Calculus of Risk Flashcards
Introduction
i. Two main discussion points in this section
1) Common sense, intuitive meaning of negligence as it applies to ordinary individuals and corporate/business entities
Judicial effort to impart a more precise economic meaning to the term, adopting language of costs/benefits
Blyth v. Birmingham Water Works
i. Facts
1) D owners of a non-profit water works company charged by statute to lay water mains and fire plugs in a certain way.
2) A particular plug broke as a result of a severe frost, causing water to escape and flood the P’s home.
3) Trial court to let jury decide if it is the D’s job to remove ice from the fire hydrants.
ii. Issue
1) Is defendant guilty of negligence for not ascertaining the functionality of the plugs in the midst of the severe frost?
iii. Holding
1) Alderson,
a) Negligence requires one to perform an act the average man would not have performed, or for one to omit an act the average man would have performed – neither case exists here.
i) Defendant’s duty limited to what a reasonable man would have done with reference to the average circumstances of the temperature in ordinary years
b) The result of this case is an accident = damnum absque injuria?
2) Bramwell,
a) Defendant’s duty limited to laying down pipes with plugs according to the statute… they had no duty to keep plugs free
b) The cause of the accident was so obscure that it was not discovered until months after the accident had happened
c) So consequential that it can’t even be trespass on the case?
iv. Notes TL
1) How does a reasonable person design a fire Plug?
a) The real question
2) The engineers said that we want to design this plug so it won’t fail under reasonable conditions.
a) A profile of a reasonable entity calculates the proper engineering design
b) According to engineering standards that would be appropriate in the average conditions; MUST investigate the temperatures
3) How about contributory negligence?
Why wasn’t the P responsible for seeing the ice form?
Eckert v Long Island
i. Facts
1) Plaintiff’s decedent was conversing when he noticed a 3 or 4 yo playing on a side track and train oncoming (factual dispute about how fast the train was traveling) on a main track; rushed in front of the train to save the boy, did so, but was hit and killed in the process; plaintiff sues defendant for negligence (speeding and operating train negligently in a crowded area)
ii. Issue
1) Did the trial court correctly deny defendant’s motion to dismiss due to decedent’s contributory negligence?
iii. Holding
1) Grover
a) The P owed the child a duty of care to rescue it, even if such a rescue meant he might sustain injury
b) Social policy?
i) So high a regard for human life that there will be no NEG for efforts to preserve it
c) Not Negligent to subject self to injury if such is done to save a life
2) Allen (Dissenting)
a) P was not injured by anything the D did
b) Volenti non fit injuria
i) The volunteer suffers no injury
c) One with liberty of choice and knowledge of the hazard or injury places himself in a position of danger, does so at his own peril, and must take the consequences of his act
i) Judge Allen assumes the P had no duty to save the child
iv. Notes TL
1) Is the child worth more than the adult?
a) Sadly not in our society.
b) How likely is it the hero will succeed
i) 50/50 maybe not
ii) 90/10 probably
iii) What is the cost of the human life being lost?
c) Is their a justification that says because you were in an emergency situation you couldn’t do the calculations of risk.
i) Yes there is such a justification, sometimes in the moment you don’t have time to perform the calculus of risk.
d) Does it make a difference if the hero is the kids dad?
Overall the objective here is to calculate what the likely hood of saving the kid verses the likely hood of you dying.
Seavey, Subjective or Objective
i. Notes
1) General
a) No formula in regard to balancing interests to solve negligence cases is valuable
b) If P ad D interests are considered of equal value, NO LIABILITy
2) TL
a) I grow a pot plant on my balcony, because it is safer I also put it amongst some bamboo amongst it to hide it.
i) What if I wasn’t growing weed and some wind came and it knocked the bamboo off,
One. You are not liable if it fell off and hit someone
ii) What if it was the weed that blew off and killed Turia? Is she liable because its illegal?
b) Bret and Tl are going to steel a zebra from the zoo, driving the speed limit. Kid runs out in the street and he kills the kid. Kids mom sues, Is he Liable?
