Negligence in the Third Restatement

The third panel on Thursday covered the vast topic of negligence.  Kenneth Abraham (Virginia), Ariel Porat(Tel Aviv/Chicago), and Aaron Twerski (Brooklyn) presented.  The panel was moderated by Lance Liebman (Columbia/Director, ALI).

Abraham discussed his article Custom, Non-Customary Practice, and Negligence.  The rule on evidence of custom (either compliance with or departure from) in tort cases is that it is admissible,  but not dispositive.  Abraham noted that "practice evidence," or evidence of practices in an industry that are not sufficiently widespread to qualify as custom, is, by implication, treated differently.  Evidence of the incidence of the practice--how many actors follow the practice--is inadmissible.  Abraham answered three questions about custom.  First, why do we have a rule on custom?  The primary explanation is historical, and the current custom rule was selected over having custom either conclusively establish reasonable care or be excluded as irrelevant.  Second, what makes custom relevant?  Abraham noted several traditional answers, such as proof of feasibility, and added two of his own.  Custom is relevant because it plays a role in educating the jury and it prevents jurors from drawing unwarranted inferences (that the absence of custom evidence would inspire).  Third, how should practice evidence be treated?  Abraham covered the reasons for and against broader admissibility of practice evidence.  He noted his assessment was inconclusive because of a tension in our understanding of negligence itself.  Practice evidence (and custom) fits nicely into an understanding that negligence is based on regularly recurring situations whose risks can be addressed by the same precaution.  On the other hand, it is less cohesive with an understanding of negligence cases as being very fact-specific.  In other words, Abraham notes our view of the usefulness of practice evidence and custom depends on whether we prefer negligence as a body of fixed rules or flexible standards. 

Porat presented his piece Expanding Liability for Negligence Per Se.  He argued for expanding liability under the doctrine of negligence per se by diminishing the role of the limiting liability conditions.  Porat noted courts enforce two conditions prior to finding liability under negligence per se.  First, the plaintiff must belong to the class of person protected by the statute.  Second, the injury must be of the type the statute is designed to prevent.  Porat argued that, in drafting statutes, the legislature may have taken the background risk into account.  In other words, sometimes there are background risks that would not, in themselves, justify a precaution, but when combined with unusual risks, it makes the precaution worthwhile.  Porat offered an example.  In legislating that workplaces with at least 3 disabled employees have handrails, the legislature may have taken the background risk to able-bodied workers into account prior to passing the law.  Assume the background risk to the able-bodied is assigned a value of 30, the cost of the precaution is 80, and the risk to the disabled is 60.  The two risks together justify the precaution, so why dismiss the suit of an able-bodied worker because the statute was written in terms of the disabled?   

Twerski discussed his article Negligence Per Se and Res Ipsa Loquitor:  Kissing Cousins.  Twerski argued that negligence per se and res ipsa loquitor have a common theme.  In both, plaintiffs seek to prove negligence based on a generalization, and the defendant can only defend by showing that the generalization is inapplicable on these particular facts.  Twerski takes issue with the bright lines drawn in negligence per se in R3.  First, the trial judge should not be commanded, absent excuse, s/he must direct a verdict on standard of care (adopt the statute).  Second, there should not be an exclusive list of excused violations, but a more flexible approach.  Twerski was more complimentary of the res ipsa sections, and specifically applauded the removal of the exclusive control requirement.  Twerski did, however, criticize the draft for allowing a res ipsa case to go to the jury when plaintiff's generalization was countered with plausible direct evidence of a non-negligent cause of the injury-causing event.  In such a case, a jury would simply have no rational way of weighing the generalization against hard evidence.

Commentary was provided by Theodore Boehm (Justice, Indiana Supreme Court) and Ken Oliphant(Bristol/Director, Institute for European Tort Law).  Oliphant noted that the panelists seemed to long for a rule that a breach of a statute is evidence of negligence (but not negligence itself).  He also suggested limiting negligence per se to statutes that specifically set a standard of care.

To hear the panel, you can click here.

--CJR