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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


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I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Monday, March 15, 2010

6 – Negligence – Breach of Duty (Learned Hand Test)

6 – Negligence – Breach of Duty (Learned Hand Test)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

In the last Torts session, we looked at an introduction to breach of duty where we mentioned all of the tests. Now we look more closely to the Learned Hand Test.

The Learned Hand Test

There is some discussion in the academic community regarding which test should be used first. It really doesn’t make any difference, though usually one can quickly talk about negligence per se and res ipsa loquitur, thus leaving more quality time with the Learned Hand Test. Some argue that the Learned Hand Test is almost always worth more credit on an essay, so it makes more sense to do that first in case you get pressed for time. I don’t think it makes any difference, personally. I tell students to become familiar with all of the tests and then just choose the order in which you proceed on an exam and don’t waste time worrying about it.

The most important thing is not which to do first, but that the student discuss all of the tests, unless of course, the facts do not reasonably support one of them. For instance, if there is no statute, then there is no need to discuss negligence per se.

It is always best to discuss the Learned Hand Test.

This formula lists three factors:
     1. Probability of harm (or likelihood of injury) and = P
     2. Gravity of harm (or seriousness of injury) as weighed against = L (loss or liability)
     3. Burden on defendant (or injury sacrificed) to take adequate precautions = B

Therefore, if B < P x L, then you have unreasonable behavior. If you have unreasonable behavior, then there is a breach of duty.

Here is how the formula works. We all know that manufacturers are capable of producing passenger cars that are capable of attaining speeds in excess of 200 miles per hour. So what happens if Plaintiff is injured while driving such a car at 200 miles per hour? Has the manufacturer breached a duty of care in this case? Let’s look at the test.
     1. What is the probability of harm? As a general rule, high speed accidents are more prevalent than low speed accidents, so the probability of harm is high.
     2. What is the gravity of harm? As a general rule, damages and injuries from high speed accidents are more severe than damages and injuries from lower speed accidents, so the gravity is high.
     3. What would be the burden on car manufacturer to make cars incapable of high speeds? The burden would likely be fairly low since weight could be added and governors could be utilized, so the burden on the manufacturer would be low.
So, all in all, Plaintiff would prevail because the burden on the defendant manufacturer would be less than the likelihood of injury multiplied by the seriousness of the injury.

If we add social utility to the formula, breach of duty requires finding that likelihood and severity of injury outweigh the burden on defendant to take adequate precautions and the utility of the defendant’s conduct. That is the Hand plus test or the Hand plus social utility test.

Manufacturers build cars that go fast because the public wants fast cars. That’s the social utility factor. But what would happen if the driver was rushing to be at the bedside of a dying child? This social utility may carry the day, but maybe not.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

2 comments:

  1. This has been very useful information. I wish I found your blog earlier in the semester. Thank you for the post. Quick question, does the Learned Hand Test apply to all Negligence Analysis like negligence of employee/child, independent negligence or direct liability of employer, and negligent infliction of emotional distress, etc?

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  2. Profesor Holden, I actually attend Concord and this is the summary/explanation I have been looking for. Thank you so much.

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