Torts 2--Breach Flashcards
What is a breach of duty?
When the defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff
Torts>Breach of Duty
Who determines whether the duty of care has been breached?
The trier of fact
Torts>Breach of Duty
Can evidence be offered to establish the standard by which defendant’s conduct is to be measured?
Yes, such as custom or usage, applicability of a statute, etc.
Torts>Breach of Duty
May custom or usage be introduced to establish the standard of care?
Yes, however, customary methods of conduct do not furnish a test that is conclusive for controlling the question of whether certain conduct amounted to negligence.
Torts>Breach of Duty>Custom or Usage
Can the violation of a statute show a breach of duty?
Yes, a duty owed to a plaintiff and subsequent breach of that duty may be established by proof that defendant violated an applicable statute.
Torts>Breach of Duty>Violation of Statute
What does “res ipsa loquitur” mean?
The circumstantial evidence doctrine meaning “the thing speaks for itself” deals with those situations where the fact thqat a particular injury occurred may itself establish or tend to establish a breach of duty owed. Where the facts are such as to strongly indicate that plaintiff’s injuries resulted from defendant’s negligence, the trier of fact may be permitted to infer defendant’s liability.
Res Ipsa Loquitur (general meaning)
When will a court allow an inference of res ipsa loquitur?
The doctrine of res ipsa loquitur requires that the Plaintiff establishes that the accident causing his injury is the type that would not normally occur unless someone was negligent.
Res Ipsa Loquitur requirement: Inference of Negligence
What does a plaintiff have to prove to trigger res ipsa loquitur?
The doctrine of res ipsa loquitur requires that the Plaintiff establishes evidence connecting the defendant with the negligence in order to support a finding of liability, i.e., evidence that this type of accident ordinarily happens because of the negligence of someone in the defendant’s position. This requirement often can be satisfied by showing that the instrumentality that caused the injury was in the exclusive control of the defendant, although actual possesion of the instrumentality is not necessary.
Res Ipsa Loquitur requirement: Negligence Attributable to Defendant
What is the Multiple Defendants Problem?
Where more than one person may have been in control of the instrumentality, res ipsa loquitur generally may not be used to establish a prima facie case of negligence against any individual party.
Torts>Breach of Duty>Res Ipsa Loquitur> Negligence Attributable to Defendant> Multiple Defendants Problem
Plaintiff’s Freedom from Negligence:
Plaintiff must also establish that the injury was not attributable to him, but may do so by his own testimony.
Torts>Breach of Duty>Res Ipsa Loquitur> Plaintiff’s Freedom from Negligence
What is the Effect of Res Ipsa Loquitur?
1) No directed verdict may be given for the defendant.
2) If defendant’s evidence overcomes the permissible inference that may be drawn from the res ipsa proof, the jury may find for the defendant.
Torts>Breach of Duty>Res Ipsa Loquitur> Effect of Res Ipsa Loquitur
Where applicable, the doctrine of res ipsa loquitur does not change the _______, nor does it create a presumption of __________.
burden of proof; presumption
Torts > Negligence > Breach of Duty > Res Ipsa Loquitur > No Directed Verdict for Defendant (I.C.3.d.1)
Where the doctrine of res ipsa loquitur element have been proved, the plaintiff has made a _______ case and no __________ may be given for the defendant.
prima facie; directed verdict
Torts > Negligence > Breach of Duty > Res Ipsa Loquitur > No Directed Verdict for Defendant (I.C.3.d.1)
In a case where res ipsa loquitor is proven, the effect is the same as in all other cases when it is shown that the defendant exercised _________.
due care
Torts > Negligence > Breach of Duty > Res Ipsa Loquitur > Effect of Defendant’s Evidence of Due Care (I.C.3.d.2)
