⚡ 10-Second Rule
You breach when you act less carefully than an imaginary always-reasonable person would in your exact spot.
🧒 ELI-10 Scene
Imagine Careful Carla, a person who is never distracted and never lazy. Every driver, shoveler, and babysitter gets compared to her. Omar leaves ice on his front steps for a week. Carla would have salted them. Omar says every neighbor leaves ice too. Too bad — a whole street can be careless together. Now the cookie jar. Mom left Leo alone with a latched jar. She returns to an empty jar. Nobody saw anything. But full cookie jars don't empty themselves. The mess itself points at Leo.
⚖️ Actual Rule
Breach is conduct falling below the standard of a reasonable person under like circumstances — an objective test (Restatement (Second) of Torts § 283). The actor's physical characteristics, like blindness, are built into the standard; mental shortcomings, inexperience, and clumsiness are not, though superior knowledge or skill raises the bar. Courts often frame the calculus as weighing the burden of precaution against the probability and severity of the harm risked, as Judge Learned Hand did in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).
Custom is admissible evidence of what reasonable care looks like, but it never controls; as The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932), warned, "a whole calling may have unduly lagged in the adoption of new and available devices."
Negligence per se substitutes a statutory standard: a court may adopt a statute or regulation as the standard of care where the plaintiff belongs to the class of persons the enactment protects and the harm is the type it was designed to prevent (Restatement (Second) of Torts § 286). In the majority view, an unexcused violation conclusively establishes duty and breach. Violations are excused for reasons such as incapacity, ignorance of the occasion for compliance despite reasonable care, inability to comply, emergency, or when compliance would be more dangerous (Restatement (Second) of Torts § 288A). Compliance with a statute, by contrast, does not automatically establish due care. [NJ-VARIANT: flagged for future Eli Explains NJ Law module]
Res ipsa loquitur lets a jury infer breach from the accident itself (Restatement (Second) of Torts § 328D, paraphrased). Three showings unlock it: this is the sort of mishap that usually happens only when someone was careless; the careless someone was probably the defendant rather than the plaintiff or a stranger (traditionally framed as the defendant's exclusive control over the instrumentality); and the carelessness suggested is the very kind the defendant owed a duty to avoid. Its effect is a permissible inference that defeats a directed verdict for the defendant; the jury remains free to reject it.
ELI-10 translation: measure the defendant against an always-careful person, let a safety law set the bar when it fits, and let a tell-tale accident speak when no one saw the slip-up.
🔍 Ask These Questions
- What would a reasonable person have done in these exact circumstances? (Picture Careful Carla standing in the defendant's shoes.)
- Does the defendant have special skill or physical traits that adjust the picture? (A surgeon is compared to careful surgeons; a blind walker to careful blind walkers.)
- Is there a statute or regulation on point — and does it protect this plaintiff from this harm? (A law about clean water can't set the bar for a slippery sidewalk.)
- If the statute fits and was violated, is the violation excused? (A sudden emergency or an impossible command can forgive breaking the rule.)
- Is custom offered as proof? Treat it as evidence, never as the answer. (What everyone does helps the jury, but everyone can be wrong.)
- No direct proof of carelessness? Check res ipsa loquitur. (Does this kind of accident basically require someone's sloppiness, and does everything point at this defendant?)
- Remember res ipsa creates only an inference. (The mess lets the jury blame the defendant; it never forces them to.)
⚠️ Bar Trap
Exam language: Examiners plant a violated statute and bait you into negligence per se where the plaintiff falls outside the protected class or the harm is not the type the statute targets — and the trap answer treats the violation as automatic breach anyway. The companion trap runs the other way: concluding the plaintiff loses entirely because negligence per se fails, when ordinary reasonable-person breach remains fully available.
ELI-10: A broken safety rule only sets the bar if it was written to protect this person from this kind of hurt. And losing the shortcut never ends the game — the careful-person test is still there.
🧪 Question
A city ordinance requires restaurants to keep their outdoor grease-storage bins sealed, and its stated purpose is "to prevent contamination of the municipal storm-water system." A bistro left its bin unsealed for a month. Grease overflowed and spread across the adjacent public sidewalk, where a pedestrian slipped on the slick and fractured his wrist. In the pedestrian's negligence action, he asks the court to instruct the jury that the bistro's ordinance violation itself establishes breach.
How should the court rule on the requested instruction?
(A) Grant it, because the bistro violated a safety ordinance and the violation caused the pedestrian's injury. (B) Grant it, because pedestrians are foreseeable victims of grease escaping an unsealed bin. (C) Deny it, because the ordinance was not designed to prevent slipping injuries, though the jury may still find the bistro's conduct unreasonable. (D) Deny it, and direct a verdict for the bistro, because its conduct violated no statute designed to protect pedestrians.
Answer: (C). The ordinance targets storm-water contamination, not sidewalk falls, so it cannot supply the standard of care under the class-of-persons, type-of-harm test. But the failure of negligence per se leaves the ordinary reasonable-person standard intact, and a jury could readily find leaving grease to overflow unreasonable.
💡 Why the Wrong Answers Are Wrong
- (A) skips the threshold test; violation plus causation is not enough unless the statute protects this plaintiff from this type of harm.
- (B) swaps in general foreseeability for the statutory-purpose test; foreseeable victims matter for duty, not for borrowing a statute's standard.
- (D) overshoots — losing the negligence per se shortcut does not erase the plaintiff's ordinary breach theory, so a directed verdict is wrong.
- ELI-10: The misconception is treating any broken rule as an instant win or an instant loss. The rule only counts when it matches the person and the harm — and either way, Careful Carla still gets asked.
