Negligence (2) Proving Breach (CARL-INN) Flashcards
Learn Hand
Balancing Costs and Benefits; RP SOC
Weighting burden of precaution vs. possibility and severity of injury
D breach if: B < P(L)
Burden of Precuation
Probability of Injury
Seriousness of Injury
(Elements)
Negligence Per Se (elements)
2 elements - second element has two parts
Violation of a Statue
(1) Law specific to what is required/prohibited
(2) [Fulfills purpose of statue]
* (a) P is member of the class statue is designed to protect
* (b) Accident/injury is the type the statue is designed to prevent
NPS (3 requirements)
Requirements for Statue to Apply
- Specific
- P is member of class statute is designed to protect
- Accident/injury is type of accident/injury statute is designed to prevent
- Law is specific regarding what is required or prohibited (Not “act reasonably” requirements)
- P is member of class statute is designed to protect
- Accident/injury is type of accident/injury statute is designed to prevent
NPS
Vaild Excuses for Satutory Violation
(a) Incapacity
(b) Inability, after reasonable diligence, to comply
(c) Emergency (not due to own creation)
(b) Does not know (nor should) to compliance
(e) Compliance would have led to create risk of harm
(a) Actor’s incapacity (kids)
(b) Does not know nor should of compliance
(c) Inability, after reasonable diligence, to comply
(d) Emergency (not due to own creation)
(e) Compliance would have led to create risk of harm
NPS
NPS: Impact of Evidence (MAJ)
Unexcused violation of statue = D breached (Jury MUST find breach)
Jury MUST find breach; Violation is conclusive of breach
NPS
NPS: Impact of Evidence (MIN)
Unexcused violation of statue = D may or may not have breach
Violation is evidence of breach
Violation of Custom
Compliance with custom…
Connected with RP SOC, Evidence
evidence of no breach
Violation of Custom
Deviation from custom…
Connected with RP SOC, Evidence
evidence of breach (jury may or may not)
2 elements + Ev Effect + Fun Fact
Res Ipsa Loquitur (RIL) – elements
“thing speaks for itself”
(1) D has exclusive control of the instrumentality
(2) Occurrence not normally happen unless unreasonable conduct
**What happened (not the injury)
Ev Effect: COULD find breach (does mean they have to)
RIL CANNOT be paired with any other breach
Think of the barrell falling out window, no explaination
Notice:
Actual Notice
directly informed of a case or hazard that could affect their interests
(employee saw spill, did not clean)
Notice is permissive inference (evidence) of breach – jury may or may not find breach
Notice:
Constructive Notice
assumes a person has received notice of a legal action, even if they haven’t actually received it
(condition of grapes, stepped on/rotting)
Notice is permissive inference (evidence) of breach – jury may or may not find breach
Notice:
Mode of Operation
when a business’s manner of operation creates a foreseeable risk of injury to customers
(packing of grapes made for easy spills, areas where spill were likely)
Notice is permissive inference (evidence) of breach – jury may or may not find breach
+ 4 types of breach that apply
Professional SOC
How a reasonable professional exercising that level of skill and knowledge common to the profession, would have acted under similar circumstances
4 types of breach:
1. Acceptance Practice
2. NPS
3. RIL
4. Informed consent
PROF SOC - Accepted Practice, Ev Effect
Deviation from accepted practice …
VERY STRONG ev of breach
PROF SOC - Accepted Practice, Ev Effect
Compliance with accepted practice
VERY STRONG ev of no breach
