B<PL analysis, duty, etc..Help!

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
goosey
Posts: 1543
Joined: Tue Aug 19, 2008 11:48 pm

B<PL analysis, duty, etc..Help!

Postby goosey » Thu Oct 28, 2010 1:02 pm

wow I REALLY don't understand negligence. I am taking a practice test and just don't understand how the pieces fit together.

hypo: drunk driver gets in an accident and a passenger in his car and a woman in another car are rendered quadriplegic.

since he was drunk, would this be a negligence per se case? if so would the analysis go like this: duty to act reasonably---next ask: did he act reasonably? we would judge the std of care by the law since drunk driving is a violation of a law. drunk drivers have notoriously bad judgment and so the b<pl analysis would not have worked here anyway. then i would say that there are 3 ways courts can use violation of a statute: they can direct a verdict on std of care, they can use it as a rebuttable presumption, or they can simply use it as evidence of negligence. I would use the first std since thats the one he agrees with and likely knock down the other two since he says theyre dumb (use his explanation as to why its dumb). Then I would address causation. Lastly I would address public policy.

is that right? I just dont understand where b<pl fits? In the above case, did I apply it correctly? is bpl a way to answer the "did he act reasonably" question? if there is a statute and one is going to apply neg per se, do you then skip the bpl analysis, since the std is already set by the law?

User avatar
GoodToBeTheKing
Posts: 296
Joined: Thu Jul 02, 2009 12:34 pm

Re: B<PL analysis, duty, etc..Help!

Postby GoodToBeTheKing » Thu Oct 28, 2010 1:14 pm

this could be treated as a negligence per se issue, but that is only one element of negligence in law. I think, in fact, that is one of the claims you could make. You could say that because he was violating a statute he should be found negligent. But, this is not the end. You could also claim that under the reasonable standard of care he had a duty to protect his fellow passengers, and by drinking he failed to do so. Further, the fact that he got into an accident while drinking was a further lessening of his duty. Thus, he breached his duty to them (the second element of negligence). Third, ... actually, i can't finish cause i got class sorry

User avatar
beach_terror
Posts: 7256
Joined: Tue Dec 01, 2009 10:01 pm

Re: B<PL analysis, duty, etc..Help!

Postby beach_terror » Thu Oct 28, 2010 1:19 pm

Just a side note, courts don't have to adopt negligence per se. So it'd be worthwhile to look at it from multiple angles like above. My prof said to us that courts don't like negligence per se, because in theory it's strict liability.
Last edited by beach_terror on Thu Oct 28, 2010 1:21 pm, edited 1 time in total.

User avatar
SeymourShowz
Posts: 164
Joined: Tue Apr 07, 2009 9:04 pm

Re: B<PL analysis, duty, etc..Help!

Postby SeymourShowz » Thu Oct 28, 2010 1:19 pm

goosey wrote:drunk drivers have notoriously bad judgment and so the b<pl analysis would not have worked here anyway.


I'm not sure I would have even mentioned the Hand formula for this hypo.... but, if I did, I think the way to approach it is by examining the burden of driving sober (avoiding the risk), which is obviously extremely low. And the probability of getting into an accident while drunk is quite high and the injury can be quite severe. So the Hand formula works. The driver acted unreasonably.

User avatar
CG614
Posts: 825
Joined: Wed Feb 03, 2010 10:26 am

Re: B<PL analysis, duty, etc..Help!

Postby CG614 » Thu Oct 28, 2010 1:25 pm

SeymourShowz wrote:
goosey wrote:drunk drivers have notoriously bad judgment and so the b<pl analysis would not have worked here anyway.


I'm not sure I would have even mentioned the Hand formula for this hypo.... but, if I did, I think the way to approach it is by examining the burden of driving sober (avoiding the risk), which is obviously extremely low. And the probability of getting into an accident while drunk is quite high and the injury can be quite severe. So the Hand formula works. The driver acted unreasonably.


