Duty of Care and Breach
Negligence has four elements, and this concept covers the first two: duty and breach.
2. Negligence: Duty of Care and Breach
The duty of care element of negligence is a legal standard based on reasonableness under the circumstances unless special rules apply, such as for professionals or people with physical disabilities (concepts 3 and 5 below). A defendant who fails to meet that duty has breached it. RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM §§ 7-12 (2010).
- The duty and breach elements of a negligence claim typically hold the defendant to the standard of a reasonably prudent person in the same circumstances as the defendant.
- Courts refer interchangeably to “the reasonably prudent person” and the “exercise of reasonable care.”
- Evidence of what is customarily done in similar circumstances is typically relevant to determining the standard of care but is not determinative.
The default duty is a single, objective benchmark: the reasonably prudent person in the same circumstances, with breach being the failure to meet it. Industry custom is relevant evidence of what is reasonable, but it never controls.
Negligence has four elements, and this concept covers the first two: duty and breach. The default duty in a negligence case is a single, objective benchmark, the reasonably prudent person in the same circumstances. The standard does not bend to how careful this particular defendant thought they were being or how hard they tried. It asks what a reasonable person would have done in that situation.
Two special tracks pull a defendant off this default, professionals (concept 5) and people with physical disabilities (concept 3), but everyone else is measured against the ordinary reasonable person. Breach is simply the failure to meet that standard. Courts say the same idea two ways, the reasonably prudent person and the exercise of reasonable care, so treat those phrases as interchangeable.
The one nuance worth memorizing is custom. What an industry or community customarily does is relevant evidence of what is reasonable, and the factfinder may consider it, but it is not determinative. A whole industry can be doing something unreasonable, so compliance with custom does not automatically satisfy the duty, and a deviation from custom does not automatically prove breach. Custom is a thumb on the scale, not the verdict.
Do not treat custom as the verdict. Compliance with industry custom does not automatically satisfy the duty, and deviation from custom does not automatically prove breach; the factfinder still decides reasonableness.
RPP-SC: Reasonably Prudent Person in the Same Circumstances.
That is the default duty.
Same sound, two names: 'reasonably prudent person' equals 'exercise of reasonable care.' For custom, remember the phrase 'a whole industry can be careless together.' Custom is relevant but never the final word.
Compliance with custom does not win the case for the defendant; deviation from custom does not win it for the plaintiff.
Custom evidence enters; the jury still decides.
A ferry operator loads passengers in dense fog without posting a lookout on the bow. Every other ferry line on the lake also skips the bow lookout, so this is the industry custom. A passenger is injured when the ferry clips a moored buoy that a lookout would have spotted.
Apply the default standard: what would a reasonably prudent ferry operator do in the same circumstances, loading passengers in dense fog? A factfinder could conclude that reasonable care required a lookout. The operator will argue it followed the universal custom of the trade. That custom is relevant evidence, and the jury may weigh it, but it is not determinative. Because an entire industry can lag behind reasonable safety, the jury is free to find breach despite the operator's compliance with custom.
Conversely, if the operator had been the one line that did post a lookout, the plaintiff could not win simply by pointing to other operators who do not; the question still returns to reasonableness under the circumstances.
Options that say custom is 'never relevant,' 'always conclusive,' 'must be excluded,' or that deviation is breach 'as a matter of law' / for 'any' departure.
Custom is typically relevant but not determinative. Reject both absolutes; the factfinder weighs custom, it never decides the case by itself.Options that make the duty subjective ('what he believed was careful'), split the two name-phrases between duty and breach, claim reasonable care is 'stricter,' or shift the burden to the defendant.
The standard is the objective reasonably prudent person, identical to the exercise of reasonable care, applied to both duty and breach, with the plaintiff keeping the burden.A 'No, the defendant complied with industry custom' option that reaches a clean-sounding outcome on the theory that custom satisfies the duty.
Compliance with custom does not conclusively establish reasonable care; the factfinder may still find breach.Options importing the professional or physical-disability special standard, or treating custom as controlling (malpractice-style), into an ordinary-actor case.
An ordinary actor is measured against the reasonably prudent person in the same circumstances; special standards apply only to professionals (5) and physical disabilities (3).The stem gives you an ordinary actor (not a professional, not someone with a physical disability) who did or skipped some precaution, and the call asks whether there was a duty, whether the actor breached, or what standard applies.
Two tells point straight at this concept.
the word 'custom' or 'customary' or 'industry practice', which signals the relevant-but-not-determinative rule.
any option that tries to make the standard subjective ('he believed he was being careful') when the law is objective.
Default to the reasonably prudent person in the same circumstances and ask what that person would have done.
A landscaper trimmed a tall hedge along a neighborhood sidewalk using a ladder he set on soft, uneven ground without bracing it. The ladder shifted and a falling branch struck a passerby. The landscaper testified that he was new to the work, was doing his sincere best, and genuinely believed he was being careful.
By what standard is the landscaper's conduct measured?
A tugboat company towed barges across open water without equipping its tugs with weather radios, even though affordable radios were available. A storm that a radio would have warned of damaged a barge. The company proved that no other tug company in the region carried weather radios at the time.
May the factfinder still find that the company breached its duty of care?
A homeowner installed a backyard deck and chose to bolt the support posts in a way that departed from the method used by every contractor in the area. The deck was actually sturdier than a code-built deck, and it never failed. A guest who tripped on a garden hose elsewhere in the yard sued, arguing only that the unusual bolting method showed the homeowner breached his duty of care.
Does the homeowner's departure from the customary bolting method, by itself, establish breach?
A driver was traveling at a lawful speed when a child darted into the road from between parked cars. With no time to brake, the driver swerved onto an empty shoulder and clipped a mailbox, injuring a person standing beside it. At trial, the jury was asked to evaluate the driver's split-second swerve.
How should the factfinder assess whether the driver breached the duty of care?
In closing argument, a lawyer told the jury that the defendant breached the duty of care because she failed to use reasonable care under the circumstances. Opposing counsel objected that the jury had been instructed on whether the defendant acted as a reasonably prudent person, not on reasonable care, and argued the two are different legal standards.
Is opposing counsel correct that those are two different standards?
A scaffolding crew on a building site secured its planks with a single clamp at each end. An investigator testified that most crews in the trade use two clamps at each end and that the extra clamp is inexpensive and quick to add. A plank slipped and a worker below was injured. The crew offered no other evidence about the reasonableness of its method.
What is the proper effect of the evidence that most crews use two clamps?