Topic 6: Breach (Custom, Negligence Per Se, Res Ipsa)

What is custom?

What does a reasonably prudent person normally do?

Examples:

• Local custom: Drivers typically take this blind curve slowly.

• Professional custom: Doctors in this speciality typically perform Procedure X instead of Y.

True or false: Custom is never conclusive.

True

What is violation of statute/negligence per se?

Establish Duty & Breach through violation of criminal statute.
The plaintiff’s injury must be the type of harm the statute was designed to prevent.
The accident victim must be within the class of persons the statute is designed to protect.
If criteria met, negligence established.

When is violation of statute/negligence per se excused?

1. (Reasonable for class): child age, physical disability, or physical incapacitation (e.g. child doesn’t understand importance of headlights on bike)

2. (Trying to comply): Actor exercises reasonable care in attempting to comply with statute (e.g. brake light burns out in rural area, two gas stations don’t have the correct part, actor drives slowly)

3. (Better to not comply): The actor’s compliance with statute would involve a greater risk of physical harm (e.g. large truck is tailgating dangerously close, driver passes stop sign)

4. Violation is due to confusing statute

What is Res Ipsa Loquitor?

The Thing Speaks for Itself - accidents like this never happen if driver wasn’t negligent

What is Circumstantial Evidence? Provide an example.

Evidence by inference. Crumbs on mouth or banana on ground.

What concept is this?
A driver’s vehicle suddenly veers off a straight, dry road and hits a tree. Cars do not ordinarily run off the road absent negligence (e.g., inattention, speeding, mechanical neglect).

Res Ipsa Loquitor

Suppose duty is established. You are now able to use Res Ipsa Loquitor. After Res Ipsa Loquitor is established, what else is established?

Breach and Causation

Guy was practicing medicine, but was not licensed as a doctor.
He operates on P. He performed the operation within the SOC of a licensed doctor, but a complication (not due to a lack of SOC) arose and the patient was injured.
Negligence from the statute?

No.
Statute was designed to protect against the type of accident that occurs
The injury P suffered—an unpreventable complication—is not the kind of harm the licensing statute (which protects against poor quality care) was designed to avert.