Negligence - Breach

Breach of duty

Defendant departs from the conduct expected of a reasonably prudent person acting under similar circumstances;

Plaintiff can demonstrate such failure by introducing evidence of the required standard of care through:

• custom and usage,

• violation of a statute, or

• res ipsa loquitur

Res Ipsa Loquitur

Circumstantial Evidence - Trier of fact may infer the existence of defendant’s negligent conduct in absence of direct evidence

1. type of accident does not ordinarily occur in the absence of negligence

2. caused by agent/insrumentality within defendant’s exclusive control

3. not due to any action on the part of the plaintiff

Res Ipsa Loquitur (Third Restatement Definition)

Fact finder may infer negligence when:

(i) The accident is the type that ordinarily occurs due to negligence by a class of actors, and

(ii) The defendant is a relevant member of that class.

• No need to show exclusive control or eliminate plaintiff conduct as a cause.

• Group liability is allowed only when members share an ongoing relationship involving joint responsibility for a dangerous activity (e.g., surgical teams).

Res Ipsa Loquitur - Medical Malpractice

In some jurisdictions, res ipsa loquitur applies to medical malpractice when multiple medical personnel had control over the patient during surgery 

• Each defendant is presumed negligent unless they can prove they did not cause the injury.

• If no defendant can exonerate themselves, the court may hold all defendants jointly and severally liable.

Res Ipsa Loquitur - Product Liability

even if a product passes through many different hands (manufacturer, distributor, retail store, if the manufacturer wrapped the package/it’s clear where the negligence took place, many courts ignore exclusivity requirement

Res Ipsa Loquitur - Comparative Fault

In comparative fault jurisdictions, courts allow res ipsa to apply even if the plaintiff’s actions played a partial role, and simply reduce damages proportionally.