Yes because they were in the process or planning to break the law
Osborne v Montgomery
i. Facts
1) P is a 13 yo boy employed by the local newspaper to run errands; Following D’s car while on his bicycle; D stopped car and opened door to drop off something at a store; P attempted to pass D’s car and caught handlebar on D’s door causing bicycle to fall and P to sustain injuries
2) Jury found D NEG for opening door, but not for stopping (P not guilty of Contributory NEG)
ii. Issues
1) Did the trial judges charge to the Jury (Great mass of Mankind) Appropriately convey the standard to which the D should be held?
iii. Holding
1) Charge to the jury defective in that it indicates no standard by which the conduct of the D is to be Measured.
a) Argues that great mass of mankind do not conduct themselves in a manner that results in injury to others
i) Simply not true - Constantly doing acts that injury others for which there is no negligence or liability
ii) Damnum Absque Injuria
b) Law determines that under the circumstances of a particular case an actor should or should not become liable for the natural consequences of his conduct
i) No liability if benefit of being able to conduct self in certain way outweighs the probably injury to bystanders
ii) Driving in rainy, muddy conditions example
iv. Notes TL
1) If someone is injured, is their always an injury?
a) Damnum Absque Injuria
i) Not every injury has an answer
Cooley v Public service
i. Facts
1) D is a power company who owned uninsulated lines near the P’s home.
2) During a severe winter storm a phone line broke and fell on telephone cable
3) The result was a terrifically loud noise in the P’s ear which was damaged
4) P sued power company and telpehone co
5) Jury found for the telephone company but against the power company
ii. Issue:
1) Was the D NEG in its placement of the power lines above the telephone cables and without some device that would catch them if they fell?
2) P argues that “you should have anticipated that this would happen”
iii. Holding:
1) D required to balance danger of Electrocution to those on the ground and danger of injury to those in the homes; duty to care for former is much stronger that that to the latter
2) Law could not tolerate a “liability if you do, liable if you don’t” (strict Liability)
a) You can’t be liable to both parties in the event of conflicting duty
b) Duty of care requires precisely the measure of care that is reasonable under all the circumstances
iv. Notes TL
1) Court finds that you cant have strict liability, but in all reality we have strict liability built into our system.
a) Ordinarily you have to prove negligence in this case.
b) Is the wire basket system a good idea?
i) Greater chance of electrocution to those on the ground
ii) it could cost more to get rid of all the lines and bury them under ground
c) Who is responsible for showing how to fix the problem?
The P is responsible for doing so.
Shavell, Strict Liability v. Negligence
i. Negligence
1) All injurer needs to do to avoid the possibility of liability is to make sure to exercise due care if he engages in his activity
a) Increase in activity with due are constant means increase in potential for risk and no rise in duty
i) Inefficient
ii. Strict Liability
1) Because an injurer must pay for losses whenever he is involved in an accident, He will be induced to consider the effect on accidental losses of both his level of care and his level of activity
a) Induce one to exercise due care And to perform an activity only when the utility of performing that activity outweighs expected liability payments
i) Efficient
iii. Notes TL
1) Is this persuasive?
2) Wouldn’t it improve the city if we got rid of automobiles because no one would die in an accident?
a) Probably not, the economic cost would be to great
h. U.S v. Carroll towing CO
i. 1947
ii. Facts:
1) D was moving a line of barges in and out of new york harbor when barge owned by another company broke away and drifted out into the bay hitting a tanker the tankers propeller punctured a hole into the side of the barge causing it to careen to one side and spill its entire load of flour owned by the U.S. government
iii. Issue:
1) Was the barge owner contributorily negligent in not being aboard his vessel?
iv. Holding:
1) D is contributorily negligent because state of ships moving in and out of the NY harbor at that time were such that the owner should have been present during business hours.
a) Not a sufficient Defense to say the barge was tied to the pier
v. Notes
1) Judge Learned hand
a) Creates an algebraic formula for assessing Contributory Negligence
i) B = the burden of taking adequate precautions (cost of prevention)
ii) P = Probability of Loss
iii) L = Gravity of resulting loss
b) If B is less than PxL than the individual or entity is liable
i) B
Posner, A theory of Negligence, 1972
i. Hand provided an economic meaning of Negligence
1) Measures economic benefit to be anticipated from incurring the cost necessary to prevent an accident
a) D pay for damages when cost of prevention is less than cost of accident
D does not pay for damages if prevention is greater than the cost of accident
Restatements on Torts SS 3 Negligence
v\ i. An actor is negligent in engaging in conduct if the actor does not exercise reasonable care under all the circumstances
Primary factors to consider in ascertaining whether conduct lacks reasonable care are the hand formula
Myth of the hand formula 2003
i. Formula does not reflect the basic commitment of the tort law - COMPENSATION
When courts apply the formula they misapply it then or they window dress it (make it look like that’s their reasoning) and then just decide the case on some other grounds.
