Torts: Section 2 Fall, 2002

1
DUTY BREACH CAUSATION DAMAGES DEFENSES
2
Negligence B. The Central Concept 1. The
Standard of Care
What is ordinary or reasonable care?
3
Negligence B. The Central Concept 1. The
Standard of Care
Adams v. Bullock (N.Y. 1919) (p. 38) The jury
found that the trolley company failed to use
ordinary care. Why does Justice Cardozo
disagree?
4
Adams v. Bullock (N.Y. 1919) (p. 38) The jury
found that the trolley company failed to use
ordinary care. Why does Justice Cardozo
disagree? -- it was impossible to predict the
point on the line at which an accident might have
occurred -- insulating the wires was not
possible -- without knowing where the accident
would happen, you would have to put guards all
along the line or abandon trolleys altogether --
the system of running a trolley with overhead
wires was lawful
5
Negligence B. The Central Concept 1. The
Standard of Care
Adams v. Bullock (N.Y. 1919) (p. 38) Note 1.
Untaken precautions What are the possible
untaken precautions in Adams? -- insulating
the wires? -- placing a guard over the wire
under this bridge? -- placing a guard over the
wire at all bridges? -- posting a sign at all
bridges?
6
Negligence B. The Central Concept 1. The
Standard of Care
Note 2 Is the Braun case distinguishable?
7
Negligence B. The Central Concept 1. The
Standard of Care
Note 3 How do you explain the outcome in
Greene?
8
Negligence B. The Central Concept 1. The
Standard of Care

• Ordinary care
• begins with identifying an untaken precaution
• depends on the exigencies of the case
• requires that the risk be foreseeable
• does not require that a lawful activity be
  abandoned because it poses some risk
• however, even a remote risk can require
  precautions if the risk is needless or the
  threatened harm is great
• ability of others to reduce the risk can factor
  into what is ordinary care

9
Negligence B. The Central Concept 1. The
Standard of Care
Adams v. Bullock (N.Y. 1919) (p. 38) Jury
verdict reversed because the plaintiff failed to
show 1) a precaution that the defendant failed to
take, that was 2) reasonable, in light of the
foreseeable harm 3) and in light of the degree of
danger involved, and that is 3) feasible 4)
practical 5) not prohibitively expensive.
10
Negligence B. The Central Concept 1. The
Standard of Care
U.S. v. Carroll Towing (N.Y. 1919) (p. 38)
11
Negligence B. The Central Concept 1. The
Standard of Care
The Hand Formula The owners duty . . . to
provide against resulting injuries is a function
of three variables (1) the probability that she
will break away P (2) the gravity of the
resulting injury if she does L (3) the burden
of adequate precautions B. Liability depends
on whether B is less than L multiplied by P, i.e.
whether BltP x L.
12
Negligence B. The Central Concept 1. The
Standard of Care
In Learned Hands formula, ordinary care is
defined by the relationship B lt PL
13
Richard Posner, A Theory of Negligence (n.1. p.
45)
His focus The social function of liability for
negligent acts.
14
Richard Posner, A Theory of Negligence (n.1. p.
45)
His thesis Hand was adumbrating an economic
meaning of negligence.
15
Richard Posner, A Theory of Negligence (n.1. p.
45)
Premise 1 Discounting (multiplying) the cost
of an accident if it occurs by the probability of
occurrence yields a measure of the economic
benefit to be anticipated from incurring the
costs necessary to prevent the accident.
16
Richard Posner, A Theory of Negligence (n.1. p.
45)
A wants to demolish a building. If A uses
explosives to demolish the building, there is a
10 chance that the neighboring property will be
damaged. The damage to the neighboring property,
if it eventuates, is estimated to be 1
million. What is the economic benefit would be
expected from eliminating that 10 chance?
17
Richard Posner, A Theory of Negligence (n.1. p.
45)
A wants to demolish a building. If A uses
explosives to demolish the building, there is a
10 chance that the neighboring property will be
damaged. The damage to the neighboring property,
if it eventuates, is estimated to be 1
million. What is the economic benefit would be
expected from eliminating that 10
chance? ANSWER 10 X 1million, or 100,000
18
Richard Posner, A Theory of Negligence (n.1. p.
45)
Premise 2 If the cost of safety measures or
curtailment whichever cost is lower exceeds
the benefit in accident avoidance, society would
be better off, in economic terms, to forgo
accident prevention.
19
Richard Posner, A Theory of Negligence (n.1. p.
45)
A could completely eliminate the risk to the
adjoining property by using conventional
(non-explosive) means to demolish the building.
The additional labor cost would be 150,000. Is
it in societys interest to use conventional
means?
20
Richard Posner, A Theory of Negligence (n.1. p.
45)
Premise 3 A rule making the enterprise liable
for the accidents that occur in such cases cases
in which the cost of reducing the possibility of
accidents exceeds the expected benefit cannot be
justified on the grounds that it will induce the
enterprise to increase the safety of its
operations. Why not?
21
Richard Posner, A Theory of Negligence (n.1. p.
45)
A could completely eliminate the risk to the
adjoining property by using conventional
(non-explosive) means to demolish the building.
The additional labor cost would be 150,000. If
A knows that he will be responsible for the 1m
in damage if it occurs, will A use explosives or
will A use conventional means to demolish the
building?
22
Richard Posner, A Theory of Negligence (n.1. p.
45)
Premise 3 (continued) When the cost of
accidents is less than the cost of prevention, a
rational profit-maximizing enterprise will pay
tort judgments to the accident victims rather
than incur the larger cost of avoiding
liability. (AND, it would not be in societys
interests either!)
23
Richard Posner, A Theory of Negligence (n.1. p.
45)
Premise 4 If the benefits in accident
avoidance exceed the costs of prevention, society
is better off if those costs are incurred . . .
And so in this case, the enterprise is made
liable in the expectation that self-interest will
lead it to adopt the precaution.
24
Richard Posner, A Theory of Negligence (n.1. p.
45)

