Negligence: Breach

Question 1

Breach - basic definition

Answer 1

an actor breaches when she creates an unreasonable risk of foreseeable harm

Question 2

Where is B/PL relevant?

Answer 2

In the breach analysis

Question 3

What does B/PL stand for?

Answer 3

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

Question 4

What result should have to take the precaution?

Answer 4

If the result is B<PL

Question 5

If it is B>PL, what should a reasonable person do?

Answer 5

a reasonable person would not have taken that precaution. So ∆’s failure to take the precaution is not breach

Question 6

At what point is B/PL calculated?

Answer 6

the calculation that is used is the calculation pre accident and not post accident

Question 7

Liability for foreseeable risks

Answer 7

> 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

Question 8

Qualities of a Reasonable Person

Answer 8

we must take into consideration defendants traits and her circumstances to decide if she acted reasonably

Question 9

Do we take the defendant’s trait or characteristics into consideration

Answer 9

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?

Question 10

What factors do you consider in a reasonable person analysis?

Answer 10

• 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

Question 11

What do we knot consider when we consider the reasonable person?

Answer 11

∆’s lower than average knowledge or IQ

Question 12

Judicially Determined Standards of Care

Answer 12

Negligence Per Se

Question 13

Negligence per se

Answer 13

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.

Question 14

What question do you ask when you are analyzing negligence per se?

Answer 14

> 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

Question 15

What is the negligence per se test?

Answer 15

(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

Question 16

Licensing statute

Answer 16

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.

Question 17

Res Ispa Loquitur

Answer 17

inferring breach because this accident would have only occurred with breach

Question 18

Res Ispa Loquitur Definition

Answer 18

> 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

Question 19

Forms of Evidence: Direct & Circumstantial

Answer 19

Direct: first-hand evidence of the fact you want to prove
Circumstantial: evidence of one fact offered to establish another fact

Question 20

Custom

Answer 20

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.

Question 21

An existing violation of a legislative enactment is not negligence - the exceptions to negligence per se

Answer 21

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

Question 22

Jury instructions for emergencies: majority rule

Answer 22

Jurors should receive an instruction that they are to take into account that the actor was faced with an emergency.

Question 23

Jury Instructions emergencies: minority rule

Answer 23

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.

Question 24

What age are children not capable of negligence?

Answer 24

any age under 5 years old