Torts Outline Final PDF

ATTACK {#attack.TOCHeading} ====== [**INTRODUCTION** 1](#introduction) [**NEGLIGENCE** 1](#_Toc153343450) [**1.** **The Reasonable Person** 1](#_Toc153343451) [**2.** **The Hand Formula (BPL/Cost-Benefit Analysis)** 5](#_Toc153343452) [**3.** **Custom** 9](#_Toc153343453) [**4.** **NEGLIGENCE...

ATTACK {#attack.TOCHeading} ====== [**INTRODUCTION** 1](#introduction) [**NEGLIGENCE** 1](#_Toc153343450) [**1.** **The Reasonable Person** 1](#_Toc153343451) [**2.** **The Hand Formula (BPL/Cost-Benefit Analysis)** 5](#_Toc153343452) [**3.** **Custom** 9](#_Toc153343453) [**4.** **NEGLIGENCE PER SE** 12](#_Toc153343454) [**5.** **RES IPSA LOQUITUR** 15](#_Toc153343455) [**STRICT LIABILITY** 17](#_Toc153343456) [2. Activity Levels and Respondeat Superior 21](#_Toc153343457) [**CAUSATION: BUT-FOR** 24](#_Toc153343458) [**1.** **Preponderance of the Evidence Rules** 24](#_Toc153343459) [**2.** **Loss of Chance** 28](#_Toc153343460) [**3.** **Multiple Defendants** 30](#_Toc153343461) [**CAUSATION: PROXIMATE CAUSATION** 34](#_Toc153343462) [1. Remoteness and Foreseeability 34](#_Toc153343463) [**2.** **Intervening Causes** 39](#_Toc153343464) [**DAMAGES** 41](#Damages) [ **Ability to get damages informs:** which cases people bring, how hard they litigate b/c P\'s lawyers work on contingency (cut of winnings) and Ds paid by hour -\> equilibrium reached in market that makes sense 41](#_Toc153343466) [ **Somewhat alignment of incentives:** 41](#_Toc153343467) [o **P\'s perspective:** if lawyer knew they were going to get paid by hour, they would accept every case (even if has no merits) -\> worry that incentives increases amount of money taken by Ps and increase frivolous lawsuits b/c people that know lawsuits aren\'t telling them any better 41](#_Toc153343468) [o **D\'s perspective:** D's case is about not losing money -\> giving lawyer cut of winnings doesn\'t work -\> goal is to stop litigation 41](#_Toc153343469) [**1.** **Compensatory Damages** 41](#_Toc153343470) [**2.** **Economic Refinements, Insurance, and Intangible Losses** 45](#_Toc153343471) [**3.** **Punitive Damages** 48](#_Toc153343472) [**4.** **Damages and Discrimination** 52](#_Toc153343473) [**DUTIES AND DEFENSES** 53](#_Toc153343474) [1. Duties from Affirmative Acts, Undertakings, Special Relationships 53](#_Toc153343475) [**Duties Arising from Affirmative Acts** 53](#_Toc153343476) [ Cases where the D has done something (action that harms someone else) and is that something enough to create a duty on D 53](#_Toc153343477) [ What kind of action counts as harming someone else? 53](#_Toc153343478) [**2.** **Duties from the Occupation of Land** 59](#_Toc153343479) [**Privity** 62](#privity) [**Pure Economic Loss** 63](#pure-economic-loss) [3. Negligent Infliction of Emotional Distress (NIED), Duty v. Proximate Cause 65](#_Toc153343482) [4. Assumption of Risk 70](#_Toc153343483) [**PRODUCTS LIABILITY: The fourth island of strict liability** 75](#products-liability-the-fourth-island-of-strict-liability) [1. The Move to Modern Products Liability 75](#_Toc153343485) [2. Manufacturing Defects 79](#_Toc153343486) [**3.** **Design Defects** 82](#_Toc153343487) [**4.** **Marketing Defects** 85](#_Toc153343488) [**INTENTIONAL TORTS** 89](#_Toc153343489) [1. Battery, Consent, Trespass, Conversion, and False Imprisonment 89](#_Toc153343490) [**2.** **Privileges and Necessity** 95](#_Toc153343491) **INTRODUCTION** ================ **History of Torts System** - **Torts:** lawsuits between two private entities/individuals and civil case not arising from contract (no background agreement) - **Common Law:** judge-made law - Flexible to tailor to facts; allows for variation; who is writing law down **Types of Torts** 1. [Intentional](#_Toc153343489) (not as common, tend to settle) a. Most people aren't intentionally trying to hurt others b. Little assets -\> won't collect -\> harder to get lawyer 2. Unintentional -- ***oceans of negligence with 4 islands of strict liability*** **Elements of Unintentional torts:** weight of evidence required is a [preponderance of the evidence (POE]) 1. [Duty](#_Toc153343474) (of reasonable care to others, or affirmative) 2. Breach a. [Negligence](#_Toc153343450): a standard to determine breach b. [Strict Liability](#_Toc153343456) 3. Causation c. [But-for](#_Toc153343458) d. [Proximate](#_Toc153343462) 4. Damages ***\**The goal of the torts system is to lower total social cost-\> common law evolves toward efficiency; the tort system involves high litigation costs** - Regardless of what normatively you think torts system should be doing, descriptively, if you want to predict what the rules are, the right way to understand it is torts system is about lowering total social cost of accidents - Administrability = cheaper; bearing loss = people won\'t be less likely to own property -\> won\'t reduce economic output; deterrence = less future accidents **Two Defenses to Torts** 1. Contributory negligence a. Contributory (old, harsh rule): if D can show that P was also negligent, P can't recover **at all** b. Comparative (newer rule): not a strict bar to recovery, the jury figures out relative contribution to negligence (case thrown out if P \>50% responsible) 2. [Assumption of risk](#_Toc153343483) (risk is clear, transparent, well-documented) ### **Ex Ante vs Ex Post** **[Ex Ante in Torts]** - **Definition**: Measures aimed at preventing tortious conduct or minimizing harm before it occurs. - **Examples in Torts**: - **Safety Regulations**: Laws requiring seatbelts or workplace safety standards (e.g., OSHA regulations). - **Design Defects**: Duty to design products with reasonable safety features (e.g., airbags in cars). - **Warning Labels**: Duty to warn of foreseeable risks (e.g., \"Caution: Hot Coffee\"). - **Risk Management**: Businesses implement policies to avoid slip-and-fall accidents (e.g., wet floor signs). - **Policy Focus**: Encourages individuals and companies to take reasonable precautions to avoid liability. - **Relevance to Tort Theories**: - Aligns with **negligence law**, which assesses whether a reasonable person would have acted differently to avoid harm. - Reflects the goal of **deterrence** in tort law: incentivizing safer behavior through potential liability. **[Ex Post in Torts]** - **Definition**: Actions taken to resolve disputes, assess liability, and provide remedies after a tort has occurred. - **Examples in Torts**: - **Negligence Claims**: Plaintiff sues after a car accident caused by defendant's failure to exercise reasonable care. - **Intentional Torts**: Victims seek damages for harm from battery, defamation, or false imprisonment. - **Products Liability**: Litigation for harm caused by defective products (e.g., exploding appliances). - **Compensation for Harm**: Awarding damages (compensatory or punitive) to make the plaintiff whole and deter future misconduct. - **Policy Focus**: Aims to restore injured parties and hold wrongdoers accountable. - **Relevance to Tort