2 Introduction to Negligence

One significant subset of tort law concerns negligence, which usually consists of accidental or careless wrongdoing that results in harm. Negligence is thus largely concerned with injuries or damage inflicted through failure to take certain ordinary precautions. Negligence must be distinguished from the two other regimes you will study. Intentional torts concern tortious behavior that meets a requisite level of intentionality whereas negligence refers to wrongdoing better characterized as accidental or careless than intentional. The domain of strict liability law attaches liability categorically to certain behaviors, no matter whether the actor was at fault in any way. What defines the domain of strict liability is whether a legislature or court has decided that a particular behavior belongs in this category. Defining what it means “to be at fault,” instead, falls to negligence law.

The test for determining negligence is whether or not the parties’ conduct was “reasonable” under the circumstances. This is known as the “reasonable person” standard. Tort law does not anticipate that actors will behave perfectly, or even expect that they will try to do so. The theory is that it would be costly and unfair to require that people move through the world never causing any harm; if people were liable for every possible harm they might cause, they might stop doing many things that are socially valuable but nonetheless involve some amount of risk. Instead, tort law imposes a reasonableness standard which depends on the judge or jury’s best retrospective assessment of how a “reasonable person” would have behaved under the same circumstances.

Over time, negligence law has proven to be adaptive to social, economic and technological change, since the standard—whether the conduct that produced injury was reasonable under the circumstances—can change over time and the legal outcome usually depends on the facts of the specific case. Reasonableness is highly constructed, of course; what it means may well be expressed as a function of ability, class, gender, sexual orientation and race. Yet, with few exceptions, tort law uses a “one-size-fits-all” approach to reasonableness.

The standard negligence action, which attempts to determine whether a defendant’s conduct was unreasonable and caused harm to the plaintiff, can be expressed as four elements, which are bolded in the next sentence. For a plaintiff to win a negligence claim, the defendant must have breached their duty of due care, thus causing the plaintiff’s injuries. The injuries must also be of the kind that tort recognizes, and there are some limitations on the plaintiff’s behavior that vary somewhat by jurisdiction and that you will learn about later in your course.
Note that this standard is applied to the defendant’s conduct in determining their potential liability for negligence. However, it is also applied to the plaintiff’s conduct; in an earlier era of tort law, if the plaintiff’s conduct was unreasonable (or “contributorily negligent”), the plaintiff’s tort lawsuit would fail. In the past forty years, legal reforms changed this default. Now only a handful of states bar recovery in cases involving “contributory negligence”, that is, cases in which the plaintiff’s conduct contributed to their injuries. All the other states have adopted a “comparative fault” rule that considers the reasonableness of both the defendant’s and plaintiff’s actions and may offset liability and damages accordingly.

Summed up, the standard elements of negligence are: duty, breach, causation, and damages. In some jurisdictions (and casebooks, outlines and other learning materials you may encounter), causation is broken into two prongs: causation in fact (sometimes referred to as “but-for causation” due to the most common test applied) and legal causation (commonly called “proximate cause”). This is why you will sometimes see the test for negligence listing five rather than four elements. When you cover negligence later in your course, you will devote multiple weeks to it, so don’t worry about the detailed aspects of these elements for now. Instead, keep aiming to develop a high-level view that allows you to understand the distinctions between the regimes in tort law and to look for what differentiates negligence (fault-based liability), strict liability (no-fault liability) and the intentional torts (intent-based liability).

Questions for the Readings and Areas of Focus

As you read the first three cases, please keep the following questions in mind:

• Who or what, if anyone or anything, was at fault?
• What could have—or should have—been done to prevent the harm, if anything? And by whom?
• In what ways is negligence law capable of change over time?
• Who is “the reasonable person”?

Davison et Ux v. Snohomish County, Supreme Court of Washington (1928)
(149 Wash. 109)

Plaintiffs [Edwin F. Davison and wife] instituted this action against Snohomish county as defendant, seeking to recover damages alleged to have been suffered by them as the result of the negligence of defendant in the construction and maintenance of the elevated approach to a bridge known as the Bascule bridge across Ebey Slough. In the southwesterly approach to this bridge there is a right angle turn towards the south just *110 easterly of the slough, and at this point the causeway or approach to the bridge is at quite an elevation above the ground level. The bridge itself is approximately 18 feet wide; the approach leading to the bridge proper, at the curve just to the east of the bridge, increases in width to a maximum of 30.9 feet, narrowing again to 18 feet at the end of the turn.

