Anglo-American Contract and Torts Prof. Mark P. Gergen Class Five

1. Anglo-AmericanContract and TortsProf. Mark P. GergenClass Five Breach and negligence per se

2. Duty/Injury • Breach • Factual cause • Legal cause/scope of liability • Damages Standard of reasonable care. Latimer v. AEC Ltd. (p. 47)—”reasonably prudent employer” Under US law this issue is decided by the jury if reasonable people could disagree about the answer under the relevant rule or standard.

3. Recall the “Hand formula” in U.S. v. Carroll Towing Co., Inc. (1947), p. 17. “if the probability be called P; the injury, L; and the burden, B; liability depends upon whether P is less than L multiplied by P: i.e., whether B is less than PL.” B < P * L “B” is the burden (cost) of the untaken precaution. “L” is the loss the precaution will avoid. “P” is the probability of the loss if the precaution is not taken. Is the cost of the precaution less than the benefit in reduced risk?

4. Latimer v. AEC, Ltd. (HL 1953), p. 47 “Phenomenal” rain storm causes flood in factor. Oil collected in channels cut in the floor mixes with water and spreads across the floor. Owner sends in clean up crew and uses all the available sawdust but this is not sufficient to cover the entire floor. The owner re-opens the factory the next morning. P slips on an uncovered spot and seriously hurts himself. B < P * L What is the relevance of the fact that P is the only person who slipped and fell? What does Lord Tucker identify as the untaken precaution (i.e., what the owner should have done differently)? How does the magnitude of the act affect the calculus?

5. Latimer v. AEC, Ltd. (HL 1953), p. 47 “Phenomenal” rain storm causes flood in factor. Oil collected in channels cut in the floor mixes with water and spreads across the floor. Owner sends in clean up crew and uses all the available sawdust but this is not sufficient to cover the entire floor. The owner re-opens the factory the next morning. P slips on an uncovered spot and seriously hurts himself. B < P * L Are there less burdensome things the owner might have done to avoid the accident? If you identify a cheaper untaken precaution, then might this alter the breach determination? Lord Tucker remarks “nor was sufficient evidence given as to the condition of the factory as a whole . . .” (p. 47). Assume P shows a large surface area in which men worked was not covered with saw dust. Might this alter the breach determination?

6. Latimer v. AEC, Ltd. (HL 1953), p. 47 “Phenomenal” rain storm causes flood in factor. Oil collected in channels cut in the floor mixes with water and spreads across the floor. Owner sends in clean up crew and uses all the available sawdust but this is not sufficient to cover the entire floor. The owner re-opens the factory the next morning. P slips on an uncovered spot and seriously hurts himself. B < P * L Assume the only way to prevent the accident is not to reopen the factory until the floor is cleaned. Is the magnitude of the opportunity cost in the factory being closed relevant to the breach determination? The negligence determination depends on the facts and on how one describes (or “frames”) the untaken precaution.

7. Latimer v. AEC, Ltd. (HL 1953), p. 47 “Phenomenal” rain storm causes flood in factor. Oil collected in channels cut in the floor mixes with water and spreads across the floor. Owner sends in clean up crew and uses all the available sawdust but this is not sufficient to cover the entire floor. The owner re-opens the factory the next morning. P slips on an uncovered spot and seriously hurts himself. B < P * L Did the owner know or have reason to know he was putting the workers at risk in sending them back to work? Assuming he did know, isn’t the owner profiting at his employee’s expense? If the opportunity cost of closing the factory is really great, then the won’t the owner operate even if it knows it will pay damages should an employee slip and fall?

8. If negligence is determined using a cost-benefit calculus, then conditioning liability on negligence makes risk-bearers (victims) bear the cost of accidents that are not worth avoiding. A regime of strict liability makes an actor liable for harm caused by its action even if the harm is not reasonably avoidable. I.e., it shifts the cost of accidents that are not worth avoiding to a risk creator. On these assumptions the choice between strict liability and negligence will not effect the owner’s decision to operate the factory. So efficiency is not a first-order consideration. What about fairness? Which rule is easier to administer?

9. If factory owners are made to pay for unavoidable accidents, then they will have to raise their prices or lower the wages of employees. Is this a good thing? Under a negligence regime who bears the cost of unavoidable factory accidents? And under strict liability?

10. There generally is strict liability for • Occupational accidents (workmen’s compensation) • Manufacturing defects in products (products liability) • “Abnormally dangerous activities” (common law strict liability)

11. Hammontree v. Jenner (Cal. App. 1971), p. 48 As a result of a sudden epileptic seizure, Jenner loses control of his car and crashes into the Hammontree’s shop, injuring Ms. Hammontree and causing significant property damage. • “A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.” • CACI NO. 401. Basic Standard of Care Focusing on the moment Jenner lost control of his car, was the accident due to Jenner’s failure to exercise reasonable care?

12. Hammontree v. Jenner (Cal. App. 1971), p. 48 As a result of a sudden epileptic seizure, Jenner loses control of his car and crashes into the Hammontree’s shop, injuring Ms. Hammontree and causing significant property damage. • “A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.” • CACI NO. 401. Basic Standard of Care Was it unreasonable for Jenner to be driving given his medical condition?

