D. Liability

    2. Negligence

        Adams (p) v. Bullock (d), 227 N.Y. 208, 125 N.E. 93 (1919)
        p=boy burned by contact with electrical; d=trolley company

1. What are the facts of the case?
2. Did the court opinion hold the defendant liable? Why not?
   "The trolley wire was so placed that no one standing on the bridge or even bending over the parapet could reach it. Only some extraordinary casualty, not fairly within the area of ordinary prevision, could make it a thing of danger."

    negligence requires that harm be foreseeable

what does unforeseeable mean?     information costs are too high to make it efficient to discover the unforeseeable harm (Posner)     Bullock passed the negligence test.     the defendants were acting responsibly with respect to reasonably foreseeable harm     => total loss is at least as high as foreseeable loss

    What level of foreseeability is required for liability?
    Option 1: specific: the actual harm in the case
    Option 2: general: a foreseeable risk of harm (as evidenced by the actual harm in the case)

    United States (p) v. Carroll Towing Co. (d,app), 159 F.2d 169 (1947)
    Cast: The Conners Marine Co., Inc., was the owner of the barge, ['Anna C'] which the Pennsylvania Railroad Company had chartered; the Grace Line, Inc., was the charterer of the tug, 'Carroll,' of which the Carroll Towing Co., Inc., was the owner. U.S. is a claimant on the lost cargo. Grace Line: chartered tug Carroll to get the barge, after which Anna C got free and sank. Grace Line blamed for its harbor master not ensuring Anna C was secure; all blame Anna C for absence of bargee. Grace Line and Carroll both blamed for not ensuring secure line for Anna C and held responsible for collision damage; but absence of bargee held responsible for 1/3 of sinking damages. See Diagram

1. What are the facts of the case?
2. This case is most famous for its consideration of whether Conners, the owner of the Anna C barge was negligent by not having a bargee aboard--how does the judge suggest addressing this issue?
3. Why not automatically assume that the bargee should have been there?
4. Did the judge consider the barge owner to be negligent?
   yes--bargee should have been there during working hours

    explicitly states the classic negligence rule
    "if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL."

    Judge: Learned Hand
    Hand formula: B < P·L
    Econ formula: MCs < |dPr/dS·L|

    We call B the marginal cost of safeguards (MCs) and stipulate that P is the marginal change in probability of injury |dP/dS|, but the court decision explicitly aims at defining negligence in economic terms: the failure to take cost-justified precautions.

    United States v. Carroll Towing Co. (1947) is one of the most famous of all tort cases, with a famous judge

    perhaps the most famous and respected US judge who never served on the Supreme Court. (served on 2d circuit court of appeals)
    full name: Billings Learned Hand
    served 52 years, until his death in 1961 (officially retired in 1951)
    Famous in antitrust: his 1945 Alcoa decision made monopoly virtually per se illegal (and was designated a Supreme Court precedent since the S.Ct. could not come up with a quorum)

    Combining both cases:
    To be liable under a negligence rule, a harm must be:
    (1) foreseeable through cost-justified anticipation of harm
    (2) avoidable through cost-justified precautions (against foreseeable harm)

    it is logically consistent to use foreseeable harm to decide whether negligence has occurred and then actual harm to determine damages
    Justice Oliver Wendell Holmes: "the measure of the defendant's duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.". . (Palsgraf dissent)

    3. Victim fault

    Under a negligence rule, victim fault becomes an issue only if the defendant is negligent
    Otherwise, we have only an accident, not a tort, and the case is over

    a. Alternatives under the law

    Option 1: simple negligence

    Defendant negligence => automatic liability
    No follow-up consideration of victim behavior
    Example: Winn-Dixie

    The cases in this section go beyond simple negligence.

    Butterfield v. Forrester, King's Bench, 11 East 60 (1809)
    p = horse rider/victim; d = homeowner/injurer

1. What are the facts of the case?
2. Had the injurer defendant been negligent?
3. So why not award the plaintiff damages?

    Illustrates Option 2: "contributory negligence"
    => after asking whether the defendant had been negligent and concluding that he had (if he had not, that would be the end of the case), ... ask whether the plaintiff had been negligent. If the answer is "yes," the plaintiff loses. (P173)
    from the case: "One person being in fault will not dispense with another's using ordinary care for himself."

