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

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
Fleming James, Jr., Last Clear Chance: A Transitional Doctrine, 47 Yale L.J. 704, 718 (1938).
On top of such measurement difficulties came absurd implications:
If the car had no brakes or warning device, the defendant will not be held. Nor will
he be if the car was going so fast that the equipment was inadequate to prevent the
accident after plaintiff has come into the zone of peril. . . . Under the formula, it will
be seen, it is sometimes true that the greater the defendant’s negligence, the less its
liability. The trolley company may be held for its motorman’s failure to look. But
if we add to this failure enough other negligence (e.g., as to speed, or equipment) so
that looking would not do any good, the trolley company will be let off. Similarly,
if the motorman does look and is careful, the company cannot be held where
defective equipment renders his care unavailing. It is in a better position, when it
has supplied a bad brake but a good motorman, than when the motorman is careless
but the brake efficient.
The last clear chance doctrine faced problems of principle as well. “The worst wrongdoer,”
James wrote simply but powerfully, “is by no means always a last wrongdoer, and there is the
difficulty.” Fleming James, Jr., Last Clear Chance: A Transitional Doctrine, 47 YALE L.J. 704,
716-19 (1938) (internal quotations omitted).
4. Doctrinal ameliorations II: subjectivizing the “reasonable person” standard. In general,
courts describe the standard they use to evaluate a plaintiff’s allegedly negligent conduct as the
same standard they use to evaluate a defendant’s allegedly negligent conduct. In the Restatement
formulation, it is the standard “of a reasonable man under like circumstances.” RESTATEMENT
(SECOND) OF TORTS § 464 (1965). To the extent that courts tailor this standard for particular
plaintiffs—for example, for children and people with physical impairments—that tailoring
supposedly follows the same rules as for defendants with those characteristics. Id. The case law
also shows, however, that when courts apply these standards, conduct that might be deemed
negligent when done by a defendant is not deemed negligent when done by a plaintiff. As the
authors of the Restatement explain:
Id. at cmt. f.
There may be circumstances in which a jury may reasonably conclude that a reasonable
man would take more, or less, precaution for the protection of others than for his own
safety. Thus the risk of harm to others may be more apparent, or apparently more serious,
than the risk of harm to the actor himself; or the actor may have reasonable confidence in
his own awareness of the risk, and his ability to avoid it, where he cannot reasonably have
such confidence in the awareness or ability of others. He may have undertaken a
responsibility toward another which requires him to exercise an amount of care for the
protection of the other which he would not be required to exercise for his own safety. The
relation of the parties, the particular circumstances, and all other relevant factors are to be
taken into account. In the great majority of cases it is probably true that the same conduct
will constitute both negligence and contributory negligence, but it does not necessarily
follow in all cases.
The Restatement authors emphasize that these seemingly contradictory results are not a
matter of different standards, but of differences in facts, which in turn affect how the standards
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