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Negligence - Proving Breach
Terms in this set (18)
The DF failed to conform to their duty of care.
What are the 3 ways to establish breach?
(1) Negligence Per Se
(2) Hand Risk / Utility Test
(3) Res Ipsa Loquitor
What is negligence per se?
An act (or failure to act) is considered negligent because it violates a statutory requirement.
What elements are needed to establish negligence per se?
(1) PL is a member of the class the statute intended to protect.
(2) The harm suffered is the harm the statute intended to protect.
How are administrative requirements treated under negligence per se?
The violation of an administrative requirement does not equal breach of the standard of care.
What are industry customers?
The common practice of an industry; the industry standards or business practices
How are industry customs treated under negligence per se?
They may be persuasive, but it is not conclusive on the question of breach.
What is the hand risk / utility test?
If B < [ L x P ] = Breach
If the burden of adequate precautions is less than the magnitude of harm times the probability of the accident occurring, then the DF breached their duty of care.
Explain B (burden of adequate precautions) under the hand risk / utility test.
Only reasonable precautions need to be taken.
Things to consider: cost, time, difficulty, etc.
What does L (magnitude of harm) measure under the hand risk / utility test.
The likely harm flowing from the injury causing event when it occurs.
What does P (probability of the accident occurring) measure under the hand risk / utility test.
Likelihood of the harm-causing event occurring.
How does the hand risk / utility test assess especially dangerous instrumentalities?
Part of the circumstances to be evaluated in breach. A high degree of danger equals a high degree of care.
The care employed by a reasonable person (precaution) must be proportionate to the danger of the activity.
How does the hand risk / utility test assess emergencies?
One of the circumstances to be considered - does not change the standard of care.
When is it appropriate to give the emergency doctrine instruction to a jury for consideration?
(1) the party seeking the instruction has not been negligent;
(2) the emergency has come about suddenly and without warning;
(3) reaction to the emergency was spontaneous without time for reflection.
What does res ipsa loquitor mean?
"The thing speaks for itself"
When is res ipsa loquitor used?
When there is no proof of the alleged negligent cause of an injury available
Consider using when the PL is having trouble showing how the injury came about - there is a lack of direct and circumstantial evidence.
What are the 3 elements of res ipsa loquitor?
(1) the event is of the kind that does not ordinarily occur in the absence of negligence;
(2) the instrumentality that caused the accident was within the exclusive control of the DF; and
(3) the PL did not contribute to their own harm
Does res ipsa loquitur establish breach?
No - it simply permits the jury to draw an inference that the DF acted negligently without any other proof
THIS SET IS OFTEN IN FOLDERS WITH...
Negligence - Duty: Is a Duty Owed?
Negligence - Duty: Standard of Care
Negligence - Causation: Cause-in-Fact
Negligence - Causation: Proximate Cause
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