Unless you argue that knowing he would be driving, a BPL calculation would show that he should have abstained from drinking, as the burden to not drink was low and the probability of a great loss high. Therefore, he was negligent in drinking when he knew he would be driving later. Albeit, a stretch.

User avatar
SeymourShowz
Posts: 164
Joined: Tue Apr 07, 2009 9:04 pm

Re: B<PL analysis, duty, etc..Help!

Postby SeymourShowz » Thu Oct 28, 2010 1:35 pm

By the way, from my understanding, the Hand formula doesn't calculate negligence, it just calculates reasonableness, because it doesn't include duty, injury, etc..

User avatar
goosey
Posts: 1543
Joined: Tue Aug 19, 2008 11:48 pm

Re: B<PL analysis, duty, etc..Help!

Postby goosey » Thu Oct 28, 2010 1:36 pm

SeymourShowz wrote:
goosey wrote:drunk drivers have notoriously bad judgment and so the b<pl analysis would not have worked here anyway.


I'm not sure I would have even mentioned the Hand formula for this hypo.... but, if I did, I think the way to approach it is by examining the burden of driving sober (avoiding the risk), which is obviously extremely low. And the probability of getting into an accident while drunk is quite high and the injury can be quite severe. So the Hand formula works. The driver acted unreasonably.



isnt the hand formula subjective, up until you balance, which is objective.

the probability of harm is determined from the actor's p.o.v. at the time they acted...and this is why bpl doesnt work for kids (they have bad judgment, etc.) so basically, when you have a drunk person that thinks theyre sober enough to drive (which he did in the hypo), the prob of harm from his p.o.v is not as high

thats what we were told atleast...correct me if I'm wrong

User avatar
Charles Barkley
Posts: 445
Joined: Mon May 26, 2008 9:56 pm

Re: B<PL analysis, duty, etc..Help!

Postby Charles Barkley » Thu Oct 28, 2010 1:40 pm

SeymourShowz wrote:By the way, from my understanding, the Hand formula doesn't calculate negligence, it just calculates reasonableness, because it doesn't include duty, injury, etc..

This is correct.

User avatar
SeymourShowz
Posts: 164
Joined: Tue Apr 07, 2009 9:04 pm

Re: B<PL analysis, duty, etc..Help!

Postby SeymourShowz » Thu Oct 28, 2010 1:47 pm

goosey wrote:the probability of harm is determined from the actor's p.o.v. at the time they acted...and this is why bpl doesnt work for kids (they have bad judgment, etc.) so basically, when you have a drunk person that thinks theyre sober enough to drive (which he did in the hypo), the prob of harm from his p.o.v is not as high


Again, I would probably just stay away from the Hand formula for this hypo, but... I think you should look at the person's POV when they decided to get drunk, not when they decided to drive after already being intoxicated. I think you could draw a distinction between children and drunks in that a drunk knew when he started drinking that there's a risk of acting with bad judgment (driving drunk), but he took that chance. Children don't decide to think like children. So, I don't think it's reasonable to examine the reasonableness of drunk driving through the eyes of a drunk man, rather, you should examine it through the sober man who chose to get drunk.
Last edited by SeymourShowz on Thu Oct 28, 2010 3:18 pm, edited 1 time in total.

User avatar
beach_terror
Posts: 7256
Joined: Tue Dec 01, 2009 10:01 pm

Re: B<PL analysis, duty, etc..Help!

Postby beach_terror » Thu Oct 28, 2010 1:53 pm

SeymourShowz wrote: So, I don't think it's reasonable to examine the reasonableness of drunk driving through the eyes of a drunk man, rather, you should examine it through the sober man who chose to get drunk.


If only the standard of care was determined by the reasonably hammered person... (law school would be a lot more awesome)
Last edited by beach_terror on Thu Oct 28, 2010 1:54 pm, edited 1 time in total.

User avatar
dailygrind
Posts: 19668
Joined: Wed Oct 22, 2008 11:08 am

Re: B<PL analysis, duty, etc..Help!

