Negligence - BREACH

Question 1

What must P do to establish breach?

Answer 1

1. identify D’s wrongful conduct

2. give a reason/argument/theory for why D’s conduct fell outside the realm of the applicable standard of care.

Question 2

What are the elements P must establish to get res ipsa loquitur?

Answer 2

1. the accident is of a type normally associated with negligence.
2. the accident is of the type due to negligence of someone in D’s position (D had control over the thing that caused the injury).

Question 3

Must P offer evidence to show that the accident is of the type normally associated with negligence?

Answer 3

No, but it will help.

P can use statistics, can appeal to common knowledge, or can show evidence to eliminate the possibility of a non-negligent explanation.

Question 4

What happens if a P meets the elements for res ipsa?

Answer 4

The question still goes to a jury. But P doesn’t have to show evidence that D in fact caused the injury (because the injury speaks for itself).