torts 

 

PART B. NEGLIGENCE

Chapter 3

THE NEGLIGENCE CONCEPT AND THE REASONABLE PERSON

STANDARD OF CARE

                   

§ 3.01  Overview [49-50]

 

To recover for negligence, the plaintiff must establish each of the following elements by a preponderance of the evidence (that is, by more than 50%) to establish a prima facie case: duty, standard of care, breach of duty, cause-in-fact, proximate cause (scope of liability) and damages. 

 

§ 3.02  Historical Development [50-51]

 

Pre-negligence tort liability was based on a rather rigid writ system. The two writs most relevant to tort liability were “trespass” and “trespass on the case” (or “case”). The writ of trespass, for which liability was strict, came to cover direct and immediate harms. Plaintiffs who suffered indirect harms were required to prove some fault on the part of the defendant to recover under the writ of case. Beginning in the mid-1800s, American courts began to reject the writ system, replacing it with an approach focusing on specific torts such as negligence. Negligence has become the predominant basis for torts liability.

 

§ 3.03  Standard of Care [51]

 

The standard of care is the level of conduct demanded of a person so as to avoid liability for negligence. Failure to meet this standard is characterized as breach of duty.

 

§ 3.04  The Reasonable Person [51-64]

 

The most common standard of care in negligence law commands the defendant to act as would a reasonably prudent person in the same or similar circumstances. If the defendant does so, she is protected from negligence liability. Failure to do so constitutes unreasonable conduct and, hence, breach of duty. The reasonable person standard is an objective standard that compares the defendant's conduct to the external standard of a reasonable person. Thus, the law imposes on each person of society an obligation to conform to the objective reasonableness standard. There is much debate about the fairness of this objective standard.

 

Debate centers around the extent to which there is flexibility in this objective standard. 

 

            [A] The Characteristics of the Reasonable Person

 

The reasonable person possesses those attributes that a jury decides represent the community norms. The reasonable person is no real person nor any member of the jury. While the reasonable person's qualities are those the jury determines are the expected attributes of those in the community, the reasonable person cannot be expected to be infallible. Further, the objective standard assumes that the reasonable person possesses the general experience of the community. It is the knowledge and understanding generally held by members of the community that is relevant.

 

            [B] Flexibility in the Reasonable Person Standard

 

Using the standard of the reasonable person under the same or similar circumstances, flexibility can be added through the “circumstances” part of the analysis. Ultimately, in most jurisdictions, a jury will be permitted to consider the physical conditions of the defendant and that the defendant was acting under emergency conditions. Most other characteristics, such as mental conditions or inexperience, are not taken into account. 

 

                        [1] Emergency

 

Nearly all states permit the jury to consider in its determination of the defendant's reasonableness evidence that the defendant was acting under emergency conditions not of the defendant's making.  The fact that the defendant was acting in an emergency does not necessarily exculpate the defendant from liability.

 

                        [2] Physical Conditions

 

As a general principle, because they are easily measured and perceived as tangible, the defendant's own physical qualities may be taken into account by the jury in the breach determination. Just because the party's physical condition is taken into account does not mean that she will be exonerated, however, as sometimes the physical condition of the party requires the use of greater care.

 

                        [3] Mental Conditions

 

Most courts treat mental conditions as wholly irrelevant for purposes of negligence liability. The insane are held to a standard of sanity and people with cognitive disabilities are held to a level of normal intelligence.

 

                        [4] The Effect of Superior Abilities, Skill or Knowledge

 

The standard of care does not change for those with superior skills although the defendant's special skills may affect the jury's breach determination.  The reasonable person standard sets the minimum of community expectations, and those able to provide more are expected to do so.

 

            [C] Gender Bias in the Reasonable Person Standard

 

Most courts have replaced the “reasonable man” with a “reasonable person,” believing that this word change manages to remedy the male bias of the standard and the exclusion of women from the standard. Many feminist scholars disagree that a simple word change brings about an end to gender bias in the standard.  Ultimately, the debate about the proper standard will continue, with some advocating a gender-inclusive standard and others arguing for a standard that focuses on the unique experiences of women.

 

§ 3.05 The Child Standard of Care [64-66]

 

Most jurisdictions hold children to a variation of a standard that compares their conduct to other reasonable children of the same age, experience, and intelligence under like circumstances. While it is objective in that it compares the child to an external standard of other children, it is far more subjective than the adult reasonable person standard as it allows the jury to consider the child's specific qualities such as experience and intelligence. 

