The Standard of Care
The standard for whether an actor was negligent is reasonableness: was the conduct in question reasonable under the circumstances? The law asks what a reasonable person would do under the circumstances, as a question of fact that varies based on the facts of a given case. The reasonable person standard is set out as an objective standard, asking what the hypothetical “reasonable person” would have done or should have known under the circumstances. This objective standard stands in contrast with a subjective standard which would ask what this defendant actually thought, knew or intended on these circumstances.
Generally, look for a precaution that could have been taken and that wasn’t. If it wasn’t, perhaps that was reasonable because the precaution was too costly or prohibitive; perhaps it would have required eliminating socially valuable conduct in order, effectively to reduce the risks to zero. Introducing that high a level of precaution to prevent risks deemed merely possible, not likely or probable, is suboptimal and not the standard tort law seeks to achieve.
Considering a representative formulation of negligence is an instructive point of departure for understanding what constitutes breach of the duty of care.
Wisconsin Jury Instruction 1005 Negligence: Defined, states “A person is negligent when he fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent if the person, without intending to do harm, does something or fails to do something that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.”
Using a jury instruction allows students to see how courts and juries are intended to arrive at a determination of negligence. However, this general formulation raises many questions.
Questions or Areas of Focus for the Readings:
- What sorts of circumstances is the reasonable person expected to protect against?
- What kinds of conditions foreseeably lead to preventable injuries or, conversely, excuse lapses in conduct, making them unreasonable, versus reasonable?
- Who is the reasonable person by which we measure all of this tort liability?
- What does the reasonable person standard look like at different points in time?
- What kinds of evidence will be necessary to prove up the answers to these various questions?
- What happens when evidence is unavailable or missing?
The next few cases deal with how to define the standard of care and identify its breach; how to apply the reasonable person standard; and how to approach challenges in proving breach.
Blyth v. Birmingham Waterworks Co., Court of Exchequer (1856)
(11 Exch. 781, 156 Eng. Rep. 1047)
Defendants had installed water mains in the street, with fire plugs at various points. The plug opposite the plaintiff’s house sprung a leak during a severe frost, because the connection between the plug and the water main was forced out by the expansion of freezing water. As a result, a large quantity of water escaped through the earth and into plaintiff’s house, causing damage. The apparatus had been laid down 25 years ago, and had worked well during that time. The trial court left the question of defendant’s negligence to the jury, which returned a verdict for plaintiff. Judgment was entered on the verdict, and defendant appealed.
ALDERSON, B. I am of opinion that there was no evidence to be left to the jury. The case turns upon the question, whether the facts proved show that the defendants were guilty of negligence. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done. A reasonable man would act with reference to the average circumstances of the temperature in ordinary years. The defendants had provided against such frosts as experience would have led men, acting prudently, to provide against; and they are not guilty of negligence, because their precautions proved insufficient against the effects of the extreme severity of the frost of 1855, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions. Such a state of circumstances constitutes a contingency against which no reasonable man can provide. The result was an accident for which the defendants cannot be held liable. Verdict to be entered for the defendants.
Note 1. How do you formulate the rule in this case? If you’re struggling to zero in on it, cast your mind back your to introduction to negligence. Can you use the rationale behind the negligence calculus—tort law does not require that risks be completely eliminated, only optimized in light of necessary precautions and likely risk—to shape a rule here?
Note 2. How far should this rule extend? If someone moves to the Pacific Northwest and fails to take precautions against rainy weather conditions, their very first days might excuse a lack of awareness of their environs, but at some point, it ceases to be reasonable not to learn how to navigate your daily terrain and climate. Similarly, if someone moves to a mountain town and fails to learn how to drive in the ice and snow, it’s clearly unreasonable after some period of time. Does it matter what time of year they move? Should it be the same amount of time if they arrive in July versus January? What sort of rule would capture that reasoning? How far should it extend? Should the same rules apply to tourists visiting from other cultures and climates? Is it unfair not to tailor the reasonable person standard under certain circumstances? In whose view would it be unfair? Is it inefficient if we do tailor the reasonable person standard, that is, make it subjective to the particular defendant?
Note 3. Blyth was reportedly the first case in which the “reasonable person” framing appeared. What accounts, do you suspect, for the shift in the later cases, in America, to the term “reasonable man” instead of reasonable person?
Blyth’s reasoning proceeds as though it were always evident what sorts of precautions might be reasonable or necessary, and thus assumes it may be clear whether a weather event is an extreme contingency. Is an extreme weather event, like a typhoon, one against which parties can be expected to take reasonable precautions? At what point does extreme weather become an “act of God” or “force majeure” that may change the legal status of rights and duties owed to parties affected by it?
In Nissan Motor Corp. in Guam v. Sea Star Grp. Inc., 2002 Guam 5, (Guam Apr. 9, 2002), several cars owned by plaintiff on a tropical island and stored adjacent to the defendant’s land were damaged during a violent storm in which wind gusts reached 125-150 mph.
“Nissan sought recovery for fourteen vehicles that were damaged during Typhoon Paka [in Guam]. The vehicles were among several hundred new vehicles stored by Nissan on a lot adjacent to property owned by Sea Star. Sea Star maintained a twenty-seven-foot aluminum storage container on its property that was used as a satellite office. In preparing for the arrival of the typhoon, Sea Star attempted to secure the container by moving it up against a cyclone fence and pinning it to the ground by bending four rebar stakes around the container’s edges. During Typhoon Paka’s passage, the container was picked up and carried approximately 130 feet. It eventually landed on the fence separating Nissan and Sea Star’s lots, coming to rest against the rear of five Nissan vehicles. Nissan also alleges that nine other vehicles suffered damage from the container’s flying debris.
Nissan filed suit against Sea Star arguing that Sea Star negligently failed to secure its property and that this negligence resulted in the damage to Nissan’s property. Id. at 12
Under Blyth, what result? Recall its core reasoning: “A reasonable man would act with reference to the average circumstances of the temperature in ordinary years” and its reference to a “state of circumstances [that] constitutes a contingency against which no reasonable man can provide.”
