"Risk Analysis in the Courts: A Roadmap for Risk Analysts"
Menu of 1998 Full-text Online Casebook
(Poster 5)
ELEMENTS OF A CIVIL LAWSUIT
First Element of Liability:
Proof of Wrongful Act Using Risk Assessment
Factual situations and legal disputes involving risk analysis:
PRODUCT DESIGN: How dangerous is a product?
PRODUCT WARNINGS: What is the threshold for warning of the danger? Has the risk been communicated adequately?
NEGLIGENCE: At what point does acceptance of a risk become negligent?
United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).
Judge Hand considered plaintiffs’ claim that a tow boat was negligent in conducting towing operations during a storm when the simple precaution of listening to the radio would have alerted the tow boat to the impending danger. In deciding the tow boat was negligent, Hand developed the well known AHand formula@ which is also, perhaps coincidentally, commonly used in risk analysis. A party has acted Aunreasonably@ [the legal standard for negligent conduct] when the burden taken for precaution (B) is less than the probability that a particular harm will materialize (P) times that harm’s magnitude (L). In other words, if B<PL, the party is negligent. Despite the considerable refinements and attention that the Hand formula has enjoyed, see, e.g., Robert Cooter & Thomas Ulen, Law and Economics 326-476 (1988); William M. Landes & Richard A. Posner, the Economic Structure of Tort Law 85-88 (1987), it remains predominantly a qualitative tool in most tort cases because of numerous difficulties encountered in quantifying its terms. See, e.g., McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1557 (7th Cir. 1987). [Wagner]
NUISANCE: Can risk be a nuisance?
STRICT LIABILITY: Under what circumstances can risk creation result in liability without fault (that is, where the ex ante risk is low)?
The Restatement (Second) of Torts, '' 519-520, imposes liability, despite the exercise of the utmost care, for injuries resulting from Aabnormally dangerous@ activities. AAbnormally dangerous@ is defined largely in terms of risk, though in somewhat imprecise terms: strict liability is appropriate where the activity presents a Ahigh degree of risk of some harm@ and the resulting harm is likely to be Agreat@. The court is also encouraged to consider whether the activity is useful in relationship to its harmfulness and whether it is properly located. Both of these considerations parallel regulatory uses of risk, in cost-risk-benefit analysis and site-specific risk assessment, respectively.
Copyright © 2000.
John Applegate and Wendy Wagner.
Last modified September 27, 2000