Negligence Torts: Breach

One does not breach their duty of care if they did all that a reasonable person would do in the situation to avoid harm.


McDougald v. Perry

Res Ipsa Loquitur

The first type of breach we'll explore is when there is circumstantial evidence (res ipsa loquitur - “the thing itself speaks”) a breach of duty occurred.

Circumstantial evidence/prima facie evidence (where an injury couldn’t have happened except for someone’s negligence) can be enough to shift the burden of proof to the defendant (Byrne v. Boadle)

But to properly use res ipsa loquitur, one must show that (McDougald v. Perry):

1.  The injury-causing thing was under the exclusive control of the defendant (this will often be hotly debated)

2. This does not ordinarily happen

3.  The plaintiff is free from fault (didn’t contribute to the cause) (also hotly debated)

  Only then can res ipsa loquitur be an appropriate jury instruction

  • The plaintiff can't rely on res ipsa if plaintiff should be able to show facts of negligence

  • Sometimes eyewitnesses/witnesses won’t come forward with direct evidence, and the plaintiff has no access to the evidence needed to prove their case. In these situations, there is a policy interest in encouraging tortfeasors or witnesses to come forward, so it is acceptable to shift the burden to the defendants who had exclusive control, are jointly responsible, and have knowledge of how injury occurred.

Restatement (Third) of Torts § 15 cmt. a

“Res ipsa loquitur is an appropriate form of circumstantial evidence enabling the plaintiff in particular cases to establish the defendant's likely negligence. Hence the res ipsa loquitur doctrine, properly applied, does not entail any covert form of strict liability... The doctrine implies that the court does not know, and cannot find out, what actually happened in the individual case. Instead, the finding of likely negligence is derived from knowledge of the causes of the type or category of accidents involved.”


Where Duty and Custom Meet

Some of the same topics that can indicate a duty may also apply to breaches. For example, a landlord may have a duty to ensure the building installs certain materials based on custom, and by failing to adhere to that custom, there was a breach.


Evidence of the usual and customary conduct or practice of others under similar circumstances can be admitted to establish the proper standard of reasonable conduct. A plaintiff's evidence of conformity or nonconformity with a customary practice does not establish whether the defendant was negligent; the jury decides whether a reasonably prudent person would have done more or less than is customary (i.e. maybe the custom should have been rejected long ago).


Failure to Warn 3rd Parties

  • see description under “duty”

Calculus of Risk

  • see description under “duty”


Zuchowicz v. U.S.

Expert Testimony

 Sometimes testimony by experts can be applied to demonstrate a breach of duty occurred.

Trier of fact can find plaintiff’s negligent behavior caused the harm, if:

  1. A negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur

  2. A mishap occurred of that very sort

  3. Plaintiff need not eliminate all possible causes.

    1. All plaintiffs can do is identify a causal agent and offer credible testimony vetted by trial court.

  4. Creates rebuttable presumption of causation: Defendant must show wrongful conduct was not a substantial factor.

    1. But see “qualifying rule”


The rebuttable presumption of causation may not be invoked in all cases where the plaintiff proves causation based only on the negligent act and inference. Three factors can bar the shifting of burden:

  1. Weak circumstantial evidence

  2. Relative ability of the parties to obtain evidence about what happened

  3. Whether the case is one in which there is reason to have different concerns about errors favoring πs as opposed to defendants

Martin v. Herzog

Negligence as a matter of law/Negligence per se

  • Statutes: Whether a relevant statute has been violated can indicate a violation of a legislative conclusion as to how the reasonable person would act in particular circumstances.

  • Does common law duty exist?

    • Did the plaintiff violate statute to protect a class of individuals (which includes the defendant)?

    • Was injury of the type it sought to prevent?

    • Does the plaintiff provide no excuse?

    • Then the plaintiff is negligent per se.

  • Exception: If by avoiding the statute, the defendant was actually decreasing the likelihood of danger (Tedla v. Ellman), then it may be reasonable to have disregarded the statute.

  • The injury must be within the harm the statute was meant to avoid. “The defendant is negligent if, without excuse, he violates a statute designed to protect against the type of accident his conduct caused, and the victim is within the class of class of persons the statute is designed to protect.”

  • In addition to laws, be mindful of any regulations or inspections that may apply to the facts.

Restatement (2d) of Torts, § 286

“The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to the exclusively or in part

  1. to protect a class of persons which includes the one whose interest is invaded, and

  2. to protect the particular interest which is being invaded, and

  3. to protect that interest against the kind of harm which has resulted, and

  4. to protect that interest against the particular hazard from which the harm results.”

Falzone v. Busch

Negligent Infliction of Emotional Distress (NIED)

No physical “impact” is necessary for an NIED claim (Falzone v. Busch), but must:

  1. Demonstrate how negligence caused fright from reasonable fear of immediate personal injury

  2. Demonstrate how the negligence resulted in substantial bodily injury or sickness (Falzone)

  3. But where the plaintiff can’t show above factors, no NIED

Expansion of NIED to cover no threat of physical injury in order to recover for emotional distress (Gammon v. Osteopathic Hospital of Maine), but strict limits on these types of NIED cases:

  1. Under Gammon (1987):

    1. Must be closely related

    2. Must be a foreseeable cause for emotional distress

  2. Under Portee v. Jaffee (1980), builds on Dillon factors:

    1. Death/injury caused by the defendant's negligence?

    2. Marital/intimate family relationship between the plaintiff and the victim?

    3. Did the plaintiff observe the death/injury at the scene of the accident?

    4. Did it result in severe emotional distress? (Can point to subsequent therapy, counseling, etc.)

Note: Some courts believe we shouldn’t provide compensation for hurt feelings of supersensitive plaintiff (eggshell psyche). So, if it wasn’t foreseeable/reasonable, care would not have avoided their distress, the plaintiff shouldn’t receive damages—a question for a jury (Gammon)