Negligence: Breach Flashcards
Breach - basic definition
an actor breaches when she creates an unreasonable risk of foreseeable harm
Where is B/PL relevant?
In the breach analysis
What does B/PL stand for?
B = burden of avoiding the harm; cost of taking the precaution
P = probability that harm will be caused without precaution
L = harm likely to be caused/could be caused without the precaution
What result should have to take the precaution?
If the result is B<PL
If it is B>PL, what should a reasonable person do?
a reasonable person would not have taken that precaution. So ∆’s failure to take the precaution is not breach
At what point is B/PL calculated?
the calculation that is used is the calculation pre accident and not post accident
Liability for foreseeable risks
> restatement factors for negligence are assessed from the vantage point of the actor prior to engaging in the questionable conduct
what risks are foreseeable will depend, to some extent, what facts the defendant knows about or should have known about
Qualities of a Reasonable Person
we must take into consideration defendants traits and her circumstances to decide if she acted reasonably
Do we take the defendant’s trait or characteristics into consideration
If yes: how would a reasonable person with this trait have acted under the circumstances
If no: how would a reasonable person have acted under the circumstances?
What factors do you consider in a reasonable person analysis?
- Assuming that D has a duty, did they breach it?
- What standard (reasonable person) we’re applying?
- What does that mean in this case?
- What’s D’s argument?
- Does D have higher than average skills? (ex. Race car driver driving on the highway)
- If D holds herself out to have expertise and another elies on that representation, D is held to the general knowledge and skill of that field of expertise (ex.
- Being a doctor and not actually one)
- Is there an emergency? You would consider how a person responds in an emergency (it’s an unforeseeable circumstance)
- Age
What do we knot consider when we consider the reasonable person?
∆’s lower than average knowledge or IQ
Judicially Determined Standards of Care
Negligence Per Se
Negligence per se
The court uses statues and regulations to define what it means to be reasonable under the circumstances. If the defendant violates the statute, then there is breach.
What question do you ask when you are analyzing negligence per se?
> Was the statute designed to protect from this type of harm?
an actor is negligent if, without excuse, the actor violates a statute that is designed (1) to protect against the type of accident the actor’s conduct causes, and if the accident (2) victim is within the class of persons the statute is designed to protect
What is the negligence per se test?
(1) the plaintiff within the class of person the statute sought to protect, (2) was the hazard the kind of risk the statute sought to prevent
Licensing statute
violating this type of statute is not breach. The conduct by the tortious actor is breach. Lack of a license is partial evidence of the breach.
Res Ispa Loquitur
inferring breach because this accident would have only occurred with breach
Res Ispa Loquitur Definition
> Based on the evidence, there is a rational basis in common experience or expert testimony for finding: (1) that the injury was probably the result of negligence and (2) that the ∆ was at least one of the persons who was probably negligent
Forms of Evidence: Direct & Circumstantial
Direct: first-hand evidence of the fact you want to prove
Circumstantial: evidence of one fact offered to establish another fact
Custom
Failing to follow custom is relevant but does not require a finding of breach (kind of)
> Mental incapacity or Mental illness is not considered in the mind of a reasonable person. Old age is not taken into consideration unless it causes a physical problem.
An existing violation of a legislative enactment is not negligence - the exceptions to negligence per se
The violation is reasonable bc of the actor’s incapacity
He neither knows or should know of the occasion or compliance
He is unable after reasonable diligence to comply
He is confronted by an emergency not due to his own misconduct
Compliance would involve a greater risk of harm to the actor or to other
Jury instructions for emergencies: majority rule
Jurors should receive an instruction that they are to take into account that the actor was faced with an emergency.
Jury Instructions emergencies: minority rule
Jury should be instructed that an actor must behave reasonably under the circumstances. Lawyers should introduce evidence about the emergency and explain to the jurors that the emergency is part of the overall circumstances they consider in deciding whether negligence exists.
What age are children not capable of negligence?
any age under 5 years old
