Standard of Care & Negligence Per Se — Torts

Twelve-year-old Devi is riding her bicycle in Franklin. She rides carelessly, clips a pedestrian, and gets sued. Is she judged the way you or I would be judged? No. She is measured against a reasonable 12-year-old of similar intelligence and experience, which is a forgiving yardstick.

Now change one fact. Devi is joyriding a motorized snowmobile when she hits the pedestrian. Same girl, same carelessness. This time she is judged like any adult operator, and the child discount vanishes. Nothing about Devi changed. The yardstick did. That is what this topic owns. Negligence has four elements, duty, breach, causation, and harm, and the standard of care is how we decide breach. Get the yardstick wrong and every step after it is wrong.

Here is the route. First the reasonably prudent person, the baseline everyone starts from. Then the actors who get a different yardstick. Children, the physically disabled, the mentally disabled, professionals, and people caught in an emergency. Then negligence per se, where a legislature has already decided what care looks like. Then the defendant's side, compliance. And finally custom, and how much any of it weighs.

Start with the baseline. The reasonably prudent person, acting under the same or similar circumstances. Objective, and applied to everyone the same way. We do not ask what this defendant honestly thought was careful. We ask what a hypothetical careful person would have done in their shoes.

So a long list of things are not excuses. Good intentions. Honest mistakes. Low intelligence. Bad judgment. Inexperience. Forgetfulness. And voluntary intoxication, so the drunk driver is judged like a sober one. You should not be worse off because the person who hurt you happened to be careless by nature.

But the standard is not blind to the situation. Same or similar circumstances lets the jury account for the external facts the actor faced. A sudden storm. An icy road. A child darting into traffic. What it never does is soften the bar for the actor's own internal shortcomings. A rainstorm changes what a reasonable driver would do. The driver's nervousness, slow reflexes, or rookie status does not.

Restatement (Third) § 3 frames it as a balance. It weighs three things. The foreseeable likelihood of harm, the foreseeable severity of that harm, and the burden of the precaution that would have prevented it. The bigger the first two and the smaller the third, the more care a reasonable person must take.

Two refinements. Superior skill counts against you. If you actually possess expert knowledge or above-average skill, the standard rises to require you to use it. A professional race-car driver in an ordinary sedan is judged with that extra skill in mind. And inexperience never lowers the bar. There is no reasonable beginner.

Now the special standards, and these are the whole game. Children first. A child is held to the care of a reasonable child of like age, intelligence, and experience. A real-child yardstick that bends to the individual. Two limits on it. Under the modern rule a child under 5 is simply incapable of negligence. Many states use the traditional rule of sevens instead. Under 7, conclusively incapable. 7 up to 14, rebuttably presumed incapable. 14 and older, presumed capable.

And the limit that catches people. When a child engages in a dangerous activity normally reserved for adults, driving a car, a motorcycle, a motorboat, a snowmobile, the child forfeits the child standard entirely. That is Devi on the snowmobile.

Physical disability works differently. It is built into the standard. The actor is measured against a reasonable person with the same physical disability. A blind pedestrian is held to what a reasonable blind person would do, not to a sighted person's abilities. But he must also take the precautions a careful blind person would take. A cane, or a guide.

There is a companion rule for sudden collapse, so try this one. A driver with well-controlled epilepsy who has never had a warning symptom suffers a first-ever seizure and crashes. Breach? No. The incapacitation was unforeseeable, so the loss of control was not her failure. Now a second driver has blacked out twice in the past month, keeps driving, and crashes in a third blackout. Breach?

Yes. This time the loss of control was foreseeable, and driving anyway was unreasonable. Known condition, foreseeable episode, breach.

Mental and emotional disability get no allowance at all. An adult with a cognitive impairment or mental illness is held to the same reasonable-person standard as everyone else. Courts give three reasons. Mental states are easy to fake and hard to measure. The rule pressures caretakers to supervise. And between an innocent victim and a disabled defendant, the loss should fall on the one who caused it. Notice the deliberate contrast with children.

