constitute reasonable conduct under the circumstances, so long as the defendant could reasonably be expected to be aware of it. If a court determines that it expresses what is reasonable, then a defendant’s failure to follow it will be unreasonable. If it calls for a quantum of care that is greater than what is merely reasonable, then a defendant will not necessarily be liable for failing to follow it. If it calls for a quantum of care that is less than what is reasonable, then the defendant may be liable notwithstanding the fact that he followed it. [ See Restatement (Second) of Torts § 295A (with comments and illustrations)]
Negligence Per Se Notwithstanding the foregoing, a statute, regulation, or similar legislative-type enactment may be deemed to supply the standard of care in certain cases, under the negligence per se doctrine, discussed below. Role in Determining What is Foreseeable or Feasible The fact that a relevant business, trade, or industry has developed a custom, policy, practice, or procedure to govern in a particular situation may indicate that a particular type of harm was foreseeable to a defendant who was in a position to know about and follow the procedure. Similarly, the fact that a particular industry typically implements certain precautions is an indicator that said precautions are feasible. Duty—Standards of Care for Minors Depending on the circumstances, a minor child may be held to one of two different standards of care: either the special standard generally applicable to minors, or the adult standard discussed under V.B , supra . Special Standard Generally Applicable to Minors Generally, a minor child is held to the standard of care of a child of “like age, intelligence, and experience under the circumstances.” The most important thing to note about this standard is that, unlike the standard applicable to adults, a particular child’s subjective mental deficiencies, inexperience, and ignorance are taken into account in determining reasonableness under the circumstances. [ See Restatement (Second) of Torts § 283A, 283B (with comments)] Example : A particular child is six years old. The child has below-average intelligence, and he suffers from attention deficit hyperactivity disorder (ADHD). The child’s parents have not permitted him to attend school, so he possesses very little in the way of formal education. The child, through inattentive behavior, causes injury to a plaintiff. The plaintiff sues the child. Assume the court will apply the special standard of care—that of a child of “like age, intelligence, and experience under the circumstances.” If the adult standard of care were applicable, the plaintiff would only have to show that the child was less careful than a sane adult, who possessed both average intelligence and the knowledge and education of an average member of the community. However, since the special standard for children is applicable, the plaintiff will face a steeper hurdle. The plaintiff will have to show that the
You've reached the end of your free preview.
Want to read all 196 pages?
- Spring '08