15. What is “unreasonable behavior” that constitutes a breach of duty?
Negligence entails unreasonable behavior that breaches the duty of care that the defendant owes to the Plaintiff. This standard is known as the “reasonable person” standard. Whether conduct is unreasonable is a mixed question of law and fact. The duty of care exists under the law, but the determination of what is reasonable may be unreasonable in another situation. In determining whether conduct is unreasonable, a court will consider “the likelihood that the defendant’s conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk.” Notably, the reasonable person standard of care is an objective standard based upon the nature of the relationship and the subjective characteristics of the plaintiff.
• Note: A professional, such as a doctor, will be held to the standard of a reasonable professional in a given situation. A failure of a professional to act reasonably within the scope of her duties is known as “malpractice”. Further, a large person interacting with a small child may owe a higher standard of care to avoid harmful physical contact than a small person interacting with a large person.
Inaction as Unreasonable Behavior
In some situations, inaction may constitute unreasonable behavior. This is true when a special relationship exists or one individual causes the risk of harm to the other person. In such a situation, an individual incurs an affirmative duty to act. Failing to act drops below a reasonable standard of care.
• Example: A mother fails to help her child cross the street. If the child strays into traffic and is injured, the mother’s inaction is negligent in causing harm to the child. A mother is assumed to act in the best interest of her child, such that others will not act assuming the mother will act. I push a non-swimmer into deep water, I now have a duty to act reasonably in preventing that person from drowning. My inaction to rescue her will result in liability.
Gross Negligence, Reckless & Wanton Behavior
Negligence generally entails a simple failure to meet the standard of care owed to others. “Gross negligence”, in contrast, is a severe departure from the standard owed.
• Example: I am rock climbing with a friend. I do not hook our climbing rope in carabiners every 5 feet, as recommended. I think we will make better time if I hook the rope every 15 feet. When my friend slips, he falls 15 feet, rather than 5 feet, before the rope catches him. This causes him to slam very hard into the rock face. This may be an example of gross negligence. I may not have intended the result or appreciated the risk, by my actions fall way below an acceptable standard of care.
“Reckless” behavior demonstrates a complete disregard for the potentially harmful consequences of one’s conduct. It generally requires a defendant to appreciate the nature and severity of the potential harm that may arise from the conduct. Though it does not entail intent to cause the harm, it shows an extreme lack of due care. Such conduct falls below the standard of care owed to other individuals and constitutes negligence. In some jurisdictions reckless conduct is known as “aggravated negligence”. The law frequently allows a plaintiff to recover punitive damages as well as actual damages in such situations.
• Example: Shooting an arrow up into the air without knowing whether anyone will be harmed by the arrow could be reckless conduct.
Res Ipsa Loquitur & Negligence Per Se
Two situations exist where a defendant may either be held liable without a showing of unreasonable conduct or the unreasonableness of conduct is inferred from the facts of the situation.
• “Res Ipsa Loquitur” posits that in some situations the very nature of the accident or situation indicates that conduct of the defendant was negligent. That is, this type of harm would not have occurred in the absence of negligence by someone in the defendant’s position. As such, it is not necessary to demonstrate how a reasonable person would or should have acted in the situation.
⁃ Example: Tom is walking by a building when a potted plant falls on his head. It is apparent that the potted plant fell from the room of the building where there is a community garden. Ginny keeps a garden and is present in the garden when the plant falls. There is no evidence that Ginny intentionally dropped the plant or that she was negligent in allowing the plant to fall, but this could result in her liability for negligence pursuant to res ipsa loquitur. It is abnormal that a plant would fall from the top of the building unless someone was negligent in her actions causing the resultant harm.
• Negligence per se posits that a failure to meet a standard or guideline, often established by a statute or regulation, means an individual is negligent without examining whether the individual’s conduct in the situation was reasonable.
⁃ Example: A professional practice group may establish standards of conduct for its employees. If an employee does not comply with that standard, it could be negligence per se. Violating the standards is assumed negligent without a demonstration of how a reasonable person would act. Further, if an individual is involved in a car crash while speeding, the violation of the speed limit may demonstrate negligence per se without a need to show that a reasonable person would not have been driving at that rate of speed.
• Discussion: How do you feel about using the fictional, reasonable person standard to determine whether an individual has acted reasonably? Do you think that the reasonable person standard varies depending upon the fact-finder? Why or why not? Does it surprise you that inaction can constitute unreasonable behavior in some circumstances and not in others? Why or why not? Should reckless and wanton behavior be considered an intentional tort or unreasonable behavior for purposes of liability? Why?
• Practice Question: Eric is a lifeguard by profession. He is taking a leisurely strong along the lake when he notices a person in distress. He begins to swim after the drowning individual. A few feet into the water, he realizes the water is cold. He does not want to get sick, so he quickly gets out of the water and goes on his way. Has Eric committed a tort?