Note 4. The Negligence Calculus. While there is no magic equation or formula that can yield a conclusion of negligence, there is a predictable policy balancing that must take place. The negligence calculus (sometimes referred to as the “Hand formula”), asks whether the burdens of precaution in a given situation outweigh the likelihood of risks occurring that will cause serious harm. In U.S. v. Carroll Towing, 159 F.2d 169 (2d Cir. 1947) Judge Learned Hand was considering damage to barges occurring when a negligently secured barge and an absent bargee’s conduct caused damage to several other barges and their cargo, including causing a barge to sink. The harbor was busy and crowded with World War II barge traffic, and Judge Hand’s analysis sought to contextualize the fact that the bargee had left his barge unattended in light of the risks attendant on that action during that particular time and place.
“[T]here is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. [***] It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables:
(1) The probability that she will break away;
(2) the gravity of the resulting injury, if she does;
(3) the burden of adequate precautions.
Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.
Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee’s prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, [***] and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee’s absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o’clock in the afternoon of January 3rd, and the flotilla broke away at about two o’clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence that he had no excuse for his absence. At the locus in quo—especially during the short January days and in the full tide of war activity—barges were being constantly ‘drilled’ in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold—and it is all that we do hold—that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight. United States v. Carroll Towing Co., 159 F.2d 169, 173–74 (2d Cir. 1947)
Judge Hand’s opinion exemplifies the fact-sensitive balancing of negligence determinations. He highlights the importance of a bargee’s remaining present, especially if a barge is “in a crowded harbor” and “a storm threatens.” However, the costs of a bargee’s presence should not be so great as to make “the barge… the bargee’s prison.” He acknowledges there may be excuses for a bargee’s absence and dismisses that possibility here given the 21-hour absence of this bargee on facts that were uncertain, possible a “fabricated story” that may have been covering up for the bargee’s going on an unauthorized bender ashore. In his attentiveness to the factual specificity of the context, Judge Hand demonstrates particularization that is characteristic of the common law of torts. Again, Judge Hand’s formula, “B < PL” is not an equation that will always produce a finding of negligence merely because the burdens of precaution are lower than the probability of harm multiplied by the severity of the loss. However, it provides insight into how many courts approach the questions of negligence or instruct juries to do so. It may be difficult to overcome the intuitions that arise upon a showing that the burdens of precaution were low but not taken, even when risks threatened and those risk portended significant possible harm. Inversely, if the precautions were very costly—such as asking epileptic drivers to cease driving altogether—even when the risks were low—such as when the epileptic drivers faced very low risks of seizure, it may be rather more difficult to argue persuasively in favor of finding negligence in the event that harm does result. In some sense, the negligence calculus reflects little more than common sense balancing of risks with predictions of their possible impact.
Brake repair hypothetical 1. Imagine that you learn that a vehicle you own requires brake repairs. These repairs are not costly, and your mechanic informs you that they should be undertaken immediately because the risk that the brakes will not function is high. Since you own a vehicle, it is safe to assume you are aware of the importance of braking and the significant safety risks attendant on being unable to brake properly. Under the negligence calculus, the burdens are not very high (your mechanic’s quote is “not costly”) but the probability of harm is high. While we can’t know precisely how severe the loss will be (will you drive the car at high speeds? On dangerous, hilly, or slick terrain?), the calculus is tending towards a conclusion of negligence if the driver fails to get the brakes repaired. Again, this likely mirrors your intuitions as you consider the options before you.
Brake repair hypothetical 2. Now imagine that the brake repairs are very costly. Given the significance of the harm associated with failures to brake, this might not change much in the negligence calculus. It might be unreasonable to drive a car even if you can’t afford the repairs to it right away. The law reasonably expects you to refrain from engaging in conduct with a high level of risking harm to others.
Brake repair hypothetical 3. Same facts as in #2, except that you use the car to transport someone a short distance to the hospital during a situation in which they face a sudden and unexpected health emergency whose complications cannot await even the time needed to call an ambulance. Is your assessment shifting as the risk of harm by possible brake failure changing as additional, possibly countervailing pressures enter the picture? Or do alternatives (a friend’s car? A ride share or taxi?) seem plausible and preferable?
Brake repair hypothetical 4. Imagine that the mechanic has stated that the repairs are moderately costly, neither cheap nor exorbitant. However, the likelihood that they will malfunction is small. It is possible, but not probable, that the brakes will fail before your next oil change in a few months. Now you may have different intuitions depending on how the costs of the repairs match your socioeconomic capacity, the regularity with which you need your car and your uses for it, your tolerance for risk, and the counsel of your mechanic overall. Does she conclude with “I’d go ahead and get it done now” or “you’d probably be fine waiting just a little longer?”
Negligence law is filled with small factual details that involve awareness and assessment of risk as well as balancing a constellation of considerations. You don’t need a car to follow the hypotheticals above; most of us engage in this kind of risk prediction and management all the time in our daily lives, if on a smaller scale. Indeed, this is probably the main reason why the jury’s everyday experience is thought to be the proper sort of expertise for determining negligence. Many doctrines have arisen that purport to guide these intuitions and label them so that courts can imbue them with authority for subsequent courts to recognize and follow or distinguish. How useful is it to categorize and label this kind of thinking? To what extent might human intuitions be shared or divergent as applied to various factual scenarios or as manifested in the case law of particular jurisdictions? Consider the example in the next case, centering on the “sudden emergency doctrine.”
Lifson v. City of Syracuse, Court of Appeals of New York (2011)
(17 N.Y.3d 492)
*495 Defendant Klink was the driver of an automobile that struck plaintiffs decedent, Irene Lifson, while she was crossing the street, causing her death. Pursuant to Klink’s claim that the accident occurred while he was temporarily blinded by sun glare, the trial court instructed the jury on the emergency doctrine in his favor. We find that, under these circumstances, it was error to give the jury the emergency instruction.