Theories**: - Reflects the **corrective justice** principle: restoring balance by making the wrongdoer compensate the victim. - Highlights the role of courts in determining fault and allocating responsibility after the harm occurs. **[Key Differences in a Torts Context]** - **Timing**: - Ex ante focuses on preventing harm (e.g., requiring safety measures). - Ex post addresses harm once it occurs (e.g., litigating negligence). - **Examples in Tort Doctrines**: - **Ex Ante**: Reasonable care standard in negligence law sets expectations for behavior. - **Ex Post**: The court's determination of breach and causation in negligence cases assesses actions retrospectively. - **Cost and Burden**: - Ex ante can impose compliance costs on businesses and individuals (e.g., adding safety features). - Ex post litigation can be expensive and uncertain for plaintiffs and defendants. **[Application in 1L Torts Class]** - **Negligence Hypotheticals**: - Compare a case where a company failed to install safety rails (ex ante failure) versus a court awarding damages after an accident (ex post resolution). - **Policy Debates**: - Should tort law focus more on prevention (ex ante) or resolution (ex post)? - Discuss how **strict liability** shifts the balance from ex post fault-finding to ex ante risk mitigation. - **Case Examples**: - **Palsgraf v. Long Island Railroad**: The focus on foreseeability (ex ante) versus actual harm (ex post). - **MacPherson v. Buick**: How courts impose ex ante duties on manufacturers to prevent harm. - **United States v. Carroll Towing Co.**: The Hand Formula's focus on ex ante balancing of risks and costs. BREACH: 1. Negligence a. Ask jury to do RPP b. Judges do a BPL c. Customs d. Neg Per Se e. Res Ipsa Loquitor 2. SL []{#_Toc153343450.anchor}**NEGLIGENCE = Duty + Breach** 1. []{#_Toc153343451.anchor}**The Reasonable Person** **Restatement (Second) of Torts (1965):** "Unless the actor is a child, the standard conduct to which he must conform to avoid being negligent is that of a **reasonable, prudent person done under** **like circumstances." (RPP-\> Reasonable Prudent Person test)** - **NOT** the average/median person. More like average abilities of the people in the community, average knowledge not in a statistical way. More general, "**If someone was actually being prudent, within reason, what would they have done?"** - (i.e. average person makes COMPLIANCE ERRORS: screws up and looks away from the road but RPP is taking precautions) - **Law and Economics:** assume person will choose option w/ higher benefit f. Lawyers take cases where they are more likely to get paid from winning g. **Dispute:** Universal v. Individual i. P wants reasonably prudent person standard; no reasonable farmer would\'ve done this 1. Breach = reasonably prudent person does not stack hay next to house, w/ chimney ii. D wants individual standard of intelligence -\> did they do their best h. **In favor of objective/uniform standards for RPP (not individual intelligence):** iii. Administrability 2. Can behave accordingly in stacking hay -\> predictability; takes money to figure out intelligence ; could game intelligence test (making trials harder) 3. You don't always get to interact with people in a way where you always KNOW they are below average intelligence. Instead, better to assume we all have average intelligence. iv. Bearing the loss 4. Property ownership prioritized; complicated if worrying about individual capacity (precaution costs go up) v. Deterrence 5. Incentives someone w/ lower intelligence or caretaker to monitor behaviors and prevent i. Tests for negligence: vi. Reasonably prudent person: general rule -\> did you behave as a reasonably prudent person would under like circumstances? 6. Regular people can decide (don\'t need specialists) 7. Ex Ante: Prediction of an event before it happens a. Notice it\'s hard to know what juries think is reasonable -\> little notice in advance b. Consistency: 2 juries could decide different ways c. Problems can be solved by shifting from standard-like to rule-like i. Rule: clear, bright-line 1. More consistent, objective, less interpretation 2. Might not account for all circumstances, might be expensive/impossible to think of one, might produce absurd results when applied consistently ii. Standard: flexible vii. Moving away from standards: 8. Hand formula (negligence quantification, BPL, cost-benefit analysis) 9. Custom 10. Negligence Per Se **MENTAL ABILITIES** +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **Vaughan v. | **Facts:** D built a | **Rule:** RPP | | Menlove** | chimney through his | standard is an | | | haystack; haystack | objective test, based | | **Liability** | caught on fire and | on the care taken by | | | burned down his and | a person of ordinary | | | P's property. P sued; | prudence; subjective | | | D argued that he | individualized mental | | | "ought not be | abilities not | | | responsible for...not | relevant | | | possessing the | | | | highest order of | **What's wrong w/ | | | intelligence." | subjective | | | | standards?** | | | **Holding:** The | | | | standard of | - Prone to error | | | negligence is an | and fraud | | | objective one | | | | | - Costly and | | | | labor-intensive | | | | investigation | | | | (increased | | | | transaction | | | | costs) Aka hard | | | | to measure | | | | | | | | - Deterrence (court | | | | is trying to | | | | prevent negligent | | | | behavior by | | | | encouraging | | | | precautions) | | | | | | | | - Fairness for | | | | those injured by | | | | negligent acts | | | | | | | | - People could fake | | | | lower | | | | intelligence | | | | | | | | - might be | | | | unfair for D | | | | who lost out | | | | on birth | | | | lottery but | | | | remember | | | | torts system | | | | is about | | | | lowering | | | | total social | | | | cost | +-----------------------+-----------------------+-----------------------+ | **Fredericks v. | **Facts:** P hit by | **Rule:** Single | | Castora** | two trucks, contended | objective standard of | | | that jury should | care which may | | **No** liability | apply higher | reasonably be | | | standards of driving | required or expected | | | to the Ds as they | under the | | | were professional | circumstances of the | | | drivers | given situation | | | | | | | **Holding:** There is | -Court cited | | | only one single | difficulty of | | | standard of care for | confronting varying | | | negligence, Ds should | degrees of care for | | | not be held to a | vehicle negligence | | | higher standard just | | | | because they are | | | | professional drivers | | +-----------------------+-----------------------+-----------------------+ **Supernormal abilities** -Actors **must** employ superior competence/qualities/facilities available to them -Squaring with *Vaughan* and *Fredericks*: - Court doesn't want to lower the standards based on subjective qualities (*Vaughan*) but raising them may be okay - If unusually strong man does not bring horses under his control, then **negligent** toward anyone run down by horses (even though ordinary strength would be unable to control horses) - If physician sends child to school w/ symptoms that training/experience should recognize as scarlet fever and child passes scarlet fever to another student, physician is **negligent** in not recognizing risk (even if layman may not be negligent). - Higher mental ability standard is limited to specific comparative group of experts like doctors, pilots, etc. (not truck driver though!) - Goal: We want an objective test but don't want to create incentives for people not to try when they should try! **PHYSICAL DISABILITIES** +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **Kerr v. Connecticut | **Facts:** D operated | **Rule:** RPP | | Co.