Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
foreseeable risk of harm to others from the proposed conduct.
Patrick J. Kelley & Laurel A. Wendt, What Judges Tell Juries About Negligence: A Review of
Pattern Jury Instructions, 77 CHI.-KENT L. REV. 587, 619-20 (2002).
Kelley and Wendt believe their findings indicate that cost-benefit analysis plays only a
small role, if any, in both jury instructions or actual jury deliberations about negligence; instead,
they contend, the law asks jurors to determine whether a defendant’s actions falls outside the
bounds of a reasonably careful or prudent person. Are they right in thinking that the state jury
instructions they found rule out the cost-benefit approach? Wouldn’t a reasonably prudent person
engage in a cost-benefit analysis before acting? Do reasonably prudent people do some kind of
cost-benefit analysis, even if by the seat of their pants? Should they? Is there any alternative?
One possible alternative to the cost-benefit approach to reasonable care arises in those
settings where, in some jurisdictions, certain actors are said to be held to a standard of care higher
than reasonable care. Consider the next case, Andrews v. United Airlines.
Andrews v. United Airlines, 24 F.3d 39 (9th Cir. 1994)
KOZINSKI, J.
We are called upon to determine whether United Airlines took adequate measures to deal
with that elementary notion of physics—what goes up, must come down. For, while the skies are
friendly enough, the ground can be a mighty dangerous place when heavy objects tumble from
overhead compartments.
During the mad scramble that usually follows hard upon an airplane’s arrival at the gate, a
briefcase fell from an overhead compartment and seriously injured plaintiff Billie Jean Andrews.
No one knows who opened the compartment or what caused the briefcase to fall, and Andrews
doesn’t claim that airline personnel were involved in stowing the object or opening the bin. Her
claim, rather, is that the injury was foreseeable and the airline didn’t prevent it.
I
The district court dismissed the suit on summary judgment, and we review de novo. . . .
II
The parties agree that United Airlines is a common carrier and as such “owe[s] both a
duty of utmost care and the vigilance of a very cautious person towards [its] passengers.” Acosta
v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 19, (1970). Though United is “responsible for any,
even the slightest, negligence and [is] required to do all that human care, vigilance, and foresight
reasonably can do under all the circumstances,” it is not an insurer of its passengers’ safety.
“[T]he degree of care and diligence which [it] must exercise is only such as can reasonably be
exercised consistent with the character and mode of conveyance adopted and the practical
operation of [its] business. . . .”
To show that United did not satisfy its duty of care toward its passengers, Ms. Andrews
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