At about 8 o’clock in the evening of November 11, 1926, plaintiffs were driving their Ford automobile toward the city of Snohomish, and proceeded to cross the bridge from west to east at a low rate of speed. Plaintiff Edwin F. Davison was driving, and, as the car rounded the curve to the east of the slough, he lost control, the car skidded, struck the railing on the east or outer edge of the approach just around the curve, broke through the railing, and, with plaintiffs, fell to the ground. Both plaintiffs suffered severe and painful injuries, and the automobile was wrecked; for all of which damage plaintiffs prayed for judgment in a large amount.

Defendant answered plaintiffs’ complaint, denying all the allegations of negligence on its part and affirmatively pleading contributory negligence on the part of plaintiffs. The action came on regularly for trial, and resulted in a verdict in plaintiffs’ favor in the sum of $2,500. Defendant seasonably moved for judgment in its favor notwithstanding the verdict, or, in the alternative, for a new trial. Both of these motions were denied by the trial court, which thereupon entered judgment upon the verdict, from which judgment defendant appeals. There is no dispute as to the reasonableness of the amount of the verdict, if appellant is liable at all; the sole question raised being the liability of the county for any damages whatsoever.

Respondents allege that appellant was negligent in *111 the construction and maintenance of the approach to the bridge, in that, at the time of the accident, the railing through which respondents’ car broke was insufficient to act as a guard; that the posts which supported the same were decayed; that the floor or deck of the approach was so constructed as to slope out and down from the center of the curve to the outer edge, and that appellant, prior to the accident, had been repairing a road near the west approach of the bridge and in doing this work hauled over the bridge from the east a considerable quantity of dirt, a portion of which was scattered on and over the approach; that on November 11, 1926, considerable rain fell, and that, as a result, the deck of the approach, being covered with wet dirt, became very slippery, and, coupled with the other conditions alleged, constituted a menace to motor vehicle traffic.

Respondents urge that the combined effect of the different matters of which they complain produced a dangerous situation, and that the suffering of such a condition to exist constituted negligence on the part of appellant and renders appellant liable for the damages suffered by respondents. Appellant contends that respondents failed to prove negligence on the part of appellant, and that its motion for judgment notwithstanding the verdict should have been granted. [***]

It is undoubtedly the law that it is the duty of a municipality to keep its bridges in a reasonably safe condition for travel. [c] On the other hand, a municipality is not an insurer of the safety of everyone who uses its thoroughfares; nor is it required to *112 keep the same in such a condition that accidents cannot possibly happen upon them. As was stated by this court in Grass v. City of Seattle, 100 Wash. 542, discussing an accident to a pedestrian which it was claimed was caused by a drop in a sidewalk ranging from 2 1/2 inches at one side of the walk to nothing at the other side:

‘Manifestly, it seems to us, a city cannot be held negligent for suffering to remain in a sidewalk a defect so inconsequential as this one was shown to be. A city is not an insurer of the personal safety of every one who uses its public walks. It owes no duty to keep them in such repair that accidents cannot possibly happen upon them. Its duty in this respect is done when it keeps them reasonably safe for use-safe for those who use them in the exercise of ordinary care-and we cannot but conclude that this one was thus reasonably safe.’

Respondents admitted that they were thoroughly familiar with the bridge and its approaches, having driven over the same many times prior to the day of the accident, and they consequently were fully advised as to the existence and location of the curve in the approach, the width of the bridge, and the approaches and the different grades therein.

As respondents rely upon three several elements, each of which they claim resulted from the negligence of appellant, all three uniting to render the bridge unsafe and to cause the accident which is the basis of this action, it is necessary to analyze these elements of alleged negligence: First, the insufficiency of the railing or guard to prevent respondents’ automobile from skidding off the approach; second, the fact that the deck of the approach, at the curve, sloped downward toward the outer edge, which had a tendency to cause the automobile to slide in that direction; and, third, the fact that dirt was scattered over the deck *113 of the approach, which, being wet by the rain, caused the deck to be more slippery than it would have been had no dirt been scattered over it.

