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# Πs bargee was n aboard here the burden of taking

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propeller, causing it to sink and lose its cargo. Π’s bargee was not aboard. Here, the burden of taking adequate precautions (bargee staying on board) was less than the probability of the barge breaking away (particularly given the shorter days and weather) combined with the actual harm that occurred (sunken barge and lost cargo). o 1) burden of taking adequate precautions (staying on board) was less than 2) the probability of the barge breaking away (particularly given the shorter days and the weather) combined with 3) the actual harm that occurred (sunken barge and lost cargo). o P: look at evidence of unreasonableness, Bargee should have been on the ship during business hours, busiy time, in the winter o D: bargee did what he was supposed to and that was enough – look at the harbor master signing on the knots and try to make a normative/factual/policy argument the barge shouldn’t be his prison. Haley v. London Electricity Board - Δ excavation crew created an obstacle to a work site, which π, a blind phone operator, tripped over, causing him to hit his head and go deaf. Here, there would have been little difficulty in providing a fence as opposed to the pole used (B). There are a large number of blind people, and the community is aware of this. This is ordinarily a walkable street and the Post Office foresaw this issue (P). Π is a phone operator and will be extremely burdened now that he is both blind and deaf (L). o Probability = framed in terms of the plaintiff and taken as the first foreseeable thing o Loss = total loss o Burden = framed in terms of the to stop the forseeeable event we look at in probability o Reasoning: See the BPL analysis – It would not have been expensive for the electricity board to fence in the area. Probability of a blind person in London is high enough to be expected – they are a sizeable portion of the population. o Note: when working through this problem, we looked at the π and Δ arguments and how they set up the BPL. Framing the excavation as trap creates a normative argument that you shouldn’t trap disabled people. See a comparison in how to frane the burden, Δ frames it as padding lampposts – makes it very burdensome; π frames it in terms of the post office. Custom Evidence Business Custom Evidence o Persuasive but never dispositive 77
o Callings may never set their own test, at the end of the Standard of Care is a legal standard so it is imperative that it cannot be overridden by business practices. o How to Assess Π brings an expert to testify to the business practices Expert will be in class of people that Δ belongs to who can testify to the standard of care and that Δ breached it Δ can bring an expert that they did not breach the standard of care Appeals to (1) jury’s common sense; (2) statistics; (3) social norms; (4) custom evidence o T.J. Hooper v. Northern Barge Corporation – Court can reject the business custom. Two barges sunk while riding out a storm. If the tugs had radios, they could have avoided the storm.