Breach

Question 1

Who decides breach?

Answer 1

Usually the jury

Question 2

What is the Hand Formula?

Answer 2

If the burden of an adequate precaution is less than the probability that the harm will occur and the magnitude of the harm –> you have to do it or it’s breach

Question 3

What does the third restatement say about customs?

Answer 3

They can help you figure out if there’s been breach, but aren’t the deciding factor

Question 4

What can be used as evidence of breach (but don’t decide it)?

Answer 4

Customs, internal policies, employee handbooks, compliance with a statute

Question 5

What are the elements of res ipsa?

Answer 5

1. Event does not ordinarily occur in the absence of negligence
2. Other potential causes have been ruled out
3. Defendant was in exclusive control of the instrumentality or
4. Is it more probable than not that the defendant caused it – Third Restatement

Question 6

Res ipsa for groups?

Answer 6

Not unless you can establish that they had shared control of the instrumentality

Question 7

What is negligence per se?

Answer 7

Negligence per se can establish breach

Question 8

Who decides if there has been negligence per se?

Answer 8

Judge

Question 9

What is the majority rule for negligence per se?

Answer 9

Violation of a statute = breach

Question 10

What’s the trick for determining if negligence per se will apply?

Answer 10

Ask did the violation of the statute increase the risk of what happened?

• Was it the type of harm the statute sought to prevent?
• Was it the type of person the statute sought to protect?
• Did it set forth a specific standard of conduct?

Question 11

What are the restatement second excuses for violating a statute?

Answer 11

1. Lack of capacity
2. Doesn’t know/ shouldn’t have known about it
3. Tried to comply but unable to
4. Emergency
5. Compliance would be more dangerous

Question 12

What are the restatement third excuses for violating a statute?

Answer 12

1. Lack of capacity
2. Tried to comply and couldn’t
3. Doesn’t know/ shouldn’t have known about it
4. Statute is confusing
5. Would be more dangerous to comply

Question 13

Generally, what are the excuses for violating a statute?

Answer 13

1. Compliance would be more dangerous
2. Compliance is beyond your control
3. Lack of capacity

Question 14

What is preemption?

Answer 14

Feds set the standard, and then anything in compliance is not negligence (train speed limits). Fairly rare, Congress has to be specific.