Breach Outline

Breach

Was Δ’s standard of liability violated?

1. Negligence (Generally)

   1. Rule

      1. Δ is negligent if Δ acts without using reasonable care when Δ had a duty to do so.

         1. note: this is not the same as liability for negligence, which requires causation and damages.

   2. Analysis

      1. Π has burden of proving negligence (Brown);

         1. negligence may be proven by:

            1. foreseeability;

            2. cost-benefit analysis;

            3. custom (in professional settings).

         2. negligence may be suggested by:

            1. custom (in professional and non-professional settings);

            2. statutes or internal regulations;

            3. res ipsa loquitur (circumstantial evidence speaking for itself).

   3. Cases

      1. Brown v. Kendall (Mass. 1850, 123): Δ who hit Π with stick while separating dogs only liable if Δ did not use RC.

      2. Robinson v. Pioche, Bayerque & Co. (Cal. 1855, 192): Since Δ had RC duty to cover hole in front of premises, Δ was negligent for not doing so, even though Π was drunk.

2. Foreseeability

   1. Rule

      1. If a reasonable person would have foreseen and planned for the harm, Δ may be negligent for not preparing even if Δ did not foresee harm.

         1. Majority: foreseeability is objective (Blyth, Alderson).

         2. Minority / Old Rule: foreseeability is subjective; if Δ did not foresee danger, not negligent for failing to safeguard against it (Blyth, Bramwell).

      2. Foreseeability is not individualized to Π, but requires balance in assessing all potential Πs (Cooley).

   2. Analysis

      1. The minority rule does not apply in the United States.

   3. Cases

      1. Blyth v. Birmingham (Eng. 1856, 194) (Alderson): even if Δ did not foresee extreme frost, if reasonable man would, Δ should have taken precautions (but in this case, reasonable man wouldn’t foresee frost).

         1. (Bramwell): Δ only negligent if Δ foresaw danger and failed to safeguard against it.

      2. Cooley v. Public Service Co. (N.H. 1940, 203): Δ not negligent for failing to install device that would have protected Π, but which (A) would have been extremely expensive and (B) would increase risk to other Πs.

3. Cost-Benefit Analysis / BPL

   1. Rule

      1. Learned Hand Test: when the burden of additional safety measures is less than the decreased probability of loss times the liability resulting from an accident, Δ is negligent (B < PL = negligence) (Carroll Towing).

   2. Analysis

      1. L. Hand suggests that the test is less about quantifying BPL than about centering the analysis on what could have reasonably been done differently (Moisan v. Loftus (2d Cir. 1949)).

   3. Cases

      1. U.S. v. Carroll Towing Co. (2d Cir. 1947, 206) (L. Hand): Δ negligent for not having employee aboard barge, since the probability of disaster times the liability resulting from the disaster was higher than additional wages.

      2. Squibs

         1. Halek v. U.S. (7th Cir. 1999) (Posner): Navy negligent for not having increased elevator safety precautions, since probable harm was high and cost to make it safe was low.

4. Custom

   1. Rule

      1. RTT: The custom governing Δ’s behavior is relevant but usually not dispositive evidence of negligence.

         1. Failure to use a new device of such demonstrated worth that it is now common usage is evidence of negligence (T.J. Hooper, S.D.N.Y.).

            1. Exception: Some precautions are so imperative that even their universal disregard will not excuse their omission (T.J. Hooper, L. Hand).

      2. Exception: for professionals, the custom of similar localities is dispositive, unless there is a respectable minority.

         1. similar locality = similar community with similar circumstances;

            1. Old Rule: strict locality = actual local community.

         2. respectable minority = “two schools of thought”

   2. Analysis

      1. Custom’s pros: encourages reliance on expected behavior; is a shield for Δ. Cons: discourages innovation.

      2. Since a lay jury may have no idea what constitutes RC for professionals, custom defines RC. Departure from custom is only tolerated when there is a “respectable minority” or “two schools of thought.”

         1. The similar locality rule is a new version

   3. Cases

      1. The T.J. Hooper (S.D.N.Y / 2d Cir. 1931, 222): two tugs that didn’t have working radios sailed into a storm and lost their cargo; S.D.N.Y.: radios were in common usage, so breach; 2d Cir. (L. Hand): radios so imperative that BPL suggests they should have been working, so breach.

      2. Squibs

         1. Bimberg v. N. Pac. Ry. (Minn. 1944): customary railroad trestle is evidence of RC, but Δ may still be negligent if it is unsafe.

         2. Trimarco v. Klein (N.Y. 1982): evidence that dangerous shower doors were customary and the best option at one time admissible, but not conclusive if jury decides CBA points to replacements.

5. Statutes / Internal Regulations

   1. Rule

      1. The breach of a statute or ordinance is “negligence per se,” meaning there is a rebuttable presumption that Δ acted negligently.

         1. RFT: Δ is negligent as a matter of law if Δ violates statute designed to protect against accidents.

         2. RST: harm-within-the-statute: negligence per se if the statute (1) protects a class that includes Π, (2) protects Π’s interest, (3) protects Π’s interest against Δ’s harm, or (4) protects Π’s interest against Δ’s hazard.

            1. Minority: statutory purpose may be ignored if Π would not have been harmed had Δ followed statute (Posner, Shadday v. Omni Hotels Mgmt. Corp. (7th Cir. 2007)).

         3. Exception (RFT): Δ was acting due to:

            1. an emergency;

            2. necessity (see supra under intentional torts);

            3. incapacitation;

            4. alternative: Δ was attempting to reasonably comply with the statute.

      2. Like custom, internal regulations may be used as evidence but are not dispositive.

   2. Analysis

      1. See statutes under duties, infra, for private causes of action.

      2. Harm-within-the-statute principle very similar to proximate cause foreseeability; even if following the statute would have protected against harm, Δ is only liable if the harm was within the purpose of the statute.

         1. Statutory purpose is often interpreted broadly (see Kernan, Stimpson).

      3. Negligence per se not affected by invalid statutes if other people relied on them (Clinkscales).

      4. If the statute codified a customary rule, it might include...

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