Unintentional Harms.
A common analysis of negligence cases involves four elements. A plaintiff may,...
recover damages if the defendant ( 1) owed the plai11tiff a duty to act in a certain way, the .'-,· defendant (2) breached tire duty by failing to act as well as the duty required, and the defendant's conduct (3) caused some (4) injury to the plaintiff. These elements of a negligence case are usually summarized in the phrase "duty, breach, causation, and damages." Most of the time, a defendant's duty was to act as a reasonable person would act in the circumstances that led to an injury.
Power of the Jury. Even though the jury must apply the standard of care the judge tells it to use, if that standard is vague or subject to interpretation, members of a jury will apply it to the case by using their own ideas about safety and how people should act. A common standard of care requires that a person act "as a reasonable person would act." When a case involves that standard, the jury has considerable leeway in deciding exactly what conduct is reasonable in the specific circumstances that led to the injury. So, while the jury does not get to decide what standard to use (because the judge requires it to apply the reasonable person standard), the jury has significant control over the outcome of thecase. It decides what the standard means in the specific factual context of the case.
One explanation for the acceptance of this standard is that it simplifies life. We can assume that other people will be "reasonably" careful not to injure us, and we do not need to anticipate their particular personalities and capabilities. If they fail to act in a reasonable way and their conduct harms us, we can expect to be compensated with tort damages.
Defining and Justifying the "Reasonable Person" Standard
The reasonable person standard has dominated tort law since the early nineteenth century. Vaughan v. Menlove is the leading articulating support for the standard: Should the conduct of someone who built a haystack that started a fire be compared with that person's best possible farm work or with the farm work that a reasonable person would do? Parrot v. Wells, Fargo & Co. shows that understanding the overall factual setting is crucial for applying the standard: Is opening a crate of nitroglycerine with a mallet reasonable conduct?
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A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one's previous conduct).
Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. See Restatement (Third) of Torts: Liability for Physical Harm § 3 (P.F.D. No. 1, 2005). Negligent conduct may consist of either an act, or an omission to act when there is a duty to do so. See Restatement (Second) of Torts § 282 (1965).
When determining how whether the defendant has breached a duty, courts will usually use the Hand Formula (created by Judge Learned Hand in United States v. Carroll Towing):
Pure economic loss will usually not meet the injury requirement. Sometimes emotional distress/harm may meet the bodily harm requirement (even if there is no accompanying physical harm).
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Proving that a plaintiff suffered an injury is not enough to show that the wrongdoer was responsible for the plaintiff’s accident and their harm. To bring a successful prima facie negligence case, the plaintiff also needs to establish that the wrongdoer’s breach of duty caused their injuries.
There are generally two types of causation that need to be addressed in order to prove this breach of duty. They include:
A shield against this existential dagger was found in Bolam v Friern Hospital Management Committee,2 in which the court articulated the peer professional test for medical negligence: doctors could not be found negligent if they “acted in accordance with a practice accepted as proper by a responsible body of [peer professionals].”3 Thus, the profession regulated itself and set its own standards of care. However, the Bolam test does not apply to the duty to inform patients of risks and alternatives. Instead of peer professionals setting the standard of disclosure, doctors must inform patients of material risks, the materiality of which is assessed from the patients’ perspective
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The standard of care by which a defendant is judged in negligence is that of a reasonable person in the defendant’s position.7 The reasonable person allegedly was born in the cradle of negligence,8 but has become ubiquitous across the spectrum of law when judges have to determine expected standards of behavior, whether in tort law, contract law, trust law, administrative law, or criminal law.9 The reasonable person test defies precise definition, remaining sufficiently malleable for judges to balance the scales of justice in individual cases and to develop the law in step with evolving standards. However, its strength is also its weakness, as the ambiguity of the reasonable person allows judges to project their own conceptions of what is reasonable. It has aptly been described as “little more than the anthropomorphic conception of justice as perceived by judges or juries.”10
In other words, it calls on the common sense and worldliness of judges and juries. This may have been less of a problem in the early years of the reasonable person standard for two reasons. Cases were tried by jurors, who notionally represented reasonable people in the community and the factual scenarios were commonplace with risks that were readily understood by ordinary people. For example, in Vaughan v Menlove, which held him to an objective standard….
