VI. Negligence: The Standard of Reasonable Care | Lydia Lichlyter | September 18, 2015


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VI. Negligence: The Standard of Reasonable Care

Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter Show/Hide

We now shift gears away from intentional wrongdoing and its defenses and toward what many consider to be the heart of tort law, both in volume of cases (and damages) and in conceptual challenge: negligence. Under what circumstances should someone’s actions be deemed careless enough to warrant damages, while falling short of the level of riskiness (or even certainty of harm) associated with intentional tort? At the core of negligence is a deceptively simple-sounding standard: act reasonably.

Negligence law naturally draws in a group of defendants rarely seen in intentional tort: corporations. Can a standard of reasonableness be as intuitively grasped by a jury for judgment of a firm’s behavior as for a person’s actions? How much of the application of that standard should be left to a jury, and how much to a judge, who can decide whether a fact pattern – even one most sympathetic to a plaintiff – merits a jury’s look at all?

The cases in these sections look at how the law conceives of a negligence standard by examining cases in which judges had to decide whether a jury should hear the case – or, if they heard it, whether they applied the standard correctly. Included is a case famed among legal scholars but typically unknown to senior practitioners: U.S. v. Carroll Towing. Carroll Towing introduces a formula by which one judge thought negligence might be further fleshed out – “unreasonable” behavior unpacked. How helpful is Judge Hand’s formula of b<pl? When, if ever, should a jury be exposed to it? Are there elements of unreasonable behavior not always captured by those three variables?


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    1. 1.1 Show/Hide More Topps v. Ferraro
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      How should courts weigh wrongful acts in determining intent?
      Plaintiff and defendant stepped outside in order to discuss something. Once outside, the defendant confronted plaintiff about earlier statements allegedly made by plaintiff about defendant's girlfriend. The conversation grew heated and argumentative. According to the defendant, the plaintiff shoved him in the shoulder, and he responded by punching plaintiff in the face. As a result of the punch, plaintiff's eye was permanently damaged and his vision impaired. At trial, defendant testified that the punch was &#8220;a matter of reflexes&#8221; and that it wasn't &#8220;thought out&#8221;.
    1. 2.1 Show/Hide More Chicago, B. & Q. R. Co. v. Krayenbuhl--"The Foot-Severing Turntable"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      When ruling on negligence, should courts consider factors unrelated to the potential harm of an activity (such as the activity’s usefulness to society)?
      The defendant railroad company operated a turntable in the plaintiff child’s neighborhood. It was common practice for children of the neighborhood to revolve the turntable and ride on it. Defendant was aware of this practice. While playing on the turntable with his friends, the plaintiff’s foot was caught between the rails and severed at the ankle joint.
    2. 2.2 Show/Hide More United States v. Carroll Towing Co., Inc.--"The Learned Hand Formula Case"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should we attempt to reduce the standard of reasonable care into forms that seem more empirical—like an algebraic formula?
      Defendant’s negligent towing caused all the ships it was towing to break free. A ship carrying the plaintiff’s cargo of flour sank in the aftermath of defendant’s negligence. However, defendant claims that the charterer of plaintiff’s boat was negligent for failing to have an additional bargee on board, as the sole bargee&#8212;a person employed on or in charge of a barge&#8212;hired was gone ashore at the time of the accident.
    3. 2.3 Show/Hide More Adams v. Bullock
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should reasonable care protect against all conceivable harm, no matter how unlikely?
      Defendant operated a trolley line, using an overhead wire system to supply power to the trolleys. Plaintiff—a young boy—ran across a bridge while swinging an eight-foot wire of his own. The defendant’s trolley wire ran beneath the edge of the bridge. In swinging his wire, the plaintiff’s wire made contact with defendant’s trolley wire, shocking and burning the plaintiff.
    1. 3.1 Show/Hide More Pokora v. Wabash Railway Co.--"The Driver Who Failed to Step Out and Look Around"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should judges impose strict rules defining reasonable conduct in dangerous or unusual situations or should they defer to the jury?
      Plaintiff's car was struck by a train while driving through a railway grade crossing with poor visibility. The plaintiff did not leave his car to inspect the crossing before proceeding; there was a prior Supreme Court case which required individuals to make such inspections. The district court directed a verdict for the defendant based on the plaintiff's failure to follow the rule.
    2. 3.2 Show/Hide More Andrews v. United Airlines, Inc.--"The Baggage May Have Shifted During Flight Case"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      When should judges determine reasonable care at summary judgment and when should they defer to juries?
      Plaintiff was injured by falling baggage while exiting an airplane. The airlines provided warnings that baggage may shift during flight, and that passengers should use caution when opening the overhead bins. The trial court dismissed the case on summary judgment.
    3. 3.3 Show/Hide More Akins v. Glen Falls--"The Blinding Foul Ball"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      What level of guidance may a judge give the jury with respect to reasonable care?
      Defendant owned a baseball field and provided protective screening behind the home plate. Plaintiff elected to watch a baseball game from an unscreened section of the field. She was then struck in the eye by a foul ball, causing serious and permanent injury.

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September 18, 2015

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Lydia Lichlyter


Harvard Law School

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