Torts-Negligence Breach

• I) Negligence per se— Statutory violation deemed negligent on
• its face and as a matter of law; conclusive presumption of duty and breach

• II) Evidence of Negligence (Minority)—Violation of a statute can
• be offered as evidence for negligence but the fact finder determines if a breach
• of duty truly occurred and may
• accept or reject evidence.

• III) Rebuttable Presumption—When violation of a statute occurs, negligence per se is presumed and considered to be a prima facie case of
• negligence but this presumption is rebuttable.

Excused Violations

• HEKID
• -greater risk of harm
• -incapacity
• -neither knows nor should know
• -unable after reasonable diligence to comply
• -confronted by an emergency

HEKID

• -greater risk of harm
• --confronted by an emergency
• -neither knows nor should know
• -incapacity
• -unable after reasonable diligence to comply

There is not negligence per se in federal law!!!

• I) Direct Evidence (Actual Knowledge)—evidence that is based on personal observation or knowledge and that, if true, proves a fact
• without inference or presumption.

Circumstantial Evidence (Constructive Knowledge)—evidence based on inference and not personal knowledge or observation.

Res Ipsa Loquitur (RIL)—“the thing speaks for itself”—the occurrence of event itself warrants an inference that the defendant was negligent.

• Hierarchy of ways to
• prove negligence:
• 1.
• Direct Evidence
• 2.
• Const. Evidence
• 3.
• Res Ispa

Res Ipsa Loquitur (RIL)—“the thing speaks for itself”—the occurrence of event itself warrants an inference that the defendant was negligent.



(1) Plaintiff must show 3 elements

• (a) Unusual occurrence that does not occur
• without negligence of someone.

• (i) Unusual Occurrence—anything
• that happens outside normal course of
• business

• (b) Instrument of harm was
• under the defendant’s exclusive
• control and right of control at the time negligence took place. Defendant more likely than not caused the injury.

(i) The plaintiff is not required to eliminate with certainty all other possible causes or inferences.

(c) P did not contribute/cause negligence

• G.R.—Res Ipsa Loquitor does not
• apply because plaintiff cannot show one person was more likely than not the person who caused the injury. (IE: Turkey Dinner-- food poisoning)

(b) Exception—Medical Context

• (i) Multiple health care providers
• working together may be held liable if the doctors both oversaw the surgery and
• the doctors both had a duty.

• (ii) Apply when P has no direct
• evidence (esp. if unconscious)

(iii)Hospital/medical must eliminate all parties as possible source of injury—this shifts the burden to each defendant to prove that they were not exercising control

But for

substantial factor test

summer test

market share test

loss of chance

joint and several liability