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Borrowing Standards of Care: Violation of Statute as Negligence


Borrowing Standards of Care: Violation of Statute as Negligence


As the previous chapter indicates, the plaintiff in a negligence case must prove four elements-duty, breach, causation, and damages-in order to recover in a negligence case. To establish the second element, breach of the duty of care, or negligence, the plaintiff must show that the defendant failed to act with reasonable care, to behave as the ordinary prudent person would under like circumstances.

This reasonable person standard has been criticized as too vague to provide any meaningful guidance to the jury in evaluating the defendant’s conduct. Juries are supposed to find facts, not to establish the rules of law that determine whether the defendant is liable. Arguably, the negligence standard is so broad that it licenses the jury to find as they please, without constraining them by meaningful legal rules.

On the other hand, how can the rule be any more specific? The variety of human experience, the range of circumstances that may cause injury, is so great that it would be impossible for courts to formulate specific rules in advance to govern liability for all careless conduct. Since it is impossible to “particularize” the negligence standard, the jury is usually instructed under the reasonable person formula. The jurors are left to use their common sense, experience, and, where appropriate, expert testimony, to pass judgment on the defendant’s conduct under this very general standard.

While courts cannot elaborate specific negligence rules to define how parties should behave in all circumstances, legislatures routinely enact statutes establishing standards of care for common situations. This chapter considers the role that such statutes play in proving the second element of a claim for negligence, that a party breached the standard of care or “was negligent.”


Legislatures very commonly enact statutes that establish standards of care for private conduct. Many such statutes govern that ubiquitous, highly practical, but potentially lethal instrumentality, the automobile. Here are some hypothetical, but typical, examples:

No person shall make a turn onto or off of a public way without signaling his or her intention to turn, either by hand or by an electrical signal device. West Dakota Ann. Laws Title V §12.

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