LetsGoLAW wrote:Oh, and someone tell me if my negligence set up is acceptable:
A v. B
1) Define negligence + elements
2) Duty owed: Cardozo/Andrews or landowner duty
3) Standard of care: Reasonable person or higher standard of care
4) Breach: Reasonable person test, BPL (trying to avoid this), res ipsa, negligence per se
5) Causation: Actual - But for/substantial factor, Proximate causation - Cardozo/Andrews/superseding events
6) Harm: Did not do damages in my class. Just need to list injury.
*Defenses to bar recovery/reduce damages: Contributory negligence defenses, comparative negligence defenses
Having trouble figuring out where to put defenses. Is it better to argue at the end or within breach?
Just wanted to say thanks (to you and the people who have been helping you) since its helped clear up negligence to me. My question/concern is being able to tell apart the duty owed and the breach of duty. Like for negligence per se, I have that as creating a duty. Or is it just both? Since it creates the duty and would tell when its breached? Also, maybe (well, probably hah) its just my professor being confusing, but does BPL only deal with breach of duty, or does it also deal with creating a duty (that is, if the burden is low enough, they should have been protecting against the potential liability)?
Sorry if this doesn't really make any sense, torts is DEFINITELY my weakest subject (and my professor is heavily concerned with policy in addition to BLL; really wants like a 50/50 mix).
Negligence per se does not create a duty. The duty must already exist. For example, in the classic car accident tort hypo, the duty is not created when a person speeds or drives the wrong way. Driving is a risk creation activity. In all risk creation activities (barring a public policy exception - utilities, children and alcohol, intergenerational healthcare, etc.) we owe a duty to avoid unreasonable risks of injuries to third parties. The statutory violation autos the breach. Thus, if the P can show that the D violated a relevant safety statute (i.e. designed to protect this class of people, from this type of harm) then the D auto breaches their duty (unless they can argue an exception - emergency, safer to break law, incapacity, etc.).
You cannot breach a 'relevant' safety statute without already having a duty. The safety statute must be designed to protect a particular class of people from a particular type of harm. Thus, the duty is inherent in the statute.
Sounds like you may be having trouble grasping duty and when it arises. My advice to all, borrow an E&E from a friend or the library and read the chapter of duties. The E&E seperates duty into three categories: Risk creation, culpable omissions, and exceptions. It also, does a great job of laying policy considerations for determining duty: morality, foreseeability (key), burden, alternatives, increased safety, chilling effects, and administrability. My prof. starts all exams by giving us a wacky scenario where almost certainly no duty should exist (e.g. suing the mexican drug cartel) and we have to argue in favor of their being a duty, or point out the obvious reasons there shouldn't be a duty. Then move on, arguendo, and assess the other components of the hypo. This is common to a lot of professor from what I've seen in practice exams.
BPL - again, BPL does not create a duty. BPL is a method of determining breach. Its a simple concept.
Burden > P*L = breach
Burden < P*L = no breach
If the steps necessary to prevent harm would be more costly than the cost of the actual harm itself, than a person would not be acting unreasonably to not take those steps. The key is efficiency. There would be no sense in building a train over-pass that would cost a city 20 million dollars over 10 years if it would only prevent 5 million dollars in train related damages over that same time period. No unreasonable behavior, no breach.
However, you don't have to think about BPL in strict calculus. Think about the world in terms of BPL. When in doubt on your exams think BPL. What was the parties burden? How likely was an accident/harm (foreseeability)? What was the magnitude of the potential damage? Now, was the party acting reasonably?
Be careful with BPL though. Use creative thinking when accessing a parties burden. A tortfeasor doesn't have to spend 10k filling in an unreasonably dangerous backyard pond when he could spend 1k to put a fence and signage.
Max the check marks out. Hope this helps. Good luck!