Avoiding Actionable Harms

Question 1

Negligence (Elements)

Hint: 4

Answer 1

• Negligence actions require proof of the following essential elements:

1 Duty to follow a standard of care in respect of P

2 Breach of that Duty 

3 Causation (Factual Cause & Legal Cause)

    4 Damages (harm)

Question 2

Duty = ?

Answer 2

• P’s must prove that Defendant has a legal “duty” to be careful in respect of the plaintiff.
• Duty helps determine which persons/injuries are within the scope of liability. No duty = No liability
• Generally, D’s owe a duty to foreseeable plaintiffs only (see Palsgraff v. LIRR)
  
  • D generally not liable for injuries caused by unavoidable or inevitable accident.
  • Customers are almost always foreseeable plaintiffs.
• Generally, no duty to control 3rd parties or prevent harms caused by 3rd parties.
  
  • See James v. Meow Media (violent video game maker not liable for shooter)
  • Exceptions: If Defendant has special relationship to victim/attacker and knows of violent propensity; liquor suppliers; negligent entrustment

Usually your customers who are injured in an ordinary course of receiving good services are foreseeable plaintiffs
The plaintiff has to show the defendant could have done something to avoid it

Question 3

Breach = ?

Answer 3

• “Breach” refers to violation of the applicable standard of care
• Breach usually determined by applying “REASONABLE PERSON STANDARD”
  
  • Ultimate question: Did D act as a reasonably prudent person would have acted under similar circumstances?
  • Enhanced standard for experts.

Essentially, P must allege something that D could and should have done better.

Question 4

“reasonable person standard” factors in determining whether person met standard of care under circumstances

Hint: 3

Answer 4

Although jury may simply be told of the “reasonable person standard” certain factors can be considered in determining whether a person has met this standard of care under the circumstances:

* Statute: Did D violate a statute designed to protect this type of person from this type of harm? (e.g., Speed Limit law sets the standard of negligently speedy driving in cases where excessive speed allegedly causes injuries)
* Economic Efficiency: Did D do the economically rational thing given the risk of harm and burden of taking more care?

• Custom: Did D follow a consistent industry practice, if there is one? Is there an industry standard? What are the practices, if not followed you have a breach

Question 5

Breach of Reasonable Person Standard: 3 variables

The Role of Economic Efficiency: risks and liabilities

Answer 5

• Duty to provide against resulting injuries is function of variables:

    (1) The probability of loss; (P)
    (2) the gravity of the foreseeable resulting injury; (L)- The was no freak accident here
    (3) the burden of providing additional care (B)

			□ Costs, Feasible Alternatives, Convenience, Costs to Society of Losing Risk-Producing Activity.

• Liability depends upon whether B is less than L multiplied by P
  
  • If (Burden of Additional Care < Cost of Injury x Probability of Occurrence), then D will not have met the standard of care required.
  • If (Burden ≥ Cost of injury x Probability of occurrence), then the accused may have met standard of care.

Note: Juries do not have to be instructed on the BPL formula, but aspects of it are often argued to the jury (sometimes with limited success like in Ford Pinto Case). Commonly used by judges when reviewing jury verdicts.

Question 6

Negligence Defenses:

Hint 3

Answer 6

Express assumption of risk: usually occurs when a person signs a written waiver before engaging in a dangerous activity.
To be valid, it must be clear, unambiguous and voluntary. (See Kurashige)

Implied assumption of risk can be defense even where no advance written waiver is signed.
Implied assumption of Risk requires that P:
(1) know of the particular risk and
(2) voluntarily
(3) assume it.
Warnings can help establish knowledge of risk.

Comparative Negligence:
In most states, Plaintiffs own negligence can reduce the plaintiff’s recovery by the percentage of responsibility for the injury attributable to the plaintiff.
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