7

That Odious Character: The Reasonable Person

INTRODUCTION

Surely the most common basis for tort liability is negligent conduct. This chapter is about the meaning of negligence.

Let’s begin by clarifying our terminology. Courts often speak of a “claim for negligence.” In this sense, negligence is a tort with four elements: (1) a duty of reasonable care, (2) breach of that duty, (3) causation, and (4) resulting damages. A plaintiff must prove all four of these elements to “recover on a claim for negligence.” But courts also use the term “negligence” in a related but more limited sense, to refer to the failure to live up to the standard of due care. In this sense, “negligence” refers to the second element of a claim for negligence, breach of the standard of due care. To say that the defendant “was negligent” is to say that he failed to exercise reasonable care under the circumstances.

Since courts do not always distinguish these two meanings of “negligence,” students often get confused between the tort of negligence and the concept of negligence as a breach of the standard of due care. A defendant may be negligent without necessarily being “liable for negligence” (if, for example, the plaintiff does not suffer damages from the defendant’s failure to exercise due care). It is important to distinguish the tort of negligence from the second element of that tort. This chapter is about the latter meaning, the failure to live up to the standard of reasonable care.

THE STANDARD OF REASONABLE CARE

The basic premise of negligence law is that we generally owe our fellow citizens a duty to exercise reasonable care in the conduct of our own affairs. This duty does not require that we avoid all injury to others, but only that we avoid injuring others by carelessness. That duty is breached (element #2 of a negligence claim) by failing to exercise reasonable care.

Negligence is the omission to do something which a reasonable man, [sic] guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man [sic] would not do.

Blyth v. Proprietors of the Birmingham Waterworks, 156 Eng. Rep. 1047, 1049 (1856). See also Restatement (Third) of Torts: Liability for Physical and Emotional Harm §3 (to avoid being negligent, actor must “exercise reasonable care under all the circumstances”). While the Birmingham Waterworks case goes back a century and a half, you could go into courtrooms across the United States and hear juries in negligence cases instructed in very similar terms today-though the reference would be to the gender-neutral “reasonable person.”