3 (1) Duty & (2) Breach : Standard of Care Majority View: The standard is defined by customary or accepted practices set by the profession at the time of the alleged tortious conduct. It is not based on what “should have been done.” Growing Minority View: The standard is one of reasonable care determined by comparing a professional’s conduct with the conduct of others who are similarly situated and have similar professional training. An accepted practice may not require keeping up with advances in medical science. 4 Geographic Scope: Locality Rule: What do others in the defendant’s community do? There are inherent problems of proof with this rule. Modified Locality Rule: What do others in similar communities do? Comparisons may be difficult. National Standard: The jury may consider advances made in the profession, the availability of facilities, and whether the defendant is a specialist or a general practitioner. Expert Testimony: generally required to determine standard of care regardless of which is used EXCEPTION: Where gross lack of care, noncomplex matters of diagnosis or custodial/routine hospital care, * expert testimony not needed (3) Causation
“but for test” negligent conduct would the outcome of be different INFORMED CONSENT AS A DEFENSE Reasonable physician test: necessary info. Professional typically give to a certain patient in a certain situation Reasonable prudent patient standard (objective): what a reasonable patient in a similar situation would want to know *Judgmental Immunity: protects against liability on use of reasonable judgment on unsettled issues VI. Premise liability A. Trespasser: one who enters O’s property w/o permission/privilege (1) duty- O must refrain from willful, wanton/reckless conduct Modern Rule - duty: reasonable person under totality of circumstances standard EXCEPTION: Trespassers who enter to commit a crime, the duty is limited to refrain from intentionally injuring P Discovered/Anticipated Trespassers: Duty: exercise reasonable care in active operations & to warn of known dangers that are unlikely to be discovered by T public policy- you know you should warn B. Attractive Nuisance (Infant Trespasser) Duty: to exercise reasonable care to avoid foreseeable risk of harm to children caused by artificial conditions on property (1) can the child fully appreciate the risk? (2) is the risk to child outweighed by utility of condition & burdening of eliminating danger C. Licensee One who enters O’s property w/either expressed/implied permission for own benefit rather than O’s. *under majority rule- a social guest is an licensee (1) duty: must use reasonable care to warn or make reasonably safe dangerous conditions known to O but not licensee D. Invitee (greatest degree of responsibility) One who enters O’s property in response to an express/implied invitation of O. Usually to the mutual advantage of both parties but always O.
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- Spring '08
- Tort Law, assault, volitional act, harmful/offensive contact