315: Listen and Learn -- The Breach Element of a Negligence Claim (Torts)

Episode Transcript
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Lee Burgess (00:00):
Welcome to the Bar Exam Toolbox podcast.

(00:02):
Today, as part of our "Listen andLearn" series, we're discussing
torts, and specifically, proving thebreach elements of a negligence claim.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience so you can study
effectively, stay sane, and hopefullypass and move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the

(00:24):
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.

(00:47):
Hello, and welcome back to the"Listen and Learn" series from
the Bar Exam Toolbox podcast.
Today we are discussing torts, andspecifically, proving the breach
element of a negligence claim.
Remember, to prove a negligence claim, theplaintiff must establish four elements:
duty, breach, causation, and damages.
Today we will discuss what exactlya plaintiff must prove to establish

(01:11):
the second element with some methodsthat a plaintiff may use to do so.
We will also talk about a doctrine thata plaintiff may use if the plaintiff
can show that their injury normallydoes not happen, unless someone breached
a standard of care but the plaintiffdoes not know the specific way in which
the defendant breached their duty.

(01:31):
And we will walk through somehypos to illustrate different
methods of proving breach.
But before we jump in, let's take a fewminutes to clarify a vocabulary issue
that comes up in negligence case lawwith regard to this second element.
Courts use the word "negligence"to refer to two things.
First, they use it as we haveso far in this podcast to

(01:53):
refer to a negligence claim.
For example, if a court says,"Plaintiff has sued Defendant for
negligence", the plaintiff must proveall four elements of a negligence
claim to be entitled to damages.
Alternatively, courts sometimes usethe word "negligence" or "negligent"
when discussing the second elementof the plaintiff's claim - a
breach of the standard of care.

(02:15):
For example, a court might say,"Plaintiff has established that the
defendant was negligent by failingto double check the safety harness.
And Plaintiff has also proved thedefendant's negligence is the actual
and proximate cause of " laintiff'sdamages." In this case, the court is
using the word "negligent" to referto the second element of a negligence

(02:36):
claim - breach of the standard of care.
In other words, a plaintiff is notnecessarily entitled to the damages
just because the defendant actednegligently, meaning the defendant
breached the standard of care.
To be entitled to damages for theirnegligence claim, the plaintiff
must also prove that the defendant'snegligence or breach of that standard

(02:57):
of care actually and approximatelycaused the plaintiff's damages.
If this semantics issue is causing extraconfusion, do not worry too much about it.
In context, it is usually easy todetermine whether a court is using
the term "negligence" to referto the plaintiff's entire claim,
versus when the court is using theterm to refer to the second element

(03:20):
- breach of the standard of care.
Just be aware that if you feel likecourts are using "negligence" to
refer to the four elements as aclaim, as well as the second element
only, you are probably right.
Now that we have discussed howcourts sometimes refer to this second
element - breach of the standard ofcare - as someone acting negligently,

(03:41):
let's talk about what a plaintiffmust show to prove this element.
Here, you will likely notice that thissecond element - breach of a duty of care,
is related to the first element - the dutythat the defendant owes the plaintiff.
In other words, whether a defendantbreached a duty of care depends
on what standard of care appliesand what that standard requires.

(04:04):
In most cases, the reasonableprudent person standard applies.
This is the standard on which we willfocus during our discussion today.
Just remember that there are circumstancesin which this reasonable person's
standard of care is replaced by amore specific standard of care, such
as the duties owned by landowners,professionals, and children.

(04:26):
We focus on those standards in otherpodcast episodes, and you can find a link
to those episodes in the show notes below.
But for today, let's get backto the reasonable prudent
person standard of care.
Under that standard, every person owesa duty to all foreseeable plaintiffs
to act as a reasonable prudent personwould under like circumstances.

(04:49):
Stated another way, every person owesa duty to conform their conduct to
the standard necessary to avoid anunreasonable risk of harm to others.
To determine whether a defendanthas breached this duty, we must know
what a reasonable prudent personwould do under the circumstances.
Here are some general guidelinesabout this reasonable person.

(05:11):
First, the reasonable person is onlyrequired to consider the foreseeable
risks of injury that their conductwill impose on the community.
They are not expected to considerrisks that are unforeseeable.
Second, the reasonable person isnot required to completely avoid
all foreseeable risks of injury.

