## Calculus of Negligence

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
Extension_Cord

Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

### Calculus of Negligence

Is this forseeability of injury referencing to product of PL jointly or just P? Im fairly certain its just the probability now that I look at it more.

"The test of foreseeability of injury, as affecting actor's liability, is not the
balance of probabilites that damage will result, but the existence of some real
likelihood of damage, of such appreciable weight and moment as would induce action
to avoid it on the part of a reasonably prudent person."

nelaw2010

Posts: 253
Joined: Wed Jul 07, 2010 1:48 am

### Re: Calculus of Negligence

Extension_Cord wrote:Is this forseeability of injury referencing to product of PL jointly or just P? Im fairly certain its just the probability now that I look at it more.

"The test of foreseeability of injury, as affecting actor's liability, is not the
balance of probabilites that damage will result, but the existence of some real
likelihood of damage, of such appreciable weight and moment as would induce action
to avoid it on the part of a reasonably prudent person."

Tough question. It seems like it's both to me. The probability of some damage "of such appreciable weight and moment." In other words, probability of the type and extent of damage that would make a reasonable person avoid it.

Example: Actor engages in activity that has a high probability of causing harm, but harm very minor (almost non-existent).

In above example, how do you reconcile "such appreciable weight and moment?"

ph14

Posts: 3227
Joined: Mon Sep 12, 2011 11:15 pm

### Re: Calculus of Negligence

Extension_Cord wrote:Is this forseeability of injury referencing to product of PL jointly or just P? Im fairly certain its just the probability now that I look at it more.

"The test of foreseeability of injury, as affecting actor's liability, is not the
balance of probabilites that damage will result, but the existence of some real
likelihood of damage, of such appreciable weight and moment as would induce action
to avoid it on the part of a reasonably prudent person."

B<PL, brah.

GMVarun

Posts: 191
Joined: Mon Aug 24, 2009 6:48 pm

### Re: Calculus of Negligence

So in theory, PL refers to the expected value of the loss. EV(x) = probability of (x) * magnitude of (x). So here, EV(loss) = probability (loss) * magnitude (loss). Foreseeability affects the probability. Since you cannot know exactly what the probability (loss) is, its foreseeability is the best estimate. The magnitude of the loss is a separate question (if the loss does happen, how much will the damages be).

B, burden, refers to the expected value of the measures we can take to prevent loss. E[B] = prob(B)*magnitude(B). Here we likely know the probability of B (it's likely going to be 100% or close thereto). If we take x,y,z precautions, we can say with 100% accuracy that the loss will not happen. The cost of taking x,y,z precautions is magnitude (B). So since the probability is likely going to be 100%, B is simply the cost of taking known x,y,z precautions.

Your act is negligent if you can take known precautions that have a total cost less than the expected value of the loss, that is if E[B] < EV[loss]. This is because society saves money if you take the precautions.

istara

Posts: 149
Joined: Wed Feb 02, 2011 10:05 pm

### Re: Calculus of Negligence

Breach is a question for the jury. I don't think juries like to do that much math

I've been reading too much civ pro, so that's about as (un)-helpful as I can be to a torts question right now..

GMVarun

Posts: 191
Joined: Mon Aug 24, 2009 6:48 pm

### Re: Calculus of Negligence

istara wrote:Breach is a question for the jury. I don't think juries like to do that much math

Yeah, haha. That's why I prefaced it with in theory. The problem is more than just that of doing computations. There is a lot of uncertainty so we only have estimates for all of these numbers. And so people are going to disagree about which estimates are good. Also, this analysis is limited to known precautions and known losses. It is hard to discount by unknown losses or unknown precautions (that exist, but we just did not realize we could take the precaution). The other problem is this will all be done after the fact, so there's going to be a tendency to think that the loss is more likely (because it actually happened). But the important thing here to keep in mind is that this is one framework to look at the problem.

Extension_Cord

Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

### Re: Calculus of Negligence

So the quoted text refers to probability, Probability X Expected Injury, or B>PG?

StyrofoamWar

Posts: 126
Joined: Mon Dec 14, 2009 6:16 pm

### Re: Calculus of Negligence

ITT: A 1L attempts to make BPL into calculus. Chill dude. It means exactly what it says.

If you're making law into calculus formulas, Ur doing it wrong.

Extension_Cord

Posts: 592
Joined: Mon Sep 05, 2011 3:15 pm

### Re: Calculus of Negligence

StyrofoamWar wrote:ITT: A 1L attempts to make BPL into calculus. Chill dude. It means exactly what it says.

If you're making law into calculus formulas, Ur doing it wrong.

My professor has made it very clear, this formula has to be on our exams.