Aim: How do we use the balancing test to help identify UNREASONABLE RISK?

1. Aim: How do we use the balancing test to help identify UNREASONABLE RISK? Do Now: THINK: PAIR: SHARE Discuss your answer to number 4 with your partner? How do we determine if someone acted reasonable?

2. Unreasonable Risk • To demonstrate that the defendant’s conduct failed to meet the duty of care imposed on him, the Plaintiff must show that the defendant’s conduct imposed an unreasonable risk of harm to the plaintiff.

3. Unreasonable Harm not Judged by Results • The Plaintiff must show that the D’s conduct viewed, as of the time it occurred, without the benefit of hindsight, imposed an unreasonable risk of harm.

4. Inherently Dangerous objects • This “no hindsight” principle is also illustrated by cases in which potentially dangerous objects are left lying around. • Some objects are so dangerous that it is negligent to leave them lying around without special handling. • Examples: • Shot gun verses unloading the shot gun. • .

5. Inherently Dangerous Objects • Other objects pose less of a danger, and it will not be negligent to leave them around even if it turns out that, unexpectedly, they cause harm. • Examples: • iron, baseball bat • The risk will be evaluated as it reasonably appeared before the accident

6. Examples: • 1. D, a water company, installs water mains in the street, leading to fire hydrants. Twenty five years after D does so, a hydrant in front of P’s house springs a leak caused by the expansion of freezing water, during a winter of unprecedented severity. As a result, P’s house is flooded. • ISSUE: • Did the installation of the fire hydrants pose an unreasonable risk to the defendant at the time they were installed? • Holding: • D’s conduct was not negligent because the risk of such a heavy frost was so remote as to not be the kind of risk an ordinary prudent person would guard against in doing the work.

7. Examples • 2. D1 leaves a golf club lying in the backyard of his house. D2, D1’s 11-year old son, swings the club in order to hit a stone, and in doing so strikes P in the jaw and chin. P sues both Defendants. • ISSUE with respect to D1: • Was D1 negligent by leaving an “obvious and intrinsically dangerous” object on the ground easily accessible to D2? • Holding: No, A golf club is not so “obvious and intrinsically dangerous” that by leaving it on the ground, D1 committed negligence? • What about D2? • Negligent in the way he swung the club. • What if D1 knew D2 had a history of injury people? • In some situations, it may be negligent not to anticipate the negligence of others.

8. Balancing Test • In determining whether the risk of harm from the defendant’s conduct was “UNREASONABLE,” the test is whether a “REASONABLE PERSON” would have recognized the risk and striven to avoid it. However, sometimes it is hard to determine what a reasonable person might do. Accordingly, courts have developed a “balancing test” as a rough guide to whether the defendant’s conduct was so risky as to involve an unreasonable treat of harm to others

9. Judge Learned Hand’s Equation • B < L x P = Negligence • B = Burden which the defendant would have to bear to avoid the risk • L = Gravity of the potential injury • P = Probability that harm will occur from the defendant’s conduct

10. Homework • Read U.S. v. Carroll apply B < (P X L)

11. Use the Balance Test to determine if there was unreasonable risk in the following scenarios • Case Summary: P’s barge, docked at a pier, broke away from its moorings due to D’s negligence in shifting the lines that moored it. D, however, argued that P was also negligent in not having an employee on board the bard, and that, according to the rules of admiralty, the damage should have been divided by D and P according to their degrees of negligence.

12. US v. Carroll Towing Co., 159 F2d. 169 (2d Cir. 1947) • Issue: Was the risk that the mooring lines would come undone and the danger to the barge and to other ships if they did sufficient great so that P should have supplied watchman during working hours. • B – Burden to Defendant was not less than the L – gravity of the potential injury x P – probability that harm will occur from the defendant’s conduct. • Holding: Although it was burdensome to some degree to have an employee on board at all times, there was a wartime activity going on in the harbor, and hips coming in and out all the time. • Therefore, the risk that the mooring likes would come undone, and the danger to the barge and to the other ships if they did, was sufficiently great that P should have borne the burden of supplying a watchman during work hours.