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Philosophy 2080
Jeannie Gillmore

September 24 Legal Realism- a criticism of common law - the claim that judges “discover” the law is untrue, but that judges decide the law based on their internal view of the world - find cases to rationalise decisions Positivistic- the law is “what it is”; as written by the sovereign, legislature or by judges - e.g. inalienable human rights, etc - no laws or rights except those that are written - “positivistic law will defeat legal realism’s criticisms” Aristotle Two concepts of law: 1) Corrective justice -Fix or right a wrong 2) Distributive justice -“Spread things out”, for the greater good -Utilitarianism: about loss spreading, but doesn’t take the person or individual seriously Case Study: Donoghue vs. Stevenson - bottle of ginger beer contained a decomposed snail - opaque bottle - she did not buy the bottle; her friend did - Donoghue sues manufacturer - Manufacturer admitted to the claims, but said none of the claims were illegal (at the time in Scotland there were no precedents for this kind of case) - General statement of law needed to deal with this case and others like it: - “Thou shall not harm my neighbour” - Who is my neighbour? …a foreseeable plaintiff; a reasonable and prudent person could foresee - If the harm or injury is foreseeable, there is a legal relationship. A duty to take care of the foreseeable person (proximate cause, they are causally close) - “should”, “ought”, “reasonable” - But what defines a reasonable person? - standard of care the person should use (e.g. speeding car) Elements of the Tort of Negligence 1) Duty of care -find a foreseeable plaintiff, or a foreseeable injury 2) Standard of care 3) Breach of standard of care 4) Causation 5) Damages *These questions must be answered in this order. Case Study: Palsgraf vs. Long Island - Two men boarding a moving train, one man drops a package containing fireworks - Various effects came from sound that resulted - Scales thrown down struck the plaintiff -Foreseeable injury? The package was unmarked -Risk was irrelational. Risk foreseen defines the duty to be obeyed -No duty of care between the employees of the train station and the plaintiff since there was no forseeability -No case. Missing any element of the tort of negligence means there is no case. Case Study: Bourhill vs. Young - Woman sees a man suffer a motor vehicle accident, he dies - Pregnant woman suffers shock, premature birth, stillborn - Is this a foreseeable injury? Is there a duty of care? - If there is liability, the wrongdoer must take the victim as he finds him “thin-skull plaintiff rule” -Regardless of preexisting injuries or conditions, if you are liable in the case, you must take full responsibility -In this case, nervous shock is not forese
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