Both Lifson and Klink worked in the MONY Plaza, a large office complex in Syracuse containing two 20–story high-rise office towers. MONY Plaza is located across the street from the Harrison Street Garage, where many of the employees park their cars during the work day. There is, as a result, a substantial amount of pedestrian traffic crossing Harrison Street between the towers and the garage, particularly during rush hours. Pedestrians would commonly cross Harrison Street where the MONY Towers ‘exit lines up with the entrance to the garage, despite the absence of a marked crosswalk at that location.
On February 29, 2000, the day of the accident, Klink retrieved his car after work. At approximately 4:05 p.m., he was attempting to make a left-hand turn onto Harrison Street from Harrison Place. Harrison Street is a three-lane, one-way road, with traffic running from east to west. Klink had been proceeding north on Harrison Place, which forms a “T” intersection with Harrison Street and was waiting to turn to the west. Although Klink worked at the MONY Towers, he testified that he was not familiar with driving this particular route because he parked in different locations throughout the city, rather than in the same place every day.
Klink testified that he stopped at the stop sign to make the left turn onto Harrison Street, but that his view of oncoming traffic was partially obstructed by parked cars in the left-hand lane of Harrison Street and he had to “creep up” in order to see the approaching vehicles. He had noticed that there were pedestrians crossing Harrison Street to his left, but he also *496 asserted that he had looked in that direction and “cleared the road” before making the turn. He further testified that he had been looking to his right, toward the oncoming traffic when he started turning. He maintained that, when he looked back to his left, mid-turn, he was blinded by the sun, “all of a sudden.” His reaction was to look down and to his right and, when he looked up, the first object he saw was Ms. Lifson. Although he applied the brakes, he was unable to avoid hitting her, having seen her only a fraction of a second prior to impact. At the time of the accident, Ms. Lifson had been wearing a red coat. There was no evidence that Ms. Lifson darted out in front of Klink’s car, or that Klink was traveling at an excessive rate of speed.
Plaintiff commenced this action against Klink and the City of Syracuse [fn] alleging causes of action in negligence and failure to study/ plan for pedestrian traffic. [fn] The ensuing trial was limited to the issue of liability. As noted, pursuant to Klink’s request and over plaintiff’s objection, the trial court gave the jury an emergency doctrine instruction in Klink’s favor. The instruction generally conveyed to the jury that it had to determine whether Klink was in fact confronted with an emergency situation not of his own making and, if so, whether his conduct in response to that situation was that of a reasonably prudent person. The jury was free to reject both of those propositions, but if it determined that he had faced an emergency situation and acted reasonably, it was to find for Klink.
The jury returned a verdict attributing negligence to the City of Syracuse and Ms. Lifson [***]. Klink was found not negligent and the action was dismissed as against him. The Appellate Division affirmed, finding that the emergency instruction was properly given, as there was a reasonable view of the evidence showing that the sun glare was a sudden and unforeseen occurrence (72 A.D.3d 1523). One Justice dissented and would have found that Klink was not entitled to an emergency instruction because the sun glare should have been anticipated and was not unexpected in light of the circumstances surrounding the accident, including the sunny weather and the time of day. We granted plaintiff leave to appeal and now reverse.
*497 The common-law emergency doctrine
“recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency” (Caristo v. Sanzone, 96 N.Y.2d 172,  [internal quotation marks and citation omitted]).
The doctrine recognizes that a person confronted with such an emergency situation “cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision” [c]. [***]
In Caristo, the trial court gave an emergency instruction in favor of the defendant, who had been driving in icy conditions when his car slid down a hill, past a stop sign and hit the plaintiff’s vehicle. We reversed and ordered a new trial, finding no view of the evidence to support the conclusion that defendant faced a qualifying emergency. Specifically, since defendant had been aware of the poor and deteriorating weather conditions that had existed for at least two hours, the resulting icy *498 conditions on the road could not be considered “sudden and unexpected” [c].
By contrast, in Ferrer v. Harris, 55 N.Y.2d 285 (1982) we found that the defendant driver, whose vehicle struck a child who ran out into the street, was entitled to an emergency doctrine charge. The defendant had testified that he was driving well below the posted speed limit and that he stopped abruptly when he saw the child step off the sidewalk and run into the street between the parked cars. We determined that “it [was] more than conceivable that a jury could conclude that this defendant was faced with an emergency” [c].
The situation presented in this case bears closer resemblance to that in Caristo. While Klink did not drive this particular route often, he was familiar with the general area since he worked in the MONY Towers. Klink was about to turn to the west at a time of day that the sun would be setting. It is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one’s vision as it nears the horizon at sunset, particularly when one is heading west. This is not to say that sun glare can never generate an emergency situation but, under the circumstances presented, there is no reasonable view of the evidence under which sun glare constitutes a qualifying emergency. Moreover, the error in giving the emergency instruction was not harmless. The improper charge permitted the jury to consider Klink’s action under an extremely favorable standard. Because the application of that instruction to the facts presented could have affected the outcome of the trial, it was not harmless error [c].
Plaintiff’s remaining contentions are without merit. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the amended complaint reinstated as against defendant Derek Klink, and the case remitted to Supreme Court for further proceedings consistent with this opinion.
SMITH, J. (dissenting).
Plaintiff’s argument here rests on the seemingly obvious proposition that no one should be surprised to find the sun setting in the west. I admit that sunset is a foreseeable event. Yet surely everyone who has driven a car knows that good drivers are sometimes surprised to find the sun in their eyes. Drivers cannot be expected to have always at the *499 forefront of their minds the time of day, the season of the year, the direction they are traveling, the weather conditions and the presence or absence of obstruction in a particular spot. Therefore, sun glare, as the majority appears to acknowledge, can sometimes present an emergency situation.
