VI. Negligence: The Standard of Reasonable Care | Scott Soloway | March 09, 2018


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VI. Negligence: The Standard of Reasonable Care

Original Creator: Jonathan Zittrain Current Version: Scott Soloway Show/Hide

We now shift gears away from intentional wrongdoing and its defenses and toward what many consider to be the heart of tort law, both in volume of cases (and damages) and in conceptual challenge: negligence. Under what circumstances should someone’s actions be deemed careless enough to warrant damages, while falling short of the level of riskiness (or even certainty of harm) associated with intentional tort? At the core of negligence is a deceptively simple-sounding standard: act reasonably.

Negligence law naturally draws in a group of defendants rarely seen in intentional tort: corporations. Can a standard of reasonableness be as intuitively grasped by a jury for judgment of a firm’s behavior as for a person’s actions? How much of the application of that standard should be left to a jury, and how much to a judge, who can decide whether a fact pattern – even one most sympathetic to a plaintiff – merits a jury’s look at all?

The cases in these sections look at how the law conceives of a negligence standard by examining cases in which judges had to decide whether a jury should hear the case – or, if they heard it, whether they applied the standard correctly. Included is a case famed among legal scholars but typically unknown to senior practitioners: U.S. v. Carroll Towing. Carroll Towing introduces a formula by which one judge thought negligence might be further fleshed out – “unreasonable” behavior unpacked. How helpful is Judge Hand’s formula of b<pl? When, if ever, should a jury be exposed to it? Are there elements of unreasonable behavior not always captured by those three variables?


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    1. 1.1 Show/Hide More Topps v. Ferraro-- "The Punch at the Party"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      How should courts weigh wrongful acts in determining intent?
    2. 1.2 Show/Hide More Class Ten-- January 17th, 2018: Social Security & Entitlement Reform
      Original Creator: Howell E. Jackson Current Version: Howell E. Jackson
      With today's class, we will turn our attention to entitlement reform and related topics. We will begin our discussion with two Supreme Court cases involving Social Security. The first upholding the program's constitutionality and the second dealing with Congress's authority to make benefit changes (and whether taxpayers acquire a property interest in their future Social Security benefits). We will then discuss briefly Chapter 13 of Fiscal Challenges, in which John Harrison explores New Property, Entrenchment and the Fiscal Constitution. Next, please review the CFRB's Social Security “Reformer” website and devise your own solution to problems facing Social Security: As background to this exercise, you should consult the CBO's December 2016 report on Options for Reducing the Deficit, in the relevant pages of chapter two, which deals with mandatory spending programs. Prior to class, please come up with a solution to the Social Security exercise and be prepared to explain and defend your solution in class. As time permits, we may touch upon health care reform. In that regard, a briefing paper on Bending the Cost Curve is attached. This paper focuses on the role of cost estimates in the passage of the ACA and related matters.
    1. 2.1 Show/Hide More Chicago, B. & Q. R. Co. v. Krayenbuhl--"The Foot-Severing Turntable"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      When ruling on negligence, should courts consider factors unrelated to the potential harm of an activity (such as the activity’s usefulness to society)?
    2. 2.2 Show/Hide More Greene v. Sibley--"The Kneeling Mechanic"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should we consider actors to be negligent if they fail to take precautions that require little effort, and would have mitigated the risk of harm?
    3. 2.3 Show/Hide More United States v. Carroll Towing Co., Inc.--"The Learned Hand Formula Case"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should we attempt to reduce the standard of reasonable care into forms that seem more empirical—like an algebraic formula?
    4. 2.4 Show/Hide More Adams v. Bullock--"The Trolley Wire Under the Bridge"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should reasonable care protect against all conceivable harm, no matter how unlikely?
    1. 3.1 Show/Hide More Pokora v. Wabash Railway Co.--"The Driver Who Failed to Step Out and Look Around"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      Should judges impose strict rules defining reasonable conduct in dangerous or unusual situations or should they defer to the jury?
    2. 3.2 Show/Hide More Andrews v. United Airlines, Inc.--"The Baggage May Have Shifted During Flight Case"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      When should judges determine reasonable care at summary judgment and when should they defer to juries?
    3. 3.3 Show/Hide More Akins v. Glen Falls--"The Blinding Foul Ball"
      Original Creator: Jonathan Zittrain Current Version: Scott Soloway
      What level of guidance may a judge give the jury with respect to reasonable care?

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March 09, 2018

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Scott Soloway

business lawyer practicing law


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