Negligence - Breach Flashcards
Cost/Benefit Calculations - Learned Hand Formula
B < PL - comparing burden of precautions to foreseeable risks
B < P x L
If Burden of Precaution is < Probability of harm + Injury Level (severity) → Defendant is negligent
Have to look at the foreseeable risks on the right side, but also have to look at the alternative risks on the left side, if one outweighs the other then should not take the burden of precaution
AR’s– (B < P x L) –FR1
Custom
Whether a defendant has breached the duty of reasonable care
1. Industry
2. Medical Malpractice
Custom (Industry)
It is not dispositive of a question of reasonable care, an industry won’t preclude a finding of breach if the facts indicate that the burden of precaution was so low
Custom can be relevant but not dispositive (conducive, to settle an issue)
Custom (Medical Malpractice)
a. Falling below the standard of care - The plaintiff claims that the defendant’s treatment of the plaintiff fell below the standard of care
b. Failure to inform (disclosure) - The plaintiff alleges that the defendant did not fully disclose the risks of a procedure and hence did not obtain the plaintiff’s informed consent
Two different standards:
1. Custom standard (ordinary doctor) - looks to what a reasonable physician in similar circumstances would customarily disclose
2. Materiality standard - looks to the reasonable patient rather than the reasonable physician and says that there’s a degree to disclose information that would be significant
Negligence per se
Violating a statute → negligent
Third Restatement of Torts, Statutory Violations as Negligence Per Se
An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.
Third Restatement of Torts, Excused Violations (Negligence per se)
An actor’s violation of a statute is excused and not negligence if:
(a) the violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation;
(b) the actor exercises reasonable care in attempting to comply with the statute;
(c) the actor neither knows nor should know of the factual circumstances that render the statute applicable;
(d) the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or
(e) the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance. (Tedla)
Third Restatement of Torts, Statutory Compliance (Negligence per se)
(a) An actor’s compliance with a pertinent statute, while evidence of nonnegligence, does not preclude a finding that the actor is negligent … for failing to adopt precautions in addition to those mandated by the statute.
(b) If an actor’s adoption of a precaution would require the actor to violate a statute, the actor cannot be found negligent for failing to adopt that precaution.
Prerequisites (Negligence per se)
- Harm suffered in the case must by the type of harm that the statute was designed to protect against
- The person complaining of the harm (plaintiff) must be in the class of persons that the statute is aimed to protect
If prerequisites are met:
We saw the court per Cardozo say that the failure to follow the statutes is a breach as a matter of law
A breach might be excused under limited circumstances in the Tedla case, the court said that complying to the statute would involve a greater risk to physical harm than to non-compliance
Exceptions (Negligence per se)
- Local ordinances less binding
- Intention of statute (if statute was not designed to protect you but you bring suit under it)
Res Ipsa Loquitur
The problem of cases in which proof is difficult to establish is a longstanding one, so the doctrine of res ipsa loquitur (the thing speaks for itself) is used to assign liability, the occurrence of an accident implies → negligence
Requirements (Res Ipsa Loquitur)
- It has to involve an accident of a kind that would ordinarily not occur in the absence of negligence (judges will disagree
- The defendant had an exclusive control over the thing that caused harm
- The accident must not be due to any voluntary action on the part of the plaintiff on this last requirement
Contributory Negligence (Plaintiff breaches duty of care)
(a) The reference to willful is not a reference to intentional torts cases
(b) These are not defenses to intentional tort claims
(c) Traditional jurisdiction - bar from recovery for contributory negligence
Contributory negligence rule: a plaintiff’s negligence acts as a complete bar to her recovery, even as against a negligent defendant
The true ground for the doctrine is that by the interposition of the plaintiff’s independent will, the causal connection between the defendant’s negligence and the injury is broken…
Third Restatement of Torts, Effect of Plaintiff’s Negligence When Plaintiff Suffers an Indivisible Injury (Comparative Negligence)
Plaintiff’s negligence (or the negligence of another person for whose negligence the plaintiff is responsible) that is a legal cause of an indivisible injury to the plaintiff reduces the plaintiff’s recovery in proportion to the share of responsibility the factfinder assigns to the plaintiff (or other person for whose negligence the plaintiff is responsible).
