Black-letter propositions
- 01
A person generally owes reasonable care to foreseeable plaintiffs for risks created by conduct.
- 02
The reasonable person has like physical characteristics but not ordinary mental deficiency; superior knowledge or skill is considered.
- 03
Children use a same-age, intelligence, and experience standard unless engaged in a dangerous adult activity.
- 04
Professionals use the skill and knowledge of similar practitioners, with informed-consent duties in medical settings.
- 05
Negligence per se can establish duty and breach when a safety statute protects this class of person from this type of harm, subject to excuses.
Use this attack sequence under time
Frame the issue
Identify conduct and foreseeable zone.
Resolve the next checkpoint
Choose general, child, professional, or statutory standard.
Resolve the next checkpoint
State breach facts separately.
Finish the conclusion
Then complete cause and damages.
Common wrong turns
- Foreseeability can appear in duty and proximate cause but performs different work.
- Custom is evidence, not conclusive, unless law says otherwise.
- A statutory violation outside the protected class or harm does not establish negligence per se.
Worked example
A 13-year-old drives a full-size motorboat and injures a swimmer.
Operating dangerous motorized equipment is an adult activity, so the child is judged by the ordinary reasonable-person standard, not the flexible child standard.
Practice this topic
The reasonable person standard
Cornell describes the reasonable person as a legal standard applied to defendants in negligence cases. All members of the community owe a duty to act as a reasonable person in undertaking or avoiding actions with the risk to harm others, and a person who fails and injures another may be liable. Whether the standard was met is often a question of fact for the jury.
Vaughan v. Menlove established that the standard is objective, not subjective. In that case a farmer who honestly did not think a haystack could burn his neighbor's cabin was still liable because his actions were objectively unreasonable.
Duty in negligence
Cornell says negligence is the failure to behave with the level of care a reasonable person would have exercised under the same circumstances. It lists five elements that may typically be required: a legal duty owed to the plaintiff, breach, harm, proximate cause and cause in fact. Members of society generally have a duty to act reasonably.
It also lists ways to find a duty, such as creating the risk, a voluntary undertaking, knowledge that conduct will harm the plaintiff, and business or voluntary relationships such as innkeeper and guest or doctor and patient. Cornell notes not everyone is held to the general reasonable person standard.
Cornell adds that not everyone is expected to conform to the general reasonable person standard, and it notes that in agency law the duty of care is a fiduciary duty of directors and officers. In a tort question, keep the negligence duty separate from that corporate use of the same phrase, and name the relationship or conduct that creates the duty.
Frequently asked questions
How should I analyze duty and the reasonable person on the bar exam?+
Identify conduct and foreseeable zone. Choose general, child, professional, or statutory standard. State breach facts separately. Then complete cause and damages.
What is the reasonable person standard?+
An objective standard for negligence cases requiring people to act as a reasonable person would in avoiding actions that risk harm to others.
Is the reasonable person standard subjective?+
No. Cornell says it is objective, illustrated by Vaughan v. Menlove, where the defendant's honest belief did not excuse objectively unreasonable conduct.
Who decides whether the standard was met?+
Often the jury, since whether a person acted reasonably is frequently a question of fact, according to Cornell's summary of the reasonable person standard.
What elements does Cornell list for negligence?+
A legal duty owed to the plaintiff, breach of that duty, harm, proximate cause and cause in fact, which Cornell says may typically be required.
How can a duty of care arise?+
From creating a risk, a voluntary undertaking, knowledge that conduct will harm the plaintiff, or a business or voluntary relationship, per Cornell.