Torts: Negligence: Breach

  • Analysis
    • Requires Π to identify the specific wrongful conduct Δ, and explain to us why it was wrongful.
    • Always think and write in of the wrongful conduct and explain why its wrongful.
    • The more detailed the duty, the less you have to say about the breach. On the other hand, the more general and open ended the duty, then the more you have to say about the breach.
  • Res Ipsa Loquitor – a breach doctrine “The thing speaks for itself”
    • If Π lacks info about what Δ did wrong—if Π doesn’t know exactly what happened.
    • In RIL cases, there are not very many facts.
    • To use doctrine of RIL, Π shows 2 things to get to jury: [2 prongs]
      • Π must show that the accident is one normally associated with negligence of some kind.
        • RIL is an argument based on probability.
        • The first prong is sometimes demonstrated by use of expert testimony.
      • Π must also show that the accident that occurred is normally due to the negligence of someone in this particular Δ’s position.
        • Show that Δ had the control over the injury-causing object or the instrumentality.
    • After Π shows these 2 things, the Π normally goes to jury, and jury can go either way, sometimes, the RIL evidence can be so overwhelming that a judge can direct