2. Negligence (Breach)

Question 1

What is breach?

Answer 1

D’s conduct falls short of level required by applicable standard of care owed to P
- Trier of fact

By preponderance of evidence

Question 2

How may custom/usage determine negligence?

Answer 2

Establishes standard of care

NOT establish breach (NOT conclusive)

Question 3

How may statutory law determine standard of care?

Answer 3

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)

Question 4

What is res ipsa loquitor?

Answer 4

Very occurrence of event may tend to establish breach of duty

Question 5

What is required for res ipsa loquitor to determine breach?

Answer 5

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

Question 6

How may motion for directed verdict on res ipsa loquitor be determined?

Answer 6

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