Breach of Duty in Negligence

Question 1

Possible Theories to Show Proof of Breach

Answer 1

• custom or usage
• violation of a statute (negligence per se)
• res ipsa loquitur

Question 1

Breach - Overall

Answer 1

• def breaches duty when conduct falls short of the level required by applicable standard of care
• whether the duty is breached is a q for trier of fact

Question 2

Custom or Usage

Answer 2

• when standard = reasonable prudence, ev of custom or usage of others may be used to establish how a reasonable person should behave under the circumstances
• HOWEVER not conclusive on q of negligence (entire industry could be acting negligently)

Question 3

Res Ipsa Loquitur - Concept

Answer 3

• very occurrence of an event may tend to establish a breach of duty

Question 4

Res Ipsa Loquitur - Elements

Answer 4

Requires pl to show:
- accident causing the injury is a type that would not normally occur unless someone was negligent
- negligence is probably attributable to def (this type of accident ordinarily happens b/c of negligence of someone in def’s position)
-> can often be shown by evidence that the instrumentality causing the injury was in exclusive control of def

Question 5

Effect of Res Ipsa Loquitur

Answer 5

• where established, pl has made a prima facie case + no directed verdict may be granted for def
• pl can still lose if inference of negligence is rejected by trier of fact

Question 6

Q’s Testing Res Ipsa Loquitur

Answer 6

Usually have def making motion for directed verdict -> court should:
- deny def’s motion if pl has established res ipsa loquitur or presented some other ev of breach
- grant def’s motion if pl has failed to establish res ipsa loquitur + failed to present some other ev of breach
- if pl moving for directed verdict, deny except rare case where pl established negligence per se through violation of applicable statute AND there are no issues of proximate cause