cases on non consensual risks economical rational to require cost benefit

Cases on non consensual risks economical rational to

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cases on non-consensual risks, economical rational to require cost-benefit analysis, and invites distributional concerns. 18
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Think of RIL cases as shortcut to cheapest cost avoider —“unilateral cases” where only D could have avoided the injury. A small subsection of cases where strict liability allowed. Policy —both the Hand Formula & the Foreseeability test reflect two approaches to tort law more generally. Hand Formula : reflects the idea that the purpose of tort law is to deter inefficient conduct Notion that there can be a cost so high that it justifies trade-off for rights. Foreseeability Test : appeals to corrective justice notion that individuals have rights , including a particular right to safety, and when those rights are violated they are entitled to compensation . Notion that the are rights that should not be violated, regardless of the cost 14)Res Ipsa Loquitur—“the facts speak for themselves.” a)P allowed to point to the facts of the case to create the inference that event without a precise showing of how D behaved, D was more likely than not negligent.b)Relieves the plaintiff of the need to prove D’s negligence—P does not have to point to a specific act or omission.c)Threshold issue: no direct evidence of D’s conduct—otherwise would not be talking RIL; threshold issued)Three requirements / doctrinal conditions: i) Defendant can still rebut RIL -rule forces the party w/ the best information to come forward. i) Byrne v. Boodle —barrel of flour fell on P; D was the flour merchant. Court finds prima facie case of negligence (RIL) even though P did not show exactly how the barrel fell. Falling barrel is evidence of negligence. i) Event seldom occurs without negligence —P must show that the event is not something that happens w/o someone being negligent ii) Instrument causing injury was in D’s exclusive control iii) Plaintiff not responsible / did not contribute to injury —injury not due to P’s own action (1) Kambat v. St. Francis Hosp. —laparotomy pad discovered in decedent after she had a hysterectomy; P showed that similar pads were used in surgery and it was impossible to swallow (D alleged she could swallow it). Court found that this was a case of RIL, and that P did not have to eliminate possibility there were other causes of injury—only needs to show that it is “more likely than not” injury was caused by D’s negligence . RIL allows the jury to infer negligence from the circumstances e) Multiple defendants with RIL rarer, but possible— i) Ybarra v. Spangard —P goes into hospital for appendectomy, but P ends up sustaining a serious shoulder injury during the operation while P was under anesthesia. P sues surgeon, attending physician, anesthesiologist, etc. Essentially creating a kind of group liability.
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