In deciding whether an emergency instruction was properly given, the issue is not whether the emergency was foreseeable; it is whether it was sudden and unexpected. Our cases illustrate the distinction. In Ferrer v. Harris, the defendant driver was passing a park where he knew that children played, and it was obviously foreseeable that a child would step in front of his car; but the event was sudden and unexpected when it happened, and the driver was therefore entitled to an emergency instruction. In Amaro v. City of New York, 40 N.Y.2d 30 (1976), plaintiff was a firefighter who was injured in a fire-house while responding to a fire alarm; we held that the alarm, foreseeable as it was for that plaintiff in that location, was sudden and unexpected and that the plaintiff was properly accorded the benefit of an emergency charge. In Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923 (1996), the defendant’s employee, a bus driver, was familiar with the intersection where the accident occurred and knew “that cars frequently turned right from the left lane in front of buses in this area.” We nevertheless held that it was error to deny an emergency charge, because the driver’s general awareness that such turns often happen “would not preclude a jury from deciding that, as to the events in issue in this case, the driver did not anticipate being suddenly cut off by this particular car” (id.).
Caristo v. Sanzone appears to be the only case in which we have held an emergency instruction was improperly given. There, the defendant was driving in bad weather—a mixture of snow, frozen rain and hail. The claimed emergency was that he encountered a sheet of ice. We held, five to two, that in view of the driver’s knowledge of the weather conditions “the presence of ice on the hill cannot be deemed a sudden and unexpected emergency” (id. at 175). Caristo thus holds that no one driving through such conditions, while exercising reasonable care, could be surprised to find that the road was icy.
A similar holding is not justified here. The record, read most favorably to Klink, shows that he was driving on a city street, where buildings sometimes do and sometimes do not block the *500 sun, and that he was unfamiliar with the route. A jury could surely find that he did not calculate the direction of his travel, the time of day and the time of year so precisely that he expected to find the sun in his eyes when he turned. The emergency instruction was properly given.
Note 1. Do you think the emergency instruction should have been given (like the dissent and the majority opinion in the court below) or do you agree with the majority about its impropriety on these facts? Why?
Note 2. Descriptively, cases like Lifson are determined on facts as a determination of the breach of duty. This is why the opinions spend so much time analogizing and distinguishing precedents and framing the facts of various accidents. Normatively, do you think it would be better or worse for certain cases in recurring situations (like sun glare or ice storms) to be determined as a function of duty, that is as a question of law for the judge? What would be gained or lost in such a situation?
Note 3. How much should context matter in the determination of reasonableness? Both opinions in Lifson discuss weather, natural topography feature and buildings as well as the humans populating the landscape at the time of the accident. Are there no universal rules about conduct without contextual clues?
Note 4. Lifson concerns the sudden emergency doctrine but other doctrines apply analogous reasoning to ongoing situations. For instance, the ongoing storm doctrine may relieve a commercial property owner of the ordinary obligations to clear snow and ice while the storm is still ongoing. It has been rejected in a number of jurisdictions which have held that commercial landowners have a duty to take reasonable steps to make a walkway safe from foreseeable dangers, even during ongoing precipitations.
The doctrine was upheld in New Jersey where, at common law, property owners had no duty to clear the public sidewalk adjoining their premises; both commercial and residential property owners were not liable for the condition of the sidewalk. The Supreme Court created an exception to that common-law rule and imposed a duty on commercial property owners to take reasonable measures to maintain the sidewalks adjoining their property and to keep those in reasonably good condition. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149, (1981).
In Pareja v. Princeton, the plaintiff, Angel Alberto Pareja, was walking to work in the early morning hours. It had been raining “a wintry mix of light rain, freezing rain, and sleet” and the precipitation continued as he walked. He slipped on ice on an unavoidable portion of sidewalk that connects the defendant’s driveway to the road and fell, breaking his hip. The weather reports confirmed freezing rain and temperatures of thirty-two to thirty-three degrees. Princeton’s property maintenance supervisor could not specifically recall whether the corporation had pre-treated the sidewalks that day; that was how they ordinarily prepared for storms since the company maintained two apartment buildings and two offices and thus had responsibility for a significant area of sidewalk and common walkways. The court’s refusal to permit recovery rested on its view of the unreasonableness of a duty to keep the road clear during the continued precipitation of a storm:
“[C]ommercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm.” Reversing the lower court, which had imposed a duty of reasonable care, the Supreme Court of New Jersey reasoned that doing so “would create liability for those commercial landowners who “after actual or constructive notice, [fail] to act in a reasonably prudent manner to remove or reduce the foreseeable hazard. [c] But such a duty does not consider the size, resources, and ability of individual commercial landowners or recognize that what may be reasonable for larger commercial landowners may not be reasonable – or even possible – for smaller ones. While we trust juries to uphold their duties to evaluate reasonableness, we do not wish to submit every commercial landowner to litigation when it is not feasible to provide uniform, clear guidance as to what would be reasonable.” In a footnote, the court adds, “The dissent suggests that all a landlord need do to avoid liability is to take such a simple measure as spreading salt. This ignores the diversity of storms a landlord may confront and that measures like spreading salt in a heavy snowstorm or ice storm can be ineffective or even enhance the danger, thus imposing an untenable duty of care on landlords.” It concludes: “We decline to impose a duty that cannot be adhered to by all commercial landowners.” Pareja v. Princeton Int’l Properties, No. 084394, 2021 WL 2371260, at *6–7 (N.J. June 10, 2021)
The court distinguishes between the different capacities of smaller and larger businesses, which seems somewhat in tension with the objective nature of the standard of reasonable care. How does it justify its reasoning?
Do the rulings in Blyth, Lifson, and Pareja seem consistent or in tension? How would you seek to reconcile or distinguish them?
