Negligence is the fall back position.
Except certain torts
I. An objective standard
a. You don’t look at what they in fact knew or what they are capable of
b. Case: vauhgan v menlove
i. Built hay stack
ii. Was warned but didn’t care about fire risk
c. The rule
i. Did the person acused of negligence do what was reasonable in the cercumstances. If she did then not liable. If not then she would be negligent if it caused harm
II. Exceptions
a. Mental illness
i. What if the defendant knot only didn’t know what was expected of her in the circumstances, but couldn’t know
ii. Case
1. Breunig
a. woman lost control of car due to delusions
b. is she held to reasonable person standard
iii. rule
1. a person who cant know what is expected of them due to mental disorder or who cant do what she knows is expected is not liable for negligence (two parts)
a. similarly a person who cannot form the proper intent is not liable for an intentional tort
2. But if in spite of her mental illness she is capable f knowing what is expected of her and of complying with it then she can be liable. She is held to the reasonable person standard
a. similarly can be held liable for intentional tort
3. there is however a qualification in the case of negligence even if the defendant was capable of understanding her duty and complying with it at the time of the accident she may still be liable for negligence if there was warning of the possibility of this happening (Breunig and Hammontree)
iv. Two footnotes
1. The older rule: the mentally ill are liable for their torts
2. Some courts distinguish between the mentally ill as defendants and the mentally ill as plaintiffs
a. reading: Fleming james
i. according to james, there should be a double standard
b. Children
i. Case: Roberts v ring – child run out in front of old mans car
1. Children cannot use their age as defendents
ii. Rule:
1. the courts have held children to a child of similar age, ability and experience
iii. rationales
1. children need to develop
2. children are easily identifiable
iv. child as defendant
1. same standard as above
v. children in adult activities
1. case: Daniel v Evans – motorcycle
2. rule: most courts hold the children to a higher standard whether as plaintiffs or as defendants
vi. The real problem with children in adult activities
1. What is an adult activity? Dangerous, license, one that adults partake in
vii. What to remember
1. the difference is the standard
2. higher standard when adult activity
3. no one is clear about what an adult activity is
c. Physical disabilities
i. What about those people. Are they held o the standard of those people, mixed
ii. Case: Fletcher v city – blind man fell in hole
iii. Rule: in general someone with a physical disability will be held to the standard of a reasonable pers
L – Mans life
2. P – Better chance of not loosing his life
3. B – Loss of the child’s life (Large)
ii. Osborne – boy on bike and man opening door à man is negligent
1. L – Injury to another
2. P – small
3. B – small
iii. Cooley – telephone sound à tele company not negligent
1. L – injury to woman
2. P – very low
3. B – very high
d. Probable loss and expected cost
i. Example: own 100 cattle each cost $200. Every year there is a 10% chance that one will die of a preventable disease that would cost $100 each year to prevent. Would not want to buy this because it is not worth it.
ii. How much should you spend?
1. amount spent should be less than the probability times the amount of loss
2. in this case it would be $20 a year
iii. Social cost and balancing test
1. Negligence law is supposed to reduce the cost of accidents
iv. Negligence law is designed only to prevent inefficient accidents
V. Marginal Benefit and Marginal Gain
a. We are not interested in the total cost only the cost of the next item
b. We only care about the marginal cost of prevention
i. Example: PL = $15; Marginal cost of device = $4
