In many cases, as we've already discussed, the question of whether the defendant breached a duty requires a totality-of-the-circumstances inquiry. Remember § 3 of the Restatement (Third) of Torts: Physical and Emotional Harms:

A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

Negligence per se
Sometimes statutes or regulations prescribe or proscribe particular conduct. What happens when a defendant breaches one of those legal commands? The Restatement (Third) of Torts: Physical and Emotional Harms provides in § 14 that:

“An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.”

The Restatement (Second) of Torts provided in § 288B that:

“(1) The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself.
(2) The unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligent conduct.”

Res ipsa loquitur …
…Is Latin for “the thing speaks for itself.” Sometimes the very fact that the accident occurred bespeaks negligence. And sometimes, the defendant's (or defendants') negligence may itself create difficulties for the plaintiff's case.

The materials in this section explore these two concepts.

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