Breach of Duty in Negligence

Question 1

Breach of Duty

Answer 1

• When the D’s conduct falls short of the applicable SOC owed to P, the D has breached their duty.
• Whether the duty of care is breached in an individual case is a question for the trier of fact.

Question 2

Theories to Show Proof of the Breach

Answer 2

(1) Custom/Usage
(2) Violation of Statute
(3) Res Ipsa Loquitur

Question 3

Custom/Usage

Answer 3

• When SOC is “reasonable prudence,” evidence of the custom/usage of others may be used to establish how a reasonable person should have behaved under the circumstance.
• However, this evidence is not conclusive on the question of whether certain conduct amounted to negligence.
• Ex, although certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.

Question 4

Violation of Statute

Answer 4

• Where the duty of care is set by a statute, proof of violation of the statute is conclusive evidence of BOD
• This is known as “negligence per se.”
• Causation & damages must still be established by P.

Question 5

Res Ipsa Loquitur

Answer 5

• The very occurrence of an event may tend to establish BOD.
• The doctrine of res ipsa loquitur requires the P to show that:
  (1) The accident causing the injury is a type that would not normally occur unless someone was negligent
  (2) The negligence is probably attributable to the D (meaning this type of accident ordinarily happens because of the negligence of someone in D’s position)
• This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the D.

Question 6

Effect of Res Ipsa Loquitur

Answer 6

• Where res ipsa loquitur is established, the P has made a prima facie case and no directed verdict may be given for D.
• P can still lose, however, if the inference
  of negligence is rejected by the trier of fact.
• Occasionally, P may also move for a directed verdict.
• P’s motion should always be denied except in the rare case where P has established negligence per se through violation of an applicable statute and there are no issues of proximate cause.

Question 7

RIL: Tip

Answer 7

• Questions testing on res ipsa loquitur often have D making a motion for a directed verdict.
• These questions don’t require you to memorize rules of civil procedure—all you need to remember is the following:
• Deny D’s motion for directed verdict if the P has established RIL/presented some other evidence of BOD (such as D’s violation of a statute)
• Grant the D’s motion if P has failed
  to establish RIL & failed to present some other evidence of BOD