This website uses cookies to ensure you get the best experience on our website. Learn more

Law Outlines Long Torts Outline

Negligence Subjective Vs Objective Standard Outline

Updated Negligence Subjective Vs Objective Standard Notes

Long Torts Outline

Long Torts Outline

Approximately 84 pages

This Outline is a detailed compilation of several great outlines as well as notes on the professor's thoughts. It contains detailed explanations of "forks" in applying the law as well as ways to argue each claim. Must have for any Torts student, this outline was the sole reason I got an A....

The following is a more accessible 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)

  1. Defining Negligence

    1. 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

  2. Subjective v. Objective Standard

    1. 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.

    2. 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?)

        1. 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

        1. 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?

        2. The court has also relaxed the standard for physical disabilities: “A reasonably prudent bind person

        3. 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.

          1. 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.

  3. Defining the Reasonable Standard

  1. 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

      1. License is usually key to determine if something is an adult activity (Goss v. Allen)

        1. 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)

      1. Unless plaintiff consents to lower standard of care Holland v. Pitocchelli

  1. Third Restatement §10: 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.

    1. Except when they are doing adult activities (Daniels v. Evans)

      1. 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.

    2. Third Restatement §11 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).

      1. 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.

          1. Court held that the boy was not contributory negligent because he was held to a standard for a child his age.

          2. 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.

      2. 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)

  2. Third Restatement §11(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 .

    1. FORK: Breunig v. American Family Insurance Co. (p.161)

      1. 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...

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