Note 5. In some instances, a corporate entity’s own protocols specify conduct that the company fails to meet. In such cases, it can be extremely helpful to the plaintiff to locate the relevant protocols during discovery and use them as evidence that even the defendant didn’t believe it was appropriate to do or to fail to do some act. Might this create perverse incentives to refrain from specifying particular protocols? What do you think are the advantages of formulating specific policies versus maintaining only general internal guidelines, or having none at all?
Lubitz v. Wells, Superior Court of Connecticut (1955)
(19 Conn. Supp. 322)
The complaint alleges that James Wells was the owner of a golf club and that he left it for some time lying on the ground in the backyard of his home. That thereafter his son, the defendant James Wells, Jr., aged eleven years, while playing in the yard with the plaintiff, Judith Lubitz, aged nine years, picked up the golf club and proceeded to swing at a stone lying on the ground. In swinging the golf club, James Wells, Jr., caused the club to strike the plaintiff about the jaw and chin.
Negligence alleged against the young Wells boy is that he failed to warn his little playmate of his intention to swing the club and that he did swing the club when he knew she was in a position of danger. In an attempt to hold the boy’s father, James Wells, liable for his son’s action, it is alleged that James Wells was negligent because although he knew the golf club was on the ground in his backyard and that his children would play with it, and that although he knew or ‘should have known’ that *323 the negligent use of the golf club by children would cause injury to a child, he neglected to remove the golf club from the backyard or to caution James Wells, Jr., against the use of the same.
The demurrer challenges the sufficiency of the allegations of the complaint to state a cause of action or to support a judgment against the father, James Wells.
It would hardly be good sense to hold that this golf club is so obviously and intrinsically dangerous that it is negligence to leave it lying on the ground in the yard. The father cannot be held liable on the allegations of this complaint. [c]
The demurrer is sustained.
Note 1. What conduct would need to be evaluated for a negligence action against the father versus a claim against the son?
Note 2. What was the untaken precaution in this case, if any? What facts would you change to create a clear negligence action against the father?
Applying the Reasonable Person Standard
Roberts v. State of Louisiana, Court of Appeal of Louisiana (1981)
(396 So.2d 566)
In this tort suit, William C. Roberts sued to recover damages for injuries he sustained in an accident in the lobby of the U. S. Post Office Building in Alexandria, Louisiana. Roberts fell after being bumped into by Mike Burson, the blind operator of the concession stand located in the building. Plaintiff sued the State of Louisiana, through the Louisiana Health and Human Resources Administration, advancing two theories of liability: respondeat superior and negligent failure by the State to properly supervise and oversee the safe operation of the concession stand. The stand’s *567 blind operator, Mike Burson, is not a party to this suit although he is charged with negligence.
The trial court order plaintiff’s suit dismissed holding that there is no respondeat superior liability without an employer-employee relationship and that there is no negligence liability without a cause in fact showing. We affirm the trial court’s decision for the reasons which follow.
On September 1, 1977, at about 12:45 in the afternoon, operator Mike Burson left his concession stand to go to the men’s bathroom located in the building. As he was walking down the hall, he bumped into plaintiff who fell to the floor and injured his hip. Plaintiff was 75 years old, stood 5’6 and weighed approximately 100 pounds. Burson, on the other hand, was 25 to 26 years old, stood approximately 6’ and weighed 165 pounds. At the time of the incident, Burson was not using a cane nor was he utilizing the technique of walking with his arm or hand in front of him. Even though Burson was not joined as a defendant, his negligence or lack thereof is crucial to a determination of the State’s liability. Because of its importance, we begin with it. Plaintiff contends that operator Mike Burson traversed the area from his concession stand to the men’s bathroom in a negligent manner. To be more specific, he focuses on the operator’s failure to use his cane even though he had it with him in his concession stand.
In determining an actor’s negligence, various courts have imposed differing standards of care to which handicapped persons are expected to perform. Professor William L. Prosser expresses one generally recognized modern standard of care as follows:
“As to his physical characteristics, the reasonable man may be said to be identical with the actor. The man who is blind … is entitled to live in the world and to have allowance made by others for his disability, and he cannot be required to do the impossible by conforming to physical standards which he cannot meet … At the same time, the conduct of the handicapped individual must be reasonable in the light of his knowledge of his infirmity, which is treated merely as one of the circumstances under which he acts … It is sometimes said that a blind man must use a greater degree of care than one who can see; but it is now generally agreed that as a fixed rule this is inaccurate, and that the correct statement is merely that he must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind.” W. Prosser, The Law of Torts, Section 32, at Page 151-52 (4th ed. 1971).
A careful review of the record in this instance reveals that Burson was acting as a reasonably prudent blind person would under these particular circumstances.
Mike Burson is totally blind. Since 1974, he has operated the concession stand located in the lobby of the post office building. It is one of twenty-three vending stands operated by blind persons under a program funded by the federal government and implemented by the State through the Blind Services Division of the Department of Health and Human Resources. Burson hired no employees, choosing instead to operate his stand on his own.
Prior to running the vending stand in Alexandria, Burson attended Arkansas Enterprises for the blind where he received mobility training. In 1972, he took a refresher course in mobility followed by a course on vending stand training. In that same year, he operated a concession stand in Shreveport, his first under the vending stand program. He later operated a stand at Centenary before going to Alexandria in 1974 to take up operations there. On the date of the incident in question, Mike Burson testified that he left his concession stand and was on his way to the men’s bathroom when he bumped into plaintiff. He, without hesitancy, admitted that at the time he was not using his cane, explaining that he relies on his facial sense which he feels is an adequate technique for *568 short trips inside the familiar building. Burson testified that he does use a cane to get to and from work.
