CBA and Customs Flashcards
Stone held that only .. and
Only unprecedented occurrence unforeseeable, some balls outside in 30 yes meant either build higher fence or stop playing cricket
Bolton held that …
Negligence is where risk is foreseeable but also substantial (in likelihood and severity)
Why Bolton not real CBA
Doesn’t take into account precaution costs
US vs Caroll Towing held that ..
RP doesn’t prevent all accidents just one’s where B < PL
Hand formula has no explicit ..
Emergency exception
BPL, B may include..
Cost of safety device, stopping activity, or wages for workers who make activity safer
BPL, P may include ..
Activity, time, place, weather conditions, injuries before
BPL, L may include.l
Type of damage possible and injuries associated
Pros of CBA
Judicial balancing anyways so creates consistency, intuitive so decent proxy, don’t want to deter beneficial activity
Cons of CBA BPL
Overlooks incommensurability, sometimes normatively incorrect (Trolley problem), overlooks info costs
Rd Approach to CBA
Foreseeable likelihood will result in harm, foreseeable severity, burden of precautions to reduce or eliminate harm
Difference between BPL and Rd Approach
Rd addresses info costs, space for other considerations, factors rather than equation, recognizes jury normally not doing BPL
Rd emergency exception
If unexpected emergency requiring rapid response, should be taken into account to determine if reasonable conduct
When arguing BPL, find — for your client
Low B
Cooley held that must ..
Account for costs to others, not just P
Cooley Reasoning
Danger to P remote compared to risk of electrocution on street, installing device would’ve made street risk higher
Andrews is about ..
Heightened duty of common carrier
What is problem with BPL in Andrew’s
Unclear if departure or just applying it to fact specific scenario (obscurity in BPL)
Andrew’s holding
Jury could find United failed due care
Andrew’s suggests that when —
Asymmetric relationship, may be greater responsibility
Baltimore holding..
Contributory negligence as matter of law, no care for jury to evaluate, brightline rule
How does Baltimore define due car
Getting out of vehicle to check for train
Pokora holding..
Whether using ears to check for train was due care is jury Q, standard
Pokora reasoning
What he would’ve done at night
Benefits of Rulea
Incentivize following clear rule, consistent application
Benefits of Standards
Allows case by case consideration, don’t always have all info you need to make a good rule
TJ Hooper held that
Radios not industry standard but still negligent not to have them (custom doesn’t limit reasonableness)
TJ Hooper reasoning 1
Industry practices lagged, radios low cost and reasonably reliable
TJ Hooper reasoning 2
If industries allowed to set own standards may not take precautions, we can push them to do better
Customs are factors to consider for negligence but …
Not controlling when reasonable man would not follow them
Trimarco holding
Custom is evidence of reasonableness but not conclusive, Jury Q
What to do in Custom problem on exam
Challenge custom, differentiate your thing from others that follow custom (applicability), say BPL off
Brune holding
No locality constraint in medical custom
Brune reasoning 1
Doc in small town should have same standard as one from Boston
Brune reasoning 2
Skill of average qualified doc accounting for available resources and advances in the profession
Brune reasoning 3
Custom starting point for standard but not dispositive
Differences between RP and Custom
RP fictitious deal, Customs based on what actual communities/individuals do
When is custom more compelling
Consensual relationships, opt in, medical malpractice
CBA most compelling..
Stranger situation, power dynamic, not clear what custom is and who knows it
Unless— services under profession or trade required to exercise .l
Represents greater skill or knowledge , skill and knowledge normally possessed y those in good standing in similar communities
Rd for custom in profession allows for ..
Type of community but locality
Canterbury holding
Physician duty to disclose not deferential to custom
Canterbury held that the scope of sue disclosure is..
All material risks, reasonableness under circumstances, disclose with reasonable efforts, Jury Q
Hypo. Alcoholism not related to surgery injury
Probably in duty to disclose, pertinent to patient decision
