Torts Class Notes 9/23/03


Last timeÖwe talked about the standard of care for negligence after we mentioned the elements of the prima facie case for negligence.Another way to state your ďdutyĒ is to say what your standard of care is.Your duty is to do what a reasonable person would do under the circumstances.


The reasonable person


A reasonable person takes precautions against foreseeable harm.The first question, therefore, is: ex ante, was there foreseeable harm?Even if there was foreseeable harm, there still may be a finding of no negligence.If we feel that itís not feasible to take the precaution and thus protect against the harm, we may let you off the hook.This is both a cost question and a technology question.


What a reasonable person does is weigh the costs and benefits of a particular action.Reasonableness requires preparations for normal circumstances.

The reasonable person considers the alternatives available to prevent harm.


Reasonable people adhere to community norms.†† Being reasonable is relative to the community in which you live.That means that we do not start with a blank slate.There are matters of common knowledge we expect reasonable people to know and hazards we expect reasonable people to take into account.


More on United States vs. Carroll Towing Co.


The court in Carroll urges that you must act to prevent harm when the burden upon you is less than the expectation value of the possible damages.


Scholars say that the only truly quantifiable term in this equation is the cost of the precautions.The plaintiff must prove that there is a solution that would have prevented the harm.There are a lot of different ways to prevent harm.


If the probability of a certain harm is very low, it may not be economically efficient to take precautions, even if after the fact we know it would have been good to prepare for that harm.


The formula is just guidance to help us decide whether conduct was reasonable under the circumstances.Itís not a hard and fast rule.


The more youíre aware of a problem and fail to do something, the more likely it is that youíll be found negligent.


Is it negligence to build small cars at all if theyíre less safe for the driver than a Hummer?No.Thereís some point at which weíll find that the tradeoffs the manufacturer makes are, in fact, appropriate.


It matters where you are, what has happened before, and other surrounding circumstances.


Who is a reasonable person? Ė Vaughan v. Menlove


The defendant built a hay rick (haystack) in an open field.The plaintiff kept warning the defendant that the haystack would catch on fire, and then it actually did.The defendant was actually concerned about the fire and built a chimney to try to contain any fire that might come up, but it didnít work.


Did the defendant do what a reasonably prudent person would have done under the circumstances?This isnít how the defendant wanted to be judged.He thought that his good faith should be evaluated.


Which standard of a reasonable person do we want?Do we want a subjective standard or an objective standard?What incentives do we want to create?Itís hard to get into the mind of the defendant.


An objective standard is clearer and better defined.It creates an incentive for people to discover what the fixed standard of care is.


On the other hand, if the standard is subjective, thereís a problem of notice because itís impossible to find out just what is expected of you in particular.


An objective standard provides precedent for future cases.If you use a subjective standard, each case is basically a whole new case that can be decided any way you want.


On the other hand, an objective standard is more demanding of the defendant.Is this what we want?How does this treat people of low ability?It may give their caretakers an incentive to make sure they are kept from injuring others.


In many activities, you canít tell other peopleís ability level (like when youíre driving).


Custom Ė Trimarco v. Klein


Glass broke.The plaintiff got hurt.The landlord was the defendant.


Itís argued that the defendant should have to go in and proactively replace the glass.The defendant says that he only needs to warn the plaintiff.


Who has the better argument?


If youíre the defendant, how do you argue not to let evidence of custom in?You could argue that itís very expensive to replace all the glass in all the apartments.


Does the custom require the landlord to replace the glass?Did the plaintiff just manufacture a custom?It appears that there wasnít a custom of landlords coming in and replacing all the doors in the building.Is the custom even on point?


The custom seems to be that ďwhen it breaks, you fix itĒ.Why is this important?Is it important to get the custom right?If custom evidence gets in, the case is basically over, because the jury is going to find negligence if you are below the industry standard.


Custom is not dispositive of what reasonable behavior is.It can help you, but itís not the end of the story.It may be that compliance with custom is sufficient, but if the court thinks the custom itself isnít reasonable, you can still lose.


How would the Carroll Towing test work in this case?How great is the burden of replacing the glass compared to the expected cost of an accident?


What do we learn about custom from this case?


        The custom must show evidence of negligence.

        The custom must be directly on point.

        Sometimes we may use custom, while other times we will use B < PL.


Physical impairments are treated differently than mental impairments.


Roberts v. State of Louisiana


The blind concessionaire bumps into an old man who sues the state of Louisiana, which employs the blind guy.


What does the plaintiff argue?


Even though a physical impairment may not be observable, we will take it into account.


A blind person must act as a reasonable blind person would do under the circumstances.


What about the credibility of expert witnesses?


Having physical ability that is superior means you must exercise your abilities.


What if the plaintiff is intoxicated and is harmed?Thatís a decision that you make.You may be negligent if you donít adhere to the reasonable person standard while drunk.We donít want to encourage people to argue intoxication, and some would argue that we think drinking to get drunk is an anti-social behavior.


Robinson v. Lindsay


Billy Anderson was riding a snowmobile and he was pulling a girl on an innertube.The girl lost her thumb and she sues the owner of the snowmobile.


Should a child be held to an adult standard of care?The trial court in Robinson said no.The appeals court says that children must be held to an adult standard when they are doing something inherently dangerous.


When children act like children, they should be judged as children.But when they act like adults, you should hold them to an adult standard of care.Or, when they engage in inherently dangerous activities, the court may hold a child to an adult standard of care.


For example, golf is not an inherently dangerous activity, though it is an adult activity.


Courts split on whether bike riding is an adult activity.


Can I, as an adult, adapt my behavior so that a child doing an adult activity wonít harm me?


In other words, can you tell who is engaged in the activity?


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