Customary and Professional Standards

Question 1

Rule

Answer 1

• legal prescription which can be applied just by making a factual determination

Question 2

Standard

Answer 2

• legal precept which requires a finding of facts and an evaluative appraisal of facts

Question 3

Negligence - Rule vs. Standard

Answer 3

• reasonable care balancing test = standard

BUT there are doctrines that attempt to make negligence more like a rule:

• use of customary/professional standards to measure reasonable care
• negligence per se (adhering to statutory norms)
• res ipsa loquitor (special doctrine of proof, evidentiary rule)

Question 4

Customary vs. Professional Standards

Answer 4

• customary standards have weight but aren’t conclusive, vs. professional standards are treated deferentially + usually conclusive
• for custom, def’s conformance to custom is evidence of due care but pl can still win w/ BPL analysis
• for professional, pl would normally need to show def did not follow the professional standard

Question 5

Old Rule for Custom

Answer 5

• no man held by law to a higher degree of skill than the fair average of his profession or trade
• the standard of due care is the conduct of the average prudent man

Question 6

Titus v. Bradford, B. & K. RR - Facts

Answer 6

• 1890
• RR company operated narrow gauge railroad track, + its business involved transporting over to its tracks rr cars belonging to other major carriers using standard gauge rr tracks (would hoist onto flat cars - most had flat bottoms + sat fine, but one kind rounded -> tips over + pl’s decedent dies)

Question 7

Titus v. Bradford - Holding + Reasoning

Answer 7

• RR co not held liable - court says if the activity is customarily performed in business trade, even if it’s inherently dangerous, the activity can be held w/in the standard of care that would be exercised by a reasonably prudent person engaged in that trade
• says the profession is inherently dangerous - employers only liable for level of care that would be customarily exercised by a reasonable employer in the trade

Question 8

Titus v. Bradford - Rule

Answer 8

• standard of care for business practices is that of the average prudent man engaged in that particular trade considering the usages, habits, and ordinary risks of the business

Question 9

Modern Rule on Custom

Answer 9

• adherence to custom is evidence of care BUT not conclusive

Question 10

Professional Standards - Modern Rule

Answer 10

• much greater weight than custom
• basic approach is that when you’re claiming a professional is negligent, plaintiff must show that professional violated professional standard

Question 11

Helling v. Carey - Facts

Answer 11

• 1974
• Helling has eye doctors she goes to regularly for multiple yrs
• turns out she has glaucoma - could’ve been detected by a pressure test, but drs don’t do the test + she winds up w/ some loss of vision
• expert witnesses at trial said standards of the profession didn’t require pressure test for patients under 40 b/c disease rarely occurs in indivs in that age group (pl was 32)

Question 12

Helling v. Carey - Holding + Reasoning

Answer 12

• defendants’ compliance w/ professional standards doesn’t insulate them from liability
• the eye pressure test is simple + relatively inexpensive, + failure to administer can result in severe + permanent injury + loss of vision
• basically, BPL so clear that professional standard can’t excuse (“There are precautions so imperative that even their universal disregard will not excuse their omission”)

Question 13

Helling v. Carey - Rule

Answer 13

• “reasonable prudence” standard should be followed in medical diagnosis and treatment even when there is no requirement under generally accepted professional standards

Question 14

Rossell v. Volkswagen - Facts

Answer 14

• 1985
• Rossell gets into car accident w/ 11-month-old in front seat - car overturns
• battery was located inside passenger compartment -> force of accident dislodged + fractured the battery, + it dripped acid on the baby, leading to serious burns
• Rossell argued negligent design - placement of battery created unreasonable risk + alt designs were available + feasible (had experts testify car manufacturers didn’t place batteries in passenger compartment)
• VW argued no prima facie case b/c she didn’t have experts testifying that VW deviated from what reasonable car designer/manufacturer would’ve done in 1958 when the Beetle was made