(05:31):
Rather, we accept that everyonemust do things on a daily basis that
pose some risk of injury to others.
For example, if you have driven a car,played a sport, or mowed your lawn, you
have engaged in an activity that posesforeseeable risks of injury to others,
and you are not expected to completelyavoid all of these risks, especially when

(05:53):
the only way to avoid all risks is to notengage in an activity that is essential
to daily life, such as driving a car.
Instead, you are expected toconsider the risks of injury in
light of the utility of your conduct.
So, in the case of driving your car,you must take precautions to avoid

(06:13):
foreseeable risk of injury to otherswhile driving your car, in light of the
utility of being able to drive a vehicle.
To determine what precautions arereasonable under the circumstances, the
reasonable person must consider both theextent and the likelihood of the risks.
In the case of driving avehicle, there is a serious risk

(06:36):
posed to others on the road.
Every year, tens of thousandsof people die in auto
accidents in the United States.
This means that the extent of the riskposed by driving your car is catastrophic.
That being said, the likelihood ofcatastrophic injury from driving is
fairly low, considering that thereare over 250 million drivers in the

(06:58):
United States, and these drivers drivean average of nearly 30 miles per day.
In other words, the number of peoplewho suffer catastrophic injuries while
driving a vehicle is a small percentageof the millions of drivers on the roads.
So while the extent of injury fromdriving is high, the likelihood
of catastrophic injury is low.

(07:21):
Additionally, there are simpleprecautions that drivers can take to
avoid the risk of catastrophic harm toothers, such as obeying traffic laws.
For example, a reasonable person wouldnot drive a car at a high speed on
the interstate while texting, becausein most circumstances, the burden of
not immediately replying to a textmessage is far less than the extent and

(07:43):
likelihood of an injury posed by lookingat your phone rather than the road.
This brings us to the first tool that aplaintiff may use to show that someone's
conduct fell below the reasonableperson standard - the BPL formula.
Under this formula, if the burdenof taking a precaution is less

(08:03):
than the probability times theextent of injuries, a reasonable
person would take the precaution.
In other words, when the burden oftaking a precaution is low and the extent
times the likelihood of the injury ishigh, a person who does not take the
precaution has likely breached theirduty of care or acted negligently.

(08:25):
So let's use a hypo to illustrate howthe plaintiff and defendant may use the
BPL formula to argue that the breachelement is or is not established.
This hypo is adapted from a questionon the July 2021 California bar exam:
"Hospital, a private hospital inCalifornia, maintains a policy that

(08:45):
food served in the hospital mustnever be left unattended before,
during, or after meal service, toprevent contamination or tampering.
Hospital's kitchen staff are trainedon the policy and required to stagger
breaks so that at least one memberof the staff is always present in the
cafeteria to monitor accessible food.

(09:07):
Hospital also has a security guardresponsible for patrolling the cafeteria.
Recently, Denise Davis, the ChiefExecutive Officer of Hospital,
received a series of anonymous emailmessages threatening to carry out
a massive attack at the hospital.
In response to these threats, Davisdecided to reassign the security

(09:27):
guard from patrolling the kitchenarea to patrolling the hospital
lobby and the entrance area.
Davis did not share the informationconcerning these threats with
anyone else at the hospital.
Several days later Frank, a formerpatient, entered the hospital
kitchen shortly before lunchtimeand mixed peanut powder into a
serving tray full of mashed potatoes.

(09:50):
No kitchen staff was monitoringthe potatoes at the time they
were contaminated, because theyhad all left to use the restroom.
Patrick, a patient, consumedthe mashed potatoes.
Patrick, who has a serious allergyto peanuts, suffered severe injuries.
Patrick sued Hospitaland Davis for negligence.
Regarding Davis, Patrick claimed thatDavis breached her duty of care to Patrick

(10:14):
by reassigning the security guard from thekitchen to the lobby and entrance area.
How can Davis use the BPL formula to arguethat she did not breach her duty of care?
And how should Patrick respond?"
So, let's talk about Davis'sarguments first here.
Davis will likely argue that theburden of maintaining an extra security

(10:36):
guard in the cafeteria outweighedthe extent and likelihood of injury.
Even though food contamination couldcause severe injuries, as it did in
this case, the likelihood of severeinjuries is small for two reasons:
[1] the most common injury from foodcontamination is food poisoning, which
is not nearly as severe as a reactionto a serious allergy; and [2] the

