Topic 2: Duty of Care (General & Special)

True or false: A general duty of care is owed to all foreseeable plaintiffs.

True

What is foreseeability?

Probability that the harm will occur.
In light of all circumstances, did the actor exercise reasonable care and diligence to guard against the danger?

List all ways duty is established and the Restatement sections.

§38-§44: PRACTIVE-FR

P – Peril created by defendant
R – Rendering services
A – Assuming custody of another
C – Creating risk of physical harm
T – "The Special Relationship" (Therapist/parent/employer)
I – Invitee–invitor / Licensee–licensor
V – Violation of statute (negligence per se)
E – Endangered zone (zone/bubble of danger)
F – Failure to stop dangerous people you have a relationship with (e.g. plumbing company knows plumber has assault history. Plumber assaults customer; employer is liable).

R - Rowland factors (if not through above)

What are the Rowland factors?

Creates a Duty (special relationship) that otherwise did not exist. Goal is fairness.

C – Certainty that P suffered injury because of D's actions/inactions
A – Availability of insurance
M – Moral blame for D's conduct
P – Preventing future harm
C – Connection between D’s conduct and injury
B – Burden on D for imposing the duty
F – Foreseeability of harm

True or false: Duty can spread to third parties (e.g. negligence towards husband can impact wife).

True

True or false: If the actor causes additional harm but acts in good faith, “insert blank Statutes” stop liability.

Good Samaritan

What is informed consent?

Need to disclose material information that could result in person not consenting (e.g. doctor failing to inform patient of risky procedure)

What’s the reasonableness standard for informed consent?

What would a reasonable person need to know?

What is informed consent used for?

Generally medical malpractice, but all professional standards

There is no informed consent. What is the doctor liable for?

Negligence