Foreseeability:

The risk must be foreseeable

AC/SC:

Where AC are greater than SC the precautions should have been taken against the accident occurring (negligence).  Where the SC are greater than the AC it is more efficient to allow the accident to occur (no negligence).

-Identify potential AC and SC

-What are the relative costs of AC/SC

Reasonable Person:

What would a reasonable person do under similar circumstances.  Reasonable Person must generally be individualized to the particular plaintiff.

You should individualize for:

-Physical attributes (blindness)

-Emergency situations (what would a RP do in that situation)

-Experts (what would a reasonable physician do)

-Children (what would a reasonable 9 year old do)

You should not individualize for:

-Children engaged in adult activities (boats)

-Mental Illness (Possible exception if it is sudden onset)

Notice of Safety Risk or Safety Measure--Actual Notice, Constructive Notice, Self Service Stores

Custom--If there is a custom to undertake a certain practice and it is not done the assumption is that the risk of not taking that action is foreseeable.  Relevant to prove negligence but not conclusive.

Safety Statute?-- Does the statute set a standard with the purpose of protecting a victim like the plaintiff from the type of injury that occured?

Res Ipsa Loquitur--Elements of Res Ipsa: 1) The accident could not have happened in the absence of negligence by the D, 2) Whatever caused the accident was in the exclusive control of the D, 3) The P was in no way a cause of the accident (no contributory negligence)

Actual Notice

Constructive Notice (should have been aware)

Self-Service Stores (if you choose that as your business practice you assume the liability that results from 3rd parties handling merchandise)

-P must prove that the defect had been around long enough for constructive notice to take effect

-Burden may shift to D to prove that there were policies in place to prevent those types of accidents and that they were followed

Custom-A safety measure with the purpose of preventing the type of injury suffered by the P

General Rule: 

Relevant but not conclusive (Med. Mal. Exception)

Provides some proof of the foreseeability of the accident

Provides some basis for calculating AC/SC

What percentage of adoption constitutes a custom?

Even the adoption of a safety measure by one other member of the industry can show foreseeability

Can be relevant to show a breach when violated, no breach when complied with, or contributory negligence when P violated it.

Test for Relevance: Is the statute intended to protect victims like the plaintiff from accidents like the one that happened?

DV against violator (D or P w/ contrib.) if violator does not provide evidence of a "good" reason for the breach

Jury issue if violator presents a "good" reason for the violation

Two types of "good" reasons:

-Excuse--there was no way to prevent the violation

-Justification--violation was done to avoid substantially greater harm

Generally admissible but not conclusive

Preemption is conclusive

Some Jurisdictions do not use Res Ipsa Loquitur

3 Part Test for Res Ipsa Loquitur:

1) The accident would not have occurred without negligence from D

2) The accident was caused by an instrument entirely under the D's control

3) There was no causal action by the P

J/S over which rule applies:

--P has the burden of going forward

--If P satisfies the burden of going forward and the burden of going forward shifts to the D to show a lack of negligence (only the D knows what really happened)

--P satisfied the burden of going forward and burden of going forward and burden of persuasion to show a lack of negligence shift to the D

1) Diagnosis/Choice of Procedure/Implementation of Procedure

2) Consent

Custom

-Used in most states

-Conclusive

-If two schools of though are customary the Dr. may choose either

Reasonable Doctor

-Custom is simply evidence of what a reasonable Dr. would do

Physician Oriented 

-Custom

-Reasonable Dr.

Patient Oriented

-Generally as reasonable person test

-Dr. must disclose material risks that a reasonable patient would take into account in deciding whether or not to consent to a treatment

-This is an objective standard (not based upon P's testimony)

1) Advising on a particular method would hurt the P patient

2) Patient is incapable of giving consent (unconscious)

3) Emergency Room Situations (Time Sensitive)

4) Risk is known to the patient or is very obvious

5) Dr. is not aware of the risk

6) Inexperienced Doc's do not have to reveal that this is the first time they have performed a procedure

Proof of Medical Malpractice

Experts

Unless a layperson would have enough knowledge to judge, an expert is necessary to show standard of care, breach of standard, and causation

Cases where layperson could identify negligence include

-leaving a sponge in the cavity

-amputating the wrong leg

General Rule:

Must be qualified by knowledge, skill, experience, training, or education

Other Rules:

-Expert must have a clinical practice in field of medicine at issue

-Expert must devote at least 50% of his professional time to the clinical practice within the same profession as the D

Where an expert is in doubt a Motion at Limine is appropriate to have that evidence thrown out.

General Rule:

Res Ipsa can apply in obvious cases where a layperson can recognize negligence without the aid of an expert

J/S:

-Allow Res Ipsa and permit an expert to bridge the gap between expertise and common knowledge

-Do not allow Res Ipsa and require the P to rely only on expert opinion