    Contributory negligence is necessary but not sufficient to excuse the injurer from liability; the contributory negligence must be a proximate cause at the time of the injury
    Example: if the rider would have have hit the obstruction even at a reasonable speed, then the injurer would have remained liable
    Illustrated by Berry v. Sugar Notch

    Davies v. Mann, 10 M. & w. 547, 152 Eng. Rep. 588 (1842)
    plaintiff = donkey owner; defendant = wagon owner

1. What are the facts of the case?
2. Suppose that "the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travelling along it" was illegal. Would you consider that to be contributory negligence by the victim plaintiff in this case?
3. Based on the Butterfield v. Forrester precedent, would you expect the victim to receive damages or not?
4. Who did the judge's opinion favor? (plaintiff)
5. Why should the plaintiff receive damages?
6. You are the judge:
   Late at night, a driver runs a stop sign and hits a car driven by an unlicensed driver. The unlicensed driver sues for damages.
   Would you award damages?
7. How would you respond to the defendant's argument that the unlicensed driver had no business even being on the road in the first place?

    illustrates the doctrine of "last clear chance"
    last clear chance can override contributory negligence

    components of "last clear chance":
    "(1) That plaintiff has been negligent and, as a result thereof, is in a position of danger from which he cannot escape by the exercise of ordinary care; and this includes not only where it is physically impossible for him to escape, but also in cases where he is totally unaware of his danger and for that reason unable to escape; (2) that defendant has knowledge that the plaintiff is in such a situation, and knows, or in the exercise of ordinary care should know, that plaintiff cannot escape from such situation; and (3) has the last clear chance to avoid the accident by exercising ordinary care, and fails to exercise the same, and the accident results thereby, and plaintiff is injured as the proximate result of such failure.'" (Perin v. Nelson & Sloan (1953))

    (1) plaintiff endangered by own negligence
    (2) a reasonable defendant would recognize the danger
    (3) the defendant fails to exercise ordinary care in a last clear chance to avoid the accident

    => an incentive to always exercise ordinary care
    the negligence of others does not excuse us from that obligation

    Contrast the two cases:
    who had the "last clear chance" in
    (1) Butterfield v. Forrester? the injured plaintiff, whose contributory negligence excuses the injurer from liability (plaintiff "is the author of his own wrong")
    (2) Davies v. Mann? the injuring defendant, so contributory negligence by the injured plaintiff does not excuse the injurer from liability

    Dobson (p) v. Louisiana Power & Light Co. (d), 567 So. 2d 569 (1990)

1. What are the facts of the case? (8000 volt line v. 2000 for executions)
2. A power company explicitly informs a tree cutter that its power lines can be uninsulated. The tree cutter then gets electrocuted from an uninsulated power line. Would you hold the power company liable for damages?
3. A power company informs a tree cutter that it is available for assistance and has helped the tree cutter in the past with insulated single-residence power lines. The tree cutter gets electrocuted from an uninsulated distribution line.
   Would you hold the power company liable for damages?
4. A power company has actual knowledge that an inexperienced tree cutter will be operating near uninsulated distribution lines, and provides no warning. The tree cutter gets electrocuted from an uninsulated distribution line.
   Would you hold the power company liable for damages?
5. What ruling did the appeals court reach?
   Power company liable for 60% of damages + costs
6. Why?

    As in Butterfield v. Forrester, the court acknowledges victim negligence: "Actual lack of knowledge by victim is not sufficient to find lack of victim fault: "Any person is required by law to recognize that his conduct involves a risk of causing harm to himself if a reasonable person would do so while exercising such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence and judgment as a reasonable person would have.... [Plaintiff's] failure to take precautions to avoid the risk of which he should have known amounted to negligence."

    Illustrates Option 3: Comparative negligence: "We do not think that the unreasonableness of [defendant's] conduct was so great as to be double the fault of [plaintiff]. But we conclude that a palpable majority of the fault should be attributed to the [defendant] in order to achieve substantial justice in this case. Accordingly, we attribute 60% of the negligence herein to [defendant] and 40% to [plaintiff].

    b. Economic analysis of legal options

i = injurer     v = victim     efficient level of combined precautions:     Si* and Sv*     At S*: MBs = |(dPr/dS) x L|         = MCsi = MCsv     efficiency => both sides must internalize L.

    Option 1: simple negligence: victim collects if Si < Si*
    Option 2: contributory negligence: victim collects if Si < Si* 
        and Sv > Sv*
    Option 3: comparative negligence: victim collects qi of loss, where
    qi = the injurer's share of combined negligence:
           = (Si* - Si) / [(Si* - Si) + (Sv* - Sv)]