291. Unreasonableness How Determined; Magnitude of Risk and Utility of Conduct

Negligence

1. Duty

1. Simple=BPL

Restatement of Torts, Second

§ 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.

Comment: d. Weighing the Risk Against Utility of Conduct Which Creates It: The magnitude of the risk is to be compared with what the law regards as the utility of the act. If legal and popular opinion differ, it is the legal opinion which prevails.

1. The law attaches utility to general types or classes of acts as appropriate to the advancement of certain interests (e.g. highway travel) rather than to the purpose for which a particular act is done (e.g. particular journey for highway travel), except in the case in which the purpose is of itself of such public utility as to justify an otherwise impermissible risk (e.g. erratic driving when conveying critically injured).

§ 292. Factors Considered in Determining Utility of Actor’s Conduct

(a)Social value which the law attaches to the interest to be advanced or protected by the conduct

(b)Extent of the chance that this interest will be advanced or protected by this particular course of conduct

(c)Extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct

Comment: c. If conduct is available which can advance or protect his interest as well and less dangerously, risk contained in conduct is clearly unreasonable

§ 293. Factors Considered in Determining Magnitude of Risk

(a) Social value which the law attaches to the interests which are imperiled

(b) Extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or of one of a class which the other is a member

© Extent of the harm likely to be caused to the interests imperiled

(d)Number of persons whose interests are likely to be invaded if the risk takes effect in harm

Davis v. Consolidated Rail Corp: The PL should be considered as a “package of risks” as opposed to the particular risk in the specific case.

Myhaver: In a case of a sudden emergency, the emergency should be considered as one of the circumstance faced in the reasonable person analysis/

Smith: A person with a physical disability must conform to the standard of care expected of a reasonable person suffering from the same disability.

BUT

Breunig: Adults with mental deficiencies are judged by the reasonable person standard without any allowance for their mental deficiency, even if insane. However, when one suffers a sudden mental incapacity it will be relevant whether the person had knowledge that condition would occur.

Restatement of Torts, Third: Liability for Physical Harm (Basic Principles) § 11: Disability

(a)If an actor has a physical disability, the actor’s conduct is negligent if it does not conform to that of a reasonably careful person with the same disability.

(b)If an actor engages in substandard conduct because of sudden incapacitation or loss of consciousness brought about by physical illness, this conduct constitutes negligence only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.

(c)Unless the actor is a child, the actor’s mental or emotional disability is not considered in determining whether conduct is negligent.

1. Custom

TJ Hooper: The fact that the defendant acted as others in the community customarily do may provide a clue as to whether the reasonableness or unreasonableness of the conduct, but the test MUST be whether the reasonable person would have so acted under the same or similar circumstances.

1. Professional Standards (Malpractice)

Rossell: Special groups will be allowed to create their own standards of reasonably prudent conduct only when the nature of the group and its special relationship with its clients assure society that those standards will be set with primary regard to protection of the public rather than to such consideration as increased profitability. In the case of a commercial manufacturer, the plaintiff need only prove that the defendant’s conduct presented a forseeable, unreasonable risk of harm and custom is no defense.

Rationale: BPL balancing in these groups is different, i.e., they give the client’s interest high priority and impose higher duty on professionals.

Helling: Plaintiff may attack the professional standard where the burden on the professional is small in comparison to the potential harm. The presumption that adherence to the applicable standard of care adopted by a profession constitutes due care for those practicing that profession is rebuttable. The burden is one the one challenging the standard of care to rebut the presumption by competent evidence.

1. Perse= An actor violates a pertinent statute, the victim is within the class of protected by the statute, and the violation results in injury which the statute was designed to prevent, the violation of the statute itself—“perse”—conclusively establishes the actor’s negligence

1. Still have to prove causation, injured plaintiff must be in protected class under the statute, must be the type of the injury that has sought to be avoided
2. Tedla exception: Even when an individual failed to comply with a statute’s technical language, if she acted reasonably under the particular circumstances, providing for more safety than the statutory requirement would provide, she has not been negligent and will not be held liable for violating the statute
3. Bauman exception: not children, child’s standard of care
4. Gore exception: A defendant may avoid liability under the negligence per se doctrine by showing that he neither knows nor should know of the occasion for compliance

1. Res Ipsa (presumption or inference):

1. The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence.
2. The accident must be caused by an agency or instrumentality within the exclusive control of the defendant.
3. The accident must not have been due to any voluntary action or contribution on the part of the plaintiff.

Ybarra: Where it is unclear which group of a individuals caused by the negligent harm, individual defendants may be treated as a joint enterprise and responsibility for the harm may be imposed upon each defendant cannot exculpate himself.

1. Actual Cause

Scafidi: Even where the plaintiff has a preexisting condition, the defendant may be liable if his negligent conduct increased the risk of harm to the plaintiff and such increased risk was a substantial factor in producing the harm.