The use of the automobile as a means of transportation of passengers and freight has, during recent years, caused certain changes in the law governing the liability of municipalities in respect to the protection of their roads by railings or guards. A few years ago, when people traveled either on foot or by horse-drawn vehicles, a guard rail could, to a considerable extent, actually prevent pedestrians or animals drawing vehicles from accidentally leaving the roadbed, but, as a practical proposition, municipalities cannot be required to protect long stretches of roadway with railings or guards capable of preventing an automobile, moving at a rapid rate, from leaving the road if the car be in any way deflected from the roadway proper and propelled against the railing. As was said by this court in the case of Leber v. King County, 69 Wash. 134:

‘Roads must be built and traveled, and to hold that the public cannot open their highways until they are prepared to fence their roads with barriers strong enough to hold a team and wagon when coming in violent contact with them, the condition being the ordinary condition of the country, would be to put a burden upon the public that it could not bear. It would prohibit the building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones.’

This principle applies with special force to elevated causeways constructed of wood, such as the approach from which respondents’ automobile fell, as upon such a structure the railing can be anchored or secured only to the deck of the causeway. Upon the ground, in situations of special danger, strength can be given to a guard or railing by driving posts into the earth, and *114 a guard of any desired strength can be constructed in that manner. A concrete viaduct can be constructed with side walls of considerable resisting power; but the same degree of protection cannot be expected from a guard or railing along the side of an elevated frame causeway or viaduct. Respondents introduced some testimony to that effect that the posts which supported the railing were, to some extent, rotted. We have carefully considered this testimony, and, for the purposes of this opinion, assume that it was true; but we still do not think that it was sufficient to take the case to the jury upon the question of appellant’s negligence in connection with the condition of the railing at the time of the accident.

In regard to the second element of alleged negligence urged by respondents, the fact that, at the curve in the approach, the deck sloped slightly downward towards its outer edge, we are of the opinion that, in view of the fact that the slope was so slight as not to be noticeable to the eye, amounting to no more than a small fraction over an inch to 18 feet horizontal measurement across the deck, or from 2 3/4 inches to 1 1/8 inches to the entire width of the deck, it is our opinion that the maintenance of the approach in this condition did not constitute such negligence on the part of appellant as would render appellant liable to respondents in this action. The Supreme Court of Michigan, in the case of Perkins v. Delaware Township, 113 Mich. 377, held, as matter of law, that the maintenance of a bridge, 16 feet wide, which had no railings at all, one inch lower on one side than the other, was not negligence on the part of the township. While the facts of the Michigan case differ considerably from the situation now before us, the opinion is *115 of value in aiding us in the determination of the case at bar.

Referring to the third element of negligence relied upon by respondents, the fact that some dirt was scattered over the deck of the approach, and that due to the fact that considerable rain had fallen and was still falling at the time of the accident, the wet dirt caused the deck to be unusually slippery, we are unable to find any testimony in the record which would justify the submission of this element of alleged negligence to the jury. Appellant would not be liable because of any ordinary accumulation of dirt or similar matter upon the approach, unless a dangerous condition were permitted to exist for such a period of time as would imply, in law, notice to appellant of the fact that its roadway was unsafe, and it should further appear that appellant had been negligent in not remedying the condition within a reasonable time. Respondents contend in this case that the dirt upon the roadway had been scattered by appellant’s employees within a very short time prior to the accident. Giving the testimony upon this point the construction most favorable to respondents’ contention, we feel compelled to hold that, as matter of law, there was no testimony sufficient to go to the jury upon this alleged element of appellant’s negligence.

[***] Respondents rely upon the case of Beach v. City of Seattle, 85 Wash. 379, in which this court upheld a verdict against the municipality, based upon its negligence in leaving unguarded, poorly lighted, and without danger signals, a blind street end at the edge of a gulch. Examination of the opinion in this case indicates that the decision was based largely upon the failure of the city to place a red light or other danger signal at the street end, or to place lights in the vicinity which would disclose the dangerous situation. The city had also neglected to construct any barrier whatsoever which might serve as a visible warning of danger, as well as an obstruction. The physical facts which resulted in injury to the plaintiff in this action constituted almost an invitation to the driver of an automobile to continue along the street which was *117 broken by the deep gulch; there being nothing to suggest danger. [***]

The judgment is reversed, with directions to dismiss the action.

Note 1. What is the holding in this case? In layperson’s terms, who “wins” and what do they win? In legal terms, why is that significant?

Note 2. What does it tell you if someone is a petitioner versus a respondent? (Or an appellant versus an appellee?)

