Negligence - Standard of Care and Proof of Fault: Customary and Professional Standards

Question 1

What is a custom?

Answer 1

A custom is a general way of doing things of some identifiable community with respect to some realm of risk-reducing precaution. Custom may be found in a sufficiently common practice (e.g., all narrow-gauge trains, most narrow-gauge trains) or in the prescriptions of safety codes and manuals.

Question 2

What is customary negligence?

Answer 2

Customary negligence attempts to make negligence law more “rule-like.” Customary practice may fix a level of care quite precisely. Instead of saying: “Make plate glass doors reasonably safe,” it may say “make plate glass doors 1/4 inch thick.”

Question 3

What is the classical law regarding custom?

Answer 3

Classical law is worried about leaving potential
injurers “at the mercy of the variant or, perhaps, capricious judgment of the jury” (Pittsburgh). Thus, compliance with custom is a complete shield to liability and noncompliance with custom can be used as a sword to prove liability.

Question 4

What is the modern law regarding custom?

Answer 4

1. Custom is merely evidence of due care, but a custom can be given no weight if it is unreasonable (TJ Hooper).
2. Custom (a) is no longer needed as a “sword” to establish liability and (b) is not a complete shield against liability. Custom is now a “floor” not a “ceiling.”
3. A defendant whose conduct falls below customary practice is likely to be found liable, but one whose conduct complies with custom is not exempt from liability.

Question 5

How much weight does modern law give custom?

Answer 5

None if it is not reasonable.

Question 6

When reasonableness is unclear, what kind of questions are considered?

Answer 6

1. How much expertise does the custom reflect?
2. How much impartiality does the custom reflect?
3. How much reliance does the custom engender?
4. How much coordination of activities does the custom enable?

Question 7

What are the two parts of the professional standards rule?

Answer 7

(1) professionals are held to an expert standard of care
(2) professional practice is subject to less scrutiny
because “customary care is due care.”

Question 8

What are some examples of professionals?

Answer 8

Doctors and lawyers.

Question 9

What are features of professionals that are particularly important?

Answer 9

(1) professionals have ethical obligations to those they serve

(2) professionals have individuated relationships with those they serve.

Also important is insulation from market pressure (the
“motives of saving time, effort, or money”).