1. Joint-and-several liability: each defendant contributing to the same harm is liable to the victim for the whole amount of recoverable damages.
2. Proportionate liability: each defendant contributing to the same harm is liable to the victim only in proportion to his or her tortuous responsibility for the victim’s injury.

i.Pro rata approach:Plaintiff can recover against any one liable defendant, and then the defendant may sue each other defendant for a pro rate share of 1 over the number of liable defendants; speeds up administrative costs of some distributive jurtice

ii.Proportionate to fault approach: The second tortfeasor must compensate the first tortfeasor in proportion to his fault. This scheme is more popular today although the first one can still be found in some jurisdictions. Comparative fault and comparative responsibility.

Same Factors in comparing fault apply here:

1. (Utilitarian one) Cheapest Cost Avoider: Situation—tip of the wedge v. Structural—deep of the wedge
2. Mere inadvertence vs. awareness of danger
3. Magnitude of risk
4. Significance of what the actor was seeking to attain by particular circumstance
5. Actor’s superior or inferior capacities
6. Particular circumstances
7. Non compliance with custom/statute
8. Knowledge of the Parties about the risk

Johnson: When two defendant are both the “but-for” cause of a harm, they will be jointly and severally liable such that the injured party may sue either defendant and recover the entire amount.

1. Proximate Cause (hindsight v. foresight)

1. The foresight test asks us to “stop the tape” at the time of the action and ask if we can foresee the general type of injury (not an exact chain of events) that has occurred.

Larrimore: Under the foresight analysis, the question is whether the risk of kind that could be foreseen considering the negligence at hand. When it is negligence per se, the question is whether the injury was in the class of injury intended to be prevented by the statute.

Dellwo: The law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipate the particular injury which did happen.

Overseas Tankship: It is not the hindsight of a fool, but the foresight of the reasonable man which alone can determine responsibility

Petition of Kinsman Transit: Don’t disaggregate the risk package. If you’re within the scope of any risk within the risk package, then foresight test is met for you.

1. The hindsight testis an ex post test, asking if there is a natural and continuous connection of the negligence to the accident, looking at immediacy of time, space, sequence, and looking at public policy; natural and probable consequences

Watson: The defendant is responsible for the direct and immediate consequences of his negligent act, whether they are natural or probable or whether they might have been contemplated, foreseen, or expected. The tortfeasor takes his victim as he finds hi.

1. Superseding Cause

McLaughlin: If the intervening act is foreseeable and guarding against it is something that a reasonable person would do then the intervening cause is not superseding and the initial actor should be held liable.

1. Defenses

1. Contributory negligence:If both parties are negligent, then we compare the negligence of both parties. Under the classical Contributory Negligence regime, any negligence on the part of the plaintiff will cut off all recovery from defendant’s negligent behavior. Under the more modern comparative fault regime, P’s negligence, if any, will be compared to the negligence of defendants (if the court finds them negligent) and damages will be awarded either according the pure rule (P gets any proportion of damages not attributed to her) or the 50% rule (P doesn’t get damages if her contribution of negligence accounts for more than 50% of the negligence.)

Ferguson: Disparity of knowledge should be given special consideration by jury in a case involving a dangerous instrumentality when apportioning causal negligence.

Blazovic: Intentional wrongdoing is a higher degree of fault and should be reflected in the jury’s apportionment of fault. Majority Rule is that if the defendant was an intentional wrongdoer, it does not matter that plaintiff contributorily negligent.

Comparative Fault Factors (2-8 are non-utilitarian)

1. (Utilitarian one) Cheapest Cost Avoider: Situation—tip of the wedge v. Structural—deep of the wedge
2. Mere inadvertence vs. awareness of danger
3. Magnitude of risk
4. Significance of what the actor was seeking to attain by particular circumstance
5. Actor’s superior or inferior capacities
6. Particular circumstances
7. Non compliance with custom/statute
8. Knowledge of the Parties about the risk

1. Economic Loss

Barber Lines: A plaintiff may not recover damages for negligently caused financial harm by itself, even when foreseeable.

Exception

Union Oil Co. v. Oppen: Because there is no primary loss victim of the negligent’s act, if there is going to any tort pressure against polluters, then there must be some economic loss being sued on.

1. Assumption of Risk

Categories of Assumptions of Risk:

1. “Express”: explicit agreement by the plaintiff to accept he risk of the defendant’s wrongdoing.
2. “Implied”: implicit agreement ostensibly on the basis of the parties’ conduct.
3. “Primary” implied: defendant bears the burden of proving that he never owed the plaintiff a duty of care in the first place.
4. “Secondary” implied: affirmative defense which asks whether the plaintiff implicitly agreed to accept the risk of harm flowing from the defendant’s breach of its established duty of care. “Firefighter’s rule” is the only portion of “secondary” assumption of risk doctrine that has survived. It applies to firefighters and the fires they fight and may be extended to police officers as well.