Postby dailygrind » Thu Oct 28, 2010 1:53 pm

goosey wrote:
SeymourShowz wrote:
goosey wrote:drunk drivers have notoriously bad judgment and so the b<pl analysis would not have worked here anyway.


I'm not sure I would have even mentioned the Hand formula for this hypo.... but, if I did, I think the way to approach it is by examining the burden of driving sober (avoiding the risk), which is obviously extremely low. And the probability of getting into an accident while drunk is quite high and the injury can be quite severe. So the Hand formula works. The driver acted unreasonably.



isnt the hand formula subjective, up until you balance, which is objective.

the probability of harm is determined from the actor's p.o.v. at the time they acted...and this is why bpl doesnt work for kids (they have bad judgment, etc.) so basically, when you have a drunk person that thinks theyre sober enough to drive (which he did in the hypo), the prob of harm from his p.o.v is not as high

thats what we were told atleast...correct me if I'm wrong


Hand's objective, but the objective standard is ratcheted down for certain classes of people - the infirm, children, and the mentally insane. it's not would a reasonable drunkard foresee the probability of an accident, it's would a reasonable person. if Hand wasn't objective, newbs running around in sophisticated areas would never be liable for their blunders, and that's just unacceptable.
Last edited by dailygrind on Thu Oct 28, 2010 1:56 pm, edited 1 time in total.

User avatar
goosey
Posts: 1543
Joined: Tue Aug 19, 2008 11:48 pm

Re: B<PL analysis, duty, etc..Help!

Postby goosey » Thu Oct 28, 2010 1:54 pm

SeymourShowz wrote:
goosey wrote:the probability of harm is determined from the actor's p.o.v. at the time they acted...and this is why bpl doesnt work for kids (they have bad judgment, etc.) so basically, when you have a drunk person that thinks theyre sober enough to drive (which he did in the hypo), the prob of harm from his p.o.v is not as high


Again, I would probably just stay away from the Hand formula for this hypo, but... I think you should look at the person's POV when they decided to get drunk, not when they decided to drive after already being intoxicated. I think you could draw a distinction between children and drunks in that a drunk knew when he they started drinking that there's a risk of acting with bad judgment (driving drunk), but he took that chance. Children don't decide to think like children. So, I don't think it's reasonable to examine the reasonableness of drunk driving through the eyes of a drunk man, rather, you should examine it through the sober man who chose to get drunk.


thats a really good point. thanks!

User avatar
goosey
Posts: 1543
Joined: Tue Aug 19, 2008 11:48 pm

Re: B<PL analysis, duty, etc..Help!

Postby goosey » Thu Oct 28, 2010 2:10 pm

also: this guy is driving in bad weather and the roads are bad. he encounters a sharp s turn and loses control of the car--if you ask the but for question in this case, the answer isn't no. I want to say that his conduct and the weather are concurrent actual causes, but maybe that is me just trying to find a way to say hes guilty since he was a drunk driver. thoughts?

User avatar
beach_terror
Posts: 7256
Joined: Tue Dec 01, 2009 10:01 pm

Re: B<PL analysis, duty, etc..Help!

Postby beach_terror » Thu Oct 28, 2010 2:21 pm

goosey wrote:also: this guy is driving in bad weather and the roads are bad. he encounters a sharp s turn and loses control of the car--if you ask the but for question in this case, the answer isn't no. I want to say that his conduct and the weather are concurrent actual causes, but maybe that is me just trying to find a way to say hes guilty since he was a drunk driver. thoughts?


If he wasn't drunk, would the same have happened? Or to take it a step further, did his being drunk cause him to overlook the possibility that the weather was too bad to drive safely?

I'd probably try to argue that if he wasn't drunk, he would have weighed the weather versus his need to drive, and came to the conclusion that it wasn't safe to drive. Or that by being drunk he couldn't drive safely enough to navigate in the bad weather if a sober person would have found it reasonably safe to drive in the bad weather.

