Negligence - The standard of care

Learning Outcomes

After reading this article, you will be able to identify and apply the correct standard of care in negligence cases, distinguish between the general reasonable person standard and special standards for certain defendants, and analyze how breach of duty is determined for MBE questions. You will also recognize how courts assess conduct in light of the applicable standard and understand key exceptions tested on the MBE.

MBE Syllabus

For MBE, you are required to understand the principles governing the standard of care in negligence. This article focuses your revision on the following syllabus points:

• The general reasonable person standard and its application.
• Special standards of care for professionals, children, and others.
• The effect of physical and mental characteristics on the standard.
• The role of custom, statutes, and emergencies in setting the standard.
• How breach of duty is determined in relation to the standard of care.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following best describes the general standard of care in negligence?
   1. The standard of an average person in the community.
   2. The standard of a reasonable person under the circumstances.
   3. The standard of a person with the defendant's actual mental abilities.
   4. The standard of a person with the plaintiff's physical characteristics.
2. A 10-year-old child causes injury while riding a bicycle. What standard of care applies?
   1. The reasonable adult standard.
   2. The reasonable child of similar age, intelligence, and experience.
   3. Strict liability.
   4. The professional standard.
3. In a medical malpractice case, which standard of care is used to judge the defendant doctor?
   1. The reasonable person standard.
   2. The standard of a reasonable doctor in the same or similar circumstances.
   3. The standard of a reasonable patient.
   4. Strict liability.

Introduction

Negligence law requires that individuals act with reasonable care to avoid causing harm to others. The "standard of care" defines the level of caution and judgment expected in a given situation. This article explains how the standard is set, when special standards apply, and how courts determine if a defendant has breached their duty.

The General Standard: The Reasonable Person

The default standard in negligence is that of a "reasonable person under the circumstances." This is an objective test. The law asks: Would a hypothetical reasonable person, in the defendant’s position, have acted differently?

Key Term: Reasonable Person Standard The objective legal standard requiring individuals to act as a hypothetical ordinary, prudent person would act in similar circumstances.

Physical and Mental Characteristics

Physical characteristics of the defendant are taken into account. For example, a blind person is judged as a reasonable blind person. However, mental characteristics (such as low intelligence or mental illness) are not considered—defendants are held to the standard of a person with average mental ability.

Key Term: Standard of Care The level of caution and conduct required by law, measured against what a reasonable person would do in similar circumstances.

Special Standards of Care

Certain defendants are held to a different standard:

Professionals

Professionals (e.g., doctors, lawyers) must act with the skill and knowledge normally possessed by members of their profession in good standing. The standard is measured by the profession's customary practices, not the average person.

Key Term: Professional Standard The duty requiring professionals to exercise the care, skill, and knowledge commonly possessed by members of their profession.

Children

Children are held to the standard of a reasonable child of similar age, intelligence, and experience. However, if a child engages in an adult activity (such as driving a car), the adult standard applies.

Key Term: Child Standard The standard of care applied to minors, based on what a reasonable child of similar age, intelligence, and experience would do.

Common Carriers and Innkeepers

Common carriers (e.g., bus companies) and innkeepers (e.g., hotels) owe a higher duty of care to their passengers and guests. They must exercise utmost care consistent with the practical operation of their business.

Emergencies

In emergencies not caused by the defendant, the standard is that of a reasonable person under the same emergency conditions.

Custom and Statutes

Customary practices may be evidence of the standard of care but are not conclusive. Compliance with or deviation from custom is relevant but not determinative.

Statutes may set the standard of care if they are designed to protect a class of persons from a particular type of harm. Violation of such a statute may be negligence per se.

Key Term: Negligence Per Se The doctrine treating violation of a safety statute as automatic breach of the standard of care if the statute protects the plaintiff's class from the type of harm suffered.

Breach of Duty

A defendant breaches the duty of care by failing to act as a reasonable person would under the circumstances. Courts may use the "Hand formula" (balancing the burden of precautions against the probability and severity of harm) or look to evidence of custom, statutory violations, or the facts of the case.

Worked Example 1.1

A delivery driver is texting while driving and hits a pedestrian. The jurisdiction has a statute prohibiting texting while driving. Is the driver negligent?

Answer: Yes. The driver failed to act as a reasonable person would and violated a safety statute designed to prevent this type of harm. This is negligence per se.

Worked Example 1.2

A 12-year-old child injures another child while playing baseball. What standard applies?

Answer: The child is held to the standard of a reasonable 12-year-old with similar intelligence and experience, not the adult standard.

Worked Example 1.3

A surgeon performs a procedure in a way that most surgeons in the community would not. The patient is injured. What standard applies?

Answer: The surgeon is judged by the professional standard—what a reasonable surgeon would do in similar circumstances. Deviation from accepted medical practice is likely a breach.

Exam Warning

On the MBE, do not apply the defendant’s actual mental ability or personal idiosyncrasies to the standard of care. The test is objective, except for physical disabilities.

Revision Tip

Remember: Statutory violations are not always negligence per se—check if the statute was meant to protect the plaintiff’s class from the type of harm suffered.

Key Point Checklist

This article has covered the following key knowledge points:

• The reasonable person standard is objective and applies in most negligence cases.
• Physical disabilities are considered; mental disabilities are not.
• Professionals and children are judged by special standards.
• Custom and statutes may inform the standard of care but are not always controlling.
• Breach occurs when conduct falls below the required standard.
• Violation of a safety statute may be negligence per se if the statute protects the plaintiff’s class from the harm suffered.

Key Terms and Concepts

• Reasonable Person Standard
• Standard of Care
• Professional Standard
• Child Standard
• Negligence Per Se