Flashcards in Part Five.2: Negligence > Breach Deck (5)
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
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
What is the rule regarding "Negligence Per Se" and "breach"?
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
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