Breach of Duty in Negligence Flashcards
When does a breach of duty occur in Negligence?
When D’s conduct falls short of required level of applicable standard of care.
How does custom or usage in an industry effect negligence breach analysis?
If SOC is reasonable prudence, evidence of custom or usage of industry may established reasonable person standard.
BUT
If a defendant conforms their behavior to custom or usage in an industry, are they safe from breach?
No– not conclusively. Certain behavior may be customary, but a court could find that the whole industry is negligent.
What is negligence per SE?
When a duty of care is set by statute under rules that govern using statutes in Negligence litigation, proof of violation of statute is conclusive evidence of breach.
Causation and damages must still be established.
Res Ipsa Loquitur
Very occurance of event may establish breach of duty IF:
1)Accident causing injury would not normally happen unless someone was negligent
2)The negligence is probably attributable to the defendant
How do you show attributable negligence in Res Ipsa?
Evidence that instrumentality was in exclusive control of Defendant.
Effect of Res Ipsa Loquitor?
Plaintiff establishes Prima Facie Case of negligence
If a plaintiff establishes Res Ipsa, can plaintiff still lose?
Yes, if inference of negligence is rejected by trier of fact.
If a plaintiff establishes Res Ipsa, can a dirtected verdict be given for Defendant?
No.
When should a defendant’s motion for a directed verdict be upheld?
If plaintiff has failed to establish res Ipsa or present evidence as to some other breach.
If a Plaintiff moves for directed verdict, when should it be upheld?
Plaintiff’s motion should always be denied.
UNLESS.
They’ve established negligence per SE
AND no issues of PROXIMATE cause.