(10:59):
likelihood of any contamination withoutthe security guard in the cafeteria
was small, because the policy requireda member of the kitchen staff to be
present to monitor the food at all times.
If the kitchen staff had complied withtheir job requirements, it is unlikely
that Frank's tampering with the mashedpotatoes would've gone unnoticed.
And the chances of all kitchen staffgoing to the restroom at the same time

(11:22):
is an unusual and unexpected occurrence.
Moreover, the burden of not movinga security guard to a location with
a far more immediate threat is high.
Unless Hospital could afford to have anextra security guard on staff for the
duration of the threat, Hospital hadto move a guard from somewhere to have
extra support to protect against attack.

(11:42):
This may have required moving asecurity guard who was in a higher
risk area than the cafeteria, orjust keeping all guards in place
and being vulnerable to an attack.
Given these facts, Davis will arguethat she acted reasonably by reassigning
the cafeteria security guard toaccount for the greater threat,
given that the risk of any unnoticedcontamination in the cafeteria was low.

(12:09):
On the other hand, Patrick will likelyargue that the hospital's policy indicates
that the hospital knew food contaminationwas a potential problem, indicating that
there may be a high likelihood of thishappening if the food is not monitored.
And Patrick will argue thatthe extent of injury from food
contamination can often be severe.
Even food poisoning can belife-threatening, particularly to hospital

(12:32):
patients who are already severely ill.
Furthermore, Patrick will note that thereare alternatives to removing the security
guard from the cafeteria that Davisshould have considered, such as having
an extra security guard in the lobby andentrance following the threat, without
reassigning any of the other guards.
In other words, Hospital couldhave just paid to have one more

(12:52):
guard on duty during this time.
Although this is some burden to Hospital,if Davis had told the board or others
about the threat, it may not havebeen difficult to get them to agree to
have extra security on the premises.
Or Davis could have reported the threatsto the police, who may have been willing
to assist with additional security.
This brings us to some of theadditional things that a court

(13:13):
may consider regarding whether thedefendant breached their duty of care.
For example, were there, as Patrickwould argue here, alternatives that Davis
should have considered before removingthe security guard from the cafeteria?
The court may consider industry custom.
Do most hospitals always maintaina security guard in the cafeteria,
regardless of whether there is athreat requiring extra security

(13:36):
in another part of the hospital?
Regardless of the answer, this industrycustom is merely evidence of what
a reasonable hospital CEO would do.
It is not determinative.
Another potential consideration iscompliance with a statute or regulation.
As you likely know, failure tocomply with a statute may establish

(13:56):
the duty and breach elements of anegligence claim if the elements
of negligence per se are satisfied.
For a more in-depth discussionof negligence per se, see our
"Listen and Learn" episode on thistopic linked to in the show notes.
However, compliance with a statuteor regulation does not insulate a
defendant from a finding of negligence.

(14:16):
So, let's look at another hypoto illustrate how a defendant
may be found negligent despitecompliance with a statute:
" Patty is driving on theinterstate in pouring down rain.
She's going 45 miles per hour,which is well under the speed
limit of 60 miles per hour.
Patty hydroplanes and hits David'svehicle, sending him into the

(14:38):
cement wall interstate divider.
David is severely injured andsues Patty for negligence.
At trial, Patty argues that she did notbreach the standard of care, because she
was driving well under the speed limit.
However, David argues that giventhe pouring rain, a reasonable
person would've been driving atan even slower speed than Patty."

(14:58):
Here, Patty's compliance with thespeed limit does not insulate her
from liability, and depending on thecircumstances, David may have a strong
argument that a reasonable person would'vebeen driving at an even slower speed
than Patty, given the pouring rain.
As these hypos illustrate, whether adefendant breached the duty of care is
often a very fact-intensive analysisbased on the circumstances of that case.

(15:23):
Whether Patty was negligent by driving 45miles per hour instead of an even slower
speed will likely depend on testimonyabout the extent of the downpour and
what other cars on the road were doing.
For example, if most of the carshad initiated their emergency lights
and slowed down to 15 to 20 milesper hour, that is strong evidence
that Patty was not acting reasonablyby driving 45 miles per hour.

