Negligence - Breach of Duty Flashcards
What is Breach of Duty?
Where a defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she had breached her duty. Whether the duty of care is breached in an individual case is a question for the trier of fact.
Theories Proving Breach (3)
1) Custom or Usage
2) Violation of Statute
3) Res Ipsa Loquitur
Theories of Breach - Custom of Usage
Custom or usage may be used to establish the standard of care, but does not control the question of whether certain conduct amounted to negligence. For example, although certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.
Theories of Breach - Negligence Per Se
Existence of a duty owed to plaintiff and breach thereof may be established as a matter of law by proof that the defendant violated an applicable statute. Causation and damages must still be established by the plaintiff.
Theories of Breach - Res Ipsa Loquitur
In some cases, the very occurrence of an event may tend to establish a breach of duty.
1) The accident causing the injury is a type that would not normally occur unless someone was negligent; AND
2) this type of accident ordinarily happens because o the negligence of someone in the defendant’s position.
This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.
The plaintiff must also establish freedom from fault on his part.
Effect of Res Ipsa Loquitur
Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant. Plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.
