Someone recently bought our

students are currently browsing our notes.


Negligence Subjective Vs Objective Standard Outline

Law Outlines > Long Torts Outline

This is an extract of our Negligence Subjective Vs Objective Standard document, which we sell as part of our Long Torts Outline collection written by the top tier of University Of Virginia School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Long Torts Outline. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Negligence (Subjective v. Objective Standard) a.Defining Negligence i. Negligence (Third Restatement): A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are:

1. The foreseeable likelihood that the person's conduct will result in harm,

2. The forseeable severity of any harm that may ensue, and

3. The burden of precautions to eliminate or reduce the risk of harm

b.Subjective v. Objective Standard i. Vaughan v. Menlove (p.147): Defendant built a haystack near his property line adjacent to the plaintiff's. The haystack (rick) caught fire one day and spread to the plaintiff's barns and stables, and then to the plaintiff's cottages, which were entirely destroyed. Plaintiff sued accusing defendant of building a dangerous rick in that area.

1. If the standard was that the defendant only needed to act "bona fide to the best of his own judgment", that would leave so vague a line as to afford no rule at all, the degree of judgment belonging to each individual being infinitely various. We ought to adhere to a standard which requires in all cases a regard to caution such as a man of ordinary prudence would observe. ii. Objective Standard=Reasonable Person Standard

1. Reasonable Person Standard: What precautions would a reasonably prudent person have taken in the defendant's circumstances. (i.e. what would a farmer have known about the dangerousness of the rick and what would he have done?) a. Easiest way to do this ? Identify the untaken precaution and determine if a reasonably prudent person would have taken such a precaution.

2. Most of the time, people's weaknesses are considered when determining the objective standard a. Except in infancy: children are held to a "child's standard". What kind of care would a reasonable X year old in this situation take?
b. The court has also relaxed the standard for physical disabilities: "A reasonably prudent bind person" c. Court is very interested in being able to identify risky people, since you can identify children & physical disabilities, they can be held to a different standard. i. i.e. if the public sees a car on the road, they are not sure if it is a kid or an adult, all they can assume is they are qualified (licensed) to drive a car.

c. Defining the Reasonable Standard i. Insanity, Infancy, and Physical Disabilities are the only exceptions to the reasonable person standard

1. Child standard unless doing an adult activity Daniels v. Evans a. License is usually key to determine if something is an adult activity (Goss v. Allen) i. Rejected by Dwello (Speedboat no license, still an adult activity)

2. Physical characteristics with regards to old age are taken into account Robert v. Ring

3. Sudden Mental incapacity usually not considered, except in a Bruenig jurisdiction

4. Beginners held to a reasonable standard of an adequate person (Stevens v. Veestra) a. Unless plaintiff consents to lower standard of care Holland v. Pitocchelli

5. Third Restatement SS10: Infancy: The reasonable standard for a minor is "a reasonably careful person of the same age, intelligence, and experience". A child under 5 years of age is incapable of negligence. a. Except when they are doing adult activities (Daniels v. Evans) i. Daniels v. Evans: A 19 year old plaintiff was killed when his motorcycle collided with an automobile

1. Case was on appeal for an alleged incorrect jury instruction in which the judge charged that the plaintiff should be held to a "minor's standard of care"

2. Court held that, speaking specifically on automobiles, a "minor operating a motor vehicle, whether an automobile or a motorcycle, must be judged by the same standard of care as an adult"

3. Note cases after Daniels hold that minors are always held to a minor's standard of care, except when they are doing an adult activity. b. Third Restatement SS11 Old Age: The Third Restatement follows Roberts v. Ring by refusing to take old age into account, although it takes into account such infirmities associated with old age by using the standard of a reasonably careful person with the same physical condition (a reasonably careful old person hard of sight and hearing would not drive in crowded areas, however). i. Roberts v. Ring (p.154)

1. Old defendant that was hard of sight and hearing and driving a car on a crowded street. A boy jumped off the back of a buggy and the man hit him, causing the boy's injuries. a. Court held that the boy was not contributory negligent because he was held to a standard for a child his age. b. Court held that the old man was negligence and did not take into account his hard of sight and hearing in

determining the reasonable standard of care. If anything, the man's defects should have kept him from driving, but since he chose to drive he is held to the same standard as everyone else. ii. Infancy v. Old Age

1. It is a lot easier to establish a reasonable 7 year old vs. a reasonable 80 year old, so we relax the standard for children but not for old age. Also, we want a standard where careless people stop being careless or avoid situations where they can hurt people (holding old people to a normal standard deters them from doing risky things)