(15:46):
On the other hand, if Patty was movingwith the flow of traffic and using
her emergency lights, that supportsa finding that Patty was acting
reasonable under the circumstances.
Now that we have covered some hyposregarding how a plaintiff may show that
a defendant's conduct fell below theapplicable standard of care, let's talk
about a doctrine that allows a plaintiffto prove breach, even if the plaintiff

(16:09):
does not know the specific conduct thatallegedly breached the standard of care.
This is the doctrinecalled "res ipsa loquitur".
A plaintiff is likely to use resipsa loquitur when the breach
element of their negligenceclaim is very difficult to prove.
To use res ipsa loquitur to prove breach,a plaintiff must show, [1] that the

(16:30):
injury is of a sort that typically doesnot occur in the absence of negligence;
[2] the instrumentality [that thingor object which caused her injury] was
in the defendant's exclusive control;and [3] that the plaintiff did not
cause or contribute to the injury.
So, let's look at a hypo to illustratehow this doctrine works in practice:

(16:52):
"Paola is known for her excellentcooking skills and attention
to detail in the kitchen.
She often throws lavish dinnerparties for her friends and makes
everything herself from scratch.
Paola's friends have offered tohelp her prepare the meals for these
parties, but she always refuses.
As her friends suspect, Paola is extremelymeticulous about food safety and it

(17:13):
makes her too nervous to have anyoneelse in the kitchen when she is cooking.
What if they did somethingwrong and someone got sick?
Paola would never forgive herself forletting someone else interfere with food.
This weekend, Paola is hosting afive-course dinner party for her friend's
birthday and plans to serve homemade pastawith tomato sauce as a second course.

(17:33):
She's using her grandmother'srecipe for the pasta, which only

uses four ingredients (17:36):
flour, water, olive oil, and salt.
Before Paola starts mixing anyingredients, she ensures that her
workplace bowls, spatulas, andmeasuring cups are perfectly clean.
Then she starts combining her waterand flour to form a light dough.
She adds a splash of oliveoil and a pinch of salt.
Now she's ready to rollout and cut her pasta.

(17:58):
After Paola double checks that shehas a clean board, rolling pin,
pasta cutter, and pasta hangersPaola rolls out the dough and cuts
it into thin strands of spaghetti.
Then she hangs it overthe pasta hangers to dry.
Once the pasta dries, Paolawill package it in clean plastic
bags to boil for the meal.

(18:18):
For the sauce, Paola is using mostlyhomemade crushed tomatoes from her garden,
olive oil, salt, and a pinch of sugar.
Paola puts these ingredients in a cleanlarge pot and brings it to a simmer.
Then she adds the only store-boughtproduct she plans to use for
the meal - one jar of Raol'sstore-bought pasta sauce.
Shortly before the second course isserved, Paola personally boils the pasta

(18:42):
in a clean pot and heats the sauce.
She prepares and serves each dish and ispositive that no one had access to tamper
with anyone's dish before it is served.
Unfortunately, during dinner,one of Paola's friends bites into
her pasta and breaks her toothon a hard object in the sauce.
After examining the object,they determined that there
was a rock in the pasta sauce.

(19:03):
Paola's friend sues Raol's for negligence.
Can the friend use res ipsaloquitur to establish her claim?"
Possibly.
It seems very likely that a rockwould not have ended up in Paola's
sauce unless someone was negligent.
The problem in this case, of course,is to decide whose negligence it was.
Was it Paola's or Raol's?

(19:24):
So, Paola's friend would likely relyon Paola's testimony about the care
she took in the kitchen at each stepto eliminate Paola as a potential
source of rock in the pasta sauce.
In res ipsa loquitur cases, itis quite common for plaintiffs to
offer testimony to eliminate thenegligence of others so as to satisfy
the requirement that the negligencebe attributable to the defendant.

(19:47):
Given the evidence of Paola's care ineach step of her preparation, Paola's
friends may have enough evidence tolet a jury decide whether Raol's was
negligent, based on res ipsa loquitur.
And with that, we have endedour discussion on the breach
element of negligence claims.
If you enjoyed this episode of theBar Exam Toolbox podcast, please

(20:09):
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
myself or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus via our website contact
form at BarExamToolbox.com.

(20:31):
Thanks for listening, and we'll talk soon!

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}315: Listen and Learn -- The Breach Element of a Negligence Claim (Torts)