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

Witt & Tani, TCPI 4. Negligence Standard
2. The Restatement. According to the Restatement (Third) of Torts, “complying with custom
confirms that the actor has behaved in an ordinary way.” RESTATEMENT (THIRD) OF TORTS: PHYS.
& EMOT. HARM § 13 cmt. a (2010). The Restatement further provides that compliance with
custom is “evidence that the actor’s conduct is not negligent but does not preclude a finding of
negligence.” Id. § 13.
3. When is a practice a custom? Customs may provide evidence of reasonableness. But
what constitutes a custom?
A custom, according to one prominent torts treatise, is “a fairly well-defined and regular
usage or way of doing a specific thing, among a group of people such as a trade, calling, or
profession.” 3 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, HARPER, JAMES &
GRAY ON TORTS § 17.3 (3d ed. 2006). The U.S. Supreme Court, in an 1838 action for ejectment
of land, defined custom as “the law or rule which is not written and which men have used for a
long time, supporting themselves by it in the things and reasons with respect to which they have
exercised it,” being introduced by the people, deriving its authority from the express or tacit
consent of the king, and having the force of law. See Strother v. Lucas, 37 U.S. 410, 445-46
(1838).
To count as a custom, a practice must be general, see Wise & Co. v. Wecoline Products,
36 N.E.2d 623 (N.Y. 1941); Alberts v. Mutual Serv. Cas. Ins. Co., 123 N.W.2d 96 (S.D. 1963),
definite, fixed, reasonable, and old enough to have been known to parties, see Dial v. Lathrop R-II
Sch. Dist., 871 S.W.2d 444, 449 (Mo. 1994). A custom does not have to be universal. See U.S. v.
Stanolind Crude Oil Purchasing Co., 113 F.2d 194 (C.C.A. 10th Cir. 1940). However, it has to
be known and practiced by more than a few people and cannot be limited to isolated instances.
See El Encanto, Inc. v. Boca Raton Club, Inc., 68 So.2d 819 (Fla. 1953).
4. Majoritarian default rules. Why defer to custom, as Judge Coxe suggests? One reason
might be that the groups that create customs and are responsible for the practices in a given field
have lots of very good information about the relevant field and are well positioned—much better
positioned than judges and juries—to make informed decisions about which risks are reasonable
and which risks are not. An industry practice or custom is something that arises out of those
informed decisions. The case for following custom is strongest when, as in The T.J. Hooper, the
parties are in contractual relationships with one another in which the customs of the relevant
industry are known to all involved.
We might think of industry customs or practices in such cases as default rules of
contractual interpretation, or contract presumptions. The question, one might say, is this: how
would the parties have allocated the losses arising out of the absence of radios on the tugs? In
many circumstances, the answer to this question might be said to lie in the custom of the trade. If
the custom is to have radios, then we might imagine that the preferred arrangement among barge
owners and tug boat companies is to have radios—and thus that the presumptive or default term of
the contract for cases of losses because of the absence of such a radio would be to allocate the
costs to the tugs. In most cases, the theory goes, the allocation that follows what the parties would
usually do—the so-called majoritarian default—will best reflect the expectations of the parties.
For this argument in contract law more generally, see Robert Scott, Theory of Default Rules, 19 J.
LEGAL STUD. 597, 607-08 (1990).
198