Negligence: The Beginning
What is the general standard of care ordinarily used to assess breach of duty?
What is reasonable care under the circumstances?
This hypothetical figure is the objective yardstick for measuring a defendant’s conduct. They are neither the most cautious person nor the most reckless.
Who is the reasonable (prudent) person?
A stranger starts helping an unconscious person, then walks away and leaves them worse off than before. Even though the stranger had no duty to start, what creates a duty to act reasonably once they begin?
What is a voluntary undertaking (assumed duty)?
What familiar legal benchmark is generally used to evaluate ordinary negligence?
What is the reasonable person under the circumstances?
A defendant says, “I’m just not a careful person, and I did the best I could.” Why doesn’t that excuse his conduct under negligence law?
What is the objective standard?
Conduct is measured against a reasonable person, not the defendant’s own limitations or good intentions.
A person slips on a sidewalk. Does the accident alone prove the property owner breached a duty?
No. The duty and evidence of a failure to meet the applicable standard must be considered.
A strong swimmer stands by a pool and watches a stranger drown. They could have thrown a nearby rope at no risk, but did nothing. Under the traditional common-law rule, why is there no liability?
There is no general duty to rescue. Absent a special relationship, no duty exists, so breach is never reached.
A driver runs a red light and hits a pedestrian. The plaintiff points to the traffic statute, which was designed to prevent exactly this kind of harm, to establish breach. What doctrine is that?
What is negligence per se?
Is the “reasonable person” an actual juror, an average of how people actually behave, or something else?
What is a hypothetical standard? It’s an idealized, prudent person created by the law, not a real person and not necessarily how most people actually behave. That’s why a whole community can behave carelessly and still be negligent.
A hotel guest is assaulted in a poorly lit parking lot by an unknown third party. The guest argues the hotel owed a duty to protect her even though the hotel didn’t commit the assault. What kind of relationship can create that duty?
What is a special relationship (here, innkeeper-guest)?
Special relationships can create a duty to protect against third-party harm.
Which question comes first in the basic duty-and-breach analysis: whether a legal duty exists, or whether the defendant failed to meet the standard of care?
Whether a legal duty exists.
In Judge Learned Hand’s formula, a defendant is negligent if this burden is less than the probability of harm multiplied by the magnitude of the loss.
What is the burden of taking precautions? (B < PL)
A 9-year-old is sued after her bike hits a pedestrian. Her conduct is judged against this standard.
What is a reasonable child of like age, intelligence, and experience?
A 35-year-old gets behind the wheel for the very first time and causes a crash. His lawyer argues he should only be held to the standard of a reasonable beginner. Is the lawyer right?
What is no?
Adults are held to the standard of a reasonable person in the same situation, which here means a reasonable driver. Inexperience doesn’t lower the standard for an adult, though it does for children.
A student sprints through a crowded school hallway and knocks someone down. A court asks whether a reasonable person would have seen a collision coming. Which negligence element does this foreseeable risk help decide?
What is breach? The more foreseeable the risk, the more likely a reasonable person would have slowed down, which helps decide whether the sprinting fell below the standard of care.
A careful person would have noticed a spill in a busy aisle and cleaned it up or warned customers. The defendant ignores it. Which negligence element does this most directly illustrate?
Breach of duty.
In The T.J. Hooper, no tugboat in the industry had radios, yet the court still found the tug owners negligent. Why can an entire industry’s custom fail to protect a defendant?
Custom is evidence of reasonable care, but it isn’t conclusive. Courts can find a whole industry has lagged behind reasonable prudence.
A barrel rolls out of a warehouse window and hits a passerby. The plaintiff has no evidence of what anyone at the warehouse did. What doctrine lets the jury infer breach anyway?
What is res ipsa loquitur?
(The accident is the type that doesn’t normally happen without negligence, the instrumentality was in the defendant’s control, and the plaintiff didn’t contribute.)
A 14-year-old takes his father’s motorboat out on a lake and crashes into a swimmer. His lawyer argues he should be judged as a reasonable 14-year-old. Why does this argument usually fail?
What is the adult activity exception? When a child engages in a dangerous adult activity (driving a car, boat, or snowmobile), courts hold the child to the adult standard for that activity. The lower child standard doesn’t apply.
A driver swerves into a parked car to avoid a child who darted into the road. The plaintiff argues a calmer driver would have braked instead. Which doctrine helps the driver?
What is the sudden emergency doctrine? A person confronted with a sudden peril not of their own making is judged by what a reasonable person would do in that emergency, not with hindsight.
Why should a negligence answer not jump straight from “someone was careless” to liability?
Duty and breach are distinct questions, and all required legal elements must be addressed.
Explain why “the defendant should have been more careful” does not, by itself, answer both the duty and breach questions.
It addresses potential carelessness, but the analysis must separately establish a legal duty and a failure to meet the applicable standard of care.
A juror in a surgical malpractice case says, “I would have done it differently, so the surgeon was negligent.” Why is that the wrong test for breach?
Surgeons are measured against the skill and care of a reasonable specialist in the field (the professional standard), not a juror’s personal preference. A different approach isn’t necessarily a breach.
A man with a long-diagnosed mental illness injures a neighbor during an episode. He argues the jury should ask what a reasonable person with his mental illness would have done. Under the majority rule, why does that fail, and how does this differ from the blind defendant?
What is the objective standard, with no adjustment for mental limitations?
Courts generally take account of physical disabilities but not mental ones, and judge the defendant against an ordinary reasonable person. The usual rationale is that mental capacity is hard to measure and that the burden of the injury should fall on the defendant rather than the innocent victim. A minority of courts excuse a sudden, unforeseeable incapacity (like a sudden delusion or a heart attack at the wheel), but not a known, ongoing condition.
A defense lawyer argues, “My client was extremely careful, so the law imposed no duty on her.” What is wrong with that argument?
It confuses duty with breach. Whether the defendant was careful goes to breach. Duty is a legal question of whether she owed care to the plaintiff at all, and it doesn’t depend on how carefully she behaved.