Breach of Duty Tests

Question 1

What is a breach of duty?

Answer 1

Failure to satisfy a standard of care

Question 2

What does BPL require to establish negligence (Learned Hand Formula)?

Answer 2

A defendant is negligent only if the Burden [B] of the precautions the D should have taken is < than the Probability [P] of harm x Magnitude of Loss (L) (e.g.. E.g. B ($ cost of burden)< P(50%) x L ($1M) →B ($)< $500k)

Question 3

What case shows BPL analysis?

Answer 3

Davis v. Consolidated Rail Corp. - Court found Defendant Conrail negligent under the BPL formula. The burden of blowing the horn was less than the loss and potential lost to others.

Question 4

What are the elements of negligence per se?

Answer 4

1) Prove violation of a statute 2) The Plaintiff is the class of Persons designed to protect 3) The type or kind of harm that occurred was one that the statute wanted to prevent (Martin v. Herzog (buggy) - Headlight statute) (Wawanesa (Smoking Kids) –> No Negligence)

Question 5

What is a legal excuse when Negligence Per Se is found?

Answer 5

Lack of Knowledge or Notice, where the actor neither (actual) knows nor (constructive) should know of any occasion or necessity for action in compliance with the legislation or regulation. (Sikora - Deck)

Question 6

What is a Custom, and how do you prove a breach of a custom?

Answer 6

Rules or practices adopted by the industry or otherwise may provide evidence of the Standard of care required, which is not conclusive to find negligence, and the jury can accept/reject. You have to ask whether D acted reasonably in adherence to the custom or not. (TJ Hooper) (Walmart Stores, Inc. v. Wright)

Question 7

What standard of care applies to companies that set their own rules in manuals (personal customs)?

Answer 7

The objective standard of care (Walmart Stores Inc. v. Wright)

Question 8

When can you turn to Res Ipsa Loquitar to allege negligence?

Answer 8

Allows Plaintiff to allege negligence ONLY WHEN the plaintiff does not have ANY evidence (direct or circumstantial) of what caused the harm. It is an inference of negligence.

Question 9

What are the elements of Res Ipsa?

Answer 9

(1) The cause of the accident is known
(2)The accident-producing instrumentality is under the exclusive control of the defendant
(3) The instrumentality is unlikely to harm without negligence on the part of the person in control
(Bryne v. Boadle –> Res Ipsa) (Kreb - Plexiglass Sculpture –> Res Ipsa with the elements test)