Breach of Duty (Negligence) Flashcards
when does a defendant breach their duty of care?
when defendant’s specific, concrete behavior falls short of that level required by the applicable standard of care owed to the plaintiff
who determines whether a defendant has breached?
trier of fact (jury)
when may custom or usage of others be used by a plaintiff to establish how the defendant should have behaved?
when the standard of care is that of a reasonably prudent person (general duty)
true or false: custom/usage evidence is conclusive on the question of defendant’s breach of a duty.
FALSE (NOT conclusive)
**RATIONALE = an entire industry could be negligent
true or false: proof of violation of a statutory standard of care is conclusive on the question of defendant’s breach of a duty.
TRUE (negligence per se)
**NOTE = plaintiff still has to show causation and damages
what is res ipsa loquitor?
doctrine that allows a plaintiff to establish a breach of duty when they’re not sure exactly how defendant breached a duty
what is a plaintiff required to show for res ipsa loquitor to apply?
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 (b/c this type of accident is normally due to negligence of someone in defendant’s position)
for res ipsa loquitor, with what of evidence can a plaintiff show that the negligence is probably attributable to the defendant?
can be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant
what is the consequence of a plaintiff establishingres ipsa loquitor?
they’ve made a prima facie case and no directed verdict may be given for the defendant
true or false: establishing res ipsa loquitor is conclusive proof of liability of the defendant (plaintiff wins if this is shown)
FALSE (inference of negligence can still be rejected by trier of fact)