Professionals are the exception that matters most. A doctor, lawyer, accountant, or engineer is held to the knowledge and skill of an ordinary member of that profession in good standing. And here is what is unique. The standard is set by the profession. What practitioners customarily do is the legal standard, and it usually takes expert testimony to establish. Follow accepted practice and you are generally not negligent. Depart from it and you generally are.

Modern law judges physicians against a national standard for their specialty. The older locality rule, which compared a doctor only to local peers, survives in a shrinking minority.

One professional sub-rule shows up constantly. Informed consent. A doctor must disclose the material risks of a procedure so the patient can make a real choice, and jurisdictions split on the yardstick. The reasonable-patient standard, the modern majority, asks what risks a reasonable patient would consider significant. The older reasonable-physician standard asks what a reasonable physician would customarily disclose. Under either one, the plaintiff must also show that proper disclosure would have changed the decision.

Emergencies next. Someone facing a sudden, unexpected emergency they did not cause is judged as a reasonable person confronting that emergency. This is not a lower standard. The emergency is simply one of the circumstances. Two limits. It is unavailable if the defendant caused the emergency, and a growing number of courts no longer give a separate emergency instruction at all.

One more at the edge. Common carriers and innkeepers traditionally owed passengers and guests the highest degree of care. The modern Restatement folds that into ordinary reasonable care, but many states still apply the heightened duty.

Now the second half of the topic. Sometimes a legislature has already decided what safe conduct looks like. Do not drive over 30 near a school. Guard the moving parts on this machine. Fence a residential pool. Negligence per se lets a court borrow that statutory command as the civil standard of care. The violation itself becomes the breach, and the jury never has to reinvent what a reasonable person would do.

But not every broken statute counts. The plaintiff has to clear a two-part gate. Class of persons. The plaintiff is a member of the class the statute was designed to protect. Class of risk. The harm is the type of harm the statute was designed to prevent. Both halves must fit. On top of that it has to be a real safety statute setting a specific standard of conduct, and the violation must be unexcused.

And here is the limit people forget. Negligence per se replaces the breach inquiry only. Never causation, never damages. Restatement (Third) § 14 states the rule in exactly those terms.

Work it on a statute. The Franklin Pool Safety Act, § 4. Every residential swimming pool must be enclosed by a self-latching gate in a fence at least four feet high. The stated purpose is to stop young children from wandering into pools and drowning. A neighbor's toddler slips through an unfenced pool and drowns. Protected class? Young children, squarely. Targeted risk? Drowning, exactly.

Negligence per se, and the missing fence is the breach. Now change the facts. An adult burglar sneaks in at night, trips where the fence should have been, and breaks an ankle.

No negligence per se, and it fails twice over. The burglar is outside the protected class, and a broken ankle is outside the statute's risk. He is thrown back onto proving ordinary negligence like anybody else.

So what does a qualifying, unexcused violation actually do? Three positions, and the strong majority treats it as conclusive. Negligence per se conclusively establishes the standard and its breach. One minority treats it as a rebuttable presumption the defendant may answer with evidence of due care. Another treats it as merely some evidence the jury may weigh.

Even in a per se state a violation can be excused, and an excused violation drops back to ordinary reasonableness. Five recognized excuses. The violation was reasonable given the actor's youth, physical disability, or incapacitation. Remember Devi. The actor used reasonable care trying to comply. The actor neither knew nor should have known the statute applied, like a tail light that fails silently mid-trip. Compliance would have been more dangerous than violating. Or a genuine emergency not of the actor's own making.

Two classic mismatches sink violations that look solid. Licensing statutes first. Driving without a valid license does not by itself prove you drove carelessly, because a license controls who may act, not how carefully. Second, a crystal-clear violation still fails if the harm sits outside the statute's purpose. A statute requiring animals penned on a ship's deck to stop the spread of disease does nothing for an animal washed overboard in a storm.

Now the defendant's side, because statutes cut both ways. Compliance is a floor, not a ceiling. Restatement (Third) § 16. Obeying the statute is evidence of reasonable care, but it does not preclude a finding of negligence. A reasonable person often has to do more than the bare legal minimum. And defendants run negligence per se in reverse, using the plaintiff's own statutory violation to establish comparative negligence per se. A jaywalker's recovery can be cut that way.

