Negligence: Breach of Duty

Question 1

What two types of evidence may P bring to show breach of duty?

Answer 1

• Direct Evidence (rare): An eyewitness or a recording of the accident while occurring.
• Circumstantial: Evidence from which one can draw reasonable inference.
  o EXAMPLE: Father bakes a cherry pie and leaves it in the kitchen to cool. An hour later, a large chunk of the pie is missing. He sees his daughter’s T-shirt, lips, and teeth stained red. This is circumstantial evidence that his daughter ate the cherry pie.

Question 2

What would P need to show in a slip-and-fall case?

Answer 2

• 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).

Question 3

What is res ipsa loquitur?

Answer 3

• Allows jury to infer D’s breach of duty based on the nature of the accident and D’s relationship to it.
• Only used to show breach. If successfully invoked, the jury can draw an inference of the breach.

Question 4

When does res ipsa loquitur arise as a way to show negligence?

Answer 4

• Arises when P cannot precisely identify what D did that was wrong, but the situation smells of negligence.

Question 5

What does P need to show to prove negligence through res ipsa loquitur?

Answer 5

• This sort of accident does not normally occur absent negligence;
• D is probably the responsible party because D had control over instrumentality of the harm; and
• P did not contribute to the injury