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Torts 1L Mod 13-14

Torts 1L Mod 13-14 Rules statements and elements

The Restatement definition of contributory negligence Plaintiff's conduct which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm.
Last Clear Chance Doctrine Instructs the court to ignore the plaintiff's contributory negligence if the defendant's negligence occurred after the plaintiff's contributory negligence.
Definition of comparative negligence Plain.'s conduct that is below the standard of conduct that he should conform to for his own protection that is a legal contributing cause cooperating with the neg. of the def. in bringing about the plain.'s harm is a partial bar to the plain's recovery.
Pure Comparative Negligence Under this approach, plaintiffs can recover some percentage from liable defendants regardless of the extent of their own negligence. Used by 12 states.
Modified Comparative Negligence Under the modified system, plaintiffs are allowed a partial recovery just as in pure comparative negligence, until the plaintiff reaches a certain level of culpability for her own accident.
Greater than 50 Percent Approach Under this modified form of comparative negligence, a plaintiff is barred from recovery only when she is more negligent (greater than 50 % at fault) than the defendants.
50 Percent or Greater Approach Under this modified form of comparative negligence, a plaintiff is barred from recovery when she is equal to or more than negligent (greater than or equal to 50% at fault) than the defendants.
"Slight" Comparative Negligence Only South Dakota, uses comparative negligence only when the plaintiff's own negligence is considered to be slight. Otherwise the plaintiff's negligence is a complete bar.
C. Determining the Percentage of Fault Attributable to the Plaintiff The court determines the percentages of fault of the plaintiff and the defendant under comparative negligence. The court looks at it as a question of fact. The trier of fact selects a percentage based on its own appraisal of relative fault.
A. Allocations of Liability Among Joint Tortfeasors Each liable defendant pays a pro rata share of the damages based upon the overall number of joint tortfeasors.
A satisfaction Results in receipt of full compensation for an injury and extinguishes the claim against all potential tortfeasors.
A release Is a surrender of the plaintiff's claim against one or more of the tortfeasors.
indemnification Total reimbursement
Medical Malpractice The standard of care is set by custom, and the determination of breach of duty arises from the defendant doctor's failure to act with the minimal competence exercised by other doctors in good standing.
In a medical malpractice suit plaintiff must show: he physician fell below the applicable standard of care, which requires proof that the defendant physician deviated from the customary practice.
Informed consent as it relates to medical malpractice A second basis for medical malpractice liability is predicated upon a physician's failure to provide information to the patient.
Informed consent battery A battery action often has a shorter statute of limitations than negligence, elevates the possibility that the physician will be liable for punitive damages, and usually renders the defendant's medical malpractice coverage inapplicable.
Informed consent negligence Typical negligence-based informed consent case occurs where an undisclosed complication with a medical procedure or treatment arises. jurisdictions treat this as part of medical malpractice, using the "physician rule".
The Physician Rule Informed consent cases are treated like other medical malpractice actions. 3) A plaintiff must show that the customary practice of doctors in good standing in the relevant community is to disclose that risk.
The Patient Rule A physician is obligated to disclose to a patient all material risks involved in a given procedure or treatment. the plaintiff can usually prevail without expert testimony, because laypersons largely are able to determine what is material.
Attorney Malpractice Attorney-client relationship establishes duty,the custom of the profession sets the standard of care, and breach of duty is shown by the attorney's failure to meet that standard of care.
Assumption of Risk Restatement Definition P. knows of a risk of harm to himself or his things caused by the D's conduct or the D's land, chattel who voluntarily chooses to enter, remain, or permit his things to be within the area of the risk, and shows a willingness to accept cannot recover
Elements of assumption of risk Knowledge of a particular risk, voluntarily exposes themselves to the risk, assumes the risk
Express assumption of risk exists when, by contract or otherwise, a plaintiff explicitly agrees to accept a risk. Is a complete defense to the specific risks the plaintiff has agreed to assume.
Implied assumption of risk exists when the plaintiff's voluntary exposure to risk is derived merely from her behavior, and not from explicit assent. Is a partial defense because of being absorbed into comparative negligence.
Created by: Rochelle28nm