Torts- True or False

[Jumboshrimps]

I think the formula establishes negligence (meaning duty AND breach; causation and damages still need to be shown of course).

[plumbert]

It's been a long day and so I don't think I understand what you're saying. Are you talking about situations like Strauss v. Belle Realty- where there was no duty to protect all users of their electricty for injuries during a blackout? It was limited only to those in privity of the contract because otherwise the group able to sue would be too large and undefined.

There, I would say that a duty was not found for public policy reasons. I think it's related to the Hand formula, in that they're both economic reasoning but if you phrase it as "there was no duty" as opposed to "there was no breach of that duty" you set a different kind of precedent.  What do you think?

Strauss was decided on public policy grounds without regard for traditional tort principles, but it does get at contractual duty.

[batoyreh]

Just fyi, I brought this up to my professor during office hours today and he gave me a very quizzical look. He said in very plain terms that the question of duty comes first, then the Hand formula is used to evaulate a breach of that duty of due care. If you have taken precautions that are not unnecessarily expensive, then you have met your duty.

obviously question of duty is always first.  however, here you (your prof?) has used the hand formula to determine a duty.  "If you have taken precautions that are not unnecessarily expensive, then you have met your duty."  that same exact analysis is used to determine if you have, or have not, breached a duty.

the "only" time hand analysis is used for breach of duty and not the stage of duty is in the exception cases (i put only in quotation marks b/c there are a great many exceptions such as gov't agencies, public policy grounds (strauss) implied primary assumption of risk, trying to establish a duty via a statute etc...).

[surfboo]

Hand Formula is used to determine the duty of REASONABLE CARE

[Jumboshrimps]

I believe we have established that, even among law professors, there is disagreement as to how the formula is to be used. My prof confirmed this morning that it has nothing to do with duty.

[Bobo]

I was taught that there are five ways to prove breach: Common Sense, Balancing, Custom, Negligence Per Se and Res Ipsa.  We use the Hand formula to support the Balancing test.  This is a completely separate determination from duty, because if you have no duty, then there can be no breach.

[WhiteyEMSR]

I've seen the Hand formula applied in both the duty and breach elements. Typically it is used in the breach analysis to decide if the party used reasonable care. My prof used an example of when it is used in the duty analysis. It went something like this. P worked on a construction site. He was shocked by a current from a power line that ran through a truck that was touching the line. Apparently the power company has a method where it sends three "test" currents to determine if the line is down or simply being interferred with. P was shocked as a result of these test currents. The current used the hand formula to decide not to impose a duty on the power company; to do so would be too great of a burden (very expensive to change current system) compared with the probablity x loss.

[lakerat]

the way i see it...
duty of reasonable care is owed to 'everybody'
B<PL goes to establish what that reasonable care is, in effect shifting where the duty is breached at.

it gets confusing because it can be said that one has a duty not to breach his duty. both have reasonable care in their definitions and it gets circular...

[celarkobri]

the way i see it...
duty of reasonable care is owed to 'everybody'
B<PL goes to establish what that reasonable care is, in effect shifting where the duty is breached at.

it gets confusing because it can be said that one has a duty not to breach his duty. both have reasonable care in their definitions and it gets circular...

Maybe this relates to the whole Palsgraf issue of whether you owe a duty or you owe a duty TO someone. If you believe that duty is nonrelational, then you use Hand to determine breach. But if duty is relational, you use Hand to determine if there was a duty at all.

[S|]

Plasgraf has to do with proximate harm. Duty is limiting the things that are forseeable while proximate cause is determining whether those things are foreseeable or not.