 

            [A] Adult Activities

 

Many jurisdictions have concluded that children should not be entitled to special treatment when they are engaged in adult or inherently dangerous activities, such as driving a car.

 

§ 3.06  Degrees of Negligence [66]

 

The notion of “highest” degrees of care makes little sense. Such language cannot be justified in light of a standard of care requiring the defendant to act as a reasonable person under the same or similar circumstances. A defendant is negligent because of the failure to exercise reasonable care, and the amount of due care required of a defendant will vary with the circumstances.

 

Chapter 4

THE DETERMINATION OF UNREASONABLENESS: BREACH OF DUTY, CUSTOM AND THE ROLE OF THE JURY

 

§ 4.01  Overview [67-68]

 

Breach of duty is the defendant's failure to act as a reasonable person would have under the same or similar circumstances.  More simply, breach is unreasonable conduct by the defendant. Where reasonable minds can disagree, the jury is charged with the task of deciding whether the defendant has breached a duty.

 

§ 4.02  The Risk Calculus [68-74]

 

Negligence liability is imposed where the defendant engages in unreasonable risk creation, situations where the defendant creates risks that a reasonable person would not. This determination of unreasonableness considers the risks that should have been foreseen at the time of the defendant's conduct, not through hindsight after the harm occurred. Justifications for placing legal responsibility only on those at fault include promoting freedom of activity, maximization of innovation and economic efficiency.  How is unreasonableness determined?  Many adhere to Judge Learned Hand's risk calculus [see § 17.01[B][1], infra] looking at whether the burden of avoiding the harm is less than the probability of that harm occurring multiplied by the likely seriousness of the harm if it does occur.  The Hand formula was intended to be flexible. The plaintiff and the defendant often will have different views of probability, magnitude, and burden. It is ultimately for the trier of fact to undertake the balancing of these factors in order to assess the reasonableness of the defendant's conduct.

 

            [A] Probability

 

The probability factor seeks to measure the likelihood of the harm-causing occurrence taking place. Although probability must be considered in relation to magnitude and burden, where there is a minuscule likelihood of harm it is doubtful that the defendant breached a duty.

 

            [B] Magnitude of the Loss

 

The magnitude of the loss looks at the likely harm flowing from the injury-causing event when it occurs. The proper focus is neither the most severe possible harm nor the least severe; rather, it is what a reasonable person would foresee as the likely harm.

 

            [C] Burden of Avoidance

 

An analysis of burden requires consideration of such things as the costs associated with avoiding the harm, alternatives and their feasibility, the inconvenience to those involved and the extent to which society values the relevant activity. 

 

            [D] Value of the Hand Formula

 

While the jury is not instructed to consider the Hand formula factors, they reflect the kinds of things that a jury grapples with in determining reasonableness. In addition, the attorneys when arguing the case to the jury surely raise points, such as the ease of avoiding the harm, that fit into a Hand-type analysis. Further, the Hand factors often are expressly used by judges reviewing jury verdicts.  Judge Hand did not intend that the formula be quantifiable.  Rather, it was to serve as a rough guide in the determination of unreasonableness.

 

§ 4.03  The Role of Custom [74-76]

 

Custom typically refers to a well-defined and consistent way of performing a certain activity, often among a particular trade or industry. The plaintiff may try to assert the defendant's deviation from custom as evidence of lack of due care. Conversely, the defendant may try to avoid liability by showing compliance with custom.

 

            [A] Deviation from Custom

 

If P can persuade the jury that there is a well-established and relevant custom, the jury may consider D's deviation from custom in its determination of breach of duty. Evidence of D's deviation from custom is often powerful evidence of breach although it does not itself establish the defendant's unreasonableness.  Nor does the introduction of custom evidence change the standard of care in most negligence cases. 

 

            [B] Compliance with Custom

 

Evidence of D's compliance with custom is usually admissible as evidence of D's lack of breach. Evidence of D's compliance with customary practice does not alter the standard of care nor does it conclusively establish D's lack of unreasonableness.  A jury is free to determine that the custom itself is an unreasonable one.

 

§ 4.04  The Jury Role [76-78]

 

Where reasonable minds could disagree, the jury decides whether the defendant acted unreasonably. The notion (once favored by Justice Holmes) that courts should create standards of conduct to be used in similar cases has largely been repudiated.