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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Wednesday, March 10, 2010

5 – Negligence – Breach of Duty (Introduction)

5 – Negligence – Breach of Duty (Introduction)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

We finished Standard of Care and now we move on to Breach of Duty.

Breach of Duty is the failure to meet the standard of care. The question is whether or not Defendant breached the duty of care by failing to exercise the care required. Breach of duty (unreasonable conduct of the D), can be established in four ways:

     1. Learned Hand Formula: B < PL. Defendant will have acted unreasonably where the burden of avoiding harm is less than the probability of that harm occurring multiplied by the likely seriousness of the harm if it does occur.
     2. Hand + Social Utility: If the gravity and likelihood of harm created by the Defendant's act outweighs the burden on D to have acted differently and the utility of the Defendant's conduct.
     3. Res Ipsa Loquitur: The purpose is to prove breach of duty. It benefits plaintiff since a plaintiff invoking res ipsa need not show that defendant acted unreasonably. The requirements are:
           1. The harm suffered is most likely caused by negligence of someone.
          2. It is more likely that it was defendant’s negligence (or defendant had   exclusive control of object which caused the harm).
           3. The Plaintiff was not at fault.

In most states, it establishes an inference allowing the jury to find that defendant breached a duty of care. Even if the jury accepts the inference, P does not automatically prevail unless plaintiff also establishes that the defendant was the cause in fact and proximate cause of the harm and that the plaintiff has suffered damages. Res ipsa only helps to prove breach of duty.
     4. Negligence Per Se: (See the discussion regarding NPS under Negligence - Breach of Duty - Negligence Per se. This is another way to prove breach of duty by proof that Defendant has violated a statute that establishes the applicable standard of care where the statute provides for a criminal or administrative enforcement.
Statutory violation: (1) Plaintiff is a member of the class intended to be protected by the statute; (2) the type of injury which occurred is the type the statute is intended to guard against; and (3) the Defendant's violation is not excused.

NOTE: On torts essays, always discuss the Hand test and then make sure that you look for an appropriate statute so you can discuss neg. per se along with the Hand test. Then consider whether or not you should discuss res ipsa loquitur.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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