Note 3. On what does the court base its reasoning, in your view? Is it focused primarily on the capacity—or incapacity—of engineering to prevent accidents like the one at issue? Or does it emphasize policy reasons? Does it focus on the plaintiff’s conduct? Does it follow precedential authority in a way that disposes of the case, that is, compels the outcome?

Note 4. This case refers to “Ebey Slough,” in Washington state, an area named for a white settler in the region whose relationship to the indigenous people of the Tulalip tribe was sufficiently contested that they made a bid to change the name in 2012. Ultimately the proposed name change failed and Ebey Slough remains on the map as such. As we read older cases, however, it’s a good idea to be attentive to the way meanings change over time with revisions of the narratives of our nation’s history and shifts in cultural awareness. For more, see: https://www.heraldnet.com/news/should-ebey-slough-be-renamed-some-say-yes/

Bartlett v. Northern Pac. Ry. Co. & City of Tacoma, Supreme Court of Washington (1968)
(74 Wash.2d 881) (Rehearing Denied Jan. 10. 1969)

The trial court in granting summary judgment of dismissal of the plaintiff’s action against the city of Tacoma and the Northern Pacific Railway Company, commented, ‘Maybe the supreme court will think differently.’ It does!

The end result may be the same at the conclusion of a jury trial, for a jury may reach the same conclusion as the trial court: That neither defendant failed in any duty owed to the plaintiff which could have prevented the injuries which he sustained. Nevertheless, we are satisfied that there are issues of fact which should be decided by a jury.

The plaintiff had driven his automobile up an inclined roadway where it makes a 90^o left turn to cross a bridge over the Northern Pacific Railway tracks at a height *882 of some 35 feet above the ground. Unknown to the plaintiff, the surface of the roadway at the place where this turn occurs was slippery (there were statements that it was icy), and instead of his car making the turn, it continued straight ahead over a wooden curb, across a 6-foot sidewalk and through a guardrail, plunging to the ground below.

The plaintiff contends that the defendants knew that, at the temperatures then existing, the roadway at this point might be icy, and that no adequate warning of the potentially dangerous situation was given. The defendants^[1] respond that plaintiff was familiar with the roadway and that a posted speed of 10 miles per hour was ample notice that more than ordinary care was required. (The defendants contend that had plaintiff obeyed that speed limit his car would not have gone over the curb, across the sidewalk and through the guardrail.)

We said in Barton v. King County, 18 Wash.2d 573, 576, 139 P.2d 1019, 1021, after reviewing a number of our cases:

The gist of the decisions in these cases *** is that the municipality may be chargeable with negligence for failure to maintain warning signs or barriers if the situation along the highway is inherently dangerous or of such character as to mislead a traveler exercising reasonable care.

We express no view as to the merits of the present controversy; we are simply saying: (1) that a jury could find the situation at the locus in quo was inherently dangerous, or of such a character as to have misled a traveler exercising reasonable care; and (2) if the jury should so find, then the adequacy of the warnings given and of the barriers (curbs and guardrails) maintained would likewise be a jury question and not an issue to be determined on summary judgment.

The plaintiff urges that the posted speed of 10 miles per hour gave no notice of slippery or icy conditions; he urges further that instead of a 10 or 12-inch curb, as on the rest *883 of the incline, constant hitting of the curb where his car ‘climbed’ it had ‘chewed’ it down to an effective height of only 3 or 4 inches; and that his car, at its speed of 10 miles an hour, would not have gone over an adequate curb.

The plaintiff contends that a car traveling 10 miles an hour or less can be successfully halted by relatively low-cost barriers, and that the history of similar accidents at this particular point indicated a need for more substantial barriers. The defendants respond that Davison v. Snohomish County, 149 Wash. 109, 270 P. 422 (1928), held that a municipality is under no duty to erect a guardrail of sufficient strength to keep an automobile from crashing through.

The precise holding in that case was that a municipality is under no duty to erect barriers sufficient to prevent automobiles traveling at a high rate of speed from crashing through. Our disposition of the present case is not intended to overrule that holding. It is obvious that the erection of barriers sufficient to prevent a speeding vehicle from crashing through could result in injuries as serious as those that would be suffered if the vehicle were to crash through a weaker barrier and collide with whatever lay beyond. Such would not be the case where a barrier is erected to stop slow-moving vehicles from plunging off a bridge 35 feet above the ground.

