Negligence: Breach of Duty In General
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Analysis of breach (i.e. part)
1. The risks that a reasonable person under similar circumstances would have known were created by his/her conduct [risk]
2. The utility that a reasonable person under similiar circumstances would have believed was created by the conduct
3. A reasonable person would have known that 1>2
Defendant has breached his/her duty if a reasonable person under similiar circumstances would have considered those risks to be greater than the utility -If the answer to 3 is yes then you have proved Breach -Non compliance of custom is some evidence of Breach. Compliance of custom is some evidence of non-breach. Custom becomes an issue @ 3
The breech is evaluated at the time of the conduct. You do a risk/utility analysis. Would a reasonable person assume the risk to out weigh the utility of a particular action or inaction.
• Conduct: Then was there a duty
• Duty is the rule application of the rule is breach
• Breach-created an unreasonable risk of harm.
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