Torts: Section 2 Fall, 2002

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DUTY BREACH CAUSATION DAMAGES DEFENSES
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Negligence B. The Central Concept 1. The
Standard of Care
What is ordinary or reasonable care?
3
What do you say to Richard Posner?
Challenge the legitimacy of his enterprise --
treats others as objects (means to an end)
4
What do you say to Richard Posner?
Challenge his account of the goal of tort
law -- wealth distribution / fairness --
compensation -- corrective justice
5
What do you say to Richard Posner?
Challenge his assumptions -- that people
rationally evaluate risk -- that people respond
rationally to incentives -- people exploit
information asymmetry to avoid investment in
care -- that an economic value can be assigned
to things like life and security
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What do you say to Richard Posner?
Challenge his economics -- is his account of
efficiency defensible
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What do you say to Richard Posner?
Yes, your Honor.
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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
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Doctrine

• What is ordinary or reasonable care?
• Adams, etc function of foreseeability of harm,
  extent of harm, feasibility of precautions,
  impact of precautions on a socially valuable
  enterprise
• Learned Hand B lt PL

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Doctrine
Is there an it costs too much excuse for
failing to take a precaution that could have
avoided an injury? Saved a life?
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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.
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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.
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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.

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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 a valuable account
of whether a particular doctrine should be part
of the law?
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Negligence B. The Central Concept 2. The
Reasonable Person
Bethel v. New York City Transit Authority (NY
1998) (p. 47) What was the defendants alleged
negligence? Will the decision in Bethel change
the outcome of the case? How would the Bethel
court decide the case discussed in note 2?
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Duty BreachCausationDamagesDefenses
Duty Chapters Three Four
Restatement (Third) of Torts Proposed Final Draft
No. 1 7. Duty (a) An actor ordinarily has a
duty to exercise reasonable care when the actor's
conduct creates a risk of physical harm. (b) In
exceptional cases, when an articulated
countervailing principle or policy warrants
denying or limiting liability in a particular
class of cases, a court may decide that the
defendant has no duty or that the ordinary duty
of reasonable care requires modification.
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Negligence B. The Central Concept 2. The
Reasonable Person
California Civil Code section 2100 A carrier of
persons for reward must use the utmost care and
diligence for their safe carriage, must provide
everything necessary for that purpose, and must
exercise to that end a reasonable degree of
skill. Section 2101 A carrier of persons for
reward is bound to provide vehicles safe and fit
for the purpose to which they are put, and is not
excused for default in this respect by any degree
of care.
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Negligence B. The Central Concept 2. The
Reasonable Person
Gomez v. Superior Court (Walt Disney Company), 35
Cal.4th 1125 (2005)
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Negligence B. The Central Concept 2. The
Reasonable Person
Defendant left paint and solvent soaked rags
packed tightly in a closed container in his
garage. The rags spontaneously combusted,
starting a fire that spread to his neighbors
property, causing substantial damage. Did the
defendant behave as a reasonably prudent person
under the circumstances?
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Negligence B. The Central Concept 2. The
Reasonable Person
Would the following, if true, excuse the
defendants conduct 1) I didnt know rags could
spontaneously burn? 2) I knew of the risk, but
I was in a hurry and, frankly, had better things
to do? 3) I knew of the risk, but I couldnt
think of anything else to do with them? 4)
Everybody does that all the time?
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Negligence B. The Central Concept 2. The
Reasonable Person
The reasonably prudent person standard is 1)
external, and 2) objective.
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Negligence B. The Central Concept 2. The
Reasonable Person
Arguments for an objective standard
Arguments for a subjective standard
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Negligence B. The Central Concept 2. The
Reasonable Person
A child, riding her bike on the sidewalk,
attempts to pass a pedestrian, loses control of
the bike, and hits him. What is the standard of
care?
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Negligence B. The Central Concept 2. The
Reasonable Person
A sixteen year old, riding a motorcycle, loses
control during a turn and hits a pedestrian.
What standard of care applies?
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Negligence B. The Central Concept 2. The
Reasonable Person
A thirteen year old hunting in the woods shoots
at movement in the bushes and hits a person.
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Negligence B. The Central Concept 2. The
Reasonable Person

• Reasonably prudent person standard sometimes
  takes the individuals capacity into account
• children / child-appropriate activities

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Negligence B. The Central Concept 2. The
Reasonable Person
A deaf driver enters an intersection, with the
light, and is struck by an emergency vehicle,
running with its sirens on. What is the standard
of care?
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Negligence B. The Central Concept 2. The
Reasonable Person

• Reasonably prudent person standard sometimes
  takes the individuals capacity into account
• physical disability
• children / child-appropriate activities

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Negligence B. The Central Concept 2. The
Reasonable Person
A car enters an intersection dangerously close to
another vehicle, leaving an ordinary driver no
time to avoid the collision. Plaintiff is a
Hollywood stunt driver, who knows how to spin out
of the way of a collision under these
circumstances, but she fails to execute the
maneuver properly and is injured. What standard
of care applies?
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Negligence B. The Central Concept 2. The
Reasonable Person

• Reasonably prudent person standard sometimes
  takes the individuals capacity into account
• physical disability
• children / child-appropriate activities
• actor with superior capacity (Restatement view)
• In that light, how should Lynch v. Rosenthal be
  decided?

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Assignments

• Tuesday pp. 58-67
• Whose account of the role of judge and jury is
  more persuasive Cardozos or Holmess?
• Is Cardozos opinion consistent with his
  decision in Adams and Green?