Negligence: Breach of Duty Flashcards
VA Essay Esam Breach Tip
On the exam, explain why the breach is unreasonable.
“this conduct is unreasonable because”…
e.g. a reasonably prudent person, after several martinis, will be too intoxicated to drive; a reasonably prudent person would not leave a spill out for a week because people will slip in it.
Breach of Duty =
Failure to Meet Standard of Care
P’s burden to demonstrate breach of duty
● P’s burden is to prove every element of the prima facie case (preponderance of evidence).
Two types of evidence to show breach of duty
o Direct Evidence (rare)
o Circumstantial
Direct evidence of breach of duty
An eyewitness or a recording of the accident while occurring.
Circumstantial evidence of breach of duty
Evidence from which one can draw reasonable inference.
Slip-and-Fall Cases -reqs for breach
P must show that D was negligent for not discovering and repairing the dangerous condition. The dangerous condition was present long enough that D should have noticed it (Ex: P slipped on rotten banana peel).
Res Ipsa Loquitur
Allows jury to infer D’s breach based on the nature of the accident and D’s relationship to it.
● Arises when P cannot precisely identify what D did that was wrong, but the situation smells of negligence.
● Only used to show breach. If successfully invoked, the jury can draw an inference of the breach.
For Res Ipsa Loquitur, P must show:
o This sort of accident does not normally occur absent negligence;
o D is probably the responsible party because D had control over instrumentality of the harm; and
o P did not contribute to the injury.
Res Ipsa Loquitur: Med Mal - Common Knowledge Exception
When equipment is sewn into a P or a sponge is left inside a P after surgery, you do not need experts to establish that this is negligent conduct.
Res Ipsa Loquitur: Med Mal - Multiple Ds
o Usually cannot use in multiple D cases, except where a medical team is acting as a unit.
IF ACTING AS A UNIT - Ds will be held jointly and severally liable unless the individual Ds prove that they did not cause the injury.
VA Res Ipsa Loquitur Burden
shifts burden of producing evidence BUT not the burden of proof