The Bolam test has been the subject of considerable criticism, which will not be repeated here.25 However, there is one philosophical problem with Bolam that merits close examination as it is especially pertinent to the duty to inform. Applying the Bolam test to the fused inquiry of standard and breach results in the reasonableness of the doctor’s conduct being judged sociologically or positively, rather than ethically or normatively. The question is simply whether the doctor’s conduct accords with acceptable practice. This hands judgment of medical negligence to the expert because judges are not allowed to question whether acceptable practice itself is adequate.26
There is a respectable lineage of debate on whether the reasonable person test should be assessed ethically or sociologically.27 The ethical inquiry asks what a reasonable person ought to do while the sociological inquiry asks what the reasonable person would do. Montrose, commenting in the wake of the Bolam judgment, pithily observed, “it is important to distinguish between average practices and average standards, between what the ordinary man does and what the ordinary man thinks ought to be done.”28 This distinction is apposite to professional negligence. Montrose again: “Experts may blind themselves by expertise. The courts should protect the citizen against risks which professional men and others may ignore.”29 In the period following Donoghue v Stevenson,30English law had clearly adopted the ethical standard to assess negligence.31
NOTES TO THE NITRO-GLYCERINE CASE
Problems. Would a jury be justified in finding the defendant negligent in the following cases?
The plaintiffs house was damaged by water that forced its way through
the ground when a water main constructed and maintained by the defendant froze and broke. The winter frost that caused the break "penetrated to a greater depth than any which ordinarily occurs south of the Polar regions." See Blyth v. Birmingham Water Works, 156 Eng. Rep. 1047 (Ex. 1856).
May reasonableness be defined in terms of costs and benefits? Many theorists and judges have sought to clarify the apparent vagueness of the reasonableness standard by proposing a systematic evaluation of costs and benefits. McCarty v. Pheasant Run illustrates an economic fr:imework for defining reasonable conduct: ls it reasonabk for a person to expose others to a costly risk that the person could hav(' prevented witha small expenditure?
NOTES TO McCARTY v. PHEASANT RUN, INC.
The Learned Hand Formula for Negligence. The "Hand formula" (<lescribt·d by Judge Learned Hand in Carroll Towing) was expressed algebraically, stating that conduct would be negligent if B< PL In that expression, Bstands for the burden of prevention or avoidance, and an actor is negligent if that burden is less than P, which stands for the probability of loss, multiplied by L, which stands for the magnitude of loss that would be avoided with the possible prevention or avoidance. rrom whose perspective is it
"reasonable" for one person to spend a small amount of money to protect another person from suffering a significant physical injury or a large financial loss? Would that make sense to the first person, the other person, or to society as a whole?
Section 291. Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct
Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.
Section 292. Factors Considered in Determining Utility of Actor's Conduct
advanced or protected by the conduct;
the extent of the chance that this interest will be advanced or protected by the particular course of conduct;
the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.
Section 293. Factors Considered in Determining Magnitude of Risk
In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important:
the social value which the law attaches to the interests which are imperiled;
the extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member;
the extent of the harm likely to be caused to the interests imperiled;
( d) the numberof persons whose interests arc likely lo be invaded if the risk takes effect in harm.
On Determining Negligence: Hand Formula Balancing, theOn Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury Reasonable Person Standard, aPDF
Implicit in these claims is the proposition that the reason able person standard and the Hand Formula can each be conceived in a variety of ways. Some of these conceptions make the two con verge, others make them diverge. For example, if the reasonable person avoids imposing substantial foreseeable risk of harm on others, no matter how difficult or expensive avoidance may be, then the reasonable person standard is obviously at odds with the Hand Formula. If, on the other hand, the reasonable person takes the same care of the persons and property of others as of his or her own person and property, then the reasonable person standard and the Hand Formula can be seen as two idioms for the same ideanamely, that sensible people balance pros and cons when deciding how to deal with risks to themselves and should use the same criteria when making decisions that involve risks to others. Alternatively, the reasonable person standard can be defined in ways that leave its relationship (if any) to the Hand Formula up for grabs. For example, if the reasonable person follows the prevailing social norms concerning accident risks, we need to know the content of those norms before we can describe their relationship to the Hand Formula.
It is a question of law what criterion should be used to make these value judgments. Just as there is a range of ways in which the law could conceive of the reasonable person standard, so there is a range of ways in which the law could conceive of the Hand Norm.10 Here are some of the salient alternatives one encounters in contemporary torts scholarship:
The reasonable person standard can accommodate the evaluation of injuries involving many diverse factors. While there are some circumstances in which tort law replaces the reasonable person test with different standards, courts generally have shown great confidence in the ability of jurors to use the reasonable person test in many contexts.
