the truck testifies that everything was going well when the truck just suddenly seemed to jump the curb and hit Carl. Based upon that evidence what should the judge do with the trial case?
A. Direct a verdict in the case for Carl since this sort of thing does not happen in the absence of negligence.
B. Direct a verdict for Acme since Carl failed to meet his burden of going forward on the issue of breach of the duty.
C. Direct a verdict on the issue of breach of the duty for Carl, but send the other issues to the jury.
D. Direct a verdict for Carl on the issue of causation since the truck obviously caused the injuries to Carl.
C is Correct. This question raises the doctrine of “res ipsa loquitur.” Roughly translated, that means “the thing speaks for itself.” The doctrine is nothing more than a form of circumstantial evidence that helps the plaintiff prove the issue of breach of the duty. In order to use the doctrine, the plaintiff must show that the defendant had exclusive custody and control of the instrumentality of the injury and the type of accident that occurred is one that does not normally occur in the absence of negligence. In this case the doctrine of res ipsa loquitur would apply. The truck was owned and operated by Acme and their authorized agent was driving the truck. In addition, trucks do not jump the curb unless there is some negligence. The application of this doctrine is that it helps the plaintiff prove breach. Since it helps prove breach, and there is no conflicting evidence on that issue, the court can direct a verdict on the issue of breach. Other issues such as injury and causation must go to the jury.
Ms. Smith was driving her car along the interstate one day when she suddenly lost consciousness. The car swerved into another lane and hit a car being driven by Mr. Jones. Mr. Jones wants to sue Ms. Smith for the accident. Ms. Smith claims that she had never lost consciousness before and had no indication that anything was wrong on this day. What impact will Ms. Smith’s claim have on the litigation?
A. The sudden, unexpected loss of consciousness will be considered under the reasonable person standard as an issue of how a reasonable person would respond to such an event.
B. The sudden, unexpected loss of consciousness will relieve Ms. Smith of any liability.
C. The sudden, unexpected loss of consciousness is irrelevant to the litigation. Ms. Smith is liable for auto accidents that she causes.
D. Ms. Smith will be liable since reasonable people do not lose consciousness.
A is Correct. The standard of care is a reasonable person of ordinary prudence under similar circumstances. The loss of consciousness will be considered under that standard. If Ms. Smith was truly unaware of the possibility of the unconsciousness, then it would seem unlikely that a reasonable person could plan for such an event. Ms. Smith will probably not be liable.
Carol was an architect. She designed a 5 story building that would house retail shops on the first floor and office space above that. The building was beautiful and finished on time. While movers were moving some office furniture onto the fifth floor, the building collapsed. It was discovered that the load, stress calculations in the original design by Carol were not correct. She did not allow for enough weight in the upper floors. The movers have sued Carol for their personal injuries. What standard will be used to measure Carol’s duty of care?
A. Reasonable person standard.
B. The standard of an architect in good standing.
C. Whether Carol used her own best judgment.
D. To use the highest duty of care.
B is correct. A professional holds himself or herself out as having higher levels of skill and training than the ordinary person. The law will hold such professionals to that higher standard. Some courts may articulate this rule as a reasonable person who happens to be under the circumstances of being a professional. That would have suggested that answer A was a better answer. Most jurisdictions, however, would have used language closer to answer B.
Jane was driving down the street at approximately 40 miles per hour. The posted speed limit was 35 miles per hour. Another car pulled out from a side street in front of Jane and Jane’s car hit the other car. The driver of the other car, Sam, was injured. Sam wants to sue Jane for his injuries. In that litigation, the fact that Jane was exceeding the speed limit will:
A. Be irrelevant.
B. Result in Jane being automatically held at fault.
C. Result in the speed limit of 35 miles per hour being used as the duty in the negligence case.
D. Be used as the issue to determine whether Jane’s negligence was the cause of the accident.
C is correct. The existence of a regulatory statute is used as the duty in negligence cases. The courts have the authority to adopt that statute as the duty, and then leave it as a question of fact as to whether the defendant breached that duty. The application of the statute as the duty is sometimes referred to as “negligence per se.” In this case, the duty would be to drive at 35 miles per hour. Issues of statutes and causation will be discussed in some of the following questions.
