Torts
Class Notes
Last time…we 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 “duty” 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 it’s 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. It’s not a hard
and fast rule.
The
more you’re aware of a problem and fail to do something, the more likely it is
that you’ll be found negligent.
Is
it negligence to build small cars at all if they’re less safe for the driver
than a Hummer? No. There’s some point at which we’ll 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? –
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 didn’t work.
Did
the defendant do what a reasonably prudent person would have done under the
circumstances? This isn’t 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? It’s 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, there’s a problem of notice
because it’s 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 can’t tell other people’s ability level (like when you’re
driving).
Custom
– Trimarco v. Klein
Glass
broke. The plaintiff got hurt. The landlord was the defendant.
It’s
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
you’re the defendant, how do you argue not to let evidence of custom in? You could argue that it’s 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 wasn’t 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 “when it breaks, you fix it”. 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 it’s not the end of the
story. It may be that compliance with
custom is sufficient, but if the court thinks the custom itself isn’t
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
The
blind concessionaire bumps into an old man who sues the state of
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?
That’s a decision that you make.
You may be negligent if you don’t adhere to the reasonable person
standard while drunk. We don’t 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 won’t
harm me?
In
other words, can you tell who is engaged in the activity?