Discussion of the Hand formula
i. Marginal Precautions
1) In economic terms additional precautions are only worthwhile at the margins
a) In order for an additional $1 of precaution to be worthwhile to society, it must reduce injury by at least $1
2) In defending a CoA D should be able to supply evidence that a lower level of precaution would have generated a higher net social return
ii. Self Risk
1) D should be expected to undertake precautions that protect both another party from being injured and himself from being injured
2) If a barge owner can reasonably foresee that his barge escaping will cause $100 worth of damage to somebody else, and $50 worth of damage to his own barge, he should be found NEG if he spends less than $150 to prevent that from happening
3) Omitting the injurers possible harm to himself causes courts to set the legal standard of care too low.
iii. Risk-Neutral
1) Hand formula assumes all individuals are risk-neutral; in fact some prefer risk and derive satisfaction from taking it
iv. Efficient behavior
1) Strict liability with contribuotry negligence OR negligence without contributory Neg promotes optimal behavior by both parties
v. Paradox of efficient behavior
1) If all persons are rational, no one can ever be negligent
a) Easy answer is error
b) Private actors may struggle to comply with law due to being broke, stressed, demoralized, bored, or fatigued
c) The law does not allow for individual actors to take into account personal/forbidden considerations (being late to a date)
d) TL
i) Most NEG comes from people making calculations involving their own private lives and people do this all the time
ii) This is why people are not rational and to say that being broke, stressed, demoralized, bored, or fatigued are minor reasons, is just wrong
iii) These are really major reasons of why NEG happens and makes it commonplace
e) Increased possibilities for taking care may simply increase the ways to be negligent
vi. Discontinuities and choice between NEG and Strict Liability:
1) Under strict Liability, small errors in care result in small consequences,
Under NEG, small errors in care can result in Large Consequences.
Andrews v United Airlines
i. Facts
1) P is a passenger on a United airlines plane, was injured when after a flight they opened the overhead bins and a brief case fell and hit them in the head. P sued the D for nothing about a foreseeable injury
2) D filed for Summary Judgement, which district court granted
ii. Issues
1) Was a D a common carrier NEG in not taking sufficient Precautions to prevent the P injuries
iii. Holding
1) P provided sufficient evidence to overcome summary judgement
a) Common carriers have a heightened duty of “utmost care and the vigilance of a very cautious person towards its passengers
i) United cannot dispute that luggage falling out of overhead presents a hazard to its passengers
ii) United has not demonstrated that retrofitting with nest would be prohibitively expensive or inconvenience
iv. Notes TL
1) Why do we have all of these ads that tell us not to attempt at home?
Why does American make the announcement
Kelley v. Manhattan RY
i. 1889
ii. Facts
1) P slipped on heavy snow that had accumulated on stairs leading to the train station
iii. Holding
1) D not held to standard of utmost care since P not actually traveling on train at the time of injury.
a) Utmost care standard reserved for those who are compelled to use train, not those who use the railway’s ancillary facilities
b) Hand formula: greater peril requires greater precaution independent of the utmost care standard
iv. Notes TL
1) There is an enhanced burden for the common carrier
a) They have to used the utmost care as opposed to standard care.
2) Strict Liability Today is confined to ultra hazardous activities
a) Test Question:
i) Which requires a duty of utmost care, Luggage falling on head or speared in the butt by a spring while sitting in a seat on the train
ii) Answer
One. Luggage falling on head
Two. This is because the spring could happen anywhere, but the luggage would only affect someone traveling on a common carrier.
3) Utmost care has to be related to the activity of the common carrier, it can’t just be a standard injury that occurred although duty of care was followed
Bethel v New York City Transit Authority
i. 1998
ii. Facts
1) P injured when a movable seat collapsed as she attempted to sit down
iii. Holding
1) The court overturns Kelley, and holds the D liable.
a) Kelley needlessly departed from fundamental doctrine of NEG, which relies on a sliding scale (the greater the risk, the greater the care required)
b) Common carriers held to utmost care standard because:
i) Rapid transportation considered ultra hazardous
Passengers have total dependency upon latter for safety precautions