** | a train that hit P, a | standard; the | | | deaf man, who was | "[like] | | **No** liability | walking close to the | circumstances" here | | | tracks negligently, | includes physical | | | couldn't hear the | disabilities like | | | train horns | deafness | | | | | | | **Holding:** P was | -P knows he is deaf | | | contributorily | and can't hear the | | | negligent; he should | gong; he was | | | have taken | contributorily | | | precautions a | negligent | | | reasonably prudent | | | | deaf man would have | \--what is required | | | taken in those | for someone w/ | | | circumstances | physical disability | | | | is different than | | | | what is required of | | | | someone w/o | | | | | | | | -courts more willing | | | | to redefine for | | | | physical disability | | | | than mental | | | | | | | | - Rationale: | | | | physical | | | | disability -\> | | | | more visible and | | | | can behave | | | | accordingly (e.g. | | | | stop loading or | | | | close cellar | | | | door) -\> also | | | | more | | | | objective/easier | | | | to measure | +-----------------------+-----------------------+-----------------------+ | **Davis v. | **Facts:** P fell | **Rule:** Court tries | | Feinstein** | through a cellar door | to incentivize | | | in front of D's door; | everyone taking | | **Liability** | P is blind and was | reasonable | | | using a cane | precautions to lower | | | | total social cost | | | **Holding:** P was | | | | making a reasonable | -P was exerting | | | effort to compensate | effort in the | | | for his blindness; D | direction of | | | did not should have | reasonable care | | | taken precautions | | | | keeping in mind that | | | | people have physical | | | | disabilities and | | | | someone blind | | | | couldn't be expected | | | | to avoid falling into | | | | a cellar door without | | | | a barrier, etc. | | +-----------------------+-----------------------+-----------------------+ ***\****Generally, physical capabilities are easier to account for than mental capabilities, and courts are more open to changing standards based on observable physical characteristics **AGE** - **GENERAL RULE:** - Children held to a lower standard of care - **Rule of Sevens:** - 1\. Under 7, conclusively presumed incapable of negligence - 2\. Between 7-14, presumed incapable of negligence (weakens as 14th year approached) - 3\. Over age of 14, presumed capable of negligence + burden on minor to prove incapacity - Elderly are held to same RPP - **EXCEPTIONS** - Minors only held to adult standard of care if: - Activity undertaken is dangerous to others - Activity is normally engaged in by adults - EX: Dellwo, Boat case +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **Purtle v. Shelton** | **Facts:** D | **Rule:** Minors only | | | accidentally shot P | held to an adult | | **No** liability | during hunting trip; | standard of care if: | | | both are minors | | | | | - Activity | | | **Holding:** As a | undertaken is | | | minor, P is held to a | dangerous to | | | lower standard of | others | | | care | | | | | - Activity is | | | | normally engaged | | | | in by adults | | | | | | | | -While shooting a gun | | | | is dangerous, lots of | | | | minors shoot guns and | | | | there is no special | | | | adult gun license | | | | | | | | -Different from motor | | | | vehicle precedent | | | | because driving has | | | | age requirements and | | | | a licensing exam | | | | | | | | -Majority opinion | | | | concerned with the | | | | difficult of drawing | | | | the line on what an | | | | "adult activity" is | | | | and what is | | | | "dangerous" (variance | | | | across jurisdictions) | | | | | | | | -Courts treat guns | | | | weirdly in cases of | | | | standards of care and | | | | products liability | | | | | | | | - probably a | | | | political economy | | | | -\> NRA makes it | | | | difficult to | | | | campaign/be | | | | re-elected; | | | | judges will say | | | | they know about | | | | licenses/cars/boa | | | | ts | | | | but not guns | | | | | | | | - Generally what is | | | | considered an | | | | adult activity | | | | varies across | | | | court rooms, | | | | depends on | | | | judge/juries. EX: | | | | Arkansas Supreme | | | | Court is elected, | | | | must be pro-gun | | | | to keep | | | | constitituents | | | | happy | | | | | | | | - Guns are treated | | | | differently in | | | | court: A | | | | pharmaceutical | | | | intended to HELP | | | | people goes wrong | | | | and you lose a | | | | fortune. A gun | | | | intended to HURT | | | | people can go | | | | RIGHT and nothing | | | | happens. | | | | | | | | **Dissent:** don't | | | | understand why youth | | | | are entitled to | | | | exercise any less | | | | care than anyone else | | | | deer hunting; death | | | | is consequence | +-----------------------+-----------------------+-----------------------+ | **Roberts v. Ring** | **Facts:** Elderly D | **Rule:** Children | | | who is hard of | are held to a lower | | **Liability** | hearing and sight | standard of care, but | | | hits child P while | not the elderly | | | driving slowly | | | | because he was unable | **Why?** | | | to stop in time; both | | | | sides say they are | -**Social subsidy | | | exceptions to RPP | argument:** as a | | | | society, we should | | | **Holding:** P has no | help kids learn and | | | contributory | grow, and be willing | | | negligence even | to subsidize that | | | though he ran across | growth | | | the street because he | | | | is a minor; D should | - when kids are | | | have been aware of | around, drivers | | | his decreased | can take | | | capabilities and | precautions in | | | avoided driving on | ways that can | | | crowded street | prevent actions | | | | | | | | - In general, we do | | | | **not** adjust | | | | RPP b/c old | | | | | | | | -It is easier to | | | | observe youth than | | | | the elderly and it is | | | | obvious children act | | | | irrationally | | | | | | | | -The elderly do not | | | | necessarily lose | | | | their ability to | | | | reason and are aware | | | | of their diminished | | | | capabilities | | | | | | | | - Incentivizes | | | | putting plans in | | | | place ahead of | | | | time to