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

Witt & Tani, TCPI 4. Negligence Standard
PIGOTT, B.
The object . . . of the regulations which have been broken was, not to prevent cattle from
being washed overboard, but to protect them against contagious disease. . . . If, indeed, by reason
of the neglect complained of, the cattle had contracted a contagious disease, the case would have
been different. But as the case stands on this declaration, the answer to the action is this: Admit
there has been a breach of duty; admit there has been a consequent injury; still the legislature was
not legislating to protect against such an injury, but for an altogether different purpose; its object
was not to regulate the duty of the carrier for all purposes, but only for one particular purpose. . . .
Judgment for the defendant.
The Restatement Approach
The Restatement (Second) of Torts’s provisions for statutes and tort liability restate the
approach found in Martin, Tedla, and Gorris. A statutory or regulatory standard of conduct may
be adopted as the standard of reasonableness where that statute’s or regulation’s purpose is, at
least in part, “to protect a class of persons” that includes the plaintiff, and where the statute’s or
regulation’s purpose is to protect the “particular interest invaded” against the particular sort of
harm complained of. RESTATEMENT (SECOND) OF TORTS § 286 (1965). Section 288 further
provides that an actor’s violations of statutory or regulatory standards are excused, and thus are
not negligence, when the actor’s incapacity makes the violation reasonable; where the actor
“neither knows nor should know of the occasion for compliance”; where the actor is “unable after
reasonable diligence or care to comply”; where the actor is “confronted by an emergency not due
to his own misconduct”; or where “compliance would involve a greater risk of harm to the actor
or to others.” RESTATEMENT (SECOND) OF TORTS § 288A (1965).
Do Section 288’s exceptions comport with the basic rule of negligence per se set out in
Section 286 and in Martin v. Herzog? Does the Restatement offer a coherent reformulation of the
caselaw? Or does it merely reproduce the caselaw’s tensions, in particular the tension between
Martin and Tedla? The Restatement (Third) of Torts offers a more linguistically economical
formulation, but not one that does any better than its predecessor. See RESTATEMENT (THIRD) OF
TORTS: PHYS. & EMOT. HARM §§ 14-15 (2010).
2. A Regulatory Compliance Defense?
So far the cases we have considered arise out of the violations of statutory standards. But
what about when a party complies with such a standard? If violations are negligence per se, does
compliance constitute reasonableness as a matter of law?
Controversially, the traditional answer is no. In Lugo v. LJN Toys, for example, a New
York court rejected the defendant’s contention that its compliance with safety regulations
absolved it from liability, citing the long-standing rule that “while compliance with a statute may
constitute some evidence of due care, it does not preclude a finding of negligence.” 539 N.Y.S.2d
922, 924 (1989), aff’d, 552 N.E.2d 162 (1990). The standard rationale is that legislation sets a
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