"Life of the Community" Determines Legal Standard for Negligence Liability

By Kozlowski, James C. | Parks & Recreation, July 1996 | Go to article overview

"Life of the Community" Determines Legal Standard for Negligence Liability


Kozlowski, James C., Parks & Recreation


In determining whether conduct Is negligent, the customs of the community, or others under like circumstances, are factor to be taken Into account.

Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm (Restatement (Second) Torts sec282). The standard of conduct to which an individual must conform to avoid being negligent is that of a reasonable person under like circumstances (Restatement sec283). The standard of conduct of a reasonable person may be established by legislative enactment, administrative regulation, or judicial decision. In the absence of such legislation, regulation, or judicial decision, the trial judge or jury will apply this "reasonable person under the circumstances" concept to determine the applicable legal standard of care in a particular case (Restatement sec285).

In determining whether conduct is negligent, the customs of the community, or others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable person would not follow them. For a custom or such common practices to be relevant on the issue of negligence, they must reasonably be brought home to the actor's locality, and must be so general, or so well known, that the actor must be charged with knowledge of them, or with negligence in remaining ignorant (Restatement sec295). The following case reports illustrate the manner in which the customs, practices and usages of an agency or facility are indicative of the applicable legal standard of care used by courts to determine negligence liability.

Unreasonable Risk?-Jury Issue

In the case of Wagoner u Waterslide, Inc., 744 P2d 1012 (Utah App. 1987), plaintiff was injured while riding down defendant's waterslide. At the time of the injury, plaintiff had his foot hanging over the side of the slide and cut his toe on the unfinished edge of the slide. As noted by the court, it was the responsibility of the jury to determine whether a defendant had exercised reasonable care under the circumstances. In this particular instance, the jury had to determine whether the waterslide posed an unreasonable risk of harm to defendant's patrons. Specifically, the issue was whether the exposed edge on the slide was unreasonable or reasonable.

As described by the court, a landowner is liable for negligence to an injured invitee (i.e., those encouraged, invited, or authorized to use the premises for a particular purpose) if (a) the landowner knows, or should know, of an unreasonable risk to invitees; (b) the landowner should expect that the invitees won't discover or realize the danger, or will fail to protect themselves; and (c) the landowner fails to exercise reasonable care. Conversely, reasonable care under the circumstances would require the landowner to either repair the dangerous condition on the premises or warn invitees of the actual condition and risk involved. This landowner duty, however, presupposes that the risk of injury in a particular situation is unreasonable.

As noted by the court, the applicable legal standard of reasonable care in determining liability for negligence arises from the life of the community. As a result, the life of the community provides a jury with a standard for determining whether a particular risk is unreasonable. Within this context, unreasonable risks are those which society considers sufficiently great to demand preventive measures. Further, a risk is unreasonable if the magnitude of the risk outweighs the social utility of the act. As described by the court, social utility factors include: (a) the social value, interest advanced or protected by defendant's conduct; (b) the extent of the social interest advanced by defendant's conduct; and (c) the extent of the social interest advanced by another less dangerous course of conduct In this particular instance, the jury returned a verdict for defendant. …

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