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University of Pennsylvania School of Law
Austin, Regina


Professor Austin

Fall 2014

I. Three Categories of Torts

Fault or Negligence: generally based on a failure to use due care or to act as a reasonable person would act
Strict Liability or Liability without Fault: generally requires causation and a social purpose to compensate or deter
Intentional Torts: generally an intent to harm or offend is required

The Negligence Principle

II. Moral Argument for Negligence: Holmes

“Leave the loss where it falls”
To held individuals liable where they acted reasonably would offend our sense of justice
State interference is an evil where it cannot be shown to be a good

III. Economic Argument for Negligence: Posner

Competing considerations: preventing and compensating accidents
Society should not waste resources to prevent accidents that reasonable care won’t prevent
First-person insurance more efficient and, therefore, preferable to third-person insurance

To insure against third parties is costly and requires insuring against reasonable risk we don’t want to incur costs for every possible accident

IV. When Should Unintended Injury Result in Liability?

No liability where individual acts with due care
Hammontree: court does not impose liability, despite defendant causing accident, because he took necessary steps to control condition

What about the foresight and possibility of seizure?
Moral Argument for no liability: he has a right to drive and be a productive individual without worry over slight chance of accident

Counter: victims have right to be compensated where they were responsible for an accident

Economic Argument for no liability: third party insurance would have been overly costly in light of reasonable steps already taken

Counter: insurance premiums may be less burdensome on driver than costs of injuries are on victim – insurance companies better able to defray cost

V. Standard of Due Care:

A reasonably prudent person responds to foreseeable, unreasonable risks
4 Sources:

Flexible Standards (BPL Tests)
Social or Community Expectations and Norms

Brown v. Kendall: defendant inadvertently hits plaintiff while separating fighting dogs

Harm-Based View: where a harm is unintentional and committed during a lawful act, all that is required is reasonable care, which if taken absolves actor of liability
Where a harm is unintended, law requires taking reasonable precautions
If reasonable precautions taken and injury still occurs, actor is not liable
Actors are not liable for inevitable accidents – accidents that would occur even where due care taken

Subsidize marginal activity – accidents occurring despite due care

Policy Justifications:

Economic efficiency: strict liability would unnecessarily consume resources – we don’t want to devote resources to harms that are unavoidable
Risk-taking: encourage/subsidize risk-taking so as not to chill productivity in order to avoid liability
Laissez Faire: strict liability would provide further state interference and restrict market autonomy

Private Enterprise
Liberty of Free Market

Self-Reliance: standard of due care limits responsibility for others, whereas strict liability broadens the scope of responsibility (liable for more people)


Reasonable risk are those which are foreseeable and which it is not overly burdensome to prevent
Adams v. Bullock: child swings wire which comes into contact with trolley wire and sustains injuries

No negligence because

No special danger warned of need for precaution – no foreseeability
Inability to take precaution able to prevent injury (could not insulate, guards are of little value, etc.) – we require only precautions that a reasonable person is expected to take

Insolvent businesses can’t use inability to pay as excuse for not having taken precautions – maintain high market standards

Policy Arguments:

Pro: wasteful to require insurance against every possible danger, protect business that provides service to public, inefficient to require impossible precautions, encourage new enterprise by limiting liability
Con: business better able to defray cost of insurance/compensation, set precedent for new businesses so as to prevent more injuries, actor should not benefit from losses of experimental victims

7. BPL Formula: used to determine whether liability is a social good or not, whether prevention pays for the precaution

Three elements of BPL:

B = Burden of Adequate Precautions
P = Probability of Accident
L = Loss, Gravity of Resulting Injury

B>PL = No liability
B<PL = Liability
Arguments for and against BPL:


Provides framework for liability determination
Flexibility: even without precise data, competing social values can be adequately balanced
Economic: it is not economically sound to pay a high cost of prevention when cost of injury is not equally high


