Breach

Question 1

What is breach based on for “reasonable standard of care”?

Answer 1

Cost-benefit analysis, when the marginal costs are less than the cost of the harm (breached)
Applying the concept of the Hand Formula as well as general societal, emotional, value costs with the losses attributed to negligent behavior
Key Questions
Is this a net benefit?
Would it cost more to prevent negligent behavior?
Community norms, NOT custom as it is based off of societal expectations of what you should do in each situation
There is no established minority or majority, but general expectations for what society how society would want you to act in order to limit negligence and harm

Question 2

What are the three types of evidence that can be used to prove a breach of duty from
most->least convincing
least->most common

Answer 2

Documentary/real->Direct->Circumstantial

Question 3

What is Documentary/Real Evidence?

Answer 3

Most convincing, least common
physical objects, videotapes, photographs

Question 4

What is Direct Evidence?

Answer 4

somewhat convincing, somewhat common
eyewitness testimony, documents

Question 5

What is Circumstantial Evidence?

Answer 5

most common, least convincing
actual and constructive notice
res ipsa loquitur
custom
negligence per se

Question 6

What is active notice?

Answer 6

Defendant was directly warned of the fault or issue and did not address it leading to negligence and liability

Question 7

What is constructive notice?

Answer 7

Non-direct evidence that points to the fact that the defendant should have been aware and fixed the issue.

Question 8

What is the “Business Practice”/”Mode of Operation” Rule?

Answer 8

No need to establish actual or constructive notice when the business practice of the store provided a continuous and foreseeable risk of harm to customers. (if it is a self-service)
The store has a duty to take reasonable steps to reduce the risks that inhere in the use of a self-service operation.

Question 9

What is the purpose of custom (non professionals)

Answer 9

Establish whether the defendant had succeeded or failed to do what is custimarily done to label as negligent ot not
If a practice is customary, then the defendant could easily learn about it but also implement it

Question 10

What are the elements of Custom? (Non professional)

Answer 10

Scope: is it one that is in the same calling or profession as the defendant?
Frequency: How common is the practice? Does it constitute a substantial minority?

Question 11

Is custom dispositive? (non professional)

Answer 11

Rest (3d) § 13
Not dispositive but is relevant evidence to determine whether standard of reasonable care was met
Why not?
Because custom can lag behind new developments and information access costs may leave defendants unaware
compliance is not a guarantee of reasonable care

Question 12

What is the standard of care (Nature) for Negligence Per Se?

Answer 12

An existing statute may establish the standard of reasonable care in which case the statutory standard imposed by the statute will replace the general common law standard of reasonable care.
Note: they can be adjusted/disregarded for safety or other reasons justifying the violation

Question 13

What are the exceptions to Negligence Per Se (when statutory standard of care does not apply)?

Answer 13

Generally:
Compliance is more dangerous than non-compliance
Compliance is impossible under the circumstances
Specific Restatement Section 15:
Reasonable in light of the actor’s childhood, physical disability, or incapacitation
Reasonable in attempting to comply
Neither knows nor should know of the factual circumstances that render the statute applicable
Violation is due to confusing way requirements are presented
Compliance poses a greater risk of physical harm than noncompliance

Question 14

What are the elements of res ipsa loquitor?

Answer 14

This is the kind of accidet that typically does not occur in the absence of negligence and the instrumentality that caused harm was in the defendant’s exclusive control.
Some states use a three-part test;
1. Is this kind of accident that typically does not occur in the absence of negligence
2. The instrumentality that caused the harm was in the D’s exclusive control
3. The plaintiff did not voluntarily contribute to the accident. (the plaintiff did not have access to the instrumentality)

Question 15

What is the evidentiary effect of Res Ipsa Loquitur?

Answer 15

Rest (3d) § 17: Factfinder may infer the defendant has been negligent but jurisdictions will have different approaches to inferring negligence.
Burden of Production: Establish the facts of the case for which jury will decide on (no evidence = auto loss)
Burden of Persuasion: Carry the weigh of convincing the jury of their position. Must be more than likley they are negligent or not in the suit. If it falls on the defendant, it must be overwhelming in their favor for non-negligence
the evidentiary effect of res ipsa loquitur varies from jurisdiction to jurisdiction
New York, res ipsa loquitur gives rise to an inference.
California, res ipsa loquitur gives rise to a weak presumption.
Louisiana, res ipsa loquitur gives rise to a strong presumption.
Inference: Neither the burden of production nor the burden of persuasion shifts. Res ipsa loquitur merely gets the plaintiff to the jury.
Weak Presumption: The burden of production shifts to the defendant, but the burden of persuasion remains on the plaintiff.
Strong Presumption: Both the burden of production and the burden of persuasion shift to the defendant.

Question 16

What are the policy reasons for allowing a plaintiff to invoke res ipsa loquitur?

Answer 16

Deterrence: Prevents defendants from witholding evidence as the doctrine shifts the focus to the probabilities of negligence inherent in the event
Compensation: ensures that P can get recovery even without access to to direct evidence
Moral Fairness: It allows the P to be made whole again when the D commited a neligent act whether there was direct evidence or not.

Question 17

Should the plaintiff be allowed to rely on res ipsa loquitur when specific evidence of negligence is available?

Answer 17

yes but you use it when you cant establish a prima facie case and you are missing the evidence since the defendant has the rest.
Do not have to choose between them as their evidence is not enough for a prima facie case and the defendant has the rest of the necessary evidence. They can bring forth what they have but use res ipsa to obtain the rest.

Question 18

What are Wigmore v. Prosser’s view on Res Ipsa?

Answer 18

Wigmore: to be used only as an information-generating device
Posser: even without evidence possible but for outcome-dispositive goals, it is a better option as most of the time it is due to negligence so this creates more “fair” “correct” outcomes than not

Question 19

How can Res Ipsa Loquitur effect medical malpractice? Include Examples

Answer 19

Patients are often left in the dark during surgery so they can rely on res ipsa to fill in the gaps of evidence for medical malpractice suits
Conspiracy of Silence: doctors and nurses are treated as a team so any liability goes to all if they do not speak up
Exclusive Control: all members of the team echibit exclusive control as they all understanf the procedure and are aware of what should be the care taken and where operation should occur
Missing Defendant: For res ipsa, there cannot be any missing defendants in the suit of a team as then there would be no way of spreading liability on all parties. Every defendant must be included to have a viable suit.
Texas Limitations allowed cases: misusing mechanical instrument, operating on the wring part of the body, leaving instruments or sponges inside the body