Breach of Duty in Negligence

Question 1

Breach in General

Answer 1

When the defendant’s conduct falls short of the level required by the applicable standard, the defendant has breached their duty.

The plaintiff may use the following to show a breach of duty:
1) custom or usage
2) violation of statute
3) res ipsa loquitur

ESSAY NOTE - “plaintiff will allege the breach was…” “the plaintiff will allege that this was unreasonable because” (identify breach and tell why it was a breach)

Question 2

Custom or Usage (Breach)

Answer 2

When the standard is the reasonably prudent person, evidence of custom or usage may be used to establish how a reasonable person would have behaved under the circumstances

However, this evidence is not conclusive (trier of fact determination)

Question 3

Violation of Statute

Answer 3

Where the duty of care is set by a statute (negligence per se), proof of violation of the statute establishes a CONCLUSIVE PRESUMPTION of duty and breach

Question 4

Res Ipsa Loquitur

Answer 4

In some cases, the very occurrence of an event may tend to establish a breach of a duty. The doctrine of res ipsa loquitur requires the plaintiff show:

1) the accident causing the injury is a type that would not normally occur unless someone was negligent; and

2) the negligence is probably attributable to the defendant

Attribution can be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant

Question 5

GA Res Ipsa Loquitur

Answer 5

It may be used only in ordinary negligence cases.

It may not be used to establish a breach of duty in a medical malpractice case - it is presumed that medical or surgical services were performed in an ordinary and skillful manner.

Question 6

Effect of Res Ipsa Loquitur

Answer 6

Where res ipsa is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant. The plaintiff may still lose, however, if the inference of negligence is rejected by the trier of fact.

NOTE - a plaintiff’s motion for directed verdict after establishing res ipsa must always be denied because the determination is for the trier of fact