LAW 122 Lecture Notes - Lecture 4: No Liability, Tonsillectomy, Artificial Insemination
Lecture 4 – LAW122
Negligence
• Definition
o The careless causing of harm
o Very broad cause of action, used to resolve wide variety of claims
• Purpose
o To compensate for harmful risky actions conducted carelessly, but to
allow for careful risk-taking
• Tension between providing compensation and encouraging socially useful
activities
Elements of Negligence
• Duty of care
o Why should the defendant care?
• Standard of care
o How should the defendant care?
• Causation
o Who should care? Who caused the harm?
Duty of Care
• Neighbour principle – Case Brief 6.1 p137
o
• Have courts already recognized a duty of care exists?
o i.e. Donoghue
• Was the harm to the plaintiff reasonably foreseeable by the defendant?
• Should the defendant care about the plaintiff?
o Are they close (proximate)
• Is there a public policy reason to deny the dutys existence
Reasonable Foreseeability
• Objective test
o Would reasonable person have foreseen risk that harm would occur?
▪ Slip on icy sidewalk
▪ …In florida?
o Not subjective
▪ Opinions do not matter
o Not perfect – average
▪ P entitled to expect reasonable conduct
Proximity
• Physical
o Contractor and tools
• Social relationship
o Parent and child
• Commercial relationship
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o Bar and drunk driver
• Should there be a general duty for the relationship?
Public Policy
• What effect would a duty of are have on society and legal system?
o Open the floodgates for litigation
▪ Stock market loss
o Interfere with political decisions
▪ Professional regulatory bodies
o Hurt a valuable type of relationship
▪ Mother and unborn child
Standard of Care
• Second element
o How defendant with duty must act
• Reasonable person test
o How would a reasonable person act in this situation
• Objective test
o Subjective conduct of defendant does not matter
o Reasonable person takes precautions against reasonable foreseeable
risks
o Average, not perfect
o No hindsight application
o Assessed on date of alleged breach
Learned Hand Test
• Determination of reasonable standard based on risk management
• P – probability of harm if risk occurs
• L – magnitude of loss if risk occurs
• R – cost of risk management
• S – actual money spent on risk management
• It is reasonable to spend R, as long as R ≤ P x L
• It is reasonable NOT to spend R, if R > P x L
• Courts compare S to R and d
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Is there a public policy reason to deny the duty(cid:495)s existence. Reasonable foreseeability: objective test, would reasonable person have foreseen risk that harm would occur, slip on icy sidewalk, not subjective, in florida, not perfect average, opinions do not matter. It is reasonable to spend r, as long as r p x l: courts compare s to r and d. It is reasonable not to spend r, if r > p x l. Hiv infected sperm: could a layperson figure it out i. e. child dies from tonsillectomy, surgeons not counting sponges. He contacted lonnie, a property value appraiser, and explained that he needed to know how much the apartments would generate in rent. The final report stated the property was for . 4m, however the actual value was only. Lonnie believes he should not be responsible because he had reasonable assumed that the same rent would apply to every apartment. Exceptions to remoteness: thin skull, thin wallet, read in book.