Breach of Duty: The Obligation to Act Reasonably

p. The Restatement (Third) of Torts: Physical and Emotional Harm contains the following overarching provision: bq. "§ 3. Negligence bq. A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. p. Similarly, California Civil Code § 1714(a) provides in part that: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” p. But what does it mean to exercise “reasonable care”? Think back to our discussion of “reasonable” jurors and “unreasonable use of force” in Scott v. Harris. p. We start our study of the second element of negligence-based torts -- breach of a duty -- with work from two of the most renowned judges in the history of American law: Oliver Wendell Holmes, Jr., and Learned Hand (who, with the exceptions of William Wayne Justice and John Minor Wisdom -- two heroic judges in the twentieth-century South -- has the best name in the Federal Reporters). How do they define what it means to behave reasonably? We'll then turn to a couple of different areas where the question of how to judge whether a party has behaved reasonably arise.