The reasoning in Davison [c] was based on the impracticality as a matter of engineering and on prohibitive costs. We do not consider the ideas of the court, expressed 40 years ago, as necessarily authoritative on the engineering and financial phases of the same problem today. We are satisfied that the parties should have the opportunity of presenting their evidence as to the practicality (cost wise or otherwise) of guardrails or barriers on dangerous or misleading roadways to stop slow-moving vehicles.

We would in no way derogate from the summary judgment as a proper and valuable instrument for preventing useless trials; but it should not be used, as in the present case, where a real doubt exists as to decisive factual issues.

*884 The summary judgment appealed from is set aside with directions to proceed as though it had been denied.

Note 1. Revisit your statement of the holding in Davison. What do you notice about how Bartlett frames that earlier case?

Note 2. What is the holding in this case? Who prevails, and what benefit do they receive as a result?

Note 3. To what extent is the plaintiff’s behavior or knowledge relevant in Davison and Bartlett? What accounts for that, in your view?

In the following opportunity to assess your own understanding, be aware that you are gaining an introduction to the elements of negligence law. Reading the questions and answers will help you deepen your own understanding as well as confirming what you have already understood. The questions are designed to teach you, in other words, in addition to reinforcing what you have learned.

Hypothetical: Introducing Negligence and the Reasonable Person Standard

In law school, when you are instructed in “the law” (or “the black letter law”), you are usually learning to read statutes or distilling rules from the common law. But in legal practice, for litigators at least, the black letter law is often represented by jury instructions.

Jury “instructions” are the words read to a jury prior to their deliberation. In contemporary trials, such instructions may sometimes also be provided in print or on a screen so that juries can refer back to them when deliberating. The instructions are also sometimes referred to as the “charge,” as in “charging” or “instructing” the jury with the proper law to apply. These instructions include standard messages about the rules of evidence that are the same from case to case, as well as more precise statements of the law tailored to the facts of the case.

Traditionally, jury instructions have not frequently been taught in law school or featured centrally in legal casebooks. This may be partly due to the fact that, at least traditionally in the 20th century, many law professors had no practice experience. In addition, there has been a growing consensus that trials are less and less common (and thus less important). Yet jury instructions continue to play an important role in the contemporary legal world. Trial lawyers tackling new litigation often start by looking at the existing jury instructions in the relevant area of law so as to understand how they will need to frame the theory of the case. A given jurisdiction may maintain and update a set of “model” or “pattern jury instructions” which act as templates that the parties can adapt. The substance of these instructions is often hotly contested since many lawyers believe that the way the law is framed and articulated for the jury can play a key part in persuading the jury. (Usually, a case goes to full trial with a jury only if a significant part of the dispute is riding on some factual aspect. Otherwise, a court can resolve issues as a matter of law and a jury may never be needed.) Even in cases that never go to trial, however, the jury instructions provide guidelines for how both sides will shape their arguments and may play a role in forcing settlement, too.

In any event, when considering the substantive law on a given topic, if you inquire into the relevant jury instruction you are likely to be thinking like a litigator. The next hypothetical revisits negligence and asks you to apply a jury instruction to a fact pattern.

 

One significant subset of tort law concerns negligence, or accidental or careless wrongdoing that results in harm. The test for determining negligence is whether or not the parties’ conduct was “reasonable” under the circumstances. This is known as the “reasonable person” standard. Tort law does not anticipate that actors will behave perfectly, or even expect that they will try to do so. The theory is that it would be costly and unfair to require that people move through the world never causing any harm; if people were liable for every possible harm they might cause, they might stop doing many things that are socially valuable but involve some amount of risk. Instead, tort law imposes a reasonableness standard. The outcome of this determination depends on the judge or jury’s best retrospective guess of how a “reasonable person” would have behaved under the same circumstances.

Note that this standard is applied to the defendant’s conduct in determining their potential liability for negligence. However, it is also applied to the plaintiff’s conduct; in an earlier era of tort law, if the plaintiff’s conduct was unreasonable (or “contributorily negligent”), the plaintiff’s tort lawsuit would fail. In the past forty years, legal reforms changed this default. Now only a handful of states bar recovery in cases in which the plaintiff’s conduct contributed to their injuries. All the other states have adopted a “comparative fault” rule that considers the reasonableness of both the defendant’s and plaintiff’s actions and may offset liability and damages accordingly.

With that introduction to the reasonable person standard, let us turn to a nineteenth-century negligence case to explore its application in early American tort law.

