Negligence- Standard of Care Flashcards
Steps for the Hand Formula
Step 1. Identify the untaken precaution
Step 2. Identify what losses would be prevented and their likelihood (PL).
Step 3. Compare that with the burden (B) of the untaken precaution
How to assess negligence with the Hand Formula
B>PL= no negligence
B<PL= negligence
Davis v. Consolidated Rail
The variables aren’t entirely quantifiable, but the formula allows us to conceptualize their relationships to one another
The “Average Reasonable Person” ARP Doctrine
Negligence can be established if the defendant didn’t do something that a reasonable person, guided by those considerations that ordinarily regulate the conduct of human affairs, would do, or if he did do something that a reasonable person would not do.
Is the ARP Standard objective?
YES, the ARP standard is not subjective
Elements of the Hand Formula
(B) Identify precautions at issue: precautions that could have been adopted that alone or in combination, would have prevented the accident?
(L) Identify the risks at issue: what is the loss that would have been avoided by a particular precaution and the likelihood that the loss would have occurred?
(P) Careful and articulate balancing: B signifies what is given up by implementing a precaution and PL signifies what is gained. How do they compare?
Policy for Reasonable Person Standard
combines prudential capacity, skill and good judgment in the use of resources to advance ends over time, and an ethical commitment, not to disregard the interests of others, but to regard self + others as on the par (at the same level/standard)
Elements of ARP Standard
- Calculation: actors must accurately appraise the seriousness of various risks and the efficacy of various precautions (accurate BPL analysis)
- Evaluation: actors must evaluate the interests at stake objectively. Cannot prefer their own interests.
- Capacity: actors must have the capacities of the average reasonable person with respect to skill, reflexes, coordination, judgment, and so on