Incommensurability: variables are not comparable – no common metric
High Information and Error Costs: difficulty in gather data
Subjectivity in guise of precision: decision-makers falls back on intuitions

Bottom Line: identify interests at stake and balance them according to prevailing social values
Carroll Towing: negligent towing company caused release of barge, bargee’s absence may have contributed to

High P: high traffic in harbor during wartime
High L: boat sinking, sunk cargo, damage to surrounding boats
Low B: no excuse for absence, burden of being of boat not great (possibility of having replacement)

9. Alternatives to BPL Formula:

a) Community Expectations: reasonably prudent person conforms to the prevailing expectations in the community about consideration for safety of others

“Social understandings and norms are a better guide to what is best in societal norms because they are ‘rules of the game’”

May be no prevailing norms in the community that bear directly on the point
Loss of minority points of view
Competing norms may be at odds with one another

BPL may include societal expectations

b) Foreseeable Danger: BPL approach minus the burden variable; probability and gravity of harm only

Burden not judged in comparison with other factors
Where gravity and probability of harm are high, we should require most effective means of preventing it

Efficacy of Burden is what counts, not economic soundness

VI. The Reasonable Person

Reasonable person is determined by objective factors: what would objective person do under similar circumstances in comparison with what subjective person did.

The standard represents the general level of moral judgment of the community, what it feels ought ordinarily to be done and not necessarily what is ordinarily done.
Capacity typically is not part of determination, instead only the defendant’s conduct as judged by external factors
Law presumes or requires man to possess ordinary capacity to avoid harming his neighbors

Standard: foresight of which reasonably prudent person is capable
Even where one’s own capacity may be less than, he or she still required to conform their behavior to higher standards set
Laws are s


Court further emphasized that juries, particularly in light of the nature of the business at issue, are appropriately situated to determine what standard of care should be required
Because airline did not demonstrate that it would prohibitively expensive to prevent luggage hurting passenger or that it would interfere with convenience, a jury could have decided for plaintiff (no summary judgment)

D. Role of Custom

In all cases, except malpractice, custom does not define the standard of care
Customs and industry standards, though, do inform the reasonableness determination

Demonstrates judgment, experience, and conduct of many – reliability in numbers
Demonstrates the feasibility or lack thereof of a certain precaution
Demonstrates opportunity for awareness of precautions

Trimarco v. Klein (plaintiff was cut when he fell through glass door to shower enclosure in defendant’s apartment building, glass was not temperate as was customary by time of accident; D on notice of danger = foreseeability; Custom = lower B
Custom need not be universal, only well-defined
Industry standards still may be unreasonable despite being used through industry

Custom is not a satisfactory condition for reasonableness

May be outdated
Self-interest of industry may make custom too low a standard

It is up to the jury to decide whether the evidence establishes a general custom or practice

If they don’t find a general custom, actions are judged as to reasonable personal standard
If a general custom is noted, that information informs the decision as to reasonableness

A defendant who can prove adherence to custom may eliminate a jury question:

Court may be wary of alternative and require plaintiff to demonstrate its feasibility
Non-use of the alternative raises question of awareness by defendant
Custom involving large fixed costs may warn of social impact which determines it is unreasonable

E. Role of Statute

There are different outcomes for different types of statutes

If a statute prescribes additional safeguards then previously recognized and specifically states a standard of care, then breach is negligence per se
If a statute only codifies a common-law rule and does not state in specific language a new standard, then courts may construe breach as not negligence per se

Jurisdictional Attempts at balance between fixed rule and flexible standards:

Negligence Per Se:

Statutory Construction: if courts can reasons that perhaps legislature did not intend statute to apply, then they may construe the breach as outside its scope; or if statute codifies common-law rule courts may reasons that it did not intend to wipe out exceptions and limitation carved out by court
Statutory Purpose Rule: P must be within the class of persons the statute was designed to protect and injuries must be within class statute designed to prevent.