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We can expect certain things when dealing with othersA subjective standard…oIs too variableoEncourages fraudoEncourages/Incentivizes Δ to not learn
NegligenceBreachLearned Hand’s formulaAn attempt to give some level of clarity over what constitutes breachIf B < PL, Δ is negligentoB - Burden of taking precautions oP - Probability of lossoL - Severity of harm Essentially, if the burden of taking precautions does not exceed the probabledamage of not taking precautions, Δ is liable. If the burden (i.e. cost of takingprecautions) is greater, Δ is not liable.Posner’s theoryRules in tort law ought to be set to encourage Δs to take economically efficientsafety precautionso=> BPL used as a toolDoes RPUC = B < PL?Law and econ is becoming a more prevalent debate in practiceoGenerally plays better with judges than juries3 procedural effects given to evidence of negligenceSome evidenceo“Throw it in the hopper and let the jury do what it will with it”Prima facieoRebuttable presumption of negligenceoOften called a “bursting bubble presumption” because Δ can “burst thebubble” by providing evidence against breachNegligence per seoConclusive presumption of negligenceOnly prescribed affirmative defenses will get Δ off the hookBurden of production of evidenceBurdenofproofStatute applies and isviolatedBreach presumedIn prima facie:Δ brings evidence, presumption can berebuttedRemains withΠBlack Letter Rule– Industry CustomCompliance with industry custom is treated as someevidence that the actorbehaved as RPUC. By the same token, departure from industry custom is someevidence of breach.oDon’t want compliance/departure from industry custom to be definitivefor the reason Hand stated – a whole industry can lag or it might deterinnovationoWant people to use contracts to plan to protect their own interests
NegligenceBreachDon’t want tort law rewriting the agreements that people havefreely entered intoIndustry custom …Gets at feasibilitySuggests economic efficiencyMay indicate who is the best cost avoiderChild standard for judging breachA reasonable child of like age, intelligence and experienceoBoth an objective and subjective standardOn the Adult Activities ExceptionWhen children are engaged in adult activities, they are not subject to the childstandardSome hyposoA 4 yr old “driving” the car down the street is not engaged in the adultactivity 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)oChild driving a boatNeed a license to drive a boat, can’t tell how old an oncomingboater isoChild riding a bicycleAn ideal example of why the child standard exists. There tends tobe more danger to the biker than motorist, you can see it’s a childon the bike and it’s notan unusual activity for a child to engage in