ph14 wrote:Gettingstarted1928 wrote:ph14 wrote:Gettingstarted1928 wrote:So then maybe you can answer a quick question for me. When determining duty, does B v. PL pretty much only apply to cases that are business related? If yes, do we automatically then look if the harm was foreseeable to determine duty?
For example, if I was mowing my lawn w/o a blade guard and a child was blinded when he got hit by debris that hit the blade, couldn't B v. PL technically apply?
B = Burden for me to go to hardware store and buy a guard.
P = Probability of person getting getting hit by debris
L = Extent of injury (i.e., blindness)
OR would you simply assess whether the incident was foreseeable.
B<PL is used to determine the reasonable standard of care (ie, the "breach" element of negligence). It is a persuasive but not dispositive guide to determining whether a person behaved reasonably. It does not just apply to business related cases, but has been applied in a wide variety of negligence cases.
Duty is a bit more complicated and fact specific. You have a duty to behave reasonably when you act. Here you could use B<PL I suppose, but this seems like a situation where you could almost apply a negligent per se type standard to it (although to be clear, there is probably no law or regulation governing operating lawnmowers so probably not negligence per se). If you don't operate the machinery properly-- as the manufacturer suggests-- then you are pretty much not exercising reasonable care.
It seems like there are three ways to show breach (this is assuming it is a general negligence case that doesn't involve possessors of land, negligence per se, etc.).
1. B v. PL
2. Rick/utility (similar to B v. PL)
Is this right?
Well, B<PL is the big one. Reasonableness is often times a question of fact for the jury, and it's hard to express it in a mathematical formula (although Judge Hand certainly tried). There are lots of little things that go into the calculus, such as physical standard, mental standard, context, dangerous instrumentality?, etc. Foreseeability goes more to duty or proximate cause.
Especially if you fall on the foreseeable plaintiff, foreseeable consequences side of the Palsgraf fence. I've gathered that pretty much anytime there's a super contested breach issue, the jury will be deliberating the reasonableness of D's actions.