Many injuries involve especially dangerous activities or things. Gasoline, for example, presents risks that are significantly greater than the risks presented by lots of other substances in common use. Stewart v. Motts presents an analysis of whether the rea sonable person test can produce satisfactory results in cases where an injury involves something as dangerous as gasoline.
Rule:
In examining jury instructions, an appellate court's scope of review is to determine whether the trial court committed clear abuse of discretion or error of law controlling the outcome of the case. Error in a charge is sufficient ground for a new trial, if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse rather than clarify a material issue. A charge will be found adequate unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error.
NOTES TO STEWART v. MOTTS
Sometimes injuries occur in situations that involve sudden emergencies. How should that context affect a jury's evaluation of an actor's conduct? Many jurisdictions have allowed a "sudden emergency" jury instruction to supplement the reasonable person test. As Myhaver v. Knutson shows, current tort law is divided on whether this type of instruction is a helpful addition to the reasonable person test.
NOTES TO MYHAVER v. KNUTSON
Trial Court Discretion. A common result among courts that have considered this issue is to express dissatisfaction with the sudden emergency doctrine while refusing to treat a trial court's use of it as reversible error. Why might that result be attractive to many jurisdictions?
Rule:
The sudden emergency jury instruction should be confined to the case in which the emergency is not of the routine sort produced by the impending accident but arises from events the driver could not be expected to anticipate. In those few cases in which the instruction is given, it would be important to explain that the existence of a sudden emergency and reaction to it are only some of the factors to be considered in determining what is reasonable conduct under the circumstances. Even though a judge may exercise his discretion and give a sudden emergency instruction in a particular case, it will rarely, if ever, be error to refuse to give it.
In comparing how a person acted with how a reasonable person would have acted, two important questions about knowledge sometimes arise. Should the jury treat that person as if she or he knew what typical people know about the possibility of accidents? Also, if the person has knowledge or skill that is greater than the knowledge or skill that a typical person has, how should the jury deal with that fact? Cervelli v. Graves reflects typical treatment of these issues.
NOTES TO CERVELLI v. GRAVES I
1 2. Below- and Above-Average Knowledge. Vaughan v. Menlove required the conduct of the farmer to be evaluated against a standard of what a typical and rea
sonable farmer would do, regardless of whether the defendant possessed a reasonable person's knowledge or skill. In Cervelli, the court notes that in the evaluation of the conduct of a person who has superior knowledge or skill, that person's conduct should
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Rule:
In reviewing alleged errors in jury instructions, a finding of error is not alone sufficient to reverse; prejudicial error must be found. Prejudicial error is never presumed; it must be established by the parties. If it is established that an instruction or instructions had a tendency to confuse or mislead the jury with respect to the applicable principles of law, reversal is proper.
All jurisdictions use a special standard of care for children's conduct. Robinson v. Lindsay describes some of the history of that standard and also shows how modern courts apply it: Does a standard that makes sense for judging a child's conduct in traditional childhood activities work well for evaluating a child's use of a snowmobile? Peterson v. Taylor emphasizes the jury's ability to interprd the child's standard based on evidence it receives about the particular child whose conduct the jury must judge: ls there a reason to think that juries can estimate how carefully children of p.1rticular ages and particular levels of experience might reasonably act?
NOTES TO ROBINSON v. LINDSAY
Rule:
Courts in other jurisdictions have created an exception to the special child standard because of the apparent injustice that would occur if a child who caused injury while engaged in certain dangerous activities were permitted to defend himself by saying that other children similarly situated would not have exercised a degree of care higher than his, and he is, therefore, not liable for his tort. Some courts have couched the exception in terms of children engaging in an activity which is normally one for adults only. The State of Washington Supreme Court believes a better rationale is that when the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care.
A particular child's incapacity for negligence may be determined by the court as a matter of law only if the child is so young or the evidence of incapacity so overwhelming that reasonable minds could not differ on that issue. If reasonable minds can differ, the question of the child's contributory negligence is submitted to the jury with instructions to apply a standard of care similar to the following: If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under like circumstances. In applying this standard, the jury must initially make a subjective determination of the particular child's capacity to perceive and avoid the specific risk involved, based on evidence of his age, intelligence and experience. Although that standard has been applied by Iowa courts in conjunction with presumptions of incapacity where the child was below the age of fourteen, the Iowa Supreme Court now holds that it no longer recognize any presumptions regarding the capacity of children for negligence or contributory negligence; rather, the question of a particular child's capacity is an issue of fact to be determined on the basis of evidence of the child's age, intelligence and experience.