Plaintiff makes much of Burson’s failure to use a cane when traversing the halls of the post office building. Yet, our review of the testimony received at trial indicates that it is not uncommon for blind people to rely on other techniques when moving around in a familiar setting. For example George Marzloff, the director of the Division of Blind Services, testified that he can recommend to the blind operators that they should use a cane but he knows that when they are in a setting in which they are comfortable, he would say that nine out of ten will not use a cane and in his personal opinion, if the operator is in a relatively busy area, the cane can be more of a hazard than an asset. Mr. Marzloff further testified that he felt a reasonably functioning blind person would learn his way around his work setting as he does around his home so that he could get around without a cane. Mr. Marzloff added that he has several blind people working in his office, none of whom use a cane inside that facility.
Mr. Marzloff’s testimony is similar to testimony received from Guy DiCharry, a blind business enterprise counselor with the Blind Services Division. As part of his responsibilities Mr. DiCharry supervised the Alexandria vending stand providing him with an opportunity to observe Mike Burson in a work setting. He testified that Burson knew his way around the building pretty well and that like most of his other blind operators, he did not use a cane on short trips within the building. He added that he discussed the use of a cane on such short trips as these with some of his other blind operators but they took offense to his suggestions, explaining that it was their choice. The only testimony in the record that suggests that Burson traversed the halls in a negligent manner was that elicited from plaintiff’s expert witness, William Henry Jacobson. Jacobson is an instructor in peripathology, which he explained as the science of movement within the surroundings by visually impaired individuals. Jacobson, admitting that he conducted no study or examination of Mike Burson’s mobility skills and that he was unfamiliar with the State’s vending program, nonetheless testified that he would require a blind person to use a cane in traversing the areas outside the concession stand. He added that a totally blind individual probably should use a cane under any situation where there in an unfamiliar environment or where a familiar environment involves a change, whether it be people moving through that environment or strangers moving through that environment or just a heavy traffic within that environment.
When cross examined however, Jacobson testified:
“Q. Now, do you, in instructing blind people on their mobility skills, do you tell them to use their own judgment in which type of mobility assistance technique they’re to employ?
A. Yes I do.
Q. Do you think that three (3) years is a long enough period for a person to become acquainted with an environment that he might be working with?
A. Yes I do.
Q. So you think that after a period of three (3) years an individual would probably, if he is normal … has normal mobility skills for a blind person, would have enough adjustment time to be … to call that environment familiar?
Q. That’s not including the fact that there may be people in and out of the building?
Q. Now is it possible that if he’s familiar with the sounds of the people inside a building that he may even at some point in time become so familiar with the people in an area, regular customers or what not that you could *569 say that the environment was familiar, including the fact that there are people there, is that possible?
A. Uh … I would hesitate to say that, in a public facility where we could not … uh … control strangers coming in.
Q. Well, let’s say that a business has a particular group of clients that are always there, perhaps on a daily or weekly basis. Now you’ve stated that a blind person sharpens his auditory skills in order to help him articulate in an area?
A. With instruction, yes.
Q. Right. Isn’t it possible that if he can rely on a fixed travel of a fixed type and number of persons that it’s possible that that is a familiar environment even though there are people there?
A. Only if they were the same people all the time and they know him, yes.”
Upon our review of the record, we feel that plaintiff has failed to show that Burson was negligent. Burson testified that he was very familiar with his surroundings, having worked there for three and a half years. He had special mobility training and his reports introduced into evidence indicate good mobility skills. He explained his decision to rely on his facial sense instead of his cane for these short trips in a manner which convinces us that it was a reasoned decision. Not only was Burson’s explanation adequate, there was additional testimony from other persons indicating that such a decision is not an unreasonable one. Also important is the total lack of any evidence in the record showing that at the time of the incident, Burson engaged in any acts which may be characterized as negligence on his part. For example, there is nothing showing that Burson was walking too fast, not paying attention, et cetera. Under all of these circumstances, we conclude that Mike Burson was not negligent.
Our determination that Mike Burson was not negligent disposes of our need to discuss liability on the part of the State.
For the above and foregoing reasons, the judgment of the trial court dismissing plaintiff’s claims against defendant is affirmed and all costs of this appeal are assessed against the plaintiff-appellant.
Note 1. Do you understand the legal principles embedded in the court’s statement that “there is no respondeat superior liability without an employer-employee relationship and that there is no negligence liability without a cause in fact showing?”
Note 2. The court makes an effort to respect the autonomy of Mr. Burson as a blind man with considerable experience on the job and a great deal of comfort in his navigation of his workplace. Is there a tension, generally, in applying the reasonable person standard (objectively), albeit with modifications based on ability or disability, and respecting the rights of individuals to make choices they believe are reasonable (subjectively)? Why or why not? Is the standard inescapably ableist, or is it capable of (perhaps already succeeding in) reflecting a progressive view on differing abilities, by simply allowing category-wide modifications? Is this a system-wide issue in tort law, that comes along with using objective versus subjective standards for conduct?
Robinson v. Lindsay, Supreme Court of Washington (1979)
(92 Wash.2d 410)
UTTER, CHIEF JUSTICE.
[Billy Anderson, age 13 years, was driving a snowmobile belonging to defendant Lindsay, pulling plaintiff Kelly Robinson on an innertube attached to the snowmobile. Plaintiff’s thumb was severed when it was caught in the tow rope. The thumb was reattached, but still not fully functional at the time of trial. Plaintiff filed suit against Billy Anderson and Lindsay, the owner of the snowmobile.]
An action seeking damages for personal injuries was brought on behalf of Kelly Robinson who lost full use of a thumb in a snowmobile accident when she was 11 years of age. The petitioner, Billy Anderson, 13 years of age at the time of the accident, was the driver of the snowmobile. After a jury verdict in favor of Anderson, the trial court ordered a new trial. The single issue on appeal is whether a minor operating a snowmobile is to be held to an adult standard of care. The trial court failed to instruct the jury as to that standard and ordered a new trial because it believed the jury should have been so instructed. We agree and affirm the order granting a new trial.
The trial court instructed the jury under WPI 10.05 that:
“In considering the claimed negligence of a child, you are instructed that it is the duty of a child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances.”
