B. Supplemental Chapters | Lydia Lichlyter | September 17, 2015

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B. Supplemental Chapters

Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter Show/Hide
  1. 1 Show/Hide More Custom and Insurance
    Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter

    This section looks at further efforts by the law to flesh out the parameters of reasonable behavior. Under certain circumstances, particularly involving fact patterns that recur across entire industries, custom may be invoked to establish evidence of reasonable care. How should custom be worked into a case? Should its presence be definitive?

    We also pause here to consider a factor that makes negligence cases so much more numerous than intentional ones: insurance. Insurance policies don’t cover intentional torts, both because the commission of an intentional tort is thought to be within the control of the policyholder and thus contrary to the risk-spreading purposes of insurance – imagine obtaining “violence insurance” before going out to punch someone – and because it’s seen as unfair to let someone charge his or her violence to another party. Thus such insurance policies are also thought to be void as against public policy. The nature and availability of insurance infuses nearly every tort case. Here we examine ways in which a plaintiff might be tempted to make an otherwise-obvious claim for intentional tort sound in negligence, in order to make available the defendant’s insurance coverage – and how a defendant and his or her insurance company can react, given that the insurance company has a duty to keep its policyholder out of legal peril. Is a defendant’s insurance company working to construe his or her actions as intentional in an ambiguous situation simply upholding public policy, or betraying a policyholder at precisely the time of need? To what extent should courts be on guard against collusion by plaintiffs and defendants to see harm covered by insurance rather than borne by either of them personally?

    1. 1.1 Show/Hide More Trimarco v. Klein--"The Shatterproof Shower Glass Case"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter

      Plaintiff was a tenant of defendant's apartment. While the plaintiff opened a glass sliding door to exit the bathtub in his apartment unit, the door shattered, inflicting severe lacerations upon the plaintiff. There was a range of evidence which showed that regular glass was a recognized hazard in the bathroom, and that shatterproof glass was becoming the industry standard for bathtub enclosures.

      Should evidence of industry custom factor into a negligence analysis? If so, in what capacity and to what extent?

    2. 1.2 Show/Hide More T.J. Hooper v. Northern Barge Corp.--"The Radio-less Industry Standard Case"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter

      A company operates two tugs, each towing three barges full of coal for delivery. En route, the tugs encountered a storm which sank the last barge of each tug's tow. The evidence suggests that there was a weather report broadcast over radio which would have warned the tug-captains of the weather and persuaded them to put into harbor. However, the tug-captains only had private radio receiving sets which were broken and their employer did not furnish them with sets for work. At the time of the incident, there was no industry standard or custom of furnishing all boats with radio receivers.

      If use of a new technology is not standard across an industry, should courts nevertheless require the use in an industry-member's duty of reasonable care? More generally, should the non-existence of industry standards limit what courts recognize as reasonable care?

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September 17, 2015

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Lydia Lichlyter

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Harvard Law School

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