As you read the court’s opinion in that appeal, consider the core question: what would a reasonable person have done under these circumstances? What would a reasonable town have done with respect to its causeway?

Fox v. Town of Glastenbury, Supreme Court of Errors of Connecticut (1860)
(29 Conn. 204)

[***] An inlet from Connecticut river, called the cove, runs up into the mainland in the town of Glastenbury. [***] [A] highway had been laid through this cove to the Wethersfield ferry, and a causeway constructed thereon for the accommodation of the public travel. [***] The water in the cove, along the sides of the causeway, was ordinarily about one foot deep, but in times of freshet it frequently rose so high as to submerge the causeway, and render its passage perilous and sometimes impossible. [***] The deceased and her companion, Mrs. Clarinda Fox, had for several years resided about half a mile from the east end of the causeway, and one of them, at least, had repeatedly crossed it.

About three o’clock in the afternoon of the 6th of August, 1856, having procured a horse and wagon, they started to go over the causeway, from the main land to the ferry. There was a freshet in the river, and the water had in consequence risen in the cove so as to cover the causeway, was rising rapidly, and there was a strong wind.

The deceased and her companion stopped in front of the house of Mrs. French, a short distance from the causeway, but in full view of it, and there observed that the water was running over the causeway, and that the wind was high. The deceased inquired of Mrs. French whether people crossed there that day, to which Mrs. French replied that they had, but that she had seen no one pass that way that afternoon, and that she had not before noticed that the water was over the road. The deceased then inquired of Mrs. French if she would dare to cross. Mrs. French replied that she would be afraid, unless she had a very gentle horse; and the deceased remarked that their horse was perfectly gentle. We deem this conversation of some importance, because it shows that, while these ladies were encouraged to go on, by the information that others had passed before them, and by the fact that they had a gentle horse, they were not betrayed into their perilous undertaking, either by the apparent safety of the road, or by their own inattention to its condition, until it was too late to avoid it altogether; and that when they were entirely beyond the reach of danger, and could, with but little inconvenience, have avoided it, they deliberately determined to encounter and risk whatever of it might beset their way.

As they approached the causeway, the cove and the condition of the water in it could not have escaped their notice. They saw [***] that the causeway was entirely submerged, that a swift and strong current of turbid water *207 was passing over it, that there was no rail or visible object of any kind, above the surface of the water, on the sides of the causeway, by which they could be protected or guided in their course, and the depth of the water it was obviously impossible for them, before they went into it, with any degree of accuracy, to calculate or determine. East of the bridge, the water rose to the hubs of the fore wheels of their wagon, but they reached the bridge in safety. The bridge was raised about two feet and a half above the level of the causeway.

On the bridge they stopped, noticed and remarked upon the height of the water and the rapidity of its current, and felt some degree of alarm, but concluded to proceed. As they drove from the bridge into the water on the west side of it, they began to apprehend the extent of their danger, and became frightened; the horse stopped; they urged him forward with the whip, and becoming more frightened they probably attempted to turn around, and went off the causeway, nearly at a right angle with it, into the deep water on the north side. These facts seem to us fully proved by the evidence. And we think that in driving upon the causeway at all, even easterly of the bridge, submerged as they saw it was, and with nothing visible above the surface of the water to indicate its true location, these ladies disregarded the dictates of ordinary prudence and discretion.

And surely, when upon the bridge, in full view of the scene before them, and aware, as they must have been, of the accumulated and increasing dangers in their path, and … with the knowledge which they then possessed of the impossibility of seeing the road, because of the turbid condition and ruffled surface of the water, and the rapidity of its current, they determined to proceed, and drove into the stream, their conduct was far below the standard of ordinary prudence. [***]

The bridge was twenty-four feet long, and fourteen feet wide between the railings. On this bridge they were safe; and if they could not, unaided, have turned around and retraced their steps, they could, and should have remained where they *208 were, until relieved from their unpleasant but not perilous situation. And again, when, after they had entered the water west of the bridge, their horse, true to the instincts of his noble nature, faltered, and stood still, they should have heeded his kindly admonition, and there waited for assistance and deliverance, instead of forcing the animal forward to his fate. The boat, by means of which one of them was rescued, with two boys in it, was sailing close at hand; a wagon, with two men in it, was approaching the causeway from the west; and the residence of Mrs. French, with whom they had just been conversing, was within the reach of their voices. Their outcry would have brought almost immediate relief.

