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Flashcards in Negligence: Breach Deck (20):


1. What was the standard of care?
A. What were the foreseeable risks of harm?
B. What would a reasonable person have done to prevent that harm?
2. Was there a breach? Prove it with facts.


Breach Considerations

1. Objective Test: Reasonable person standard. Vaughn v. Menlove.
2. Best Effort: Exercise duty as best they can under the circumstances. Judgment errors not always unreasonable. Reed v. Tacoma.
3. Gender Neutral. Edwards v. Johnson.
4. Exceptional People: highly intelligent or substantial experienced people must act in accordance with his particular knowledge. Ferrell v. Baxter.


Possible Exceptions to the "Reasonable Person" Rule

A. Emergency
B. Children
C. Mental/Physical Disability


Sudden Emergency Doctrine

1. Excuses the failure to obey statutory law. Foster v. Stutz
2. Unforeseen combination of circumstances which calls for immediate action
3. Perplexing contingency or complication of circumstances
Sudden/unexpected occasion for action; pressing necessity



1. Kids held to standard of care & discretion expected from kids of their own age, except if they engage in dangerous adult activity, then hold them to adult standard. Robinson v. Lindsay.
2. Parents could be negligent in terms of supervision
3. Minority: States apply age restrictions:
14→presumed capable of negligence


Mental/Physical Disability

Majority: Same standard for crazies as reasonable person
Minority: Standard of care consonant with diminished mental capacity (party claiming has burden of incapacity)
Sudden Physical Incapacity: No liability if no prior warning (i.e. past seizures). Cohen v. Petty
– Onset Mental Illness:
Minority: same as sudden physical illness
Majority: reasonable person standard. Bashi v. Wodarz
Restatement: Unless a kid, crazy liable for unreasonable conduct. Bashi


Judicial Standards

Baltimore & Ohio RR Co. v. Goodman: (Holmes) When dealing with a standard of conduct, & when the conduct is so clear it should be laid down once & for all by the courts.
Pakora v. Wabash: (Cardozo) Need caution in framing standards of behavior that amount to rules of law.


Professional Malpractice

Custom=the standard of care
Deviation from custom=breach
1. One is required to use such skill, prudence, & diligence as of ordinary skill & capacity commonly possessed & exercised in the performance of the tasks they undertake (except possibly where there is no recognized custom).
2. Π must prove deviation from standard caused injury, established by expert testimony who’s found by
A. Locality Standard
B. National Standard
C. Board-Certified Standard
Exception: Common knowledge (malpractice is so evident, expert unnecessary)


Failure to Obtain Informed Consent Standards

Professional Medical (Minority)
Exception: Emergencies requiring extension of consent


Medical Disclosure Considerations

1. diagnosis
2. nature & purpose of treatment
3. risks & consequences
4. probability of success
5. treatment alternatives
6. prognosis if not treated


Hand Risk Formula

Is the burden of avoiding the harm less than the probability multiplied by the Loss (injuries)?
B=PL = standard of care
BPL = no negligence


Four Customary Practice Tests (HARD)

1. Hagerman Construction v. Copeland: Relevant to establish standard of care. Conduct of others in similar conditions relevant to reasonableness of acts.
2. Trimarco v. Klein: Π must show purpose of custom to protect against kind of harm suffered
3. Restatement: Customary practice/usage need not be universal; it suffices that it be fairly well-defined & in the same calling or business so that the actor may be charged with knowledge of it or negligent ignorance.
4. Levine v. Blaine Co.: proof of customary practice, plus showing it was ignored & this departure was a proximate cause of the accident, may serve to establish liability.
5. TJ Hooper: "There are precautions so imperative that even their universal disregard will not excuse their omission."
A. Π may introduce Δ’s deviation from custom as evidence that Δ's conduct was unreasonable.
B. Tortfeasor might introduce custom to show that its compliance equates to reasonableness
C. Custom is NOT CONCLUSIVE. What is usually done may not be evidence of what ought to be done, but what out to be done is fixed by the standard of the reasonable person.


Burden of Proof for Breach

Π must show enough evidence for jury to infer Δ acted unreasonably. Clark v. Kmart.


Statute Relevancy

Is Π in the class protected by statute?
Is harm suffered type statute seeks to protect?


Statutory Application

Strict Negligence Per Se
Negligence Per Se (MAJORITY)
Negligence per se (MINORITY)
Evidence of Breach


Res Ipsa Loquitur

Jury can draw inference of negligence when Π can’t make specific accusations→shifts burden of proof to Δs.
–Four Tests
A. Byrne v. Boadle
B. Eaton
C. Harder v. Clinton
D. Restatement


Byrne v. Boadle Test

The mere fact of an accident occurring is negligence; Π needn’t specify negligent conduct but must identify the culpable party.


Eaton Test

1. Such an accident does not occur without negligence
2. The Δ was in exclusive control of the instrumentality or agent that caused harm
3. Circumstances show that injured person did not contribute to it


Harder v. Clinton Test

1. Injury doesn't occur in the course of everyday conduct
2. Δ had exclusive control of the instrumentality of the harm
3. The evidence of the true harm are more accessible to Δ than Π
4. Circumstances of the event are not likely to cause an injury unless Δ failed to exercise due care
* Can take case to a jury w/o knowing the absolute cause of the injury.


Restatement for RIL

1. Such an accident does not occur without negligence
2. That other responsible causes are eliminated
3. That the negligence was more likely than not Δ's