Anglo-American
Contract and Torts
Prof. Mark P. Gergen
Class Five
Breach and negligence per se
1)
Duty/Injury
2) Breach
3)
4)
Factual cause
Legal
cause/scope of
liability
5) 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.
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?
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?
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?
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.
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?
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?
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?
There generally is strict liability for
• Occupational accidents (workmen’s compensation)
• Manufacturing defects in products (products liability)
• “Abnormally dangerous activities” (common law strict
liability)
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?
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?
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?
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. 4950.
The general standard of care is objective in two senses
1) Liability is based on an actor’s conduct rather than
his or her subjective state of mind.
2) 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.
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.
Prioritize security
from harm
Prioritize liberty
of action
Immunity rules
Negligence
liability
Immunity from
liability if an
accident is not
reasonably
avoidable
Liability if an
accident is
reasonably
avoidable
Strict liability rules
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?
Liberty
Objective
standard of
care
Security
Culpability
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)
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.
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.”
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?
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.
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?
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]
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.
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 nonnegligence?
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.
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?
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.
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.