CBA and Customs

Question 1

Stone held that only .. and

Answer 1

Only unprecedented occurrence unforeseeable, some balls outside in 30 yes meant either build higher fence or stop playing cricket

Question 2

Bolton held that …

Answer 2

Negligence is where risk is foreseeable but also substantial (in likelihood and severity)

Question 3

Why Bolton not real CBA

Answer 3

Doesn’t take into account precaution costs

Question 4

US vs Caroll Towing held that ..

Answer 4

RP doesn’t prevent all accidents just one’s where B < PL

Question 5

Hand formula has no explicit ..

Answer 5

Emergency exception

Question 6

BPL, B may include..

Answer 6

Cost of safety device, stopping activity, or wages for workers who make activity safer

Question 7

BPL, P may include ..

Answer 7

Activity, time, place, weather conditions, injuries before

Question 8

BPL, L may include.l

Answer 8

Type of damage possible and injuries associated

Question 9

Pros of CBA

Answer 9

Judicial balancing anyways so creates consistency, intuitive so decent proxy, don’t want to deter beneficial activity

Question 10

Cons of CBA BPL

Answer 10

Overlooks incommensurability, sometimes normatively incorrect (Trolley problem), overlooks info costs

Question 11

Rd Approach to CBA

Answer 11

Foreseeable likelihood will result in harm, foreseeable severity, burden of precautions to reduce or eliminate harm

Question 12

Difference between BPL and Rd Approach

Answer 12

Rd addresses info costs, space for other considerations, factors rather than equation, recognizes jury normally not doing BPL

Question 13

Rd emergency exception

Answer 13

If unexpected emergency requiring rapid response, should be taken into account to determine if reasonable conduct

Question 14

When arguing BPL, find — for your client

Answer 14

Low B

Question 15

Cooley held that must ..

Answer 15

Account for costs to others, not just P

Question 16

Cooley Reasoning

Answer 16

Danger to P remote compared to risk of electrocution on street, installing device would’ve made street risk higher

Question 17

Andrews is about ..

Answer 17

Heightened duty of common carrier

Question 18

What is problem with BPL in Andrew’s

Answer 18

Unclear if departure or just applying it to fact specific scenario (obscurity in BPL)

Question 19

Andrew’s holding

Answer 19

Jury could find United failed due care

Question 20

Andrew’s suggests that when —

Answer 20

Asymmetric relationship, may be greater responsibility

Question 21

Baltimore holding..

Answer 21

Contributory negligence as matter of law, no care for jury to evaluate, brightline rule

Question 22

How does Baltimore define due car

Answer 22

Getting out of vehicle to check for train

Question 23

Pokora holding..

Answer 23

Whether using ears to check for train was due care is jury Q, standard

Question 24

Pokora reasoning

Answer 24

What he would’ve done at night

Question 25

Benefits of Rulea

Answer 25

Incentivize following clear rule, consistent application

Question 26

Benefits of Standards

Answer 26

Allows case by case consideration, don’t always have all info you need to make a good rule

Question 27

TJ Hooper held that

Answer 27

Radios not industry standard but still negligent not to have them (custom doesn’t limit reasonableness)

Question 28

TJ Hooper reasoning 1

Answer 28

Industry practices lagged, radios low cost and reasonably reliable

Question 29

TJ Hooper reasoning 2

Answer 29

If industries allowed to set own standards may not take precautions, we can push them to do better

Question 30

Customs are factors to consider for negligence but …

Answer 30

Not controlling when reasonable man would not follow them

Question 31

Trimarco holding

Answer 31

Custom is evidence of reasonableness but not conclusive, Jury Q

Question 32

What to do in Custom problem on exam

Answer 32

Challenge custom, differentiate your thing from others that follow custom (applicability), say BPL off

Question 33

Brune holding

Answer 33

No locality constraint in medical custom

Question 34

Brune reasoning 1

Answer 34

Doc in small town should have same standard as one from Boston

Question 35

Brune reasoning 2

Answer 35

Skill of average qualified doc accounting for available resources and advances in the profession

Question 36

Brune reasoning 3

Answer 36

Custom starting point for standard but not dispositive

Question 37

Differences between RP and Custom

Answer 37

RP fictitious deal, Customs based on what actual communities/individuals do

Question 38

When is custom more compelling

Answer 38

Consensual relationships, opt in, medical malpractice

Question 39

CBA most compelling..

Answer 39

Stranger situation, power dynamic, not clear what custom is and who knows it

Question 40

Unless— services under profession or trade required to exercise .l

Answer 40

Represents greater skill or knowledge , skill and knowledge normally possessed y those in good standing in similar communities

Question 41

Rd for custom in profession allows for ..

Answer 41

Type of community but locality

Question 42

Canterbury holding

Answer 42

Physician duty to disclose not deferential to custom

Question 43

Canterbury held that the scope of sue disclosure is..

Answer 43

All material risks, reasonableness under circumstances, disclose with reasonable efforts, Jury Q

Question 44

Hypo. Alcoholism not related to surgery injury

Answer 44

Probably in duty to disclose, pertinent to patient decision