Last piece. Custom, meaning what people in the trade or community actually do. In ordinary negligence custom is evidence of the standard for either side, and it is never conclusive. A plaintiff can show the defendant departed from a safety custom. A defendant can show it followed one. The jury is never bound.

Why not? Because an entire industry can lag behind reasonable prudence. Try it. A tugboat sinks in a storm. The operator proves that at the time no tugboat in the industry carried a radio, though radios were cheap and available. Is that conclusive proof he was careful?

No. It is evidence the jury may reject. A whole trade can ignore a cheap safety precaution, and a court can still call the customary practice unreasonable. Restatement (Third) § 13 says exactly that, running in both directions.

Which leaves the ranking, and the exam wants you to have it cold. A qualifying safety statute conclusively fixes the standard and its breach. Professional custom sets the standard in malpractice. Custom in an ordinary case is only evidence. And statutory compliance is only evidence too, a floor and not proof.

A word on authorities, because this episode named no cases, and that was deliberate. NextGen questions hand you a scenario and ask what the rule produces. They will not ask you for case names. Both halves of this topic are starred, which means the exam gives you no law at all. The rules have to already be in your head.

If you keep only three things, keep these. The yardstick list, because picking the wrong one makes everything after it wrong. The two-part gate, class of persons and class of risk, both halves fitting. And the ranking. A statute is conclusive, custom is only evidence, except in malpractice where custom is the standard.

Now the traps. One. Do not lower the standard for the defendant's stupidity, inexperience, mental illness, or drunkenness. The test is objective. Children and physical disability are the only real bends in it. Two. A child on a motorized vehicle, or any adult activity, loses the child standard. That one is a favorite trick.

Three. Negligence per se replaces breach only. You still prove causation and damages. Four. Both halves of the gate must fit. A real violation that injures the wrong person, or causes the wrong kind of harm, is not negligence per se. Five. Compliance with a statute is not a free pass.

Six. Violating a mere licensing statute is not automatic negligence, because it says who may act, not how carefully. Seven, and this is the one people flip. Custom is only evidence in ordinary cases. Custom is the standard in professional malpractice. Do not swap those two.

Time for the quick check. This one comes straight from the BARGO question bank.

A worker is injured when a factory machine lacks a guard on its moving parts. A state safety statute requires exactly that guard on exactly that machine, to protect workers from exactly this kind of contact injury, and the factory concedes it violated the statute. The factory offers to prove that no other factory in the industry guards this machine either, hoping industry custom will defeat liability.

How do the statute and the custom compare? Option one. The industry custom controls and defeats the statutory violation. Option two. Both are merely evidence the jury weighs against each other. Option three. The statute conclusively fixes the standard, and custom cannot override it. Pause here if you want a moment.

The answer is option three. A qualifying safety statute that fits the gate, and this one does, conclusively fixes the standard of care and its breach when the violation is unexcused. Industry custom is only evidence in ordinary negligence, and it can never override a controlling safety statute. Option one inverts the hierarchy, letting a lagging custom beat a statute the legislature passed to raise the floor. Option two is the tempting one. It flattens the two into equal evidence, and they are not equal.

If option two felt safe, that is the half-learned version the examiners count on. There are thirty-plus more questions on this topic alone.

Five things to take away. One. The reasonable person is objective. External circumstances count, the actor's own shortcomings never do. Two. Children get a reasonable child of like age, intelligence, and experience, unless the activity is an adult one. Three. Physical disability is built into the standard. Mental disability is not.

Four. Negligence per se needs the right plaintiff, the right kind of harm, a real safety statute, and an unexcused violation, and it settles breach only. Five. A qualifying statute is conclusive. Custom is evidence, except in malpractice, where the profession sets the standard itself.

Which brings us back to Devi. Nothing about the girl changed between the bicycle and the snowmobile. The yardstick did, and the yardstick decided the case. Pick it first, every time. Next time, Res Ipsa and Proof.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.