VII. Negligence: Adjusting the Standard? | Lydia Lichlyter | September 18, 2015


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VII. Negligence: Adjusting the Standard?

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

Although “reasonable care” may sound like a simple, straightforward standard, its simplicity is also its problem: there may be situations in which we wish there were more guidance to settle upon a judgment of negligence, even with the facts clearly presented. Suppose a six-year-old playing a game of tag in the local park knocks over a responsibly-behaving passerby. Does reasonable care naturally scale to meet a six-year-old's capacities? Should it?

How to judge a six-year-old opens the door to a broader question that as the ring of applied philosophy to it: to what extent should society forgive, and reflect in its standards, the infirmities and limitations of a defendant? How much should expectations be raised for those with extra abilities?


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    1. 1.1 Show/Hide More Vaughan v. Menlove--"The Unreasonable Hay Stacker"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      How does the reasonable person standard account for variations in human intelligence?
      Plaintiff’s property caught on fire due to the spontaneous combustion of hay stacked by the defendant nearby. The facts showed that plaintiff had explicitly warned defendant of the risk of fire; defendant responded by saying that “he would chance it.” Defendant insisted, throughout trial, that his stack did not carry a risk of igniting. However, the potential for hay stacks to spontaneously combust may have been common knowledge at the time.
    2. 1.2 Show/Hide More Wood v. Groh--"The Gun from the Cabinet"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Does the reasonable person standard require increased care for dangerous instrumentalties?
      Defendant, age fifteen, obtained his father’s gun and accidentally shot the plaintiff while intoxicated. He had retrieved the gun from his father’s locked gun cabinet after using a screwdriver to force it open.
    3. 1.3 Show/Hide More Goss v. Allen--"The Nearly-Adult Skier"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      What activities inherently require an adult standard of care?
      Plaintiff and her friend were standing 60 feet beyond the end of a ski slope. They were in the middle of taking pictures. Without any warning, the defendant suddenly skied into and knocked down the plaintiff. The defendant was a seventeen-year-old novice skier who had lost control of his motion.
    4. 1.4 Show/Hide More VII. Ellis v. D'Angelo -- "The 4-Year-Old Bone
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Does a defendant's age alone justify adjusting his or her standard of care?
      Plaintiff was hired as a babysitter for the 4-year old defendant. On the plaintiff’s first day of work, the defendant pushed the plaintiff violently to the ground, fracturing her arms and wrists. The defendant child was sued for both battery and negligence in harming the plaintiff.
    1. 2.1 Show/Hide More McCarty v. Pheasant Run--"The Chained, But Unlocked, Sliding Door"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Does a plaintiff's lack of care elevate the care expected of the defendant?
      Plaintiff was a guest at defendant’s hotel. Plaintiff’s room had a sliding glass door equipped with a lock and safety chain. An intruder forced his way past the chained door—which was closed but not locked—and threatened to rape the plaintiff before she fought him off. During trial, plaintiff did not prove the existence of cost-effective safety measures that the hotel could have implemented to avert the incident.
    2. 2.2 Show/Hide More Roberts v. Ramsbottom--"The Driver Who Had a Stroke"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should a medical episode absolve actors of their duty of care?
      Defendant suffered from a stroke prior to entering his car. He struck plaintiffs’ car while still mentally impaired by the stroke. Throughout the course of events, defendant did not realize that he was unfit to drive, but did admit to “feelings of queerness” at the time. The defendant’s deliberate and voluntary efforts to control his care demonstrated some awareness of his surroundings and traffic conditions. Based on medical testimony, the court found that defendant never suffered a complete loss of consciousness, as in an epileptic fit.
    3. 2.3 Show/Hide More Bashi v. Wodarz--"The Driver Who Wigged Out"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Does mental illness count as a “sudden affliction” as defined in Roberts?
      Defendant was involved in two automobile accidents in fairly quick succession. The plaintiffs were involved in the second accident. The traffic report stated that defendant engaged in “bizarre” behavior before and after the collision with the plaintiffs. Defendant stated that she had little recollection of either accident. She claimed that she had no control of her actions, and believed that she had “wigged out” or “freaked out” at the time. She also claimed a family history of mental illness. Unrebutted medical expert evidence described the defendant as suffering a “[s]udden, unanticipated onset of mental illness” shortly before colliding with plaintiffs.
    4. 2.4 Show/Hide More Miller v. Reilly--"The Defective Brakes Case"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should an actor's standard of care be relaxed by exigent circumstances—such as her car's brakes failing while the actor is driving downhill?
      Defendant's car brakes failed while she was driving downhill. Despite her efforts to maintain control of her car, defendant's car jumped the median strip and struck the plaintiffs' automobile. Defendant's car was equipped with an emergency brake, but she failed to use it before the collision occurred.

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September 18, 2015

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Lydia Lichlyter


Harvard Law School

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