In view of all the facts and circumstances, [***] we feel constrained to say, that the attempt of these ladies to pass over this causeway [***] was an act of rashness, which, upon the well settled principles of law applicable in cases of this character, bars all claims in their behalf for damages from the town. We think no person of ordinary discretion in their circumstances, and exercising ordinary prudence and discretion, would have made such attempt.

We are not unmindful of the fact urged upon our attention by the plaintiff’s counsel, that these travelers were females. And in that fact, and in the timidity, inexperience, and want of skill which it implies, we can find an explanation of their injudicious and fatal attempt to turn around in the water, but no reason or excuse for the recklessness of their conduct in driving into it. [***] The inquiry whether, in the particular case, the party conducted with ordinary care or prudence, always involves the consideration of the difficulties and obstacles to be overcome, the party’s knowledge of their existence, and his means and power to overcome them. And if men of ordinary prudence and discretion would regard the ability of the party inadequate *209 for the purpose, without hazard or danger, the risk should not be assumed. [***]

In order to entitle the plaintiff to a verdict, he was bound to show, affirmatively, not only the culpable negligence of the town, but also that the decedent herself conducted with ordinary prudence and discretion. [***] The application of this settled rule of law we suppose the jury, from inadvertence, or some other cause, must have failed to make, and finding the negligence of the town, must have decided to charge it with all the consequences of the accident, regardless of the co-operating carelessness of the decedent; which, in our judgment, was distinctly shown by the evidence, and completely established the defense. We think a new trial should be granted.

Note 1. Do you agree with the court’s determination on these facts, that “no person of ordinary discretion in their circumstances, and exercising ordinary prudence and discretion, would have made such attempt”? How do you explain your reasoning? Why do you think the court relays the conversation the travelers had with Mrs. French, who seemed to provide evidence that the road might be passable? Most of us have not faced this exact circumstance and many of us have not even faced analogous circumstances. Tort law often requires that factfinders use their imagination and empathy to recreate the scene of the accident and evaluate what was “reasonable” under those circumstances. Might the purposes of Mrs. Fox’s trip matter to the analysis (recalling that she and her companion were described as trying to reach the ferry)?

Note 2. In a way, the reasonableness standard permits tort law to “crowdsource” what the right thing to do is, in any given situation. However, traditionally this crowdsourcing reflected the dominant viewpoint of the “reasonable man.” What would he do under the circumstances, whether considering the facts in terms of the defendant’s conduct or the plaintiff’s conduct and injury. For instance, what would the reasonable man do in taking precautions on a hog farm or when battling a grease fire? For more discussion of the role of gender and reasonableness, see Margo Schlanger, Gender Matters: Teaching a Reasonable Woman Standard in Personal Injury Law, 45 St. Louis U. L. J. 769 (2001), Leslie Bender, A Lawyer’s Primer on Feminist Theory and Tort, 38 J. Legal Educ. 3, 22 (1998)). Can you think of specific circumstances in which the “reasonable man” standard could or should differ from the “reasonable woman” standard? Is Fox v. Glastenbury such a case? Put another way, are there circumstances in which using a “reasonable person” standard might not be appropriate? How would you characterize the judicial description of the plaintiff’s conduct? Note the awkward phrase negating mindfulness: “We are not unmindful of the fact urged upon our attention by the plaintiff’s counsel, that these travelers were females.” Does the court give that fact legal significance or not? Is the reasonable person standard sexist? Why or why not?

Note 3. The opinion is focused on the appeal’s narrow question of whether Mrs. Fox was negligent. However, an applicable statute required that a raised road like this one be “adequately protected by a fence or railing on its sides” and the court actually acknowledged that “a majority of us are of opinion that the town [was] culpably negligent in regard to such protection.” Thus the court would not have overturned Mr. Fox’s favorable verdict had Mrs. Fox not been found negligent herself. If asked to do so, how would you analyze the reasonableness (or culpability) of the town on these facts?

Note 4. Davison, Bartlett and Fox all involve cases brought against municipalities for injuries that can be traced to the failure of railings or guardrails. Can you think of ways to frame the three cases so as to analogize and distinguish them?

Note 5. Employment Harassment and Discrimination. Over time, courts increasingly began to refer to the reasonable person rather than the reasonable man. Yet that did not go far enough in at least one area of law.