13. Hammontree v. Jenner (Cal. App. 1971), p. 48 As a result of a sudden epileptic seizure, Jenner loses control of his car and crashes into the Hammontree’s shop, injuring Ms. Hammontree and causing significant property damage. • “A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.” • CACI NO. 401. Basic Standard of Care Why did the Hammontree’s counsel not want to have the jury decide the case under this standard? Why did the trial judge bother to submit the case to the jury?

14. The Hammontree’s counsel makes an appealing argument for imposing strict liability. Jenner is covered by his insurance company. He lost control of his car, albeit for a reason beyond his control. His medical condition makes it riskier for him to drive than people without the condition. Why doesn’t the court adopt the proposed rule? See pp. 49-50.

15. The general standard of care is objective in two senses • Liability is based on an actor’s conduct rather than his or her subjective state of mind. • Conduct is evaluated based on ordinary or normal attributes rather than the actor’s individual attributes. Conduct is evaluated based on the circumstances confronting the actor.

16. Sometimes the standard of care is individualized Children are held to a standard of care appropriate to someone of their age, education, and experience. See p. 51 note and McHale v. Watson, p. 51. The physically disabled are held to a standard of care appropriate to someone with their disability. See p. 55 bottom (referring to the blind) But the mentally incapacitated (e.g., the uneducated, the slow-witted and even the mentally disabled) are held to the normal standard of care. See p. 48 note.

17. Prioritize security from harm Prioritize liberty of action Negligence liability Immunity rules Strict liability rules Immunity from liability if an accident is not reasonably avoidable Liability if an accident is reasonably avoidable

18. This supposes a world in which everyone has similar capacity. But people have different capacities. Take someone without the capacity to conform to the normal standard of care. Assume the standard of care is adjusted to their capacity. Whose liberty does this promote? Whose security does this sacrifice? What is the connection between liability and fault? What if they are denied certain activities or held to the normal standard in an activity? Objective standard of care Security Liberty Instead a person who cannot comply the normal standard is held to the standard. Whose liberty does this sacrifice? Whose security does this promote? What is the connection between liability and fault? See the excerpt from Holmes, The Common Law p. 55 (middle) Culpability

19. CACI No. 402. Standard of Care for Minors D is a child who was ____ years old at the time of the incident. Children are not held to the same standards of behavior as adults. A child is required to use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation. The standard of care for minors is not the standard of an “average” child of the same age; the standard is subjective, based on the conduct of a child of the same age, intelligence, and experience as the minor plaintiff or defendant.

20. CACI No. 403. Standard of Care for Physically Disabled Person A person with a physical disability is required to use the amount of care that a reasonably careful person who has the same physical disability would use in the same situation. “Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.”

21. Reasons thought to justify holding children and the physically disabled to a lower standard of care but not the mentally disabled: Reciprocity of risk. Ability of courts to ascertain condition. Ability of others to ascertain condition and alter their conduct accordingly. Effect on activity level. Hammontree, p. 48, is authority for excusing a sudden, unpredictable loss of mental capacity, such as blacking out. Do these reasons justify the exception? Is epilepsy a border-line case?

22. What of alcohol? CACI No. 404. Intoxication A person is not necessarily negligent just because he or she used alcohol [or drugs]. However, people who drink alcohol [or take drugs] must act just as carefully as those who do not.

23. What are the arguments for holding a child engaged in the adult activity of driving a motorboat to the adult standard of car? Should children who drink alcohol at sufficient levels to effect their behavior be held to the adult standard of care in their activities?

24. Effect of health and safety statutes on negligence liability Violation of statute may be negligence per se Statute may establish a duty that is a basis for a negligence action (private right of action]

25. Negligence per se In most states,* driving in excess of the posted speed limit is negligence per se, meaning it is unreasonable as a matter of law. D drives 30 mph in 25 mph zone, as do most drivers. He runs into a small child who darts into his path from between cars. In most states will the issue of whether D violated the standard of care be put to the jury? Physical causation remains to be decided by the jury. * California is an exception. The speed limit is only a factor to consider.

26. D is driving 40 mph in 65 mph zone on a very foggy day. He runs into P, who is stopped at a traffic jam. Is D entitled to a judgment as a matter of law of non-negligence? Rule—a legal precept that does not require and evaluative or normative judgment at the point of application. Standard—a legal precept that does require and evaluative or normative judgment at the point of application.

27. Unexcused violation of statute is negligence per se only if party claiming negligence is in the class of persons meant to be protected by the statute and the harm is among the harms the statute is meant to guard against. Did the violation increase the risk of the harm that occurred? Did the legislature intend to protect this class of persons against this class of harm? Does applying the statute to the conduct advance the statute’s purposes?

28. Did the violation increase the risk of the harm that occurred? Did the legislature intend to protect this class of persons against this class of harm? Does applying the statute to the conduct advance the statute’s purposes? P parks near a fire hydrant, violating a parking ordinance. D runs into P’s car after losing control of his car. Gorris v. Scott, p. 39. Sheep are lost overboard from vessel in storm. Had they been kept in pens, as required by Contagious Disease Act, they would have been spared. A worker unloading bananas is bitten by a poisonous spider. The presence of the spider in the bananas violates food purity laws.

29. On duty a recurring problem is statutes that impose affirmative duties to take action to protect another on persons not within the established categories of special relationship. • E.g., statute requires teachers and health care professionals to report signs of child abuse to child protective services.