stop | | | | driving | | | | | | | | -Children won't be | | | | deterred by tort | | | | liability -\> they | | | | don't know all the | | | | risks | +-----------------------+-----------------------+-----------------------+ | **Dellwo v. Pearson** | **Facts:** D is a | **Rule = Adult | | | minor operating a | Activity Exception**: | | **Liability** | powerboat, injures P | Minors only held to | | | as a result | an adult standard of | | | | care if: | | | **Holding:** P was | | | | engaging in an | - Activity | | | activity normally | undertaken is | | | engaged in by adults, | dangerous to | | | and therefore should | others | | | be held to an adult | | | | standard of care | - Activity is | | | | normally engaged | | | Distinctions between | in by adults | | | *Purtle* and | | | | *Dellwo*: | -Vehicles are often | | | | operated by immature | | | 1\. *Dellwo* -\> | individuals, so there | | | could\'ve known | is no way of telling | | | ages ahead of time | if the operator is an | | | | adult; one can't know | | | 2\. *Purtle* -\> | whether operator is a | | | kids can get | minor or adult -\> | | | hunting license | can't protect himself | | | whereas set age for | against youth | | | driver\'s license | imprudence if warned | | | | | | | 3\. *Purtle* -\> | -Unfair to public to | | | some people just | permit minor in | | | really like guns | operation of motor | | | | vehicle to observe | | | | any other standard of | | | | care and conduct than | | | | those expected of all | | | | others. | +-----------------------+-----------------------+-----------------------+ | **Dunn v. Teti** | **Facts:** P was | **Rule of Sevens:** | | | injured when D, a six | | | **No** liability | year old, swung a | 1\. Under 7, | | | stick negligently | conclusively | | | | presumed incapable | | | **Holding:** P was | of negligence | | | too young to be | | | | capable of negligence | 2\. Between 7-14, | | | | presumed incapable | | | **Dissent:** Standard | of negligence | | | of "reasonable person | (weakens as 14th | | | of like | year approached) | | | age/intelligence/expe | | | | rience" | 3\. Over age of 14, | | | accounts for age | presumed capable of | | | differences already | negligence + burden | | | | on minor to prove | | | | incapacity | | | | | | | | -A child that young | | | | cannot be held to the | | | | same "reasonable and | | | | prudent man" | | | | standards | | | | | | | | -Under 7-\> no RPP; | | | | over 18-\> RPP; | | | | between 7-18-\> | | | | depends on activity! | | | | | | | | -Most states, | | | | there\'s an age | | | | cutoff that no kid | | | | under x yrs old can | | | | be negligence | | | | | | | | -Can bring suit | | | | against parent if | | | | parent doesn\'t watch | | | | kid | +-----------------------+-----------------------+-----------------------+ 2. []{#_Toc153343452.anchor}**The Hand Formula (BPL/Cost-Benefit Analysis)** +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **US v. Carroll | **Facts:** D was a | **Rule:** BPL | | Towing Company** | barge owners who | analysis by Judge | | | chartered their barge | Learned Hand. | | **Liability** | to the railroad | | | | company; improperly | 1. The probability | | | tied their barge | that she will | | | which led to a | break away (P) | | | collision and the | | | | barge sinking with | 2. The gravity of | | | all cargo. The bargee | the resulting | | | was not on board when | injury if she | | | the collision | does (L) | | | occurred. | | | | | 3. The burden of | | | **Holding:** The D is | adequate | | | liable for the | precautions (B) | | | accident because | | | | their bargee was not | -The appellate cases | | | on board **L** | are asking if the | | | | [standards]{.underlin | | | | e} | | | | used are correct | | | | | | | | -Court argues that D | | | | failed to take steps | | | | to prevent accident | | | | that a reasonably | | | | prudent person | +-----------------------+-----------------------+-----------------------+ **BPL (HAND FORMULA ANALYSIS)** -RPP to BPL test for negligence is a move from **standard** to **rule -\>** way to calculate N in economic terms/more quantifiable way If B **\ can't just come up with speculative scenarios -Both parties pay experts to estimate the appropriate costs and risks (but putting a dollar value to all elements is an unrealistic goal) -Ps always try to maximize PxL and minimize B -Hand formula as an *ethical* measure-\> if I don't take a cost justified precaution, I care more about myself than overall good -How do you get numbers? Lawyers present arguments for numbers and try to sound credible **[Problems with BPL]** a. It assumes that probability of accident lowers to 0% if precaution is taken -\> could be loss in both situations of taking precaution or not taking precaution b. It doesn't account for the total cost of the new scenario c. It assumes 0 burden in one scenario d. Although in *Carroll*, either burden is taken or not taken, there are times when even the cost of the burden is probabilistic e. Ps could find any random B that is a low cost, even if B isn't effective f. Conundrum of determining whose scenario is more credible---P's or D's g. It's Ex-Post: Unpredictable, not consistent. This is an argument against standards in the law because RPP is just a standard. **[Updated (Chilton's) Version of the Hand Formula]---find scenario with the lowest total social cost** P~1~ x B + P~2~ x L = total social cost B = cost of precaution P~1~ = probability of precaution (whether or not precaution won't work) P~2~ = probability of accident in the scenario (either precaution taken or untaken) L = loss that occurs if accident occurs P~1~ x B = expected social cost of precautions P~2~ x L = expected social cost of accident \*Could keep adding subscripts for multiple losses/probability \*At the time D made choice, what were probabilities? \*P plays big role in defining what options are b/c they get to decide how to frame case when they bring case to court a. Frequently involves trying to find untaken precaution that survives cost-benefit analysis +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **Bolton v. Stone** | **Facts:** P hit by a | **Rule:** BPL | | | ball that was hit out | analysis by Judge | | **Liability** | of the Lord's Cricket | Learned Hand. | | | Ground, and sued the | | | | club that owned the | -***Marginal | | | grounds for | analysis*** | | | negligence | important---must | | | | consider if the | | | **Holding:** The D is | precaution was cost | | | not negligent; | justified considering | | | considering the small | alternative | | | risk that an accident | precautions, given | | | like this would occur | the likelihood of | | | (no such accident has | accident | | | happened for years), | | | | an ordinary prudent | No fence = \$5,000 | | | person would not | | | | think it right to | 7 ft fence = | | | refrain from activity | \$3,000 | | | **L** | | | | | 10 ft fence = | | | **Applying the Hand | \$3,400 | | | Formula to Bolton v. | | | | Stone, it can be | -10 ft fence is | | | argued that the | **not** | | | burden (B) of | cost-justified as it | | | preventing such a | doesn't lead to the | | | rare accident would | lowest total social | | | be much higher than | cost) | | | the risk (P × L), | | | | meaning that the | -Sometimes cases | | | cricket club was not | warrant using a full | | | negligent. | cost curve to conduct | | | Essentially, the low | marginal analysis of | | | probability of harm | the precautions | | | outweighed the duty | | | | to take further | -Law of negligence is | | | precautions.