• By erecting a fence around the property at a cost
  of 25,000, A could reduce the risk to the
  adjoining property from 10 to 5. Damage, if
  it occurs, would still be 1m.
• Is it in societys interest to build the fence?
• If A is held liable, will A build the fence?

25
Should there be an it costs too much excuse for
failing to take a precaution that could have
avoided an injury? Saved a life?
26
Doctrine
Negligence is the doing of something which a
reasonably prudent person would not do, or the
failure to do something which a reasonably
prudent person would do, under circumstances
similar to those shown by the evidence. It is
the failure to use ordinary or reasonable
care. Ordinary or reasonable care is that care
which persons of ordinary prudence would use in
order to avoid injury to themselves or others
under circumstances similar to those shown by the
evidence. California BAJI 3.10
27
Doctrine

• What is ordinary or reasonable care?
• Adams, etc function of foreseeability of harm,
  extent of harm, feasibility of precautions
• Learned Hand B lt PL

28
Doctrine
Is there an it costs too much excuse for
failing to take a precaution that could have
avoided an injury? Saved a life?
29
Doctrine
Restatement 2d of Torts, 291 291
Unreasonableness How Determined Magnitude of
Risk and Utility of Conduct Where an act is
one which a reasonable man would recognize as
involving a risk of harm to another, the risk is
unreasonable and the act is negligent if the risk
is of such magnitude as to outweigh what the law
regards as the utility of the act or of the
particular manner in which it is done.
30
Doctrine
McMahon v. Bunn OMatic Corp., 150 F.3d 651
(1998) (Easterbrook, J.) Without some way to
compare the benefits of a design change (fewer
and less severe burns) against the costs (less
pleasure received from drinking coffee), it is
impossible to say that designing a coffee maker
to hold coffee at 179 degrees F bespeaks
negligent inattention to the risks.
31
Skills

• Plaintiffs theory of the case, or explanation
  of how ordinary care would have avoided the harm,
  drives the analysis
• Starts with untaken precaution
• Fact intensive fact specific
• The Learned Hand formula can help you identify
  the kind of facts you need to look for.

32
Evaluation
Should there be an it costs too much excuse for
failing to take a precaution that could have
avoided an injury? Saved a life? Does economic
analysis of the law provide an account of whether
a particular doctrine should be part of the law?