2. Negligence (Breach) Flashcards
What is breach?
D’s conduct falls short of level required by applicable standard of care owed to P
- Trier of fact
By preponderance of evidence
How may custom/usage determine negligence?
Establishes standard of care
NOT establish breach (NOT conclusive)
How may statutory law determine standard of care?
1) P is in protected class of persons
2) Particular harm to be avoided
3) Statute provides criminal penalties
=> Negligence per se;
- Conclusive presumption of duty + breach (must prove causation + damages) (majority view)
- Rebuttable presumption of duty + breach (minority view)
What is res ipsa loquitor?
Very occurrence of event may tend to establish breach of duty
What is required for res ipsa loquitor to determine breach?
1) Inference of negligence: P must establish that accident causing his injury is of type that would not normally occur unless someone was negligent
2) Negligence is attributable to D based on ‘lack’ of direct evidence of D’s action causing injury
- Modern law: D is more likely than not to be negligent
- Common law: D had exclusive control of instrument causing P’s injury
3) P’s lack of ‘voluntary’ contribution towards P’s injury
=> Establishes prima facie case => Directed verdict for Plaintiff/Defendant
How may motion for directed verdict on res ipsa loquitor be determined?
By Plaintiff
- Granted: Negligence per se proven (violation of statute) + NO proximate causation issues
- Denied: Generally
By Defendant
- Granted: NO res ipsa loquitor proven + NO evidence of breach
- Denied: Res ipsa loquitor/other evidence of breach shown