Jane went to her doctor and was told she would need minor surgery. Her doctor sent her to see Dr. Sue. Dr. Sue was going to do the surgery. The surgery was done in the morning, and Jane remained in the hospital for 3 days. After that, Jane went home. Jane was supposed to report back to the doctor on a regular basis and she did so. Jane was worried about the surgery because it did not appear to heal. The surgery location remained red, swollen, and oozing fluid. After about 4 weeks, Dr. Sue suggested that maybe they ought to reopen the surgery location and take a look. Upon reopening the surgery location, Dr. Sue discovered that a surgery sponge had been left inside Jane’s body. The sponge was removed and the surgery closed. After the removal of the sponge, the surgery location healed promptly and properly. Jane would like to bring an action against Dr. Sue. Although the surgery finally healed properly, Jane wants to recover for the additional missed work and pain and suffering of the extended recovery time. In Jane’s action against Dr. Sue:
A. Jane can rely on res ipsa loquitur to prove that Dr. Sue breached the duty owed by a physician.
B. Jane will have to introduce expert testimony to prove that Dr. Sue breached the duty owed by a physician.
C. Jane can rely on res ipsa loquitur to prove that Dr. Sue caused the extended recovery time from the surgery.
D. Jane has no claim since leaving a sponge in a patient is a normal risk of surgery.
A is correct. The surgeon has exclusive custody or control of the surgery and leaving in a sponge is something that does not normally occur in the absence of negligence. This is a classic example of res ipsa loquitur. It is also one of the few examples where a plaintiff does not have to introduce expert testimony in a medical malpractice case. Leaving in a sponge is so obviously negligent that a jury does not need the expert testimony to reach a decision.
Bill was walking home from a movie theater around 10:00 p.m. one evening when he realized that he needed to use a restroom. He saw a gasoline station nearby and walked over to it. Bill noticed that the restroom was to be entered from the back of the station. Since it did not require walking into the station to enter the restroom, Bill did not say anything to the station attendant before entering the restroom. Bill did not realize that it was actually time for the attendant to close the station and lock up. While Bill was in the restroom, the attendant came around to the restroom and put a padlock on the outside of the door. The station attendant then left the scene. When Bill got ready to leave the restroom, he suddenly realized that he could not get out. He began to scream and yell for help. No one heard him. Bill had to stay in the locked restroom until 7:00 a.m. the next morning. At that time, the station attendant arrived at the station and unlocked the door. The attendant found Bill lying on the floor of the restroom. It had been very cold that evening and Bill was suffering from the effects of that cold. An ambulance had to take Bill to the hospital. Bill had to remain in the hospital for 3 days to recover. If Bill wants to sue the station and the attendant for his injuries, he could claim:
A. The intentional tort of false imprisonment.
B. Negligence for his injuries.
C. Both A and B.
D. Bill has no claim since the cold weather caused the injury.
B is Correct. Bill could claim negligence, but he could not claim the intentional tort of false imprisonment. For false imprisonment, the element of intent to confine is missing, since the attendant did not in fact know that Bill was inside. On the other hand, it appears that the attendant may have been negligent. A reasonable attendant should have at least asked if anyone was in the restroom before locking it up. Some brief check of that condition would have been sufficient. One of the elements of negligence is that the plaintiff must have suffered an injury. In this example, Bill suffered personal injury.
Sally was injured in a car accident. She went to see Jane Adams to seek legal representation. Jane Adams is a well-known plaintiff’s personal injury lawyer in the city. Jane represented Sally in the case and brought an action again Mary who was the driver of the other car. After two years of trial preparation and three weeks of trial, Sally lost her case. The jury returned a verdict for Mary. Mary had not sued Sally, so Sally did not have to pay a judgment. Sally was just upset that she did not win a big judgment. During the case, Sally had told her lawyer, Jane, about cases she had read about all over the country. Jane kept reminding Sally that Jane would have to apply local law and every case was different. In Sally’s action against Jane, which of the following is the most accurate statement?
