14Torts

Negligence: Breach & Proof

This week examines how breach of the duty of care is proven. Breach is a question of fact — did the defendant's conduct fall below the standard of a reasonably prudent person? You will learn direct evidence of breach, circumstantial evidence, res ipsa loquitur (the thing speaks for itself), and the role of expert testimony in proving negligence. The core analytical skill is applying the reasonable person standard to specific conduct.

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Learning Objectives

Explain breach as a failure to conform conduct to the applicable standard of care — a question of fact for the jury
Apply the reasonable person standard to specific defendant conduct by comparing what was done to what should have been done
Analyze custom, industry practice, and safety codes as evidence of breach (probative but not conclusive)
Apply res ipsa loquitur when direct evidence of breach is unavailable: (1) the accident does not normally occur without negligence, (2) the instrumentality was in defendant's exclusive control, (3) plaintiff did not contribute
Distinguish direct evidence of breach from circumstantial evidence and explain when each is sufficient
Identify when expert testimony is required to establish breach (professional standard cases) vs. when lay testimony suffices

Key Rules

Breach: Defendant's conduct fell below the standard of care that a reasonably prudent person would exercise under the same or similar circumstances. The jury determines this by comparing defendant's actual conduct to what a reasonable person would have done.
Res ipsa loquitur: An inference of negligence arises when (1) the event is of a kind that ordinarily does not occur in the absence of negligence, (2) the instrumentality causing the harm was in defendant's exclusive control, and (3) the plaintiff did not contribute to the event. Effect: creates a permissible inference (or rebuttable presumption) of negligence.
Custom and industry practice: Compliance with custom is evidence of due care but not conclusive (T.J. Hooper). Departure from custom is strong evidence of negligence.
Safety statutes/codes: Violation may establish negligence per se (Week 10). Compliance is evidence of due care but does not preclude a finding of negligence if a reasonable person would have done more.
Expert testimony is required to establish breach when the standard of care is beyond a layperson's common knowledge — typically in professional malpractice cases (medical, legal, engineering).

Negligence: Breach & Proof

What Is Breach?

Breach is the second element of negligence. It asks: did the defendant's actual conduct fall below the standard of care?

The formula: Breach = What defendant DID vs. What a reasonable person WOULD HAVE DONE

Proving Breach

Direct Evidence

Direct evidence of breach shows exactly what the defendant did wrong: - Eyewitness testimony ("I saw him texting while driving") - Physical evidence (skid marks showing speed) - Admissions by defendant - Video/audio recordings

Circumstantial Evidence

When direct evidence is unavailable, breach may be inferred from surrounding circumstances: - The nature of the accident itself - The condition of equipment or premises - Failure to follow established procedures - Post-accident remedial measures (admissible for other purposes)

Res Ipsa Loquitur

"The Thing Speaks for Itself"

When direct evidence of what the defendant did is unavailable, but the accident itself suggests negligence:

Elements

| Element | Requirement | |---------|------------| | 1. Type of accident | Does not ordinarily occur without someone's negligence | | 2. Exclusive control | Instrumentality was in defendant's exclusive control | | 3. No plaintiff contribution | Plaintiff did not contribute to the event |

Classic Examples

- A barrel of flour rolls out of a warehouse window onto a pedestrian (Byrne v. Boadle) - A surgical sponge is left inside a patient after surgery - An elevator suddenly drops - A sealed can of food contains a foreign object

Effect of Res Ipsa

- Permissible inference (majority): The jury MAY find negligence but is not required to - Rebuttable presumption (minority): Shifts burden to defendant to prove non-negligence - Does NOT guarantee plaintiff wins — defendant can still offer rebuttal evidence

When Res Ipsa Does NOT Apply

- When the exact cause of the accident is known (use direct evidence instead) - When the instrumentality was not in defendant's exclusive control - When the type of accident commonly occurs without negligence - When plaintiff contributed to the event

Custom and Industry Practice

As Evidence FOR Breach

Departure from what others in the same position do is strong evidence that defendant was unreasonable:

"Everyone else in the industry uses safety goggles. Defendant did not. This suggests defendant fell below the standard of care."

As Evidence AGAINST Breach

Compliance with custom is evidence (but not proof) of due care:

"Defendant followed all standard industry protocols. This suggests defendant was reasonable."

The T.J. Hooper Principle (Review)

Custom is EVIDENCE, not the STANDARD. An entire industry may be negligent if a reasonable person would take precautions that the industry as a whole fails to take.