Respondent properly excepted to the giving of this instruction and to the court’s failure to give an adult standard of care. The question of what standard of care should apply to acts of children has a long historical background. Traditionally, a flexible standard of care has been used to determine if children’s actions were negligent. Under some circumstances, however, courts have developed a rationale for applying an adult standard. In the courts’ search for a uniform standard of behavior to use in determining whether or not a person’s conduct has fallen below minimal acceptable standards, the law has developed a fictitious person, the “reasonable man of ordinary prudence.”
That term was first used in Vaughan v. Menlove, 132 Eng.Rep. 490 (1837). Exceptions to the reasonable person standard developed when the individual whose conduct was alleged to have been negligent suffered from some physical impairment, such as blindness, deafness, or lameness. Courts also found it necessary, as a practical matter, to depart considerably from the objective standard when dealing with children’s behavior. Children are traditionally encouraged to pursue childhood activities without the same burdens and responsibilities with which adults must contend. [C] As a result, courts evolved a special standard of care to measure a child’s negligence in a particular situation.
In Roth v. Union Depot Co., 13 Wash. 525, (1896), Washington joined “the overwhelming weight of authority” in distinguishing between the capacity of a child and that of an adult. As the court then stated, at page 544:
“[I]t would be a monstrous doctrine to hold that a child of inexperience—and experience can come only with years—should be held to the same degree of care in avoiding danger as a person of mature years and accumulated experience.”
The court went on to hold, at page 545, 43 P. at page 647:
“The care or caution required is according to the capacity of the child, and this is to be determined, ordinarily, by the age of the child. … [A] child is held … only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age.” [***] In the past we have always compared a child’s conduct to that expected of a reasonably careful child of the same age, intelligence, maturity, training and experience. This case is the first to consider the question of a child’s liability for injuries sustained as a result of his or her operation of a motorized vehicle or participation in an inherently dangerous activity.
Courts in other jurisdictions have created an exception to the special child standard because of the apparent injustice that would occur if a child who caused injury while engaged in certain dangerous activities were permitted to defend himself by saying that other children similarly situated would not have exercised a degree of care higher than his, and he is, therefore, not liable for his tort. Some courts have couched the exception in terms of children engaging in an activity which is normally one for adults only. See, e.g., Dellwo v. Pearson, 259 Minn. 452 (1961) (operation of a motorboat).
We believe a better rationale is that when the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care. Such a rule protects the need of children to be children but at the same time discourages immature individuals from engaging in inherently dangerous activities. Children will still be free to enjoy traditional childhood activities without being held to an adult standard of care. Although accidents sometimes occur as the result of such activities, they are not activities generally considered capable of resulting in “grave danger to others and to the minor himself if the care used in the course of the activity drops below that care which the reasonable and prudent adult would use…” Daniels v. Evans, 107 N.H. 407, 408 (1966).
Other courts adopting the adult standard of care for children engaged in adult activities have emphasized the hazards to the public if the rule is otherwise. We agree with the Minnesota Supreme Court’s language in its decision in Dellwo v. Pearson, supra, 259 Minn. at 457–58: “Certainly in the circumstances of modern life, where vehicles moved by powerful motors are readily available and frequently operated by immature individuals, we should be skeptical of a rule that would allow motor vehicles to be operated to the hazard of the public with less than the normal minimum degree of care and competence.” Dellwo applied the adult standard to a twelve-year-old defendant operating a motor boat. Other jurisdictions have applied the adult standard to minors engaged in analogous activities. Goodfellow v. Coggburn, 98 Idaho 202, 203–04 (1977) (minor operating tractor); Williams v. Esaw, 214 Kan. 658, 668, (1974) (minor operating motorcycle); Perricone v. DiBartolo, 14 Ill.App.3d 514, 520 (1973) (minor operating gasoline-powered minibike); Krahn v. LaMeres, 483 P.2d 522, 525–26 (Wyo.1971) (minor operating automobile). The holding of minors to an adult standard of care when they operate motorized vehicles is gaining approval from an increasing number of courts and commentators. [cc] The operation of a snowmobile likewise requires adult care and competence. Currently 2.2 million snowmobiles are in operation in the United States. 9 Envir. Rptr. (BNA) 876 [1978 Current Developments].
Studies show that collisions and other snowmobile accidents claim hundreds of casualties each year and that the incidence of accidents is particularly high among inexperienced operators. [c] At the time of the accident, the 13-year-old petitioner had operated snowmobiles for about 2 years. When the injury occurred, petitioner was operating a 30-horsepower snowmobile at speeds of 10–20 miles per hour. The record indicates that the machine itself was capable of 65 miles per hour. Because petitioner was operating a powerful motorized vehicle, he should be held to the standard of care and conduct expected of an adult.
The order granting a new trial is affirmed.
Note 1. The standard is typically reformulated along the lines of “what it is reasonable to expect of children of like age, intelligence and experience.” See Restatement (Second) of Torts § 283A and Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 10 (2010). What do you think of the inclusion of “intelligence” in this formulation?
Note 2. Do you think that local customs and mores should play a role in determining what counts as an adult activity? In the mountain states, the driving age is lower, partly as a consequence of the need to drive tractors and farm vehicles, and the operation of vessels on the water in areas surrounded by water may be much more common at a younger age in places like Washington State, Hawaii, Michigan or states in which life takes place around and on lakes, perhaps using fishing for sustenance. In one jurisdiction, deer hunting is considered an activity fit for children, thus subjecting the activity to the lower standard of care applicable to a child. What do you think of such a determination, and what do you think it might reflect? What sorts of evidence would you seek of what is ordinarily done, or known, in a given community? The next case takes up the question of custom evidence as a means of proving the breach element of the defendant’s conduct.