User avatar
goosey
Posts: 1543
Joined: Tue Aug 19, 2008 11:48 pm

Re: B<PL analysis, duty, etc..Help!

Postby goosey » Thu Oct 28, 2010 3:31 pm

beach_terror wrote: Or to take it a step further, did his being drunk cause him to overlook the possibility that the weather was too bad to drive safely?

I'd probably try to argue that if he wasn't drunk, he would have weighed the weather versus his need to drive, and came to the conclusion that it wasn't safe to drive.


wouldnt that be confusing what he is actually being sued for? hes not being sued for being drunk, he's being sued for driving while he's drunk, so whether or not alcohol affected his likelihood to drive in inclement weather doesn't seem like it matters. If he was being sued for negligently driving under inclement weather conditions then it may seem more relevant to discuss his decision making abilities. However in the present case, he had a duty to act reasonably, he breached that duty by acting unreasonably (neg per se), and then the question is causation and whether his breach of that duty actually and proximately caused the injury.

this: "Or that by being drunk he couldn't drive safely enough to navigate in the bad weather if a sober person would have found it reasonably safe to drive in the bad weather." seems relevant to the issue at hand though and I didnt think of that before

User avatar
GeePee
Posts: 1273
Joined: Fri Jul 03, 2009 7:35 pm

Re: B<PL analysis, duty, etc..Help!

Postby GeePee » Thu Oct 28, 2010 4:12 pm

No one here has talked about this yet, but in this case the liability to the passenger and the other driver are very different things. For the passenger, you'd also need to consider whether your jurisdiction has a guest statute. In that case, you'd need to prove that the driver's negligence rose to the level gross negligence in order to prove liability. If road conditions were good, it may be easy to say that many forms of the driver's negligence do rise to such a threshold. However, if the conditions of the road are bad, it might be difficult to prove the drunk driving as gross negligence that actually caused the accident.

Further, if you want to argue negligence per se for the passenger, you'd also want to consider whether or not the drunk driving statute was designed to protect passengers in cars with drunk drivers. If we determine that drunk driving laws are only designed to protect other drivers, and that the drivers themselves and their passengers put themselves in harm's way at their own risk, then we could not use negligence per se for the passenger.

For the other driver, per se is a good start. With your weather modification, causation is certainly a live issue. It seems like you're off to a good start with that.

Cherith Cutestory
Posts: 33
Joined: Wed Nov 04, 2009 11:58 am

Re: B<PL analysis, duty, etc..Help!

Postby Cherith Cutestory » Thu Oct 28, 2010 4:21 pm

However in the present case, he had a duty to act reasonably, he breached that duty by acting unreasonably (neg per se), and then the question is causation and whether his breach of that duty actually and proximately caused the injury.

I don't know how your prof is teaching it, but negligence per se is useful for just the specific case where a statute sets the standard of care (and the victim has to be within the class of protected people and the tortfeasor's actions have to be within the class of actions to be prevented and yadda). If a person has the standard duty to act as a reasonable person and he breaches that duty, that's just negligence. I think it would be up to your prof's preferences whether to infer that there is a drunk driving statute in place, but in the absence of a statute I would just say that the defendant was negligent.

Also, and I'm not sure if you've gotten to defenses to negligence or if this was just working out the specific elements of this hypo, but you should probably try to address the assumption of risk aspects of the passenger (who knew the driver was driving drunk and still rode in the car) and possibly the other driver (who chose to assume the risk of traveling on a bad road in a bad storm). It might be overkill, but my Torts prof loves hypos where the defendant is obviously guilty and then making us create doctrinal arguments that get them off scot-free.
EDIT: Just realized that I made a bunch of inferences which weren't stated in the hypo, the exact inferences which I said to be wary of, so take this with a grain of hypocritical salt I guess.

