NEGLIGENCE

Negligence failure to take precaution to reduce risk: not always factual but counter factual not want D do but what D failed to do up to P to say what D should’ve done differently

Why ought negligence to be sanctioned? A way to say even though not intentional still liable because would have duty of reasonable care.

Grounds or justifications for negligence:

respect or fairness: rooted in notion neg person hasn’t paid due respect to victim

Economic grounds: neg consititute waste: failure to spend optimum level on safety precautions (people neg throwing risks on community and neg law makes them interenalize those costs rather than inflect those costs on others) efficient

Vicarious liability: social relationship: master-servant. Servant is personably liable, master vicarious liable

Servant remains in the realm of the fault system; master is beyond the fault line and is vicariously liable

Negligent Harming

·       Blyth v Birmingham: no liability since d took all reasonable care and has no duty in case of extraordinary, unforeseeable conditions such extreme weather. Last time event: more than 25 years when co. didn’t exist.

·       Steggles v New River Co: D liable because extreme weather had previously caused same type of damage and therefore d had duty to take “some precaution” Limited because it was not known what exactly that precaution should be. Last event: six years prior in Blyth.

·       City of New York v Bailey: Several recent extraordinary weather events. Therefore D might have reasonable expected such events could reoccur and therefore had duty to build its dam to prevent damage.

The Hand Formula – BPL TEST

Judge Learned Hand in US v. Carroll Towing Co. 159 F.2d 169 (2d Cir. 1947). Negligence of the custodian of a barge which broke loose from its mooring.

Formula: Probability of risk (P); gravity of the resulting injury (Injury); burden of adequate precautions (B). Or: Liability depends upon whether B is less that L (injury) multiplied by P. B<PxL

Hand noted in Moisan v. Loftus, 178 F.2d 148 (2d Cir 1949): that too many variables render formula practically useless (illusory). Only quantitative known might be the costs of B. But formula “centers attention upon which one of the factors may be determinative in any given situation.”

There is neg if b is less than pl. Test states well the factors involved in negl. Is a conceptual advice to help org steps to take to reduce risks.

Contrast between Blythe and Hand:

Blythe: takes an average

Hand: Risk is a continuum within lies different probabilities Must strike a balance between one’s own interest (B) and interests of others (PL)