The tort law of workplace harassment—which consists of a mix of federal and state laws—remains difficult for plaintiffs to use in fighting injuries suffered as a result of toxic employment environments. However, winning sexual harassment cases became somewhat more feasible once courts stopped downplaying the threats (and unwanted invitations) women experienced at work and began to take their claims more seriously. Doing so, however, arguably required that courts shift from a reasonable person standard to a reasonable woman standard.

In Ellison v. Brady, 924 F.2d 872, 878-9 (9th Cir. 1991), the Ninth Circuit adopted the perspective of the “reasonable victim”:

If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.
924 F.2d 872, 878-9.

In other words, while this standard might seem reasonable from the harasser’s perspective—given the prevalence of sexist behavior in the workplace—applying it would unfairly prevent victims from recovering. Ellison thus demonstrates the court’s awareness of the risks of “crowdsourcing” reasonableness, namely that the so-called “reasonable person” might behave in ways that are harmful yet common. Tort law might perpetuate structural discrimination if it conducted its reasonableness inquiry in its ordinary manner in such cases since it might be argued that the prevalence of harmful conduct was proof of its reasonableness. Ellison opted for a shift from the harasser’s conduct to the impact on the plaintiff and applied a “reasonable victim’s” perspective to correct what would otherwise be a failure of tort law:

We therefore prefer to analyze harassment from the victim’s perspective. A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. See, e.g., Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir. 1988) (“A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a ‘great figure’ or ‘nice legs.’ The female subordinate, however, may find such comments offensive”); Yates, 819 F.2d at 637, n. 2 (“men and women are vulnerable in different ways and offended by different behavior”).We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. 924 F.2d 872, 878-9

There is much that can be said about Ellison v. Brady’s adoption of the reasonable victim perspective. First, it feels outdated. The court seemed to find it necessary to explain something that may seem pretty obvious in 2022: in the workplace, telling a colleague or subordinate that they have nice body parts is inappropriate, especially when doing so repeatedly or in the context of a hierarchical or supervisory relationship. Second, it may seem odd to consider the “reasonableness” of the victim’s response to an aggressive and inappropriate (gender-based) power play at work. Is there such a thing as an “unreasonable” victim in certain instances? Third, the court grounds its relief not in the powerful stance of autonomy but the vulnerable one of victimhood.

The court proceeds to explain that women are disproportionately more likely to be the victims of sexual assault and thus “[w]omen who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.” Per Ellison, women have a “stronger incentive to be concerned with sexual behavior.” Id. By framing the harm in terms of fear or as a prelude to sexual violence, the court seems to ignore that these comments are demeaning and discriminatory in their own right. Harassing statements like these are acts of power reminding women to remain in their place.

Are there ways to expand the judicial imagination towards greater empathy and understanding of sociological difference without casting the plaintiff in terms of a victim? Can power structures be acknowledged and made transparent using different rhetoric, or in a way that emphasizes different aspects of a legal rule? For instance, a woman’s autonomy interest in being free from unwanted sexual advances could justify liability on facts like these even if a woman did not fear becoming a victim of sexual violence. How might “reasonableness” analysis look if so?

In addition, in departing from the “reasonable person” standard in favor of the “reasonable woman” standard, Ellison relies on the justification that the reasonable person might ignore or tolerate conduct that was intolerable to the reasonable woman, which would thus “run the risk of reinforcing the prevailing level of discrimination.” In a sense, this is the risk of “crowdsourcing” reasonableness. By considering reasonableness as an objective standard most of the time—which means generalizing it to some level of conduct rather than particularizing it to the party before the court—we aim to capture community mores and values.

When might departures from this practice be justified? Should the standard be particularized in gender discrimination cases only? What about racial discrimination cases? If labor and employment disputes in tort law fall most heavily on those with lower socioeconomic status, or on particular ethnicities, should those be taken into account? What role should demographics play in setting the standard for reasonableness?

Note 6. Though it represented a substantive win for feminism as well as the plaintiff at bar, Ellison is not the first or the last time the judiciary essentialized gender, even if aiming at a progressive outcome. By using the “reasonable woman” standard, Ellison may have inadvertently made it more difficult for people whose identity does not conform with traditional gender categories and who might be facing similar patterns of discrimination. As gender identity becomes more widely acknowledged as non-binary or fluid, what responsibility do legislators, lawyers and judges have, if any, to take account of this expanding awareness of the social constructedness of identity?