NOTES TO STATUTES
When conduct by a person with a mental disability needs to be evaluated in a tort case, typical tort law evaluates that conduct by comparing it with how a reasonable person without that mental disability would act. For physical disabilities, the typical position is different. The physically disabled actor must act as well as a reasonable person with that physical disability would act. These two positions must reflect a belief that mental and physical disabilities are different in some important ways-a belief that may have had greater support in an earlier generation and that may be subject to criticism now.
Poyner v. Loftus applies a special standard to a legally blind plaintiff: When a person v.rith limited vision goes to a public place, how careful does tort law require that person to be? In Creasy v. Rusk, involving an institutionalized person suffering from Alzheimer's disease, a court affirms the general rule that would compare that person's conduct with a reasonable person's conduct but withdraws the rule's application under the specific circumstances of the case.
Rule:
Ordinarily, questions of negligence and contributory negligence must be decided by the trier of fact. A party asserting the defense of contributory negligence is required to establish, by a preponderance of the evidence, that the plaintiff failed to exercise reasonable care. Only in the exceptional case is evidence so clear and unambiguous that contributory negligence should be found as a matter of law. The issue of contributory negligence should not be submitted to the jury, however, where the evidence, taken in the light most favorable to the plaintiff, establishes contributory negligence so clearly that no other inference can reasonably be drawn.
Rule:
Exceptions to the general rule that a person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances will arise where the factual circumstances negate the factors supporting imposition of a duty, particularly with respect to the nature of the parties' relationship and public policy consideration
The Court found that there was no genuine issue of material fact as to patient's mental capacity: he was in the advanced stages of Alzheimer's and was unable to control or appreciate the consequences of his actions. Thus, it held that the patient should not be liable because the relationship between the parties and public policy considerations were such that the patient owed no duty of care to the nurse.
Tort law generally recognizes three theories of recovery: intentional torts, unintentional torts, and strict liability. Intentional torts, such as battery, which were covered in Chapter 2, require that the actor intend to invade a legally protected interest of the other person. Unintentional torts require that the actor create an unjustifiable risk of invading another's legally protected interest. Strict liability torts, covered in Chapters 13 through 16, impose liability without regard to whether the actor's conduct is blameworthy.
While negligence cases, introduced in this chapter, are the most common uninten tional injury cases, tort law has also developed an additional concept of unintentional conduct known as "recklessness." In terms of fault or blameworthiness, recklessness falls in between intentional tort and negligence. Many courts and the Restatement (Second) ofTorts usethe term recklessness to embrace all unintentional torts other than negligence, including behavior described as "wanton misconduct" and "gross negligence."
At present, characterizing an actor's conduct as reckless is important in several contexts. Sometimes punitive damages will be available when a defendant's conduct was reckless but would be prohibited if the conduct was only negligent. Individuals sometimes sign waivers or releases ofliability giving up the right to sue for negligence in connection with certain activities, but these agreements often preserve the right to recover for injuries inflicted due to recklessness. Also, for some activities common law doctrines or statutes expose an actor to tort responsibility for reckless conduct but protect an actor from liability for mere negligence.
Sandler v. Commonwealth introduces significant aspects of the recklessness doc trine in the context of a personal injury claim brought against the owner of land. An applicable statute protected the landowner from liability for negligence but exposed the landowner to responsibility for recklessly inflicted harms.
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Behavior that is so careless that it is considered an extreme departure from the care a reasonable person would exercise in similar circumstances. As a mens rea (mental state) in the criminal law context, reckless action is distinguished from negligent action in that the actor consciously disregards a substantial and unjustified risk, as opposed to merely being unreasonable. For example, in State v. Olson, a 1990 South Dakota Supreme Court decision, the court did not find a tractor driver who turned left at 5-15 mph and hit another car reckless because the prosecution could not prove that he was aware that there was an oncoming car.
A legal standard applied to defendants in negligence cases to ascertain their liability. All members of the community owe a duty to act as a reasonable person in undertaking or avoiding actions with the risk to harm others. If an individual fails to act as a reasonable person and their failure injures someone, they may be liable to that person for such injuries. Whether a person met the standard of a reasonable person is often a question of fact for the jury to determine—thus leaving the determination of whether an individual acted reasonably for twelve members of the community.
