On Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury

trial practice ensure that the operational meaning of negligence is largely determined by juries in particular cases, rather than by the doctrines stated in appellate decisions (and restated in Restatements of Torts). Even if these practices are misguided, it is clear that no Restatement could repudiate them without drastically departing from the American Law Institute's ("ALI") traditional position that Restatements are predominantly positive and only incrementally normative. On the other hand, the conception of negligence articulated in the Restatement (First) of Torts ("Restatement (First)")--which was carried over virtually unchanged into the Restatement (Second) of Torts ("Restatement (Second)"), and hence has defined the ALI's position for almost seventy years-has had an important influence on the black letter law, on appellate review of jury verdicts, and on directed verdict practice in the trial courts.' Moreover, one might reasonably expect that courts will rely on the Discussion Draft's provisions in choosing jury instructions in negligence cases. This expectation, however, is undercut by the large gap between con- temporary pattern jury instructions, which typically tell the jury to apply the reasonable person standard without explaining or defining it, and the Restatement and appellate cases, which typically interpret negligence in cost-benefit terms.

Experience thus suggests that the Discussion Draft will have little impact on the negligence instructions juries receive. That may depend, though, on how aggressive the Discussion Draft is in recommending that courts instruct juries in accord with its formulations. In due course, I will explore what the Reporter, Gary Schwartz, has done on this score, and argue that it would be appropriate to do more.