The Negligence Standard

AuthorJohn Fabian Witt
Pages133-250
CHAPTER 4. THE NEGLIGENCE STANDARD
So far our treatment of the law of unintentional torts has focused on the
development of fault-based and non-fault-based (or strict liability) approaches.
Beginning here in chapter 4 we will spend the next five chapters pursuing the principal
fault-based approach to tort law: the negligence standard and the duty of reasonable care
that Judge Shaw announced in Brown v. Kendall.
But what is reasonable care? What does it mean to demand that a person act
reasonably? We will pursue the characteristics of the reasonable person. We will take up
the influential (but always controversial) idea that to behave reasonably is to make those
choices that cost-benefit analysis requires. We will ask who decides what reasonableness
requires in any given situation. Should a generalist judge or an untrained jury decide?
Or perhaps the decision about reasonableness should be made by particular industries, or
by experts, or by democratically-accountable legislatures? We will end this chapter with
two brief excursions. The first pursues the question of what litigants need to do to
establish that they or their adversaries acted reasonably or unreasonably, as the case may
be. The second steps back and asks a set of deep questions about the theoretical basis of
tort law and about its internal logic and structure.
First, though, we begin with what is in some sense the most basic of all questions:
who is the reasonable person?
A. The Reasonable Person
1. Introduction
Vaughn v. Menlove, 3 Bingham’s New Cases 468 (Court of Common Pleas, 1837)
The declaration alleged, in substance, that plaintiff was the owner of two cottages;
that defendant owned land near to the said cottages; that defendant had a rick or stack of
hay near the boundary of his land which was liable and likely to ignite, and thereby was
dangerous to the plaintiffs cottages; that the defendant, well knowing the premises,
wrongfully and negligently kept and continued the rick in the aforesaid dangerous
condition; that the rick did ignite, and that plaintiff's cottages were burned by fire
communicated from the rick . . . .
At the trial it appeared that the rick in question had been made by the defendant
near the boundary of his own premises; that the hay was in such a state when put together,
as to give rise to discussions on the probability of fire; that though there were conflicting
opinions on the subject, yet during a period of five weeks the defendant was repeatedly
warned of his peril; that his stock was insured; and that upon one occasion, being advised
to take the rick down to avoid all danger, he said “he would chance it.” He made an
aperture or chimney through the rick; but in spite, or perhaps in consequence of this
precaution, the rick at length burst into flames from the spontaneous heating of its
4. Negligence Standard
134
materials; the flames communicated to the defendant’s barn and stables, and thence to the
plaintiff's cottages, which were entirely destroyed.
Patteson, J., before whom the cause was tried, told the jury that the question for
them to consider was, whether the fire had been occasioned by gross negligence on the
part of the defendant; adding, that he was bound to proceed with such reasonable caution
as a prudent man would have exercised under such circumstances.
A verdict having been found for the plaintiff, a rule nisi for a new trial was
obtained,* on the ground that the jury should have been directed to consider, not whether
the defendant had been guilty of a gross negligence with reference to the standard of
ordinary prudence, a standard too uncertain to afford any criterion, but whether he had
acted bond fide to the best of his judgment; if he had, he ought not to be responsible for
the misfortune of not possessing the highest order of intelligence. The action under such
circumstances was of the first impression.
Talfourd, Serjt., and Whately, showed cause [for the plaintiff]. . . . [T]here were
no means of estimating the defendants negligence, except by taking as a standard the
conduct of a man of ordinary prudence: that has been the rule always laid down, and
there is no other that would not be open to much greater uncertainties.
R. V. Richards, in support of the rule [for the defendant]. First, there was no duty
imposed on the defendant, as there is on carriers or other bailees, under an implied
contract, to be responsible for the exercise of any given degree of prudence: the
defendant had a right to place his stack as near to the extremity of his own land as he
pleased . . . . [U]nder that right, and subject to no contract, he can only be called on to act
bona fide to the best of his judgment; if he has done that, it is a contradiction in terms, to
inquire whether or not he has been guilty of gross negligence. At all events what would
have been gross negligence ought to be estimated by the faculties of the individual, and
not by those of other men. The measure of prudence varies so with the varying faculties
of men, that it is impossible to say what is gross negligence with reference to the standard
of what is called ordinary prudence.
TINDAL, C. J. I agree that this is a case prime impressionis; but I feel no difficulty
in applying to it the principles of law as laid down in other cases of a similar kind.
Undoubtedly this is not a case of contract, such as a bailment or the like, where the bailee
is responsible in consequence of the remuneration he is to receive: but there is a rule of
law which says you must so enjoy your own property as not to injure that of another; and
according to that rule the defendant is liable for the consequence of his own neglect: and
though the defendant did not himself light the fire, yet mediately he is as much the cause
of it as if he had himself put a candle to the rick; for it is well known that hay will
ferment and take fire if it be not carefully stacked. . . .
* [Recall from chapter 3 that a “rule nisi” was essentially a device for obtaining appellate review; it was an
order requiring a new trial unless the other side could show cause why the original decision s hould be
upheld -- Ed.]
4. Negligence Standard
135
It is contended, however, that . . . the question of negligence was so mixed up
with reference to what would be the conduct of a man of ordinary prudence that the jury
might have thought the latter the rule by which they were to decide; that such a rule
would be too uncertain to act upon; and that the question ought to have been whether the
defendant had acted honestly and bona fide to the best of his own judgment. That,
however, would leave so vague a line as to afford no rule at all, the degree of judgment
belonging to each individual being infinitely various: and though it has been urged that
the care which a prudent man would take, is not an intelligible proposition as a rule of
law, yet such has always been the rule adopted in cases of bailment . . . . The care taken
by a prudent man has always been the rule laid down; and as to the supposed difficulty of
applying it, a jury has always been able to say, whether, taking that rule as their guide,
there has been negligence on the occasion in question.
Instead, therefore, of saying that the liability for negligence should be coextensive
with the judgment of each individual, which would be as variable as the length of the foot
of each individual, we ought rather to adhere to the rule, which requires in all cases a
regard to caution such as a man of ordinary prudence would observe. . . .
Rule discharged.
Oliver Wendell Holmes, Jr., The Common Law 107-09 (1881)
Supposing it now to be conceded that the general notion upon which liability to an
action is founded is fault or blameworthiness in some sense, the question arises, whether
it is so in the sense of personal moral shortcoming . . . . Suppose that a defendant were
allowed to testify that, before acting, he considered carefully what would be the conduct
of a prudent man under the circumstances, and, having formed the best judgment he
could, acted accordingly. If the story was believed, it would be conclusive against the
defendant’s negligence judged by a moral standard which would take his personal
characteristics into account. But supposing any such evidence to have got before the jury,
it is very clear that the court would say, Gentlemen, the question is not whether the
defendant thought his conduct was that of a prudent man, but whether you think it
was. . . .
The standards of the law are standards of general application. The law takes no
account of the infinite varieties of temperament, intellect, and education which make the
internal character of a given act so different in different men. It does not attempt to see
men as God sees them, for more than one sufficient reason. In the first place, the
impossibility of nicely measuring a mans powers and limitations is far clearer than that
of ascertaining his knowledge of law, which has been thought to account for what is
called the presumption that every man knows the law. But a more satisfactory
explanation is, that, when men live in society, a certain average of conduct, a sacrifice of
individual peculiarities going beyond a certain point, is necessary to the general welfare.
If, for instance, a man is born hasty and awkward, is always having accidents and hurting
himself or his neighbors, no doubt his congenital defects will be allowed for in the courts

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT