Unexcusedviolation of the statute constitutes breachExcuses vary by court; an excused violation is not negligent:oIncapacityoNo Knowledge of Occasion for Compliance (rear break light out)oInability after reasonable diligence to complyoEmergencyoCompliance involves greater risksStatutory violation creates presumption of breach but defendant may try to prove application of a specific acceptable excuse Statutory violation creates presumption of breach but defendant may try to show reasonable care notwithstanding statutory violation 17
Violation of a statute by a minor may be introduced as evidence of negligence as long as the jury is clearly instructed that the special’s child standard of care is the proper standard to be applied to a minor Express Presumption of NegligenceInstead of excuse will rebut with: Reasonableness under all the circumstancesPresumed negligent; burden is shifted to defendant to rebut and show by a preponderance of the evidence.Evidence of Negligence (minority)Violation merely evidence of breach, standard remains reasonable person standard, violation is considered by jury as evidenceStandard of care remains the reasonable person but defendant’s violation of a relevant statute goes to jury as part of the breach determination §2.07 PROOF OF NEGLIGENCEJudge will establish substantive rules.Judge will be gatekeeper, ensure at every step (proc. postures) there is sufficient evidence to let case keep going.Jury decides what was foreseeable and unreasonable in that situation.P has burden to prove breach by a preponderance of the evidenceCircumstantial evidence= evidence from which a reasonable inference may be drawnoEx. speed of car inferred from length of skidCirc. Evid. Important in 2 contexts to survive a directed verdict motion:oSlip and fall casesoRes ipsa loquitur “the thing speaks for itself”[A] CIRCUMSTANTIAL PROOFTest of Rationality: Where the existence of the fact to be inferred appears more probable than its nonexistence, the jury will be permitted to decide whether the inference should be drawnClark v. Kmart: smashed grapes on floor caused P to slip & fall. Time from checkout closing was an hour, reasonable inference that grapes were there over an hour and therefore D should have known of danger.Fact finder must draw an inference from circumstantial evidence as to the existence of a factAn inference must be a rational one P must show a duty and breach of that duty, and circumstantial evidence can help show this breach[B] RES IPSA LOQUITUR18
•Res ipsa always gets you passed a Directed Verdict•RIL: it is more likely than not that someone was negligent and more likely than not that the someone was the ∆•Permits the drawing of an inference and prevents the ∆’s own negligence from precluding its own liability•RIL lessens the burden of proof that the ∏ has to prove •3 Conditions: 1) Accident must be of a kind which ordinarily doesn’t occur in the absence of
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- Fall '14
- Marie Boyd
- Tort Law, frat party