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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.

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