Foreseeability

Question 1

*Blyth

Answer 1

Defendant’s waterworks company built pipes that burst under plaintiff’s house in huge winter storm. Court said the company could never have predicted such an extreme frost. Negligence only where there is “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

Question 2

*Eckert

Answer 2

Child would have been hit by train but decedent removed in time and was hit instead – no contributory negligence. Reasonable to save child on the train tracks but not a kitten. Human life > property. “Negligence implies some act of commission or omission wrongful in itself” and it wasn’t wrongful to save the child, even knowing he might possibly fail. RULE for prudence when saving human life: “The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgement of prudent persons.” (NOTE: Schwab says here the RR would want prudent rescues also to minimize its cost, so this really results in the social optimum).

Question 3

*Osborne

Answer 3

Defendant opened car door and hit passing biker. No negligence. The “great mass of mankind is ordinarily prudent” yet “we are constantly doing acts that cause harm” so how could we look to what the great mass of men are doing and what they would foresee since clearly the majority is not actually prudent? Instead, court says RULE of balancing of social interests. Look at what you would want if you owned everything – like Eckert, even with foreseeable harm, certain actions might still be prudent.

Question 4

*Cooley

Answer 4

Defendant’s phone company wires broke and hit public service wires; the resulting sound traveled to phone plaintiff was using. Alternative would have put those in street at higher risk. Court said if event is foreseeable but the alternative would have been worse, can’t punish the company for choosing the better of two bad alternatives. No “shifting duty.” Duty of due care requires precisely the measure of care that is reasonable under ALL the circumstances.

Question 5

Holmes on foreseeability

Answer 5

Strict liability is bad
Look to what a reasonable person would foresee
What matters is whether the jury thinks it was prudent, not whether defendant thinks it was. Must bring “clumsy and awkward” people up to the standard unless distinct defect.