We can expect certain things when dealing with others A subjective standard o

We can expect certain things when dealing with others

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We can expect certain things when dealing with others A subjective standard… o Is too variable o Encourages fraud o Encourages/Incentivizes Δ to not learn
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Negligence Breach Learned Hand’s formula An attempt to give some level of clarity over what constitutes breach If B < PL, Δ is negligent o B - Burden of taking precautions o P - Probability of loss o L - Severity of harm Essentially, if the burden of taking precautions does not exceed the probable damage of not taking precautions, Δ is liable. If the burden (i.e. cost of taking precautions) is greater, Δ is not liable. Posner’s theory Rules in tort law ought to be set to encourage Δs to take economically efficient safety precautions o => BPL used as a tool Does RPUC = B < PL? Law and econ is becoming a more prevalent debate in practice o Generally plays better with judges than juries 3 procedural effects given to evidence of negligence Some evidence o “Throw it in the hopper and let the jury do what it will with it” Prima facie o Rebuttable presumption of negligence o Often called a “bursting bubble presumption” because Δ can “burst the bubble” by providing evidence against breach Negligence per se o Conclusive presumption of negligence Only prescribed affirmative defenses will get Δ off the hook Burden of production of evidence Burden of proof Statute applies and is violated Breach presumed In prima facie: Δ brings evidence, presumption can be rebutted Remains with Π Black Letter Rule – Industry Custom Compliance with industry custom is treated as some evidence that the actor behaved as RPUC. By the same token, departure from industry custom is some evidence of breach. o Don’t want compliance/departure from industry custom to be definitive for the reason Hand stated – a whole industry can lag or it might deter innovation o Want people to use contracts to plan to protect their own interests
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Negligence Breach Don’t want tort law rewriting the agreements that people have freely entered into Industry custom … Gets at feasibility Suggests economic efficiency May indicate who is the best cost avoider Child standard for judging breach A reasonable child of like age, intelligence and experience o Both an objective and subjective standard On the Adult Activities Exception When children are engaged in adult activities, they are not subject to the child standard Some hypos o A 4 yr old “driving” the car down the street is not engaged in the adult activity in the same way the adult would do it (picture the little kid “driving” the car with Dad) Likely would be subject to the child standard (unless joy riding) o Child driving a boat Need a license to drive a boat, can’t tell how old an oncoming boater is o Child riding a bicycle An ideal example of why the child standard exists. There tends to be more danger to the biker than motorist, you can see it’s a child on the bike and it’s not an unusual activity for a child to engage in
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  • Fall '09
  • Lidsky
  • Tort Law, ΔS, δ, π, RPUC

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