A. Jane should have used principles from other states since national standards apply for professionals.
B. Jane would be held to a national standard of care, but had to use local state law since lawyers must use local state law for tort cases.
C. Jane would be held to a community standard in deciding the duty of care.
D. Jane would have to use national tort principles to litigate the case, but would be held to a community standard of care.
B Is Correct. Although it is usually assumed that national standards of care apply to professionals, attorneys must use the appropriate law of the case. Tort law would require the application of state law.
Carl was walking along a side walk when he was suddenly struck by a delivery truck. The delivery truck was owned and operated by Acme Delivery. The driver of the truck was the authorized driver, and he was on his regular and routine delivery route. Carl was injured, and sued Acme for the injuries. Carl testifies that he doesn’t know what happened. He was just walking along the sidewalk and was suddenly hit from the rear. Several eyewitnesses testify that the truck just seemed to suddenly jump the curb and hit Carl. The driver of the truck testifies that everything was going well when the truck just suddenly seemed to jump the curb and hit Carl.
When the case goes to trial, Acme brings their head of maintenance to the trial. The head of maintenance gives complete testimony about the usual maintenance procedures in Acme and the full records of all of the regular maintenance that had been done on the truck that was involved in the accident. Based upon that evidence, what should the judge do with the trial case?
A. Direct a verdict for Carl on the issue of breach of the duty.
B. Direct a verdict for Acme on the issue of breach of the duty since they offered evidence that no negligence had occurred.
C. Send the case to the jury on the issue of breach of the duty.
D. Decide that the case is a tie and declare a mistrial.
C is correct. The majority rule is that the doctrine of res ipsa loquitur creates a presumption of breach of the duty. In the absence of evidence to rebut the presumption, the plaintiff is entitled to a directed verdict on the issue. If the defendant offers rebuttal evidence, however, then the presumptions disappears. The evidence, however, will go to the jury and allow the jury to decide the issue of breach.
Sandy, age 40, was feeling poorly and went to the doctor. Her doctor, Dr. Pam, did a complete physical. Dr. Pam then informed Sandy that she had a rare disease that would require one of two treatments. Sandy could take medication “A” that was very strong, but would only require taking it for 10 days. In the alternative, Sandy could take medication “B” which was not as strong and had to be taken for 30 days. Sandy asked if there were any other differences. Dr. Pam that the prices were about the same and health insurance would pay for both. The stronger medication could cause some upset stomach, but there were no other differences. Sandy took the stronger medication for 10 days, had a little upset stomach, but was completely healed by the medication. A year later, Sandy returned to Dr. Pam with another issue. Sandy informed Dr. Pam that Sandy was trying to get pregnant and it didn’t seem to be happening. It seems that Sandy didn’t have any children, had gotten married at age 38, and now she and her husband wanted children. Dr. Pam said, “Oh. I know why you can’t get pregnant. That medication “A” you took last year causes women to be sterile. Medication “B” would not have caused that problem, but I didn’t think that was important. I just assumed that since you were 40 years old that you wouldn’t want to get pregnant.” Sandy wants to sue Dr. Pam for not being able to have children. Which of the following seems most accurate?
A. Sandy can recover from Dr. Pam for battery since the consent to take medication “A” was not fully informed.
B. Sandy cannot recover from Dr. Pam since the medication “A” cured Sandy’s illness.
C. Sandy can recover from Dr. Pam for negligence since the consent to take medication “A” was not fully informed.
D. Sandy cannot recover from Dr. Pam since pregnancy or sterility is too remote of a cause.
C is correct. Sandy can sue for the negligence tort of informed consent. Before a patient consents to a treatment, the physician must inform the patient of the treatment, the risks, and the alternatives. In this case, the physician did not inform the patient of the risks.