LAW 122 Lecture Notes - Lecture 4: No Liability, Tonsillectomy, Artificial Insemination

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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 dutys 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
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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.

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