Negligence: Breach of Duty

Breach of Duty—Generally

Definition—a violation of the standard of care.

1. Traditional Approach—Reasonable person standard. Focuses on a common-sense approach of what the reasonably prudent person would do under the circumstances.

2. Cost-Benefit Analysis—Hand Formula (B < PL) (Burden v. Probability of harm x severity of Loss)

Exam Tip 5: Do not get hung up on the difference here; it’s really just two ways of getting to the same result.

Breach of Duty—Specific Rules

1. Custom—majority practice within an industry or profession

a. Generally—evidence of custom is admissible, but not dispositive.

b. Professionals—lawyers, doctors, accountants, electricians

• Custom is admissible and dispositive.

  • Compliance with custom = no breach

  • Deviation from custom = breach

Physicians

• Traditional rule—physician in the “same or similar” locality

• Modern trend—national standard

• Informed consent—Patients must give informed consent:

  • Doctors must explain risks of medical procedures.

  • Doctors are not required to inform the patient if:

    • The risks are commonly known;

    • The patient is unconscious;

    • The patient waives/refuses the information;

    • The patient is incompetent; or

    • The patient would be harmed by disclosure (e.g., it would cause a heart attack).

Statutes

—when a law or statute establishes a particular standard of care, violation of the law constitutes a breach; constitute negligence per se.

Negligence Per Se

 Elements:

1) A criminal law or regulatory statute imposes a particular duty for the protection or benefit of others;

2) Defendant violated the statute;

3) Plaintiff must be in the class of people intended to be protected by the statute;

4) The accident must be the type of harm that the statute was intended to protect against; and

5) The harm was caused by a violation of the statute.

Violation by plaintiff

counts as comparative or contributory negligence.

Compliance with a statute

generally does not constitute reasonable care; does not mean the person was NOT negligent.

Defense—Excuse

• Defendant may show that complying with the statute would be even more dangerous than violating the statute

• Compliance was more dangerous or an emergency justified violation of the statute

• Incapacity (physical disability)

• Exercised reasonable care in trying to comply

• Vagueness