level of care that a reasonably prudent person would exercise under similar circumstances

(high standard -- more prudent than most people)

superior skill or knowledge taken into account AND relevant physical attributes

that of a hypothetical child of similar age, experience, intelligence, acting under similar circumstances

(more subjective and flexible)

*does not apply if child is engaging in an adult activity 

must exercise skill and knowledge normally possessed by members of that profession in good standing in similar communities (custom)

-uses expert witnesses

-New york has locality rule (difference in practice between small time and big city doctors) 

Duty to disclose risks of a recommended medical procedure and only to go forward if patient agrees

exceptions:

-commonly known risk

-patient declines info

-patient incompetant

-disclosure would be too harmful to patient

no duty of care

(unforseeable victim)

Duty of care for Discovered/Anticipated/Known trespasser

possessor knows or should have known trespassor is on land (trespassing in past is a sign)

Must protect from hazards that are:

-artificial 

-highly dangerous

-concealed from trespasser

-possessor knew of in advance

Duty of care to licensee (enters with permission but does not confer commercial benefit on possessor)

-SOCIAL GUESTS

must protect from conditions that are:

Duty of care to invitees 

(persons who enter land with permission and confer economic benefit on possessor or land is open to public at large)

must protect from conditions that are

concealed from invitee

possessor knew about in advance OR could have discovered through reasonable investigation

*knows or should know about 

all premises are litigated under reasonably prudent person standard of care (under the circumstances)

what kind of entrant is only relevant in terms of figuring out what kind of circumstances you are dealing with

-need earlier standard (did not act reasonably, violated statute, premesis liability)

-leaves plaintiff UPSET 

-physical manifestation of distress (heart attack, miscarriage, etc.)

-plaintiff points to requirement of criminal statute and asks court to adopt highly specific standard

-judge will do this when P is member of class statute is seeking to protect and P demonstrates that class of accident is in class or risks statute meant to prevent 

*automobile accidents

Doctrine used by plaintiffs who lack information about what the defendant did wrong to show BREACH

-accident is of type normally associated with negligence

-accident is type normally due to carelessness of someone in defendant's position

Factual

Proximate Cause

Actual link between breach and injury suffered

BUT FOR: but for the breach, plaintiff would be uninjured today

Multiple defendants and merged causes: i.e. each breach releases destructive force (ex: fire)

*but for does not work so you use SUBSTANTIAL FACTOR TEST

Unascertainable cause (think quail hunting, two bullets, one injury): preponderance of evidence (more likely than not)

TEST: forseeability

two types: direct (continuous sequence - forseeable)

indirect (more events occur in middle of story) - defendant liable if:

-involves intervening medical negligence

-intervening negligent rescue

-subsequent disease or accident

New York Rule for receiving monies from other source

DAMAGES

If plaintiff receives monies from other sources (like insurance) it gets DEDUCTED from judgment

NOT COMMON LAW OR MAJORITY RULE!!!!

 Preliminary Injunction Requirements

EQUITABLE REMEDY!

-likelihood of success on the merits

-irreperable harm if not granted

-balance tips extremely in favor of plaintiff

1. win your case

2. no adequate remedy at law (money damages will not appropriately comprensate because D has no money, harm is difficult to measure monetarily, or tortious behavior is continuous)

3. tort committed must invade property right or protected (i.e. bodily) interest

4. Injunction must be enforceable

5. Balance of hardships tips in favor of plaintiff

-unclean hands (plaintiff is also guilty of misconduct)

-laches (prejudicial delay, P waited too long to bring suit for injunction)

-first amenent (no prior restraint)