** | concerned less with | | | | what is fair than | | | | with what is culpable | | | | | | | | \- D paid for | | | | engineer to report, | | | | filed report, 8 ft = | | | | answer, chose 10 ft | | | | -\> essentially as | | | | insurance against | | | | litigation | +-----------------------+-----------------------+-----------------------+ P~1~ x B + P~2~ x L = total social cost - No fence = (1\*0) + (.1\*50,000) = \$5,000 - 7 ft fence = (1\*2,000) + (.02\*50,0000) = \$3,000 - 10 ft fence = (1\*2.5) + (.018\*50,000) = \$3,400 - 10 ft fence is **not** cost-justified as it doesn't lead to the lowest total social cost **Marginal Analysis:** whether precaution is cost-justified considering other available precautions - **Marginal Cost**: the additional, incremental cost - E.g.: In moving from 7 ft fence to 10 ft fence = \$500/yr - **Marginal Benefit**: \$100 reduction each year in accident costs Strengths Issues with Hand Formula: - WEAKNESS: It's only ever applied ex-post by judges, unpredictable, not consistent - This is a general argument about standards in law, because RPP is just a standard (and that risk means it can be too loose, inconsistent) - Hand formula just tries to see if the situation was cost-justified, that's it. Doesn't rely on jury bias (strength and a weakness) - STRENGTH: To be negligent, you must prove the D didn't take proper precautions. When D's use hand formula ex ante, they can do a calculation for gauge risk, compare precautions, and demonstrate how they weighed precautions. **Contract approach to BPL (Posner)** -What would the parties have contracted if they were able to bargain prior to the accident? -The D would only execute the contract if PxL is large and B is lower -Thinking in contracts helps account for range of probabilities in tort cases -Necessitates assuming no transaction costs A and B are counterbalanced by C, D, E A. **Magnitude of the risk:** probability that P would be killed/hurt B. **Principal object:** P\'s own life C. **Collateral object**: Child\'s life D. **Utility of risk:** probability that P could save child E. **Necessity of risk:** probability that child would not have saved himself by getting off track +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **Eckert v. Long | **Facts:** P tried to | **Rule:** BPL | | Island Railroad** | save a child sitting | analysis | | | on railroad tracks; | | | **Liability on | he saved the child | -When the exposure to | | railroad to pay** | but was hit by the | danger is for the | | | train operated by D. | purpose of saving | | | D argues P was | life, it is **not** | | | contributorily | negligent unless such | | | negligent for running | as to be regarded as | | | onto the railroad | either rash or | | | tracks. | reckless (if it was | | | | for saving | | | **Holding:** The P is | property/cat, then it | | | not contributorily | would be reckless!) | | | negligent. Under the | | | | circumstances in | -If you assume lives | | | which he was placed, | are of equal | | | it was not wrongful | value---B, child's | | | in him to make every | life, = L, P's | | | effort in his power | life---then the | | | to rescue the child, | precaution is cost | | | compatible with a | justified if the P of | | | reasonable regard for | saving the child is | | | his own safety. | higher than the P of | | | | rescuer dying | | | | | | | | -It is the case that | | | | the child's life was | | | | indeed saved, and | | | | that P wouldn't have | | | | necessarily died | | | | | | | | -Court places | | | | extremely high | | | | indifference to the | | | | decision of the P as | | | | the decision was so | | | | split-second | | | | | | | | **Contract approach** | | | | | | | | -If there were no | | | | transaction costs and | | | | the situation was a | | | | contract situation, | | | | would D have paid P | | | | to save the child's | | | | life? (If Eckert had | | | | gone to RR and said, | | | | I\'ll save the kid, | | | | you pay my family, RR | | | | probably would\'ve | | | | agreed) | | | | | | | | -Probably. So they | | | | should compensate him | | | | ex post | | | | | | | | Economics of Eckert: | | | | Expected benefits of | | | | rescue \> Expected | | | | cost of recue. | +-----------------------+-----------------------+-----------------------+ | **Margharita** | **Facts:** Martinez | **Rule:** BPL | | | was a seaman on the | analysis has to weigh | | **No** liability | Margharita; in an | both human suffering | | | accident he fell off | and economic loss | | | the ship and had his | | | | leg bitten off by a | **BPL approach:** | | | shark. After rescue, | | | | the ship did not | -In cases so far, we | | | deviate from its | have only looked at | | | course, and he sued | one kind of | | | the owners for N for | probability for one | | | not taking a detour | kind of loss | | | to get him medical | | | | treatment earlier. | -Here, there is the | | | | possibility of | | | **Holding:** The only | multiple Ps and Ls, | | | injury caused by the | since stopping | | | failure to detour was | immediately at Port | | | prolonged suffering; | Stanley wasn't the | | | but detouring to Port | only option (could | | | Stanley which was the | have stopped at other | | | nearest available | ports on the way to | | | point would have | Savannah) | | | taken an additional 3 | | | | weeks and led to | **Contract | | | economic loss. | approach:** | | | Furthermore, seas | | | | near Port Stanley are | -Martinez is an | | | dangerous. | employee in a | | | | contract with the | | | | Margharita; they had | | | | time to contract | | | | beforehand, and the | | | | fact that he doesn't | | | | like the deal later | | | | is **not** reason ex | | | | ante it was an unfair | | | | deal | | | | | | | | -Sailors make more | | | | money if total cost | | | | of running ship is | | | | lower; he is | | | | compensated for his | | | | suffering in his | | | | wages | | | | | | | | -Martinez signed up | | | | for his job knowing | | | | the costs that it | | | | entails | +-----------------------+-----------------------+-----------------------+ 3. []{#_Toc153343453.anchor}**Custom** **BOATS AND CUSTOM** - **Customs: Establsihed practices, nroms, or procedures followed by a particular industry, profession, community** - Evidence: When a tort case arises, evidence of customs can be used to undermine whether the defendant acted with reasonable care or breached a duty of care. While customs are not necessarily definitive in establishing liability, they often play a significant role in court decisions. - **A sword and a shield:** - **Compliance with custom: Defense (Shield)** - **Failure to meet custom: Offense (Sword)** - **In most cases (except medmal), custom is relevant but NOT dispositive. Coexists with RPP standard.