T9 - Breach of duty in negl Flashcards
BREACH OF DUTY IN NEGLIGENCE
Concerete, specific behavior by D that falls short of relevant standard of care.
Breach can be affirmative act or omission.
When the D’s conduct FALLS SHORT of that level required by the applicable standard of care owed to the P, the D has breached their duty.
Whether the duty of care is breached in an individual case is a question for the trier of fact.
The P may use one of the following theories to show proof of the breach:
- Custom or Usage
- Violation of Statute
- Res Ipsa Loquitor
- CUSTOM OR USAGE
When the standard of care is “reasonable prudence,” evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstance.
However, this evidence is not conclusive on 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.
Res Ipsa Loquitur
INFERENCE OF NEGLIGENCE.
Used by P without information about Defendant’s breach.
The very occurrence of an event may tend to establish a breach of duty.
Plaintiff must show:
1. The accident is the type that would not normally occur in the absence of negligence. (Accident is normally associated with negligence.)
2. The negligence is probably attributable to the D (meaning, this type of accident ordinarily happens bc of the negligence of someone in the D’s position) [Accident would normally be due to negligence of someone in D’s position.]
(Prove by showing that The defendant had exclusive control of the instrumentality that caused the injury.)
[” for the doctrine to apply, the plaintiff must show …. and the negligence was attributable to the defendant. The second requirement can often be satisfied by showing that the instrumentality causing the injury was in the exclusive control of the defendant”
3. (The plaintiff has done nothing to contribute to his or her injuries (Some jurisdictions)
Ex: “Despite lack of direct proof of breach, because barrels do not normally fall out of windows unless someone is negligent and because the defendant had control of the barrel”
Res Ipsa Loquitur:
RESULT?
directed verdict?
RESULT - Effect of Res Ipsa Loquitur: Establishing res ipsa loquitor means no directed verdict. Avoid dismissal, lets claim go to the jury.
Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant.
The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.
If D makes a motion for a directed verdict:
• Deny the D’s motion for directed verdict if the plaintiff has established res ipsa loquitur or presented some other evidence of breach of duty (such as the D’s violation of a statute)
• Grant the D’s motion if the plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty
If P makes a motion for a directed verdict:
The plaintiff’s motion should always be denied except in the rare case where the plaintiff has established negligence per se through viola- tion of an applicable statute and there are no issues of proximate cause.