6. Third Restatement SS11(b) Mental Disabilities: An adult defendant's mental and emotional disability is generally not considered in negligence determinations. Courts exonerate defendant's for injuries resulting from a "sudden incapacitation or loss of consciousness resulting from physical injury (unless the incapacitating event was forseeable), but hold them liable if the sudden and unforeseen incapacitation is due to mental illness . a. FORK: Breunig v. American Family Insurance Co. (p.161) i. Breunig brought suit against American Family Insurance Co. when one of its insureds struck Breunig's car and Breunig sustained injuries. At the time immediately before and during the accident, the insured suffered from temporary and spontaneous insanity in which she hallucinated, the temporary lapse of which caused the accident.

1. Court needed to decide if she took "reasonable care" when deciding to drive that day. The question turns on if she had forewarning that something like this might happen. Court said that question is for the jury

2. The court holds that a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke or fainting should be treated alike and not under the general rules of insanity.

3. The Restatement rejects Breunig

7. Institutionalized Insanity a. Gould v. American Family Medical i. Court held that a person institutionalized with a mental disability and does not have the capacity to control or appreciate his conduct cannot be held liable for injuries caused to caretakers who are employed for financial compensation.

1. Reasoning: "It is incredible to assert that a tortfeasor would pretend insanity over a prolonged period of time and be institutionalized in order to avoid being held liable for damages for some future civil act. A caretaker can reasonably forsee the danger and is not innocent of the risk involved. b. Jankee

8. Beginners v. Experts a. Stevens v. Veenstra: The use of a lower standard of care for beginners encourages them to undertake activities that they might not otherwise attempt. "Some activities are so

dangerous that the risk must be borne by the beginner rather than the innocent victims, and lack of competence is no excuse" i. Beginners are held to the standard of care expected of those who are reasonably skilled in the art. b. Holland v. Pitocchelli: Exception for the beginners/experts rule is if the plaintiff assumed the risk that the defendant will exercise a lower standard of care, such as when an experienced driver teaches a novice how to drive. i. Would not, however, preclude an injured pedestrian from recovering, because they did not assume the risk.

9. Licensing and What is Considered a Dangerous Adult Activity a. Goss v. Allen: Held that a lack of a licensing requirement is key to determining if an activity is considered to be an adult activity of not. Held that youths did not need a license to ski, so they should be held to an appropriate standard of care for youths of the same age. i. However, in Dwello v. Pearson, the defendant child was held to the adult standard of care for operation of a speed boat even though there was apparently no licensing statute for such boats. FORK: Does lack of a licensing requirement imply that it is not a "dangerous adult activity"?

1. Generally, it looks like courts are willing to allow children to be held to a child's standard of care as long as others can be aware and take the appropriate precautions against the child. b. Firearms i. FORK: The third Restatement holds that "handling firearms is best regarded as a dangerous adult activity"

1. However, the majority of courts refuse to apply an adult standard of care when a juvenile injures another with a firearm.

d.Reasonableness as a Calculus of Risk (Economic & Rational Calculus) i. Economic Calculus

1. Economic Calculus (From US v. Carroll Towing) a. (P% x Losses from Event) compared to B (cost of precautions) i. If (P% x Losses from Event) < B, do not take precaution and not liable for negligence if the event occurs ii. If (P% x Losses from Event) > B, take precaution and liable for negligence if fail to do so and the event occurs iii. If (P% x Losses from Event) = B, indifferent

2. Social Efficiency a. Courts are generally not using this formula, but they are concerned with the costs of accidents & precautions. i. Marginal Precautions Barge PxL B es 1st
$10,000 nd 2
$6,000 3rd
$4,000 The second bargee is not worth it

3. Liability a. Strict Liability Scheme: If defendant does not take precaution and accident happens, defendant is liable b. Negligence Scheme: If defendant could take precaution against harm for less than cost * probability, he is negligent if he does not and held liable if the event happens. i. You are always negligent in cases where a reasonable person would have taken appropriate precautions and you failed to do so, however you will not be held liable for negligence if the accident does not occur.

