calculus of risk - torts

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sangr
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calculus of risk - torts

Postby sangr » Sat Sep 22, 2012 2:40 am

sup dudes,

so if any of u guys could explain this itd be great

in osborn v montgomery,
the judge states that the duty of care owed is that of which under same or similar circumstances the great mass of mankind would ordinarily exercise.


he mentions stuff about applying standards that is proper under all circumstances and blah blah blah before that, but ultimately, in regards to his decision, just says "D did what other drivers would ordinarily do, thus not guilty"

my question is..

ok...so if he did what most people would do anyways, hes not liable.

what if what MOST people do itself is not a reasonable standard of care?

did i miss something here?

thanks!

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JCFindley
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Re: calculus of risk - torts

Postby JCFindley » Sat Sep 22, 2012 8:44 am

sangr wrote:sup dudes,

so if any of u guys could explain this itd be great

in osborn v montgomery,
the judge states that the duty of care owed is that of which under same or similar circumstances the great mass of mankind would ordinarily exercise.


he mentions stuff about applying standards that is proper under all circumstances and blah blah blah before that, but ultimately, in regards to his decision, just says "D did what other drivers would ordinarily do, thus not guilty"

my question is..

ok...so if he did what most people would do anyways, hes not liable.

what if what MOST people do itself is not a reasonable standard of care?

did i miss something here?

thanks!


Say most people don't come to a complete stop at a four way stop out in the country. You don't one day and hit a guy on a moped you didn't see. You just did what most people do but I would say you could in fact be guilty of the breach.

I would think it would depend on the circumstance. I know my professor thinks that as the example above is similar to his. What does YOUR professor think and what would be correct on the test will be the more important way of looking at it I would think.


Watermelon Man
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Re: calculus of risk - torts

Postby Watermelon Man » Sat Sep 22, 2012 11:38 am

First of all, don't write the word "guilty" on your torts exam. Save it for criminal law. Use "liable."

Second, the question you must address on your exam is whether driver X acted like a reasonable driver under the circumstances. What most other drivers do (the so-called customs of other drivers) is relevant in deciding what behavior would be reasonable under the circumstances, but evidence of custom is not dispositive (with some exceptions, e.g., medical malpractice cases). As you will see in class, courts have held companies liable for negligence torts, even when that company's behavior conformed to the entire industry. In those cases, the entire industry was deemed to have acted unreasonably. The same might apply in this case: most drivers may act unreasonably in not stopping.

In assessing whether driver X acted reasonably, balance the foreseeable likelihood that driver X's conduct would result in harm (P), and the foreseeable severity of any harm that would ensue (L), against the burden of precautions driver X would have to take in order to eliminate or reduce the risk of harm (B). If B < PL, driver X acted unreasonably. In this case, the foreseeable likelihood that driver X's failure to stop would result in harm depends on facts we don't know--i.e., where he was driving (middle of nowhere or crowded city filled with people), how fast x was driving, perhaps statistical evidence of accident rates in the area. If harm did occur, though, it was foreseeable that the harm would be severe -- a collision with a person or a car. Note, the severity of harm to an extent depends on how fast X and other drivers were going, but I would find that any collision with a 2 ton car, even one driving at low speeds, is very severe. In any event, it would have been a minimal burden on driver X to stop and avoid the harm -- he would lose, what, 10 seconds out of his day? Not a big burden. Based on my weighing of these factors and the facts you gave, I'd guess driver X acted unreasonably by not stopping, even if most drivers don't stop either.

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JCFindley
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Re: calculus of risk - torts

Postby JCFindley » Sat Sep 22, 2012 11:45 am

Watermelon Man wrote:First of all, don't write the word "guilty" on your torts exam. Save it for criminal law. Use "liable."



Yes, that is the word I was looking for before I had any caffeine and was obviously lacking.

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Bildungsroman
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Re: calculus of risk - torts

Postby Bildungsroman » Sat Sep 22, 2012 12:36 pm

JCFindley wrote:
Say most people don't come to a complete stop at a four way stop out in the country. You don't one day and hit a guy on a moped you didn't see. You just did what most people do but I would say you could in fact be guilty of the breach.

Negligence per se.

lol at using BPL analysis here.

Breezin
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Re: calculus of risk - torts

Postby Breezin » Sat Sep 22, 2012 1:56 pm

You should discuss negligence per se assuming driver X failed to stop at a stop sign.

For some reason, I imagined a fact pattern where there is no stop sign, but perhaps should be -- e.g., driver X is traveling east approaching an unmarked intersection with a restricted view and collides with another car traveling north.

[is watermelon man]

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PaulKriske
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Re: calculus of risk - torts

Postby PaulKriske » Sat Sep 22, 2012 2:15 pm

Breezin wrote:For some reason, I imagined a fact pattern where there is no stop sign, but perhaps should be -- e.g., driver X is traveling east approaching an unmarked intersection with a restricted view and collides with another car traveling north.

[is watermelon man]


in this case, reasonable care for driver but also perhaps affirmative duty on city's part to ensure safe traveling on a public roadway?

sangr
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Re: calculus of risk - torts

Postby sangr » Sat Sep 22, 2012 3:04 pm

how exactly do LS exams work? what i mean by this is:

do we assume that the "scenario" they give us, is one in which all the precedents we've learned so far are applicable as well?

so do we just assume all the precedents and statutes that we would abide by in real life, would apply in the scenario? and thus we use these
rules in the scenario?

IF SO, whats the point in learning all the old cases and the "overall implications of the history of precedent".. is this more for the underlying reasoning and policy reasons that come out of this? and to just give us a better overall understanding of law?

btw thanks for the replies

Gorki
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Re: calculus of risk - torts

Postby Gorki » Sat Sep 22, 2012 3:47 pm

It is to give you a general progression of a rule. From the 1400s English rules of "You committed voluntary act, something happened that caused damage, you pay up" to the much more nuanced and less harsh rules today.

In regards to rules, this depends on professor. We studied assumption of the risk + contributory negligence, but on the final the prof said "Assume this jurisdiction has adopted a 50% or less comparative fault statute for general negligence claims." So in that way we were directed in what we talked about.

NotMyRealName09
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Re: calculus of risk - torts

Postby NotMyRealName09 » Sun Sep 23, 2012 3:18 am

Reasonability is always a question for the fact finder. That's why procedural history is important - who is determining the facts in this case? If its the judge, then you have to segregate the opinion into discrete parts - in one part, the judge lays out the standard (Rule), in the other part, the judge makes their finding of fact, i.e., whether certain conduct was "reasonable." Then in the last part, they take the facts (ex: conduct was reasonable) and apply them to the Rule and get the conclusion.

So, if confronted by this on an exam, you argue both sides. "If the fact finder found X, then Y. blah blah blah. But if the fact finder found A, then B, blah blah blah."

"what if what MOST people do itself is not a reasonable standard of care?"

This is where I suspect you're going wrong. Don't question the fact finder in a case you're reading - accept the facts, because a judge has to accept the findings of fact without question (even if the Judge is serving as the fact finder in a bench trial). In the case you describe, the fact finder found that certain behaviour is reasonable, so it is.

The traditional law school exam is a practice in pretending you are a judge sitting in a bench trial.

On an exam, where no factual conclusions are given (just facts given), argue both sides as discussed above. Assume a fact finder could find either way, then discuss the consequences of both conclusions.




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