Proving Fault & Res Ipsa Loquitur - Next Generation Bar Exam

1. What are the elements of res ipsa loquitur?

   The accident ordinarily does not occur without negligence, and the negligence is attributable to the defendant. Traditionally, exclusive control by the defendant was required to show attribution.

2. A statute requires livestock trucks to separate animals to prevent disease. Unseparated animals are swept overboard in a storm. What is the status of a negligence per se claim?

   It fails, because the harm is not the type the statute was designed to prevent. The statute addressed disease, not loss overboard.

3. Under Ybarra v. Spangard, what is the effect of res ipsa loquitur when an unconscious patient is injured during surgery by an unknown member of the medical team?

   Each defendant with control over the patient must explain its conduct. The doctrine applies to multiple defendants when the plaintiff could not know who was at fault.

4. What is the role of custom in medical malpractice?

   Customary practice generally establishes the standard of care. Expert testimony on the professional standard is usually required.

5. What is the effect of compliance with a statute on negligence?

   It is evidence of due care but not conclusive. A statute sets a minimum standard, and reasonable care may require more.

6. Under Byrne v. Boadle, what inference may be drawn from a barrel falling from a warehouse window?

   That the warehouse owner was negligent. Barrels do not ordinarily fall without negligence by those in control.

7. A statute requires railings on stairs to prevent falls. A guest falls through a gap where a railing was missing. What doctrine establishes breach?

   Negligence per se. The guest is in the protected class and suffered the type of harm the statute addresses.

8. What is the role of custom in proving negligence?

   Evidence of custom is relevant to the standard of care but not conclusive. Under The T.J. Hooper, an entire industry may lag behind reasonable precautions.

9. A falling counterweight strikes a pedestrian in a building maintained solely by the defendant, with no proof of the specific negligent act. What doctrine permits an inference?

   Res ipsa loquitur. The accident ordinarily does not occur without negligence by the party in control.

10. What is the procedural effect of res ipsa loquitur in most jurisdictions?

    It permits, but does not require, the jury to infer negligence. It allows the plaintiff to survive a motion for directed verdict.

11. What excuses a violation of a statute in a negligence per se claim?

    Circumstances such as incapacity, emergency, or compliance being more dangerous than violation. An excused violation is not negligence.

12. What is negligence per se?

    Violation of a safety statute by a defendant, harming a plaintiff in the protected class with the type of harm addressed. In most jurisdictions, the violation conclusively establishes breach.

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