In 1837, in the famous case of Vaughn v. Menlove, an English court of common pleas firmly established that, in the common law, the reasonable person standard is objective, as opposed to subjective. In that case, a farmer piled a haystack near his neighbor’s cabin, which subsequently caught fire and burned his neighbor’s cabin down. The farmer argued that he should not be liable since he genuinely did not consider that the haystack may cause his neighbor’s cabin to burn down. The court nevertheless held him liable, since the jury found that his actions were objectively unreasonable, thereby holding him to the standard of a reasonable person. However, not everyone is expected to conform to the general reasonable person standard. In Robert v. Ring, the Minnesota Supreme Court held a seven-year-old boy to the standard of an objective seven-year-old boy, not to that of an adult. In Fletcher v. Aberdeen, the Supreme Court of Washington held that a blind person should be held to the objective reasonable standard of a blind person, not to a sighted person.
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Rule:
Reckless failure to act involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another. The risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of the defendant's election to run that risk or of his failure reasonably to recognize it.
The court found that despite the reasoning of the lower court, the degree of the risk of injury did not meet the standard established for recklessness under the law. As a result, the court held that judgment notwithstanding the verdict should have been granted to the Commonwealth.
NOTES TO SANDLER v. COMMONWEALTH
(a) Any person having an interest in land including the structures, buildings, and equipment attached to the land, including without limitation, wetlands, rivers, streams, ponds, lakes, and other bodies of water, who lawfully permits the public to usesuch land for recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor, or who leases such land for said purposes to the commonwealth or any political subdivision thereof or to any nonprofit corporation, trust or association, shall not be liable for personal iniuries or property damage sustained by such members of the public, including without limitation a minor, while on said land in the absence of wilful. wanton, or reckless conduct by such person.
Mass. Gen. Laws ch. 21, §l7C (2013).
Elements of a Recklessness Theory. The Restatement (Third) of Torts, Liability for Physical and Emotional Harm §2, defines "reckless conduct" as fo\lows:
A person acts with recklessness in engaging in conduct if:
the precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as 10 render the person's failure to adopt the precaution a demonstration of the person's indifference to the risk.
The knowledge element in (a) has two options. The first, "knows of the risk," applies to a person who intentionally disregards the risk. The second, "knows facts that mal e that risk ob:,1ious," applies to a person who unreasonably disregards the risk. Whtie one person ignores the risk and the other ignores the facts, both are considered reckless. The Restatement (Sec nd) of Torts §500 described the knowledge re.'quirement somewhat d1fterently, statmg that a recklt:ss person is one who acts "known or having reason to know of facts which would lead a reasonable man to realize" that his conduct creates a serious risk. The court in Sandler states that recklessness requires a dangerous condition that is "known or reasonably knowable," reflecting the two options.
- '-' The plaintiff must prove the existence of this serious risk. The probability that harm , · will result from the conduct combined with the magnitude of the loss if the harm
Knowledge Requirements for Negligence, Recklessness, and Intentional Torts. To show recklessness, the plaintiff must show that the actor either (a) knew of the risk or (b) knew of facts that made the risk obvious (Restatement (Third)) or "had reason to know of facts relating to the risk presented by the conduct" (Restatement (Second)). "Knowing" of risk or facts and "having reason to know of facts" refer to the actor's own experience. The Restatement (Second) of Torts §12( I) describes "having reason to know" as follows:
The words "reason to know" ... denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists.
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The Restatement (Second) of Torts distinguishes "reason to know" from "should know," which is the standard used in negligence cases. To succeed with a recklessness claim, the plaintiff must prove some subjective knowledge by the defendant-that the defendant actually knew of the risk or actually knew of facts or information from which a reasonable, prudent person would recognize a risk. By contrast, in a negligence case, the plaintiff is required to show only that a defendant should have known of the risk or should have known certain facts. The Restatement (Second) of Torts §290 comment a offers an example of a man who was brought up on a small island where there are no automobiles and is ignorant about how fast automobiles go. When arriving in a community where automobiles are present, the man will be treated in a negligence case as if he knows of the risk of crossing the street in front of an approaching automobile. He should know of that risk even though he does not know of it and has no reason to know of it. Intentional torts require desire to harm or knowledge to a substantial certainty that the harm will occur, not just knowledge that there is a risk that the harm will occur.