Note 3. Critiques of the “Objective” Standard. Professor Richard Delgado, one of the pioneers of critical race theory and “LatCrit” studies, has critiqued the allegedly objective nature of the “objective” standard in law. “[I]n many areas the law prefers “objective” over “subjective” standards for judging conduct. …Where does this preference come from, and what does it say about ourselves and our legal culture? Does the objective-subjective distinction hold up under analysis? When we rehearse the familiar arguments in favor of one approach or the other,[fn] what are we doing, and what is at stake? … [I]n many cases it is the stronger party… that wants to apply an objective standard to a key event. … Powerful actors … want objective standards applied to them simply because these standards always, and already, reflect them and their culture. These actors have been in power; their subjectivity long ago was deemed “objective” and imposed on the world. …It is no surprise, then, that judgment under an “objective” (or reasonable person) standard generally will favor the stronger party.” Richard Delgado, Shadowboxing: An Essay on Power, 77 Cornell L. Rev. 813, 818 (1992)
What do you think of Professor Delgado’s arguments about the nature of power and the role it may play in shaping our understanding of what is “reasonable”? In some instances, courts have attempted to tailor the standard or make incremental changes to the case law. For instance, in the context of sexual harassment, one court shifted from a reasonableness standard about a hostile workplace explicitly to focus on the victim’s perspective, reasoning that “[a] complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women… We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men… By acknowledging and not trivializing the effects of sexual harassment on reasonable women, courts can work towards ensuring that neither men nor women will have to “run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.” Ellison v. Brady, 924 F.2d 872, 878, 880-881 (9th Cir. 1991).
In the 21st century, using gender categories so blithely may no longer be considered as helpful as it once was; indeed some may find it inappropriate or even harmful in its construction of gender in starkly binary terms. Yet this only underscores how dynamic tort law can and must be in recognizing changes in behavior and in the understanding of social constructs such as gender.
Note 4. Objective Reasonableness and Informed Consent. Delgado’s article [Shadowboxing: An Essay on Power, 77 Cornell L. Rev. 813 (1992)] offers three contexts in which to explore the question, including informed consent by medical providers which you have now encountered in a case he discusses. He writes: “Before performing medical operations or other invasive procedures, doctors must communicate to the patient what a reasonable person would want to know about the material risks and benefits of the procedure… It is immaterial whether the patient has an undisclosed or highly personalized fear or preference that, if known, would have called for further information or a different course of action. The law requires only the doctor’s initial disclosure of “objective” information. [I]t is the rare doctor who asks the patient about her specific feelings and attitudes toward pain, incapacity, dependency, death, risk aversiveness, reproductive faculties, and religion—a few of the matters that could bear significantly on a medical decision. Answers to these questions might suggest to the doctor the necessity of further discussions with the patient, further disclosures, or a different course of treatment. The case law of informed consent makes clear, however, that the physician’s duty to disclose is simpler and more easily satisfied. The leading case in this area, Cobbs v. Grant, requires that the doctor disclose to the patient the reasonable risks and complications of the contemplated procedure and, beyond this, what a competent member of the medical community would disclose. Although more exacting standards have been proposed, they are not yet the law.” Id. At 818 (emphasis added; internal citations omitted).
What do you think of Delgado’s arguments about the objective standard in the context of medical treatment? Do your views of the nature of “reasonableness” differ based on the contexts in which the standards may be used?
Note 5. Angela Onwuachi-Willig, has argued that a more finegrained and intersectional approach is necessary for greater equality and inclusion:
“[C]ourts should employ a standard based on a reasonable person in the complainant’s intersectional and multidimensional shoes, rather than the ostensibly objective reasonable person standard—which some courts have declared to be male biased—when evaluating sexual harassment claims. Although many authors have argued for adopting a reasonable woman standard in harassment law, none have taken the further step of contending that the standard must also be rooted in an intersectional and multidimensional lens in order to capture the different ways that women across intersectional categories may experience any particular event or events. …Currently, antidiscrimination law employs what courts deem an objective victim standard to analyze sexual harassment claims. In so doing, the law ignores the complexities of how gender and racial subordination, stereotype, and bias can shape a victim’s vulnerability to harassment, her credibility in the eyes of factfinders, and others’ perceptions about whether she is harmed by the undesired conduct. It also disregards how a complainant’s own understanding of others’ perceptions about her group or groups, whether based on race, sex, or other identity factors like religion and age, can shape her own response to the harassment she is enduring. By adopting a standard based on a reasonable person with the complainant’s intersectional and multidimensional identity, courts can acknowledge how the current standard, though allegedly objective, is actually rooted in the experiences of white men, particularly because the case law has largely been developed by white male judges.
What About #UsToo?: The Invisibility of Race in the #MeToo Movement, 128 Yale L.J. F. 105, 108 (2018) (internal citations omitted). If we take Onwuachi-Willig’s suggestion seriously, what might this require in the profession? Can judges and clerks working on cases and lawyers advocating for clients adopt intersectional perspectives even as the legal profession works, slowly, to try to achieve greater institutional diversity? Is the jury a help or a hindrance in this regard? Should demographic evidence be used to shape the objective standard, regardless of the identities of the decisionmakers? When tailoring an objective standard to reflect some of the identity markers of the party to whom it applies, at what point does it transform from objective into subjective?
Note 6. Combined uses of Objective and Subjective Standards. In one context, the Supreme Court has aimed for a balance by using both standards: “Title VII is violated when the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment … This standard requires an objectively hostile or abusive environment—one that a reasonable person would find hostile or abusive—as well as the victim’s subjective perception that the environment is abusive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 368, 126 L. Ed. 2d 295 (1993)
As you learned in Ali v. Margate, however, employment discrimination claims are notoriously difficult to win. As you continue to learn about the way tort claims and defenses are structured and litigated, keep in mind the use of objective and subjective standards as well as the ways they work and for whom.
What would it look like for tort law to use a different standard in place of objective reasonableness? What costs and benefits would flow to the system? What values would you prioritize in redesigning a system?
- The United States of America was also originally made defendant but was dismissed without prejudice early in this suit on motion of plaintiff’s counsel. ↵