Particularizing Standards of Conduct in Negligence Trials

Abstract

The general principles to be applied by court or jury in deciding whether conduct is reasonable have been examined elsewhere. The problem to be dealt with here concerns the specific application of the law's standard of conduct to concrete cases. How, that is, may it be shown what a party or his opponent should have done, in the way of taking precautions or the like, in the situation presented by the evidence? What kinds of proof or argument are available to make this showing? When must such a showing be made by proof? Is the jury or court to determine what would be reasonable conduct? If the jury, what limitations are to be placed on its sphere of decision? In analyzing these problems it must be borne constantly in mind that rules which enlarge the jury's function work on the whole towards expanding liability, while rules whereby the law fixes specific standards or requires special modes of proof tend to narrow the jury's role and, on the whole, to restrict liability and the possibilities for compensating accident victims.