breach Flashcards
what are the two main ways to assess calculus of risk in breach?
Hand Formula and role of custom
what are the B, L, and P in the Hand formula?
Burden/cost of precautions, Loss or harm that results from breach, and Probability of loss
when does the Hand Formula say that a breach has occurred?
if B is less than L * P
what was the first case that applied Hand Formula and found that a breach had occurred?
Carroll Towing - burden of having attendant aboard was less than the loss incurred when barge broke free of mooring and sank
what case applied the Hand Formula and found that a breach had NOT occurred?
Grimes v. Norfolk Railway - burden of maintaining a wider walkway along entirety of railroad track was too high to mitigate the low probability of injury
what is the role of “custom” in the calculus of risk to determine if a breach has occurred?
custom influences the determination, but it isn’t an excuse if it doesn’t reflect ordinary care
what happened in the T.J. Hooper case?
D tried to say that use of radios on boats was not yet customary, so it excused his liability - NO! - if new tech is developed that makes it safer, it’s negligent not to use it
what happened in the Helling case regarding custom?
medical malpractice - Hand Formula said it was negligent not to give cheap glaucoma tests given the high value of Loss associated
what case brought up the “locality” rule for custom in medical malpractice?
Brune case - doctors negligence is judged by avg practicitoner in same/sim circumstance without regard to locality - 1968 too recent for old locality rule applied years earlier