** +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **T. J. Hooper** | **Facts:** Several | **Rule:** Compliance | | | coal barges were lost | with custom is **no** | | **Liability** | when towed by two | defense to a tort | | | tugboats owned by D; | claim | | | trial court found | | | | tugboats to be | \- Rule that | | | "unseaworthy" | existence of custom | | | (negligent in | is probative evidence | | | admiralty case) | has not changed; | | | because they did not | what\'s changed is | | | carry working radios. | how persuasive people | | | D appealed. | have found the | | | | existence of a custom | | | **Holding:** Even | | | | though it isn't | -Pre-*TJ Hooper*, if | | | custom for tugboats | actor adhered to | | | to have radios, this | custom there is no | | | custom isn't sound | liability (but runs | | | because based on a | risk of actors | | | BPL analysis, radios | colluding to adopt a | | | are cheap and | custom that is not | | | effective, so not | social cost | | | having them is | minimizing) | | | negligent | | | | | -Here, Judge Hand | | | | says it's an | | | | inefficient custom | | | | and sets off a | | | | dominant mood to | | | | second-guess industry | | | | customs in tort suits | | | | -\> use common | | | | sense/BPL to | | | | determine if custom | | | | is efficient | +-----------------------+-----------------------+-----------------------+ | **Rodi Yachts v. | **Facts:** D sent a | **Rule:** Hooper's | | National Marine** | barge to TDI's dock | rule on custom only | | | to be unloaded; D | sound when there is | | Reversed and remanded | tied barge to dock | duty of care to | | | but the barge came | persons with no | | | loose and caused | actual/potential | | | damage. TDI claimed D | contract | | | tied the barge | | | | negligently and D | -Rule in *Carrol v. | | | claimed TDI did not | Towing* and *Rodi | | | follow industry | Yachts* = same | | | standards in checking | | | | the ties | -**Posner**: there is | | | | a market for tugboat | | | **Holding:** Focus of | companies and barges, | | | the district court's | where parties choose | | | inquiry should be on | competitors based on | | | parties' respective | cost, technology, | | | compliance with- hand | etc. In efficient | | | departures from | markets with no | | | customs; no | market failure, | | | cost-benefit analysis | parties will engage | | | of barge | in market | | | transportation needed | transactions that | | | from the ground up | will determine what | | | | precautions actors | | | | will pay for | | | | | | | | -Customs emerge from | | | | market pressures | | | | because customers | | | | want cost-justified | | | | precautions | | | | | | | | -Courts should not | | | | rewrite efficient | | | | contracts ex post and | | | | should weigh custom | | | | heavily when | | | | considering | | | | precautions between | | | | market participants | | | | | | | | -should have to point | | | | to specific market | | | | failure | | | | | | | | - E.g. market | | | | power: has so | | | | much market | | | | control that they | | | | can disregard | | | | market incentives | +-----------------------+-----------------------+-----------------------+ **Appeals to Custom:** - Argument for P: \"Everyone else does this, and you didn\'t\" - Implicit argument that way to define reasonableness is standard of industry - Argument by D: \"I acted like everyone else does; nothing wrong\" - Intuition of Custom: - Instead of factfinder of case guessing BPL, maybe we should be differential to BPL that industry is doing - Setting aside medical malpractice, custom is a relevant, probative evidence (not dipositive) that can be used in figuring out whether someone was negligence or not - Having radios or not on tugboats in 1930 is relevant information - Not quantitative info - Says, lets assume industry had to do BPL analysis and all came to similar conclusion (variance is low) then that should tell us what the appropriate standard of care is - **NOT** dispositive: D can make arguments that didn\'t follow custom b/c custom =dumb and P can argue that D should\'ve done more than custom b/c custom = dumb **Posner:** makes sense that custom is efficient where market is efficient b/c parties making choices don\'t want accidents either; custom = inefficient where market failure **(market power -\> monopolies/collusion)** - In situations w/ market failures, we should second-guess custom 1. Monopolies/cartels (collusion issue raised by Judge Hand) 2. Public goods (benefits for taking action) 3. Negative externalities: when party makes another worse off but does not bear the costs 4. Information asymmetry: when people don\'t have access to information ***\*Posner is skeptical of all but no. 3, since parties in contract don't care about parties outside of contract---reason to distrust custom! Should include harm to third parties when conducting BPL analysis*** **What about non cost-justified customs?** It might not necessarily signify market failure; court will need to look at the evidence for such failures **MEDICAL AND LEGAL MALPRACTICE** +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **Brune v. | **Facts:** D in New | **Rule:** The proper | | Belinkoff** | Bedford administered | standard of care is | | | anesthetic according | whether the physician | | **Liability** | to the customary dose | has exercised the | | | there, which was much | degree of care and | | | higher than the | skill of the | | | customary dose in | **average qualified | | | nearby Boston, e.g. P | practitioner*,*** | | | was injured as a | considering the | | | result, and jury in | advances in the | | | trial court was | profession | | | instructed to apply a | | | | "**locality rule**" | - Consider: medical | | | | resources | | | **Holding:** New | available to | | | Bedford is very close | physician | | | to Boston, so the | | | | locality rule | Locality rule is | | | shouldn't be applied | unsuited to present | | | here. Medical | day conditions -\> | | | profession cannot be | problems w/ locality | | | Balkanized by | rule | | | geography in medical | | | | malpractice cases | - Doctors probably | | | | know each other | | | | -\> rivals (Could | | | | say custom is | | | | different than it | | | | is to get other | | | | doctor out of | | | | business) or | | | | friends (won\'t | | | | want to say other | | | | person is bad at | | | | job) | | | | | | | | - Easy to see how | | | | small market | | | | could have | | | | collusion -\> | | | | market power | | | | leading to custom | | | | being inefficient | | | | | | | | **How to define the | | | | relevant custom?