Part Five.2: Negligence > Breach

Question 1

What is the general rule regarding “breach”?

Answer 1

• When D’s conduct falls short of standard of care, then she has breached her duty.
• breach of duty is a question of fact for the trier of fact

Question 2

What is the rule regarding “custom and usage” and “breach” ?

Answer 2

• Custom and usage may be used to establish “standard of care”
• NOTE: it does not control the Q of whether or not certain conduct amounted to negligence. Court CAN find that entire industry behaves negligently

Question 3

What is the rule regarding “Negligence Per Se” and “breach”?

Answer 3

if:

1. there exists a criminal statute;
2. P is within the protected class; and
3. suffers the type of injury the statute was designed to prevent

..then duty and breach can be established via negligence per se.

In this case, P must still show causation and damages

Question 4

What is the rule regarding “Res Ipsa Loquitur” and “breach”?

Answer 4

-In some cases, the very occurrence of an event may tend to establish a breach of duty

• Plaintiff must show:
  1. accident causing the injury is a type that would not normally occur absent negligence;
  2. the negligence is attributable to D

Note: this can often be shown by showing that the instrumentality causing injury was in exclusive control of D

Note: P must also establish freedom of fault on his part

Question 5

What is the EFFECT of res ipsa loquitur?

Answer 5

If established, P has made a prima facie case, and no DIRECTED VERDICT may be given to D.

P may still lose if inference is rejected by trier of fact