Breach of Duty

Question 1

What is breach of duty?

Answer 1

Conduct which falls below the standard of care but unlike a reasonable person, D failed to take precautions to minimize foreseeable risks associated with D’s conduct.

Question 2

Two formulas for was the risk foreseeable?

Answer 2

1) Risk v. Utility Analysis
2) Judge Hand’s Formula
B<PxL
B = Cost of preventing harm
P = Probability of harm
L= Cost of the harm

Question 3

Who is a reasonable person?

Answer 3

1) recognizes risks that are foreseeable consequences of his or her conduct
2) Takes precautions to minimize those risks.

Question 4

Using defendants own rules to assist P’s breach of duty claim:

Answer 4

Internal rules and general customs are not standards but both are evidence the jury may consider when evaluating actors conduct.

Question 5

Using custom as a sword to assist evaluation:

Answer 5

P can introduce evidence of custom as the standard of care to prove that D’s standard of care fell below what is allowed.

Question 6

Using custom as a shield to defend the defendant:

Answer 6

Custom cannot be used to prove that there was no negligence, but it cannot hurt the case to use custom to prove you were doing the industry standard.

Question 7

Using Res Ipsa to prove Breach of Duty

Answer 7

Circumstantial evidence to proof breach of duty when specific conduct cannot be found.

Question 8

Elements of Res Ipsa to prove Breach of duty

Answer 8

1) Event is of a kind which ordinarily does not occur in the absence of negligence;
2) Other possible causes, including P’s conduct, are eliminated by the evidence;
3) The indicated negligence was within the scope of d’s duty to the P.