Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
CHAPTER 4. THE NEGLIGENCE STANDARD
So far our treatment of the law of unintentional torts has focused on the development of
fault-based and non-fault-based (or strict liability) approaches. Beginning here in Chapter 4, we
will spend the next five chapters pursuing the principal fault-based approach to tort law: the
negligence standard and the duty of reasonable care that Judge Shaw announced in Brown v.
Kendall.
But what is reasonable care? What does it mean to demand that a person act reasonably?
We will pursue the characteristics of the reasonable person. We will take up the influential (but
always controversial) idea that to behave reasonably is to make those choices that cost-benefit
analysis requires. We will ask who decides what reasonableness requires in any given situation.
Should a generalist judge or an untrained jury decide? Or perhaps the decision about
reasonableness should be made by particular industries, or by experts, or by democraticallyaccountable
legislatures? We will end this chapter with two brief excursions. The first pursues
the question of what litigants need to do to establish that they or their adversaries acted reasonably
or unreasonably, as the case may be. The second steps back and asks a set of deep questions
about the theoretical basis of tort law and about its internal logic and structure.
First, though, we begin with what is in some sense the most basic of all questions: who is
the reasonable person?
A. The Reasonable Person
1. Introduction
Vaughan v. Menlove, 3 Bingham’s New Cases 468 (Court of Common Pleas, 1837)
The declaration alleged, in substance, that plaintiff was the owner of two cottages; that
defendant owned land near to the said cottages; that defendant had a rick or stack of hay near the
boundary of his land which was liable and likely to ignite, and thereby was dangerous to the
plaintiff’s cottages; that the defendant, well knowing the premises, wrongfully and negligently
kept and continued the rick in the aforesaid dangerous condition; that the rick did ignite, and that
plaintiff’s cottages were burned by fire communicated from the rick . . . .
At the trial it appeared that the rick in question had been made by the defendant near the
boundary of his own premises; that the hay was in such a state when put together, as to give rise
to discussions on the probability of fire; that though there were conflicting opinions on the
subject, yet during a period of five weeks the defendant was repeatedly warned of his peril; that
his stock was insured; and that upon one occasion, being advised to take the rick down to avoid all
danger, he said “he would chance it.” He made an aperture or chimney through the rick; but in
spite, or perhaps in consequence of this precaution, the rick at length burst into flames from the
spontaneous heating of its materials; the flames communicated to the defendant’s barn and
stables, and thence to the plaintiff’s cottages, which were entirely destroyed.
PATTESON, J., before whom the cause was tried, told the jury that the question for them to
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