Part Five.2: Negligence > Breach Flashcards Preview

Torts > Part Five.2: Negligence > Breach > Flashcards

Flashcards in Part Five.2: Negligence > Breach Deck (5)
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1

What is the general rule regarding "breach"?

- 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

2

What is the rule regarding "custom and usage" and "breach" ?

- 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

3

What is the rule regarding "Negligence Per Se" and "breach"?

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

4

What is the rule regarding "Res Ipsa Loquitur" and "breach"?

-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

5

What is the EFFECT of res ipsa loquitur?

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