Was there a breach of duty? How do we know(1) and who decides(2)?
1) By default, using the R.P.P. standard and 2) The Jury.
What is the Duty of care? the duty owed is to exercise the care that would be exercised by a RPP to avoid foreseeable harm.
Catherine is an avid runner. She enjoys running along a bike/walking path. One afternoon, Catherine was running with her headphones on, listening to Green Day. The segment of path she was on goes next to a park with several ball fields. As she was running, she noticed a group of people playing softball coming up ahead on her right in those fields. As she was watching them and running toward them, her head turned toward the action on her right. What risks, if any, are created by Catherine’s conduct?
There are 2 possibilities here, as there is no actual tort which occurs in this partial scenario:
1) nothing happens
2) something happens, involving an injury.
Beware of risks that in hindsight, appear to be foreseeable.
How do we assess the risks, and whether or not Catherine has breached any duty of care?
Piper v. Parsell, 930 A.2d 890 (Del. 2007).
3 parties in a pickup truck in Delaware (Hello, I’m in Delaware) on of the passengers reaches across to jack the wheel, and the vehicle swerves, but the driver gets the vehicle under control.
Ordinary behavior would not have the driver being negligent, as they would not ordinarily foresee anyone to reach across and grab the wheel.
However, when it has happened before and the passenger tries to do it again, there should have been some action on the part of the driver to control his passenger. The driver having laughed about the occurrence, in fact, increased the risk by positively reinforcing the behavior.
This is the type of question that should ultimately be answered by a jury. In this case, the court remands for the jury to evaluate whether or not there is negligence.
The question, in this case, is whether or not the Defendant, Mathew, has a duty to act differently in the situation where his brother’s lawn mower lights on fire. Questions raised include his duty(or lack thereof) to try to move the lawnmower out of the garage before starting after it is on fire.
The insurance company is attempting to subrogate against the brother for what they paid out in the claim after the tractor/mower lit on fire and burned down the homeowner(not the defendant’s) garage.
The court held that the garage was a place designed to start engines such as lawn mowers, cars, etc, and he was under no such duty.
The court held that he did not fill the gas tank entirely and waited 20 minutes before starting the engine, so there was no negligence there.
The court held that it was unreasonable for defendant to risk his own life to try to save mere property by pushing the burning lawnmower out of the garage.
The insurance company, in this case, makes an argument that essentially states that they would have preferred to make a wrongful death settlement than merely a property damage settlement as they did.
Side commentary on risk (enjoy it):
Ok, and now back to actual class discussion….
A vehicular accident caused collateral damage involving the knocking down of a light pole, which seriously injured a few bystander pedestrians. These pedestrians, or at least the most seriously injured one, sues the company that makes/installs the pole as well as the driver of the car as co-defendants.
The plaintiff’s argued the pole company could have done more to prevent this type of accident. The company has a truck that does nothing but to replace these poles. They had an expert that stated they could have used stronger bolts for just a few dollars.
What precautions did Def. take to address risks?
What is ‘ordinarily’ done?
What were the risks to Def. of acting to protect Plaintiff?
Is Def. the better person to task with mitigating risk?
How obvious is the risk to a potential plaintiff?
What are the costs to Def. preventing the risk from happening?
This court decides to throw all of these questions to the jury to sort out as to what is or is not reasonable?
This is pretty much a landmark torts case (maybe more so than spring guns??) about someone whose job is to be on board a barge looking over a situation, who decides to dip out for a while. Whilst he is out(imagine that).
Here’s the ‘hand formula’ from Judge Learned Hand (our fav. from Civ Pro 1?) to determine whether the defendant has breached his duty of care. There are 3 variables
B (burden on the defendant of avoiding the harm–Cost$$)
L (Loss/harm that plaintiff suffers due to defendant’s actions-damages$$)
P(Probability that the plaintiff suffers harm due to defendant’s actions-foreseeable, not in hindsight)
if B < PL then the defendant is liable for the harm.
If it would cost the defendant $30,000/year to have a bargee on board during daylight hours.
If there were a breakaway, the average loss would be $25,000.00
These breakaways typically happen once/year.
Assuming the above, the B($30,000) is not greater than $25,000×1. The defendant does not have such a burden in the assumed scenario.
If the average number of losses increases to twice per year (or even thrice every 2 years) the math changes, and the burden shifts to the defendant to hire the bargee to prevent these losses.
Here’s an example of the Learned Hand math, from pop culture.
Disclaimer- I pulled this youtube video while in class and did not actually check to see if it is what it purports. If it isn’t what I anticipated, and you view this before I have a chance to change it, I apologize!
Back to the scenario above for Catherine:
Catherine is an avid runner. She enjoys running along a bike/walking path. One afternoon, Catherine was running with her headphones on, listening to Green Day. The segment of path she was on goes next to a park with several ball fields. As she was running, she noticed a group of people playing softball coming up ahead on her right in those fields. As she was watching them and running toward them, her head turned toward the action on her right.
Now, assume that when Catherine is looking at the softball game, Susan comes into the path ahead of Catherine from the left(out of her line of vision) and Catherine crashes into Susan, causing injuries to Susan. Did Catherine breach any duty to Susan? How would you assess whether or not this breach occurred?
What would a reasonable and prudent person in Catherine’s situation do? Would they look out for their own safety, and pay closer attention to the softball game? Or would the risk of a bigger harm, such as a bike coming into the path ahead of them supersede that risk? Is it foreseeable that someone would enter the path ahead of her? If so, what is the likelihood that harm would be caused if there were a collision? Does Susan assume a similar risk when entering the path, and does she herself have a duty to look out for oncoming runners/bikers/etc before entering? Does the boulevard rule that applies to drivers also apply to runners/bikers?
Other factors to consider: What is the traffic on the bike/running path that day? Why was she looking at the softball game- simply watching or watching out for her own safety?
Maryland Attorney Jobeth Bowers is the founder of Bowers Law and a graduate of the University of Baltimore School of Law