User avatar
goosey
Posts: 1543
Joined: Tue Aug 19, 2008 11:48 pm

Re: B<PL analysis, duty, etc..Help!

Postby goosey » Thu Oct 28, 2010 4:53 pm

to the two posts above: both posts were very helpful. thanks.

we are actually getting through duty right now so I dont know if we will cover guests and whether he had a duty to the guest. I did not think of assumption of risk on the passenger's part though! I dont know how that didnt occur to me...maybe because its not in my outline yet and I am skimming through my notebook for things I dont remember.

In terms of assumption of risk, that would be a defense from the driver? Would my mention of contibutory negligence fit in under damages or would it be a part of the main discussion?

Its kind of weird doing this because I know the rules, I just have no idea how they fit together

Cherith Cutestory
Posts: 33
Joined: Wed Nov 04, 2009 11:58 am

Re: B<PL analysis, duty, etc..Help!

Postby Cherith Cutestory » Thu Oct 28, 2010 5:36 pm

goosey wrote:to the two posts above: both posts were very helpful. thanks.

we are actually getting through duty right now so I dont know if we will cover guests and whether he had a duty to the guest. I did not think of assumption of risk on the passenger's part though! I dont know how that didnt occur to me...maybe because its not in my outline yet and I am skimming through my notebook for things I dont remember.

In terms of assumption of risk, that would be a defense from the driver? Would my mention of contibutory negligence fit in under damages or would it be a part of the main discussion?

Its kind of weird doing this because I know the rules, I just have no idea how they fit together

The way I usually present it (and again, this is mainly because this is how my prof's model answers are laid out) is to go through each of the elements, and then state whether there is a defense to be applied.

Usually, my Torts exam questions are something like your hypo (guy who should be clearly negligent) and then the question prompts us to explain how the victims can't recover. Since my prof likes for us to twist the doctrine until it's nearly unrecognizable, I'd do something like "For duty, he should be held to a subjective standard of care since he was drunk, and drunkeness is a physical condition and those with physical disabilities should only be held to the same standard as those with like physical disabilities (basically, the reasonable standard for drunkards); If that did not fly [move on through breach, cause, proximate cause, injury]. Even if the prima facie case is established, the passenger and other driver were contributorily dangerous [yadda]; and if they are not found to have contributed fault they still assumed the risk [yadda]."

But again, and this probably can't be stated enough, your best bet is to see or ask how your prof wants it. Maybe he wants you to go through the elements presenting both sides, or present the defense earlier, or whatever.

User avatar
goosey
Posts: 1543
Joined: Tue Aug 19, 2008 11:48 pm

Re: B<PL analysis, duty, etc..Help!

Postby goosey » Thu Oct 28, 2010 6:17 pm

Cherith Cutestory wrote:The way I usually present it (and again, this is mainly because this is how my prof's model answers are laid out) is to go through each of the elements, and then state whether there is a defense to be applied.

Usually, my Torts exam questions are something like your hypo (guy who should be clearly negligent) and then the question prompts us to explain how the victims can't recover. Since my prof likes for us to twist the doctrine until it's nearly unrecognizable, I'd do something like "For duty, he should be held to a subjective standard of care since he was drunk, and drunkeness is a physical condition and those with physical disabilities should only be held to the same standard as those with like physical disabilities (basically, the reasonable standard for drunkards); If that did not fly [move on through breach, cause, proximate cause, injury]. Even if the prima facie case is established, the passenger and other driver were contributorily dangerous [yadda]; and if they are not found to have contributed fault they still assumed the risk [yadda]."

But again, and this probably can't be stated enough, your best bet is to see or ask how your prof wants it. Maybe he wants you to go through the elements presenting both sides, or present the defense earlier, or whatever.


yeah I am meeting with him to go over this problem next week and I know that the answer to this exam is on file somewhere but for some reason were not allowed to get the whole thing, so I have to go to this professor's office and she lets me look at it. Its weird, but at least I can see it.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: No registered users and 5 guests