Restatement of the Law, Torts § 283

• Restatement of the Law, Torts
• Division Two- Negligence
• Chapter 12- General Principles
• Topic 2- The Standard by which Negligence is Determined
• § 283 Conduct of a Reasonable Man; the Standard

Unless the actor is a child or an insane person, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.

The Institute expresses no opinion as to whether insane persons are required to conform to the standard of behaviour which society demands of sane persons for the protection of the interests of others.

Comment:

a. Qualities of the "reasonable man." The words "reasonable man" denote a person exercising those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others. It enables those, who are to determine whether the actor's conduct is such as to subject him to liability for harm caused thereby, to express their judgment in terms of the conduct of a human being. The fact that this judgment is personified in a "man" calls attention to the necessity of taking into account the fallibility of human beings.

b. The qualities of a reasonable man which are of importance differ with the various situations in which the phrase is used. In determining whether the actor should realize the risk which his conduct involves, the qualities which are of importance are those which are necessary for the perception of the circumstances existing at the time of his act or omission and such intelligence, knowledge and experience as are necessary to enable him to recognize the chance of harm to others involved therein (see §§ 289 and see § 290).

c. Weighing interests. The judgment which is necessary to decide whether the risk so realized is unreasonable, is that which is necessary to determine whether the magnitude of the risk outweighs the value which the law attaches to the conduct which involves it. This requires not only that the actor should give to the respective interests concerned the value which the law attaches to them, but also that he should give an impartial consideration to the harm likely to be done the interests of the other as compared with the advantages likely to accrue to his own interests, free from the natural tendency of the actor, as a party concerned, to prefer his own interests to those of others.

d. Reasonable consideration for others and reasonable prudence. In so far as the conduct of the reasonable man furnishes a standard by which negligence is to be determined, the standard is one which is fixed for the protection of persons other than the defendant. In so far as the contributory negligence of the actor is concerned, the standard is one to which the actor is required to conform for his own protection (see § 463). When a plaintiff's contributory negligence is in question, the "reasonable man" is a man of reasonable "prudence." Where a defendant's negligence is to be determined, the "reasonable man" is a man who is reasonably "considerate" of the safety of others and does not look primarily to his own advantage.

e. Children. A child of tender years is not required to conform to the standard of behaviour which it is reasonable to expect of an adult, but his conduct is to be judged by the standard of behaviour to be expected from a child of like age, intelligence and experience. A child may be so young as to be manifestly incapable of exercising any of those qualities of attention, intelligence and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a child who has not yet attained his majority may be as capable as an adult of exercising the qualities necessary to the perception of a risk and the realization of its unreasonable character.

Between these two extremes there are children whose capacities are infinitely various. The standard of conduct required of such a child is that which it is reasonable to expect of children of like age, intelligence and experience. In so far as concerns the child's capacity to realize the existence of a risk, the individual qualities of the child are taken into account. If the child is of sufficient age, intelligence and experience to realize the harmful potentialities of a given situation, he is required to exercise such prudence in caring for himself and such consideration for the safety of others as is common to children of like age, intelligence and experience. The fact that a child is habitually reckless of the safety of himself and others to a degree unusual in similar children, does not excuse him.

It is impossible to fix the definite age at which children are capable of negligence or to fix the age at which a child, or any class of children, is able to appreciate and cope with the dangers of any particular situation. A child of ten may in one situation have sufficient capacity to appreciate the risk involved in his conduct and realize its unreasonable character, but in another situation he may lack the necessary intelligence and experience to do so.