** | | | | | | | | No use of reasonable | | | | standards, but rather | | | | ordinarily found | | | | skills | | | | | | | | Compliance with | | | | custom is decisive | | | | for medmal cases, | | | | **not** probative | | | | (means: not one | | | | factor amongst many) | | | | (i.e. factfinder | | | | asks: what is | | | | standard of care in | | | | relevant market? If | | | | they didn\'t do that, | | | | then breach) | +-----------------------+-----------------------+-----------------------+ | **Gambill v. Stroud** | **Facts:** D was a | **Strict Locality | | | surgeon who performed | Rule:** Compares a | | **No** liability | an operation on P's | professional's | | | wife; operation was | conduct to the | | | aborted because of | standards of others | | | complications with | practicing in the | | | anesthesia and P's | same geographic | | | wife suffered severe | locality. | | | injury. Jury | | | | instructed to | Example: A doctor in | | | consider skills and | a small rural town is | | | degree of care by | judged only against | | | members of profession | the practices of | | | in similar locality. | other doctors in that | | | P appealed based on | same town, even if | | | the \"locality rule\" | none of them use | | | | advanced diagnostic | | | **Holding:** | tools like MRI | | | Abolishing locality | machines. | | | rule remains an | | | | ideal; doctors in | **Similar Localities | | | small town don't have | Rule: (USED HERE)** | | | the same | Compares a | | | opportunities as | professional's | | | doctors in big cities | conduct to the | | | for training in new | standards of others | | | skills etc. | practicing in similar | | | | communities, | | | **The similar | considering factors | | | localities rule | like available | | | strikes a balance:** | resources and | | | ensures professionals | population size. | | | in under-resourced | | | | areas are judged | Example: A doctor in | | | fairly, but prevents | a rural town is | | | localized standards | compared to doctors | | | from becoming an | in other rural towns | | | excuse for | with similar | | | negligence. | resources and patient | | | | demographics, not | | | | just the immediate | | | | locality. | | | | | | | | -Rationale: not going | | | | to fully hold doctors | | | | to national rule b/c | | | | recognize that | | | | trainings, machines, | | | | resources will be | | | | different; will | | | | compare outside of | | | | county -\> P will | | | | find similar doctors | | | | from similar-sized | | | | downs | | | | | | | | -Modified locality | | | | rule makes it less | | | | likely for collusion | | | | to happen among close | | | | localities | | | | | | | | Advantages: | | | | | | | | - Ensures fairer | | | | comparisons by | | | | broadening the | | | | pool to include | | | | similarly | | | | situated | | | | professionals. | | | | | | | | - Reduces risk of | | | | substandard | | | | practices being | | | | protected by | | | | localized norms. | | | | | | | | - Balances rural | | | | and urban | | | | standards while | | | | holding | | | | professionals | | | | accountable. | | | | | | | | Disadvantages | | | | | | | | - Harder to | | | | determine what | | | | counts as a | | | | similar locality | | | | | | | | - May still | | | | overlook unique | | | | challenges in | | | | highly isolated | | | | areas | +-----------------------+-----------------------+-----------------------+ | **Johnson v. Wills | **Facts:** P is | **Rule:** Locality | | Memorial Hospital** | agitated and jumps | rules are appropriate | | | out of the hospital | if it has to do with | | **No** liability | window overnight; | protection of | | | dies from | patients/facilities, | | | overexposure to cold; | which isn't a medical | | | his suit alleges | function but rather a | | | hospital failed to | **service** limited | | | adequately monitor | by local availability | | | and treat him. | of resources. | | | Appealed on grounds | | | | that jury instruction | Why? It will increase | | | applied "locality | cost of medical care | | | rule" on the | in small towns. | | | deficient medical | | | | facility | **Edge case!** | | | | | | | **Holding:** Medical | | | | facilities generally | | | | are judged without | | | | regard for custom, | | | | but in this case | | | | facilities and | | | | service are subject | | | | to the locality rule | | +-----------------------+-----------------------+-----------------------+ | **Cook v. Irion** | **Facts:** P allege | **Hyperlocality | | | her counsel didn't | Rule:** Exception to | | **Legal Malpractice | exercise standard of | the general relevant | | Case** | care of average | community for legal | | | lawyer in state of TX | malpractice | | **No** liability | for only suing one | | | | potential defendant | Rationale: | | | | | | | **Holding:** The | 1\. Collusions among | | | state should not be | El Paso lawyers | | | the appropriate level | | | | of locality for legal | 2\. Super | | | malpractice cases; | protectionist rule | | | Alpine, TX is a lot | -\> have to pay | | | smaller than El Paso, | lawyers that judge | | | TX, and importance of | is friends w/ | | | knowledge of local | | | | situation is | Justification: | | | demonstrated here in | | | | this case | - Law varies from | | | | place to place | | | | whereas medicine | | | | = objective | | | | science | | | | | | | | - Cases w/ lawyers | | | | come out at | | | | extremely high | | | | rates -\> lawyers | | | | look out for each | | | | other and don\'t | | | | want to be sued | | | | -\> corrupt all | | | | the way down | | | | | | | | -Lawyers generally | | | | don't want to offend | | | | other lawyers in | | | | their locality (this | | | | is problematic | | | | though) | | | | | | | | -May be a | | | | protectionist move, | | | | where court is | | | | incentivizing hiring | | | | lawyers only in a | | | | specific locality | | | | | | | | -Courts generally | | | | always favorable to | | | | lawyers | +-----------------------+-----------------------+-----------------------+ **Summary of Custom in Medical Cases** 1. Progress is constantly made in the industry through the medical process -\> there's data, evidence, studies 2. Juries may have knowledge about aspects of life to make RPP decisions but we are skeptical about their medical knowledge -\> medicine is complicated/technical 3. Medicine = area of high costs, don't want to add costs to system by juries having control 4. If standard of care is set incorrectly, relevant parties are **very responsive**---leads to **defensive medicine** (more defensive if we take away custom rules in torts) a. Doctors who practice at VA won\'t order tests for vets but will for civilians b/c civilians easier to sue 5. P argues: standard of care that is custom and doctor deviated from it b. P won\'t have court redo BPL Formula; instead, will pay doctor to testify of what standard is 6. Most jurisdictions lean away from locality rule and most states now use national standard for treatment protocol but not necessarily for how good facilities are c. **Similar Locality Rule**: not going to fully hold doctors to national rule b/c recognize that trainings, machines, resources will be different; will compare outside of county -\> P will find similar doctors from similar-sized downs i. breaks geographic requirement but maintain SES about hospital ii. *Gambill v. Stroud* **Custom and consent** 1. Custom does not necessarily set the standard when it comes to informed consent in medical practice: The question is instead, **Was the risk of the harm the patient suffered neither so obvious nor so rare that it should not be considered "material"?