X. Torts: Breach of duty

Where defendant's conduct falls short of that required by the applicable standard of care owed to plaintiff, she has breached her duty.

Whether duty of care is breached in a particular case is a question for the trier of fact.

Plaintiff must prove:

-- what happened; and

-- that the facts show that defendant acted unreasonably.

Custom or usage may be introduced to establish the standard of care in a given case. But customary methods of conduct do not furnish a test that is conclusive for controlling the Q of whether certain conduct amounted to negligence.

The existence of a duty owed to plaintiff and breach thereof may be established by proof that defendant violated an applicable statute.

The thing speaks for itself -- deals with those situations where the fact that a particular injury occurred may itself establish or tend to establish a breach. Where the res ipsa element has been proven, plaintiff has made a prima facie case and no directed verdict may be given for defendant.

Plaintiff required to show the following:

-- the accident causing his injury is the type that would not occur unless someone was negligent;

-- neligence is attributable to defendant; often can be satisfied by showing that defendant was in exclusive control of the instrumentality that caused the injury (where more than one person might have been in control, res ipsa loquitur may not be used to establish a prima facie case against an individual);

-- plaintiff must also establish that the injury was not attributable to him, but may do so by his own testimony.