4. United States v. Carroll Towing Co. (p.181) a. The Tug Carroll attempted a maneuver and the fasts connecting the Anna C. to Pier 52 broke. Tides and wind carried the Anna C down the Hudson where it collided with a tanker. The barge began to leak and then dumped its cargo. US sued Carroll Towing for the loss of their cargo. The bargee was missing from the boat at the time of the accident. i. Hand introduces "the Hand Rule [above] and holds that it is a fair requirement that a bargeee should have been on board during the working hours of the daylight (using the hand formula). ii. Rational Calculus

1. The kinds of things judges think about in analyzing cases a. Cooley v. Public Service Co. i. During an extremely heavy storm, the PSC's lines broke and came in contact with the telephone messenger and burned through it. When the contact of the wires occurred, Cooley was standing at a telephone and experiences a violent


2. 3.

4. 1.

2. 3.

4. 1.

2. agitation in the diaphragm of the receiver and a loud explosive noise She fell to the floor as a result and suffered from traumatic neorosis, accompanied by loss of sensation on the left side. Cooley sued both the power company and the telephone company, not alleging negligence, but rather that the PSC "should have anticipated what might happen to her" Court held that since there is no device that exists that could protect both telephone subscribers and people on the ground, the telephone company's duty to people on the ground and phone subscribers is mutually exclusive, therefore they must perform the one that protects the most people (more people on the ground potentially endangered). Court states that the question of whether an act is customary or not can prove to be powerful evidence. We need to compare two worlds and determine which is safer: a. World w/precaution b. World w/o precaution The precautions that the plaintiff suggests that would have prevented her injury would have caused greater harm to more people. "The duty of due care requires precisely the measure of care that is reasonable under all the circumstances" b. Blyth v. Birmingham Water Works i. One day a large quantity of water forced its way through the ground into the plaintiff's house, caused by an incrustation of ice and snow around the stopper and between the ice and plug that BWW installed. Two plaintiff contentions: a. BWW should have manufactured the plug so it would be safe in those temperatures b. BWW should have checked on their plug when it got really cold (i) is rejected because the weather was so unusual (ii) FORSEEABILITY- Part of the calculus of risk. The probability of this event happening was so small that there is no way they could have known it happened (not foreseeable enough) For reasoning of which (i) & (ii) are rejected, the court holds BWW no liable c. Eckert v. Long Island RR i. REASONABLE RESCUE ATTEMPTS-Plaintiff's decedent ran onto the RR tracks to try and save a child from an oncoming train, he saved the child but was hit by the train and killed Court held that "when exposure [to danger] is for the purpose of saving life, it is not wrongful, and therefore not negligent, unless such as to be regarded either rash or reckless" "Under the circumstances he believed or was reasonable to believe he could save the child without harming himself" (ie. There is no negligence because he thought reasonably in the instant he had that there was a high probability of him succeeding and saving the child)

Surrogates for Reasonableness iii. Ordinary Custom: Not Dispositive

1. Things to Consider: a. Not dispositive. If D failed to comply with industry-wide custom, P gets special jury instruction (TJ Hooper) - An independent Cost Benefit Analysis trumps custom b. If D complied with custom: persuasive evidence of non-negligence, but not dispositive (TJ Hooper/Third Restatement) c. Always remember that custom could be lagging behind the reasonable standard (TJ Hooper) d. A particular company's polices are not custom. With statutory duties you know what the explicit duty is. Holding a violation of company policy as negligence would incentivize employers NOT to institute rules that create a higher standard of care [Fonda v. St. Paul City]
i. If he relied on the policies of the employer? See Erie RR v. Stewart ii. Internal rules are occasionally used [Lucy Webb]
e. Was the custom established by an industry, but harmed someone outside of the industry? If so, custom is not admissible [Mayhew]
f. Was something once a custom, but is no longer considered reasonably safe?-glass shower door. [Trimarco]
g. If custom is proven, you can: i. Say your practice is safer than the custom ii. Say that the way you do business is different than others in the industry

iii. Question the intelligence of the custom

2. Significance of Custom Evidence

P argues that D failed to comply with custom to prove D's negligence

D argues that D complied with custom to prove D's nonnegligence

Conduct Appears Widely in Industry P gets special jury instruction (TJ Hooper, J.Coxe)

Conduct Practiced by Some in the Industry Some evidence of negligence

Persuasive but not dispositive under ladmajority rule (TJ Hooper, J.Hand)/The Third Restatement

Little or no weight

Rationales for Custom Evidence
-Educate Jury
-shows precaution feasible
-Community judgment about what constitutes adequate safety; additional precautions were cost-justified
-P would have expected D to comply with custom, did not assume risk of non-compliance
-Educate jury
-No feasible precaution
-Community judgment about what constitutes adequate safety

Buy the full version of these notes or essay plans and more in our Long Torts Outline.