** 2. P and D can both use custom as an argument 3. **Informed consent**: customs don't necessarily set the standard; a stricter reading would require all material risks to be disclosed a. What is customary may not be adequate 4. Sometimes courts ask whether disclosures of risk of procedure = customary; others will consider whether all material risks were disclosed b. Whether risk of harm was neither so obvious/rare that should not be considered material i. Can be answered by experts 5. If you give someone informed consent, and they give all the facts in an informed way, person signs, then great defense of malpractice case []{#_Toc153343454.anchor}**NEGLIGENCE PER SE** 1\. Existing law that was designed to protect the same class of persons from same kind of harm 2\. Violation of law 3\. Injury resulted from occurrence of nature which statute designed to prevent 1. Neg Per Se (NPS): Court determines defendant has violated some sort of rule (statutory or judge-made), and that the violation establishes defendant\'s negligence as a matter of law. a. Establishes breach but nothing else. b. "Liability" tort cases are where a jury is permitted to find the D negligent, not when required to do so (there are exceptions) i. One of the exceptions is negligence per se, **DISTINCTIVE because result is reached WITHOUT a jury.** c. Court asks: "Was THIS rule designed to protect THIS type of person from THIS type of harm?" d. The D is found negligent, **as a matter of law**, if a precaution is mandated by a law and the precaution wasn't taken---Neg Per Se is favorable to P and allows P to move for summary judgment before jury trial, cost-saving measure (the trial becomes just for damages) 2. The law must be a law on the books, not judiciary law; only comes up when statute is silent (e.g. "this has no implications for civil liability") 3. Judge sets legal standard and doesn't have to ask jury to debate facts-\> similar to summary judgment 4. There are instances when civil liability is explicitly stated in the statute 5. If the codified law is silent, common law arguments come into play 6. It is the P's responsibility to find the relevant specific statute that shows NPS 7. Generally, P's goal is to get in front of a jury, because without NPS the P has a high burden of proof of evidence that D was negligent VIOLATION OF CRIMINAL STATUTE +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **Martin v. Herzog** | **Facts:** On street | **Rule:** NPS = an | | | at night, D did not | omission/failure to | | **Cardozo** | keep to right of | perform an act | | | center in the turn | required by the law. | | **No** liability | while P had no lights | NPS based on statute | | | on against state | can be applied to | | | statute. P killed by | contributory | | | collision. | negligence | | | | | | | D: even if I veered | **Negligence per se | | | into other lane and | should apply when 3 | | | found negligent, you | things are true**: | | | still can\'t recover | (1) person (2) harm | | | b/c you were | (3) designed to | | | violating rule on the | prevent that hazard | | | book that buggy has | | | | to have lights on it. | 1\. Existing law | | | | that was designed | | | **Holding:** P is | to protect the same | | | contributorily | class of persons | | | negligent, because | from same kind of | | | the lack of lights IS | harm | | | sufficiently | | | | negligence in and of | 2\. Violation of law | | | itself, so trial | | | | court shouldn't have | 3\. Injury resulted | | | let jury debate this | from occurrence of | | | point | nature which | | | | statute designed to | | | **Important factor:** | prevent | | | causal connection | | | | between negligence | -Broad rule of | | | and injury | liability where court | | | | defers to lawmaker | | | -D won\'t pay damages | for standard | | | for fault unless | | | | absence of light = | -Is there a | | | cause of disaster | rebuttable | | | | presumption? No, | | | -P doesn\'t forfeit | there is no way it is | | | right to collect | safter to drive | | | damages unless | without lights | | | absence of light = | | | | contributing cause of | -Cardozo should've | | | disaster) | been clear that while | | | | this was a NPS case, | | | | it is not necessary | | | | that NPS **caused** | | | | the accident (NPS | | | | established breach, | | | | but other elements of | | | | a tort still needed) | | | | | | | | \- This shouldn\'t | | | | even make it to jury | | | | b/c this is | | | | negligence as a | | | | matter of law (not | | | | even a factual | | | | dispute) -\> | | | | Herzog\'s motion to | | | | dismiss should\'ve | | | | been granted | | | | | | | | -Martin\'s argue that | | | | don\'t need lights = | | | | bad | | | | | | | | -Better argument w/ | | | | legal standing: | | | | having lights was | | | | more dangerous than | | | | not having them | +-----------------------+-----------------------+-----------------------+ **Criminal and Civil Liability** Negligence per se: invoked when D breaks law without excuse -\> breached duty of care (especially when law was designed to protect P) The reasonable person might sometimes not comply w/ statutes -\> when violation of statute results in less harm than if they complied Sometimes provisions provide explicitly for civil liability if violated - Most common = traffic violations where driver is automatically considered negligent for violating traffic code -Does a reasonable person always comply with statutes? If yes, then RPP intersects with NPS -Prohibited conduct that don't explicitly provide for civil liability presents an issue -Generally, the liability to the law establishes a standard of care +-----------------------+-----------------------+-----------------------+ | **Case Name** | **Facts and Holding** | **Rule and Key | | | | Ideas** | +=======================+=======================+=======================+ | **Tedla v. Ellman** | **Facts:** P violated | **Rule:** NPS doesn't | | | state pedestrian law | mean that there is a | | **Liability** | by not walking on the | definite standard of | | | right side of the | care---the statute | | | road; was hit by | isn't an inflexible | | | driving D. P argues | command unless it is | | | that it would be more | in writing that the | | | dangerous for