Negligence: The Standard of Care

The Architecture of Negligence

Negligence is the most commonly litigated tort theory. Every negligence analysis requires four elements — if any one is missing, the claim fails:

| Element | Question | Who Proves It | |---------|----------|--------------| | Duty | Did defendant owe plaintiff a duty of care? | Plaintiff (question of law for judge) | | Breach | Did defendant fail to meet the standard? | Plaintiff (question of fact for jury) | | Causation | Did breach actually and proximately cause harm? | Plaintiff | | Damages | Did plaintiff suffer a cognizable injury? | Plaintiff |

This week covers Duty and the Standard of Care (how we measure whether that duty was breached).

Duty of Care

The General Rule

Every person owes a duty of reasonable care to all foreseeable plaintiffs. This is the default — you owe it to everyone you could foreseeably injure through carelessness.

The Foreseeable Plaintiff

Palsgraf v. Long Island Railroad (1928): A defendant owes a duty only to those persons who are within the foreseeable zone of danger created by the defendant's conduct.

The two competing views: - Cardozo (majority): Duty is owed only to foreseeable plaintiffs — those within the zone of danger - Andrews (dissent): Everyone owes a duty to the world at large; foreseeability is a proximate cause question, not a duty question

Most jurisdictions follow Cardozo: duty is limited to foreseeable plaintiffs.

Special Duty Situations

| Category | Rule | |----------|------| | No duty to rescue | No affirmative duty to aid a stranger (exceptions below) | | Special relationships | Duty to protect/aid: parent-child, employer-employee, carrier-passenger, innkeeper-guest, school-student | | Voluntary assumption | Once you begin a rescue, you must continue with reasonable care (cannot leave victim worse off) | | Creation of peril | If you created the dangerous situation, you owe a duty to rescue | | Landowners | Varies by entrant status (invitee, licensee, trespasser) — many jurisdictions now use general reasonableness |

The Reasonable Person Standard

What It Is

The reasonable person is a hypothetical construct — not perfect, not average, but reasonably prudent. The standard asks: what would a person of ordinary prudence do under the same or similar circumstances?

What It Accounts For

- External circumstances — emergency, weather, time of day, surroundings - Knowledge of the situation — what defendant knew or should have known - Physical characteristics — if defendant is blind, the standard is a reasonable blind person

What It Does NOT Account For

- Stupidity — "I didn't know that was dangerous" is not a defense - Inexperience — a first-time driver is held to the same standard as an experienced one - Hot temper — "I was provoked" does not reduce the standard - Mental illness — generally held to the same standard (with narrow exceptions) - Voluntary intoxication — held to the sober reasonable person standard

The Objective Character

The standard is objective — we don't ask what THIS defendant thought was reasonable, but what a REASONABLE PERSON would think. This prevents each defendant from defining their own standard of care.

Special Standards

Professionals

Doctors, lawyers, architects, engineers, and other professionals are held to the standard of a reasonably competent practitioner in the same or similar field.

Key points: - Must be established through expert testimony — only another professional can say what the standard is - Specialists are held to the specialist standard (a cardiologist is measured against other cardiologists, not general practitioners) - Locality rule (traditional): measured against practitioners in the same community. National standard (modern majority): measured against practitioners nationally - Informed consent: A doctor must disclose material risks of a procedure. Failure to disclose = negligence if a reasonable patient would have declined treatment with full information

Children

Children are held to the standard of a reasonable child of similar age, intelligence, and experience — a subjective standard that accounts for immaturity.

Exception: When a child engages in an adult activity (driving a car, operating a motorboat, using firearms), the child is held to the adult reasonable person standard.

Very young children (typically under 5): generally deemed incapable of negligence.

Common Carriers and Innkeepers

Traditional rule: owed the highest degree of care to passengers/guests. Modern trend: many jurisdictions have moved to reasonable care under the circumstances, but with recognition that the circumstances (lives of passengers) demand heightened caution.

Persons with Physical Disabilities

A person with a physical disability is held to the standard of a reasonable person with the same disability — e.g., a reasonable blind person, a reasonable person in a wheelchair.

This is NOT a lower standard — it asks what a reasonable person with that condition would do.

The Learned Hand Formula

United States v. Carroll Towing Co. (1947)

Judge Learned Hand articulated an economic test for negligence:

Negligence exists when: B < P × L

Where: - B = Burden of taking precautions (cost of preventing the harm) - P = Probability that harm will occur without precaution - L = Gravity (magnitude) of the resulting loss

If the cost of prevention is LESS than the expected harm, failing to take the precaution is unreasonable.

Application Example

A company stores explosives near a school (L = catastrophic). The probability of explosion is low but real (P = moderate). The cost of relocating storage is moderate (B = moderate).

Analysis: P × L = moderate × catastrophic = very high expected harm. B = moderate cost. Since B < P × L, the company should relocate. Failure to do so is negligent.

Limitations

The formula is analytical, not mathematical — courts don't actually plug in numbers. It's a framework for thinking about reasonableness, not a precise calculation.

Negligence Per Se

When a Statute Sets the Standard

If a defendant violates a statute, the violation may establish both duty and breach automatically — the plaintiff needs to prove only causation and damages.

Elements Required

1. The defendant violated a statute (or regulation, or ordinance) 2. The statute was designed to prevent the type of harm that occurred 3. The plaintiff is within the class of persons the statute was designed to protect

Effect

- Majority view: Violation is conclusive proof of negligence (duty + breach established) - Minority view: Violation creates a rebuttable presumption of negligence - Restatement view: Violation is negligence per se unless compliance would be more dangerous, or compliance was impossible, or the actor exercised reasonable care

Examples

| Statute | Harm | Per Se? | |---------|------|---------| | Speed limit: 35 mph | Car accident injuring pedestrian | Yes — statute protects pedestrians from vehicle harm | | Building code: fire exits required | Tenant injured in fire unable to exit | Yes — code protects building occupants from fire harm | | Dog leash law | Unleashed dog bites child | Yes — law protects public from dog attacks | | Jaywalking statute | Pedestrian hit while jaywalking | Per se for defendant's negligence? No — for plaintiff's contributory/comparative negligence |

Custom

Role of Custom

Industry custom is relevant but NOT dispositive: - Compliance with custom: Evidence of reasonableness, but not conclusive — an entire industry can be negligent - Violation of custom: Strong evidence of negligence — if everyone else does it safely, why didn't you?

The T.J. Hooper Rule (1932)

An entire industry may be negligent. Custom does not define the standard — the reasonable person standard does.

A tugboat company did not equip tugs with radios (industry custom). The court held that failure to have radios was negligent because a reasonable person WOULD have equipped them, regardless of what the industry commonly did.

Baby Bar Connection

Negligence is tested on every Baby Bar exam. The standard of care appears in: - Essay questions requiring identification of duty and breach - MBE questions testing the reasonable person standard - Negligence per se questions (identify the statute, match the harm, match the class) - Questions distinguishing intentional torts from negligence (different mens rea)

Exam Tip: Always start negligence analysis with: "A person owes a duty of reasonable care to all foreseeable plaintiffs. The standard is that of a reasonably prudent person under the same or similar circumstances."