Breach

Question 1

When does D breach?

Answer 1

When conduct falls below req’d standard of care.

Question 2

Who decides breach - judge or jury?

Answer 2

Issue of fact for jury.

Question 3

What are 3 theories P can use to show breach?

Answer 3

1. custom or usage: may show evidence of how others behave to prove what “reasonable prudence” is. BUT this is NOT conclusive.
2. violation of statute: negligence per se, breach of statute = conclusive proof of breach
3. res ipsa loquitur: idea here is that very occurrence of the event establishes breach, to do this P must show:
   
   • accident causing the injury is a type that would not normally occur unless someone was negligent
   • negligence is probably attributable to D (e.g. instrument in D control)

Question 4

What is legal effect of est. breach by res ipsa loquitur?

Answer 4

P has made prima facie case, NO directed verdict on the issue is allowed.

Jury still has power to reject P’s argument.