Philosophy 2080 Study Guide - Ginger Beer, Posttraumatic Stress Disorder, Meeting Of The Minds
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Philosophy of Law: Lecture 3 9/26/2012 3:12:00 PM
Legislations: different than judication ―broad based social policy objective‖
In Canada and UK, tort law is essentially private law
Jurisprudence: what judges do
Legal realists: school of thought.. when people started to criticize what the
judges are doing… Judges are subjective in their decision, just like everyone
else. They find a way to rationalize their decision by using case law.
Case law: is it the right answer?
Positivistic: law is what is written. A rigid way of looking at law. Common law
Corrective law: tort law, private law
Distributive law: distributing greater good
Case (Donoghue V. Stevenson) Scotland 1932
Her friend purchased a bottle of ginger beer (it was given to her for free)
Drank half the bottle, and shortly after poured the second half. A
decomposed snail fell out of the bottle.
She felt sick after and sued the manufacture of the ginger beer.
No case law based on ginger beer, café, and decomposed snail.
Looked to the bible; ―duty not to injure your neighbor‖ –who is your
neighbor? [someone who is closely related]
Foreseeable—―ought‖ ―should‖ and ―objective‖
You can’t defend a negligence case by saying ―well… I should’ve.‖
Stupidity is irrelevant. Imposed objective stand.
What would’ve a reasonable person have done?
Proximity—are they causally close? (causal issues)
Case (Palsgraf V. Long Island R. Co)
Risk is relational
Two porters are trying to attempt to help a guy get on the train.
The guy was carrying fireworks wrapped in newspaper. While getting on
the train, fireworks exploded and caused a weighing scale to fall, then
injured a women.
She was 30 feet away. She sued for ―negligent conduct‖ of the railroad
employees of the railroad company
Won trial and the appeal… Finally at supreme court of the state
She claims that the injury was foreseeable.
Did the railroad workers know that there was fireworks in the newspaper?
No. therefore not negligent. Risk is relational.
Careless the way they pleaded the case
Risk to be perceived (the actual risk that is foreseeable will tell us if
there’s a duty)
Question of liability (is there a duty of care) is always anterior (first
question to ask) to the
Order of these questions is very important in tort law:
a. D of C
e. Damage (decent of this case)
Readings for next week:
Standard of care (Bolton v. Stone, Paris V Stepney)
Lecture 5 9/26/2012 3:12:00 PM
1. No duty to rescue—unless
2. If you start no duty to complete—unless
3. If you start AND attempt is negligent would be rescuer may be liable
IF negligence’s causes/worsens situation of peril
4. rescuee owes duty of care to would—be rescuer—unless rescue attempts
is obviously futile and reckless
Next week: reibl vs. Hughes; coocker vs. Sundance; CNR vs. Norsk; Borell
Hard cases make bad law
Insurance isn’t supposed to have any impact on tort law, however, it does.
Loss spreading: insurance