Restatement Second § 496: Necessity of voluntary assumption

(1)A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.

(2)The plaintiff’s acceptance of a risk is not voluntary if the defendant’s tortuous conduct has left him no reasonable alternative course of conduct in order to

(a)avert harm to himself or another, or

(b)exercise or protect a right or privilege of which the defendant has not right to deprive him.

Unreasonable Assumption Risks Today

1. Express/Contractual Assumption of risk: Scott
2. Primary Assumption of Risks: defense against harms caused by risks inherent to the activity, not negligent act which mainly enhances risks
3. Firefighter Rule

1. No Duty Act

Exceptions to the Classical Rule of No Duty to Act

1. Case where the rescuer had either assumed, explicitly or implicitly, a contractual duty to rescue the victim of create in the victim a reasonable expectation that he had assumed such a duty
2. Case where the victim was in the rescuer’s custody and without access to alternative rescuers
3. Cases where the victim’s peril had been caused by the putative rescuer himself, even if he had caused it nonnegligently
4. Case where there is a special relationship between the parties (ex. Employer/employee, carrier/passenger, family member)

L.S. Ayres: There is a duty act when the defendant is a master or an invitor or when the injury results from use of an instrumentality under the control of the defendant.

Basso: The status of an entrant onto property is no longer relevant and the owner/occupier has a single duty of reasonable care in light of all the circumstances, based on forseeability.

1. Damages

Big Three: Medical Costs, wage loss, pain and suffering

Survival: Brought to recover for damages from time of injury to time of death (not forward-looking); wages and out of pocket expenses only

Wrongful Death: Family members Only: Economic losses, associative losses (consortium/conmpanionship); children losing parents can’t bring it, and emotional harm

Sherlock v. Stillwater Clinic: “The elementary principle of compensatory damages seeks to place injured plaintiffs in the position that they would have been in had no wrong occurred.”

Kawasny v. United States: “If [pain and suffering costs] were not recoverable in damages, the cost of negligence would be less to the tortfeasors and there would be more negligence, more accidents, more pain and suffering, and hence higher social costs.”

Borer: No cause of action for parental loss of consortium

Lost chance damages: damages are awarded for the harm itself; total loss * percent chance of avoiding loss without negligence

1. Policy

1. Knowledge
2. CCA
3. Capacity of Parties
4. Non –Compliance with custom/professional standards/statutes
5. Proximity of Causation
6. Imposition and magnitude of risks: Fried’s discussion of risk pool, mutual risks from imposition; imposition fails to respect the autonomy another
7. Culpability

Degrees of Culpability:

1. Intent: knowledge to a substantial certainty or intent.
2. Recklessness: conscious appreciation of the level of risk
3. Disregard: defendant does not care about possible harm to others.
4. Inadvertence: carelessness or hastiness but not indifference, i.e. the mind is benign.
5. Error: not indifferent, try to do the right thing but make a mistake. In the case of error, the notice about what you ought to do changes after the harm has occurred. In inadvertence, there is no change in what the actor knew before and after.

1. Condemnation/Attempted Incentivization

Abnormally Dangerous Activity

Rylands: The person who brings something likely to cause substantial damage onto his land if it escapes will be liable for the damages that it does.

Cneg: Not a defense

AR: Is a defense unless Defendant’s conduct leaves P no reasonable alternative to avert harm or exercise legal right

Restatement of Torts (Second)

§ 519. General Principle

(1)One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

(2)This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

§ 520. Abnormally Dangerous Activities

In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a)existence of a high degree of risk of some harm to the person, land, or chattels of others;

(b)likelihood that the harm that results from it will be great;

(c)inability to eliminate the risk by the exercise of reasonable care;

(d)extent to which the activity is not a matter of common usage;

(e)inappropriateness of the activity to the place where it is carried on; and

(f)extent to which its value to the community is outweighed by its dangerous attributes.

Comment on clause (d) Common usage: An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community. It does not cease to be so because it is carried on for a purpose peculiar to the individual who engages in it.; driving

Comment on clause (e) Locality: If the place is one inappropriate to the particular activity, and other factors are present, the danger created may be regarded as an abnormal one.

Comment on clause (f):Value to the community: Its value to the community may be such that the danger will not be regarded as an abnormal one. This is true particularly when the community is largely devoted to the dangerous enterprise and its prosperity largely depends upon it. ; sense in which everyone in the community is kind of involved in the activity

Notes

-A-c: define dangerous risk

-D-f: define what it is to be abnormal

-Section 519(2) demonstrates that strict liability is a foresight approach, just like strict liability

Policy

1. Cost Spreading (+Insurance)
2. Injury Prevention
3. Fairness (proportionality): activity must bear the cost for its characteristic risks, allowing to externalize it and impose it on other is not fair
4. Background Safety
5. Market Allocation (Internalization
6. Cheapest Cost Avoider

Strict Products Liability (Design Defects)