Expert Testimony

When Required

Expert testimony establishes breach when the standard of care is beyond common knowledge: - Medical malpractice: Only a doctor can say what a reasonable doctor would do - Legal malpractice: Only a lawyer can say what a reasonable lawyer would do - Engineering/architecture: Technical standards require expert explanation

When NOT Required (Common Knowledge Exception)

When the negligence is obvious to a layperson — no expert needed: - Surgeon amputates wrong limb - Driver runs a red light - Leaving a sponge inside a patient (res ipsa loquitur)

Baby Bar Connection

Breach analysis appears in every negligence essay. The examiners expect you to: 1. Identify what the defendant actually did (or failed to do) 2. Compare that conduct to the reasonable person standard 3. Explain WHY the conduct fell below the standard 4. Consider res ipsa loquitur when the defendant's specific act is unknown

Cases to Know

Byrne v. Boadle (1863) — barrel falling from warehouse establishes res ipsa loquitur; foundational case for the doctrine
Ybarra v. Spangard (1944) — res ipsa applied to surgical team even without identifying which member was negligent; expanded exclusive control requirement
The T.J. Hooper (1932) — industry custom does not define the standard of care; an entire industry may be negligent
Negri v. Stop and Shop (1985) — circumstantial evidence of constructive notice (dirty broken jars suggest long presence on floor)

Baby Bar Relevance

Breach is tested on every Baby Bar negligence essay. You must be able to articulate WHY defendant's specific conduct fell below the standard. Res ipsa loquitur is a favorite testing topic — know the three elements cold and when the doctrine does and does not apply.

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14Torts

Negligence: Breach & Proof

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Learning Objectives

Explain breach as a failure to conform conduct to the applicable standard of care — a question of fact for the jury
Apply the reasonable person standard to specific defendant conduct by comparing what was done to what should have been done
Analyze custom, industry practice, and safety codes as evidence of breach (probative but not conclusive)
Apply res ipsa loquitur when direct evidence of breach is unavailable: (1) the accident does not normally occur without negligence, (2) the instrumentality was in defendant's exclusive control, (3) plaintiff did not contribute
Distinguish direct evidence of breach from circumstantial evidence and explain when each is sufficient
Identify when expert testimony is required to establish breach (professional standard cases) vs. when lay testimony suffices

Key Rules

Breach: Defendant's conduct fell below the standard of care that a reasonably prudent person would exercise under the same or similar circumstances. The jury determines this by comparing defendant's actual conduct to what a reasonable person would have done.
Res ipsa loquitur: An inference of negligence arises when (1) the event is of a kind that ordinarily does not occur in the absence of negligence, (2) the instrumentality causing the harm was in defendant's exclusive control, and (3) the plaintiff did not contribute to the event. Effect: creates a permissible inference (or rebuttable presumption) of negligence.
Custom and industry practice: Compliance with custom is evidence of due care but not conclusive (T.J. Hooper). Departure from custom is strong evidence of negligence.
Safety statutes/codes: Violation may establish negligence per se (Week 10). Compliance is evidence of due care but does not preclude a finding of negligence if a reasonable person would have done more.
Expert testimony is required to establish breach when the standard of care is beyond a layperson's common knowledge — typically in professional malpractice cases (medical, legal, engineering).

Negligence: Breach & Proof

What Is Breach?

Breach is the second element of negligence. It asks: did the defendant's actual conduct fall below the standard of care?

The formula: Breach = What defendant DID vs. What a reasonable person WOULD HAVE DONE

Proving Breach

Direct Evidence

Circumstantial Evidence

Res Ipsa Loquitur

"The Thing Speaks for Itself"

When direct evidence of what the defendant did is unavailable, but the accident itself suggests negligence:

Elements

Classic Examples

Effect of Res Ipsa

When Res Ipsa Does NOT Apply

Custom and Industry Practice

As Evidence FOR Breach

Departure from what others in the same position do is strong evidence that defendant was unreasonable:

"Everyone else in the industry uses safety goggles. Defendant did not. This suggests defendant fell below the standard of care."

As Evidence AGAINST Breach

Compliance with custom is evidence (but not proof) of due care:

"Defendant followed all standard industry protocols. This suggests defendant was reasonable."

The T.J. Hooper Principle (Review)

Custom is EVIDENCE, not the STANDARD. An entire industry may be negligent if a reasonable person would take precautions that the industry as a whole fails to take.

Expert Testimony

When Required

When NOT Required (Common Knowledge Exception)

When the negligence is obvious to a layperson — no expert needed: - Surgeon amputates wrong limb - Driver runs a red light - Leaving a sponge inside a patient (res ipsa loquitur)

Baby Bar Connection

Cases to Know

Byrne v. Boadle (1863) — barrel falling from warehouse establishes res ipsa loquitur; foundational case for the doctrine
Ybarra v. Spangard (1944) — res ipsa applied to surgical team even without identifying which member was negligent; expanded exclusive control requirement
The T.J. Hooper (1932) — industry custom does not define the standard of care; an entire industry may be negligent
Negri v. Stop and Shop (1985) — circumstantial evidence of constructive notice (dirty broken jars suggest long presence on floor)

Baby Bar Relevance

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