Breach of Duty in Negligence Flashcards
when has D BREACHED their duty?
When the defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, tge defendant has breached their duty.
who decides whether the duty of care has been breached in an individual case?
Whether the duty of care is breached in an individual case is a question for the trier of fact.
what theories may a P use to show proof of breach?
The plaintiff may use one of the following theories to show proof of the breach:
1) custom or usage
2) violation of statute
3) res ipsa loquitur
1) custom or usage
when the standard of care is “reasonable PRUDENCE” - evidence of the CUSTOM or USAGE of other may be used to establish how a reasonable person SHOULD HAVE behaved under the circumstance.
**This evidence is NOT conclusive on question of whether certain conduct amounted to negligence. (i.e. may find that although certain behaviors is customary, the entire industry is negligent)
2) violation of statute // NEGLIGENCE PER SE
Where the duty of care is set by a statute under the rules that govern using statutes in negligence litigation, proof of violation of the statute is CONCLUSIVE EVIDENCE of breach.
This is known as “negligence per se.” It satisfies the elements of:
1) duty
2) breach
Causation and damages must still be established by the plaintiff
3) Res Ipsa Loquitur
In some cases, the very occurrence of an event may tend to establish a breach of duty.
The doctrine of res ipsa loquitur requires the plaintiff to show that:
1) The accident causing the injury is a type that would NOT normally occur unless someone was negligent
2) The negligence is probably attributable to the defendant (meaning this type of accident ordinarily happens because of 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.
what is the 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.
The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.
if you get a question with res ipsa loquitur and a D’s motion for directed verdict, what is the analysis you should make?
A) Deny the defendant’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 defendant’s violation of a statute)
B) Grant the defendant’s motion if the plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty
what if it is the Plaintiff who moves for a directed verdict?
Occasionally, the plaintiff may also move 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 violation of an applicable statute and there are no issues of proximate cause.
