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Breach Outline

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Breach Was D's standard of liability violated?

I. Negligence (Generally) a. Rule i. D is negligent if D acts without using reasonable care when D had a duty to do so.

1. note: this is not the same as liability for negligence, which requires causation and damages. b. Analysis i. P has burden of proving negligence (Brown);

1. negligence may be proven by: a. foreseeability; b. cost-benefit analysis; c. custom (in professional settings).

2. negligence may be suggested by: a. custom (in professional and non-professional settings); b. statutes or internal regulations; c. res ipsa loquitur (circumstantial evidence speaking for itself). c. Cases

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

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

II. Foreseeability a. Rule i. If a reasonable person would have foreseen and planned for the harm, D may be negligent for not preparing even if D did not foresee harm.

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

2. Minority / Old Rule: foreseeability is subjective; if D did not foresee danger, not negligent for failing to safeguard against it (Blyth, Bramwell). ii. Foreseeability is not individualized to P, but requires balance in assessing all potential Ps (Cooley). b. Analysis i. The minority rule does not apply in the United States. c. Cases i. Blyth v. Birmingham (Eng. 1856, 194) (Alderson): even if D did not foresee extreme frost, if reasonable man would, D should have taken precautions (but in this case, reasonable man wouldn't foresee frost).

1. (Bramwell): D only negligent if D foresaw danger and failed to safeguard against it. ii. Cooley v. Public Service Co. (N.H. 1940, 203): D not negligent for failing to install device that would have protected P, but which (A) would have been extremely expensive and (B) would increase risk to other Ps.

III. Cost-Benefit Analysis / BPL a. Rule i. 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, D is negligent (B < PL = negligence) (Carroll Towing). b. Analysis i. 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)). c. Cases i. U.S. v. Carroll Towing Co. (2d Cir. 1947, 206) (L. Hand): D negligent for not having employee aboard barge, since the probability of disaster times the liability resulting from the disaster was higher than additional wages. ii. 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.

IV. Custom a. Rule i.

RTT: The custom governing D's behavior is relevant but usually not dispositive evidence of negligence.

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