Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
There are exceptions to the principle that every man is presumed to possess ordinary
capacity to avoid harm to his neighbors, which illustrate the rule, and also the moral basis of
liability in general. When a man has a distinct defect of such a nature that all can recognize it as
making certain precautions impossible, he will not be held answerable for not taking them. A
blind man is not required to see at his peril; and although he is, no doubt, bound to consider his
infirmity in regulating his actions, yet if he properly finds himself in a certain situation, the
neglect of precautions requiring eyesight would not prevent his recovering for an injury to
himself, and, it may be presumed, would not make him liable for injuring another. So it is held
that, in cases where he is the plaintiff, an infant of very tender years is only bound to take the
precautions of which an infant is capable; the same principle may be cautiously applied where he
is defendant. Insanity is a more difficult matter to deal with, and no general rule can be laid down
about it. There is no doubt that in many cases a man may be insane, and yet perfectly capable of
taking the precautions, and of being influenced by the motives, which the circumstances demand.
But if insanity of a pronounced type exists, manifestly incapacitating the sufferer from complying
with the rule which he has broken, good sense would require it to be admitted as an excuse.
Notes
1. The “reasonable man” is born. Together, Vaughan v. Menlove and the Holmes excerpt
above sketch the contours of the “reasonable man,” the standard at the heart of modern negligence
law. They do so by taking up the question of which features, if any, particular to the party ought
to be relevant to the evaluation of that person’s conduct. Vaughan concludes that lack of ordinary
intelligence is not an excuse for failing to live up to the standard of ordinary care. It adopts what
we call an objective approach to the reasonableness inquiry: rather than asking whether the
defendant acted reasonably in light of the defendant’s personal characteristics and capabilities
(which would privilege the defendant’s subjectivity), the chosen approach abstracts away from the
particular features of the defendant and asks whether the defendant’s conduct was reasonable on
the basis of an external social standard. The Restatement puts it this way: “Unless the actor is a
child” (more on this in the pages that follow), “the standard of conduct to which he must conform
to avoid being negligent is that of a reasonable man under like circumstances.” RESTATEMENT
(SECOND) OF TORTS § 283 (1965); see also RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT.
HARM § 3 & cmt. a (2010) (defining negligence as failure to “exercise reasonable care under all
the circumstances,” where “the ‘reasonable care standard . . . is basically the same as a standard
expressed in terms of the ‘reasonably careful person’”). If a person does their best within the
limits of their own intellectual or cognitive capacities to act reasonably carefully—acting “bona
fide to the best of their judgment,” as the defendant’s lawyer put it in Vaughan—have they acted
wrongfully when they nonetheless fall short of society’s expectations? If not, why does tort law
embrace a standard that allows liability in this situation?
2. Is the reasonable person a rational actor? One view of the facts in Vaughan is that the
defendant acted in accordance with what a rational person in his circumstances might do. “[H]is
stock,” after all, “was insured.” Why not “chance it”? Does tort law’s “reasonable person”
behave in the same way as a “rational person”? If not, when might their actions diverge?
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