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

Witt & Tani, TCPI 4. Negligence Standard
a reasonable one. The general rule applies that “Contributory negligence may be declared as a
matter of law only when it is so clearly revealed that fair and reasonable persons cannot disagree
as to its existence . . . .” Guca v. Pittsburgh Railways Company, 80 A. 2d 779.
It was not unreasonable for the jury to have concluded that plaintiff exercised due care for
his safety when he used his cane in the manner which he described. . . .
Judgment affirmed.
Notes
1. Why take physical traits into account? Vaughan v. Menlove stands for an objective
approach and the irrelevance of what Holmes called the “infinite varieties” of human
characteristics. Why do we see courts adopting a different approach here—subjectivizing, in a
way, a standard that is supposed to be objective? What makes vision impairment different from
intellectual impairment?
2. The Restatement view. The Restatement aligns with the holdings in Smith v. Sneller, 26
A.2d 452 (Pa. 1942), and Davis v. Feinstein, 88 A.2d 695 (Pa. 1952): “If the actor is ill or
otherwise physically disabled, the standard of conduct to which he must conform to avoid being
negligent is that of a reasonable man under like disability.” RESTATEMENT (SECOND) OF TORTS §
283C (1965). Note that sometimes this standard might require a person with a physical
impairment to take greater precautions than the person not so impaired. Simultaneously, it might
excuse the person from taking precautions that reasonable care would demand of others. Id. at
cmt. c. Such adjustments, according to prominent torts theorist William Lloyd Prosser, are the
common law’s way of declaring that “[t]he man who is blind, or deaf, or lame, or is otherwise
physically disabled, is entitled to live in the world.” WILLIAM LLOYD PROSSER, THE LAW OF
TORTS § 32, at 155 (3d ed. 1964).
3. The negligence standard and “the right to live in the world.” Perhaps the most famous
critique of tort law’s approach to physical traits is Professor Jacobus tenBroek’s The Right to Live
in the World: The Disabled in the Law of Torts, 54 CAL. L. REV. 841 (1966). Like Prosser,
tenBroek argues that tort law plays a crucial role in whether people with physical limitations feel
free “to move about and be in public places”—“to go about in the streets, sidewalks, roads and
highways, to ride upon trains, buses, airplanes, and taxi cabs, and to enter and to receive goods
and services in hotels, restaurants, and other places of public accommodation.” Id. at 842. But
tenBroek—drawing in part on his own experiences as a blind man—offers a much darker
assessment than Prosser of tort law’s accomplishments:
Dean Prosser's grand pronouncement . . . while purporting to be drawn from the
case law, and while seeming to express for the law of torts the legislatively
established policy of the integration of the disabled, is in no sense an accurate
summary of the law of torts as that law stands today. The judges either qualify or
ignore Dean Prosser's pronouncement and the integrationist policy. In some areas,
the pronouncement and the policy are completely rejected; in others, they are given
139