Breach

Question 1

Types of Evidence

Answer 1

1. Documentary
2. Direct
3. Circumstantial

Question 2

Custom(non-professionals)

Answer 2

Scope & Frequency same for professional

NOT Dispositive

Example: may use liberally
the custom for this industry was … and she deviated from it significantly

Question 3

Negligence Per Se

Answer 3

Someone broke the law

Requirements:
1. It was a safety statute
2. Class of protected people
3. Type of interest (leg. bodily integrity; property; emotional well-being; economic status)
4. Type of harm (leg. traumatic impact)
5. Type of Hazard (peril leg. wants to prevent; collisions on the highway)

Modifications
1. Accommodations (age)
2. Attempting to comply
3. Neither know or should know of the condition that triggered the statute
4. Too confusing
5. Reasonable non-compliance (compliance is more dangerous; compliance has a greater chance of physical harm)

Question 4

Res Ipsa Loquitur

Answer 4

1. Accident would not have happened without negligence
2. D has control over the instrument
3. SOME JUR. + P did not voluntarily contribute to accident (this is not contributory negligence)

Burden of production/persuasion
i) Inference: PP (stays w/ Ptf) - gets P to the jury
ii) Weak Presumption: Production –> D (D must produce evidence on Q of breach or lose the case)
iii) Strong Presumption: Production and Persuasion –> D (D must produce and persuade. If evidence on Q is balanced, D must persuade or will LOOSE)

Question 5

Notice Doctrine

Answer 5

Actual notice - Direct knowledge

Constructive notice - knowledge received through facts and circumstances

Question 6

Hand Formula

Answer 6

B < P*L

B = marginal cost
P = possibility of accident
L = magnitude of harm

If B is less than P*L, NEGLIGENCE
- It is cheaper to take the precautions

If B is more than P*L, NO NEG
- It is cheaper to have the accident