As opined by the jurist Learned Hand and his famous ‘Hand
Formula’ on negligence, concerning any reasonable burden of legal duty imposed
by society on a party to act reasonably or with precautions to prevent any negligent
loss/injury that may result from the activity, with that Burden (B) being
proportional to the product of the Probability (P) of the loss and the value of
the Loss (L),* I ask: Would this not essentially amount to no
burden being imposed if the probability of the loss was one-hundred percent
(100%)? Because, at such a point, the
proportionality would default to the burden being essentially equal to the
loss.
That is, if the venture was nearly certain not to succeed
without some amount of negligent loss/injury but was pursued despite any
unfavorable risk-to-utility type of analysis, nevertheless, for whatever the
reason. And, as predicted, the
undertaking did fail with some amount of loss/injury due to negligence of the acting
party. Why would that party or anyone
else have any burden to prevent the predicted loss? Rather, it would seem to make more sense to
merely pay the loss when it happens, for instance. Again, as the burden imposed then would equate
to the loss, anyhow. Otherwise, as the
formula would seem to suggest, the cost of the burden could well outpace the
value of any loss whenever such a loss might occur. Of a sorts, maybe the matter can be likened to
purchasing insurance. Looking at the
matter from a cost-to-benefit viewpoint, rather than pay premiums/costs over
time, just pay when any actual loss transpires.
For the sake of the argument, I am ignoring any defenses such as
assumption of the risk and the like.
So in actuality, does not the Hand Formula suggest no burden
of duty in either extreme of probability of loss/injury from negligence (0% or
100%)? Is the logic herein flawed or is
it a flaw in the Hand Formula? Does the
proportionality of the Formula breakdown at its upper limit as is argued in
this blog entry? Or, did Judge Hand
merely intend his formula to be as a reasonable guide and not a mathematical
theory? Let me know your thoughts,
should you be so motivated.
AVT (October, 2015)
:)
* The ‘Hand Formula’: B < P
· L. See: United States v. Carroll Towing, 159
F.2d 169 (C.C.A.2, 1947).
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