Question 15

Rossell v. Volkswagen - Holding + Reasoning

Answer 15

• court held pl not required to prove other manufacturers would’ve acted differently
• reasoned standard of custom + practice in industry (vs. professions like physicians + attorneys) more likely to be tainted by motives to save time, effort, + money -> industries thus generally not permitted to establish own standards of conduct

Question 16

Rossell v. Volkswagen - Takeaway

Answer 16

• custom not a defense here - BPL wins out b/c inappropriate to let industry set own legal standards by using custom as shield

Question 17

The T.J. Hooper - Facts

Answer 17

• 1932
• operator of two tugboats, the T.J. Hooper and the Montrose, contracted to tow two barges + their cargo -> barges + cargo lost in severe storm
• neither tugboat had reliable radio that would’ve provided storm warnings, + 4 other tugboats in area had radios + received storm warnings + sailed to safety
• owners of cargo sue barge owner, who sues tugboat owners

Question 18

T.J. Hooper - Holding + Reasoning

Answer 18

• Learned Hand opinion
• opinion acknowledges that using radios is NOT the industry custom at the time
• BUT emphasizes the usefulness of the radios - means ships able to receive warnings several times per day about storm conditions predicated w/ widest possible data -> may save both lives + property (in this case, the boats would’ve been safe) -> says given radio benefits, a business engaged in navigation cannot truly exercise reasonable prudence w/o one
• fact that industry may be lagging behind reasonable care doesn’t excuse the individual tugboat operator from reasonable care

Question 19

T.J. Hooper - Rule

Answer 19

• a business can still be liable for failing to adopt new tech, even if the industry has not widely accepted it, if the use of the technology constitutes reasonable prudence
• industry as a whole may be lagging behind, but that’s no excuse for failure to take reasonable precautions
• business practices relevant, but defense that the required action not customary doesn’t absolve def of liability

Question 20

Posner - Two Lines of Utilitarian Thinking About Accidents and Safety

Answer 20

• Regulatory Utilitarianism

- Market Utilitarianism

Question 21

Regulatory Utilitarianism

Answer 21

• when you have a relationship between strangers
• objective BPL analysis of putting cost pressures on individuals to balance out
• government needs to step in and resolve disputes - w/o tort system, actors have no incentive to bring their behavior anywhere close to optimal BPL level

Question 22

Market Utilitarianism

Answer 22

• applies to non-strangers who have a bargaining relationship
• emphasis is on subjective balancing process whereby parties balance their individual interests through contract (notion is that b/c parties have a contract underlying their interaction, they can account for safety in that contract - they are better positioned to evaluate their own risks)

Question 23

Posner - Strangers vs. Non-Strangers

Answer 23

Argument that different kinds of utilitarianism are best for each relationship:

• strangers -> need regulatory -> pro-tort b/c can’t rely on market + correspondingly objective BPL
• non-strangers -> market utilitarianism -> can be pro-contract b/c they have a pre-existing relationship, so each can bargain for own subjective interests (subjective BPL balancing) + market should work

Question 24

Posner - Custom Among Bargaining Partners

Answer 24

• dealing with repeat players -> means you should let the market decide rather than torts
• customer can provide incentive to raise the bar
• other provides can offer different levels of service and safety, you can choose what level you want + how much you pay
• established market level if the custom level, + if you want more you can bargain for it
• notion that among bargaining partners, should give stronger weight to custom
• customary level of care seen as expression of mutually negotiated contractual terms

Question 25

Posner - Custom Among Strangers

Answer 25

• should give less weight to custom among strangers

- concept that industry has little incentive to raise the bar w/o torts - there’s no bargaining for the level of safety

Question 26

Custom and Tertiary Costs

Answer 26

• concept that you want to hit BPL level, but that can be hard to do + is very fact-based (big overhead cost in balancing + adjudicating - custom might help reduce this cost)
• custom helps reduce overhead (tertiary) admin costs of evaluating proper BPL