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So, do both take care of Duty and Breach?

They are similar, I just want to know the differences, and how to attack them both on exams.

Also, the different kinds of Negligence Per Se, i.e. as a rebuttable presumption, strict liability, as evidence of negligence. How do those different kinds affect an exam answer? What is the majority view?

PM'd you what I organized in my outline on both of them. Hope it helps. Sorry that I can't help more...too much to do haha.

The formatting is weird when I paste it in to PM it, so if you look at it and you want it in regular formatting, PM me your email and I can send it along.

Res Ipsa only takes care of breach, Neg. per se takes care of both (statute establishes the duty).

I have no idea what you said in paragraph 3, and I took torts yesterday.

edit: sort of tried to make sense of what you said. Neg. per se isn't a strict liability doctrine, and generally, as far as rebuttable presumption goes, you might be able to show that it was more reasonable to NOT follow the stature, which can be a successful defense.

rad law wrote:Res Ipsa only takes care of breach, Neg. per se takes care of both (statute establishes the duty).

I have no idea what you said in paragraph 3, and I took torts yesterday.

edit: sort of tried to make sense of what you said. Neg. per se isn't a strict liability doctrine, and generally, as far as rebuttable presumption goes, you might be able to show that it was more reasonable to NOT follow the stature, which can be a successful defense.

Some states look at neg per se as rebuttable presumption, others look at it as evidence of negligence, others as strict liability.

Neg per se has to be based on a statute?

Also, res ipsa allows for breach determination to be made by jury, but it doesn't guarantee it. Unless, of course, the breach is so obvious that court rules as a matter of law that they breached.

Generic20101L wrote:So, do both take care of Duty and Breach?

They are similar, I just want to know the differences, and how to attack them both on exams.

Also, the different kinds of Negligence Per Se, i.e. as a rebuttable presumption, strict liability, as evidence of negligence. How do those different kinds affect an exam answer? What is the majority view?

This is what I remember.

Majority - Unexcused violation of a statute is negligence per se as a matter of law. Judge will direct a verdict if there is no excuse

Minority - Violation of a statute is rebuttable presumption of negligence per se. Jury will weigh the rebuttal.

Minority - Violation of a statute is only evidence of negligence for the jury.

I am so glad I don't have to deal with this anymore! TORTS FINAL FIN

Generic20101L wrote:

rad law wrote:

Neg per se has to be based on a statute?

isn't that the very definition

klussy wrote:

Generic20101L wrote:

rad law wrote:

Neg per se has to be based on a statute?

isn't that the very definition

Yes. I suppose you could do something similar with violation of common law, although I'm not aware of it. Negligence per se can also be applied to local ordinances, but courts tend not to, or at least make it simple evidence of negligence.

Generic20101L wrote:So, do both take care of Duty and Breach?

They are similar, I just want to know the differences, and how to attack them both on exams.

Also, the different kinds of Negligence Per Se, i.e. as a rebuttable presumption, strict liability, as evidence of negligence. How do those different kinds affect an exam answer? What is the majority view?

Yikes.

You can overcome negligence per se with a compelling interest